BEFORE THE CONSUMER DISPUTES REDRESSAL FORUM,

ERNAKULAM.

Date of filing : 17/07/2012

Date of Order : 31/10/2012

Present :-

Shri. A. Rajesh, President.

Shri. Paul Gomez, Member.

Smt. C.K. Lekhamma, Member.

C.C. No. 432/2012

Between

And

O R D E R

A. Rajesh, President.

1. The facts of the case leading to this complaint are :-

The 2^nd complainant purchased certain food items from the 1^st opposite party on 03-07-2011. In the cash receipt issued by the 1^st opposite party, it is stated that “goods once sold will not be taken back or exchanged.” Inclusion of such unilateral condition in the cash receipt is against Section 14 of the Consumer Protection Act. The 2^nd opposite party is not taking any effective steps for protecting the rights of consumers as stated in G.O. (P) No. 60/07/F,CS & CA dated 03-11-2007. Thus, the complainants are before us seeking the following directions against the opposite parties :

1. To direct the 1^st opposite party to delete the unilateral condition that “goods once sold will not be taken back or exchanged” from the cash bills issued by them.

2. To direct the 2^nd opposite party to conduct periodical inspection to ensure that the unilateral condition “goods once sold will not be taken back or exchanged.” from the cash bills issued by all kind of traders/shop keepers in the State and to take suitable penal action against the defaulters pursuant to the above Government order.

3. To grand the costs of the proceedings.

2. The version of the 1^st opposite party is as follows :-

The allegations made in the complaint do not constitute 'complaint' as defined in Section 2 (1) (c) of the Consumer Protection Act. The person who has purchased the goods had no complaint that the goods purchased by him suffered from any defect or that excessive price has been charged. There is also no complaint that the goods sold are hazardous to life and safety and are sold in contravention of any law requiring traders to display information regarding the contents, manner and effect of use of such goods. The order G.O. (P) No. 60/07/F,CS & CA dated 03-11-2007 issued by the Government of Kerala is not one issued in exercise of any power under the Consumer Protection Act and is without authority of law. The said order has no statutory effect or authority of law under the Consumer Protection Act, and therefore, the Forum cannot implement or give effect to the said order. Whether such a matter in a sale bill is in violation of Section 14 of the Consumer Protection Act is the power and jurisdiction of District Forum, State Commission or National Commission. The Central or State Government cannot arrogate to itself the exclusive statutory power and function of the District Forum under Section 14 of the Consumer Protection Act. Purchaser of goods having any real defect can return the goods and defect if any will be rectified by the 1^st opposite party notwithstanding the condition 'goods once sold will not be taken back or exchanged' in the bill. The complaint is liable to be dismissed.

3. The contentions of the 2^nd opposite party are as follows :-

The complaint is bad for non-joinder of necessary party and misjoinder of unnecessary party. The Commissioner of Commercial Taxes is not in the party array, who is a necessary party to the litigation of the complaint relying on the Government Order. In the said order, it is specifically stated that the Commissioner of Commercial Taxes will conduct periodical inspection. The 2^nd opposite party has no power and authority to detect crimes under the provisions of the Consumer Protection Act. The complainant can approach the Commissioner of Commercial Taxes the authority to get his grievances redressed on the strength of the Government Order. If at all, the Legal Metrology Department have inspected and detected violation against shops and traders for the offence of inclusion of the alleged condition in the cash memo/bill there is no penal provision to impose penalty under the Legal Metrology Act and the Rules thereunder. The cause of action for the complaint is on account of unfair trade practice of the 1^st opposite party and the complainant can file complaint under Section 12 of the Consumer Protection Act. The complaint may be dismissed as against the 2^nd opposite party.

4. In this case, no oral evidence was adduced by the complainants. Exts. A1 to A3 were marked on their side. Neither oral nor documentary evidence was adduced by the opposite parties. Heard the complainants who appeared in person and the learned counsel for the 1^st opposite party.

5. The points that arose for consideration are as follows :-

1. Whether the 1^st opposite party is to expunge the conditions “good once sold will hot be taken back or exchanged” from the cash bills?

2. Whether the 2^nd opposite party is liable to conduct periodical inspection in the light of the Government Order?

3. Whether the complainant is entitled to get costs of the proceedings from the opposite parties?

6. Point Nos. i. and ii. :- Ext. A1 is the Government Order No. G.O. (P) No. 60/07/F,CS & CA dated 03-11-2007, which gives cause of action for this complaint, which is as under :

“It has come to the notice of Government that in the Cash Memos/Bills issued by the Trades/shopkeepers in the State a unilateral condition is included stating “goods once sold will not be taken back/exchanged”. This condition is against the Section 14 of the Consumer Protection Act, 1986.

As per Section 14 of the Consumer Protection Act, 1986, any aggrieved consumer has a right to get relief against defective goods, deficiency in service, overprice charged including unfair and restrictive trade practice followed by the traders, manufacturers and service providers. The Consumer Courts have power to give directions to the opposite parties to repair/replace the defective goods or return money etc., to the aggrieved consumers. In many Countries the position is reverse where the sellers declare “In case you are not fully satisfied with our products, you can bring the same to us within a month for either replacement or return of your money.”

With a view to protect the consumers from this illegal trade practice being followed by a few Traders/Shopkeepers, Government of India have given instructions to issue necessary guidelines to ensure that the cash memos/bills etc., issued by all kinds of Traders/Shopkeepers do not carry the condition that “goods once sold will not be taken back/exchanged” as per the letters read as 1^st and 2^nd paper above.

Government have examined the matter in detail and are pleased to order that the cash memos/bills., issued by all kinds of Traders/Shopkeepers, in the State do not carry the condition that “goods once sold will not be taken back/exchanged.” If any violation of the above direction is noticed, stringent action will be taken against the Traders/Shopkeepers/Service providers under Consumer Protection Act, 1986.

The Controller of the Legal Metrology Department and the Commissioner of Commercial Taxes will conduct periodical inspections to ensure that the unilateral condition that “goods once sold will not be taken back/exchanged” has been deleted/excluded from all the cash memos/bills issued by the Traders/Shopkeepers in Kerala.

By order of the Governor,

GYANESH KUMAR,

Secretary to Government.”

7. According to the 1^st opposite party, Ext. A1 is not issued in exercise of any power under the Consumer Protection Act and is without authority of law whatsoever. The 1^st opposite party maintains that Ext. A1 has no statutory effect or sanction of law under the Consumer Protection Act, proof of which is not forthcoming. We are not to agree with the above averment of the 1^st opposite party, especially since as per Section 30 (2) of the Consumer Protection Act (Sub-Section by Act 62 of 2002, with effect from 15-03-2003), the State Government is empowered to make Rules by notifications. However, Ext. A1 is necessarily silent with regard to the penal provisions that could have been invoked by the implementing authorities as stated in the Government Order which necessarily found no grounds. In the conspicuous absence of such, the situation is that of a toothless lion. We do not intend to call upon the integrity with involvement of the Government, in this instance to protect the interest of the consumers at large. It is well settled law that unless a Government order is declared to be void or illegal by a competent Court of Law, it continues to be valid or legal and it is enforceable. No reasons lie before us in the instant case. In the case at hand, we are not at all at a loss to infer and believe that the Government would not fail to rise to the occasion in enunciating clarifyingly in Ext. A1 to clear the seeming lacuna observed, though rather unnecessarily by the 2^nd opposite party.

8. Indisputably as per Section 14 of the Consumer Protection Act, a consumer is entitled to get the defect of the goods rectified or to get the goods replaced or to get the price of the goods refunded as the case may be. In that instance, the unilateral and unconscionable statement of the 1^st opposite party in Ext. A2 that “goods once sold will not be taken back” is unsustainable in law and amounts to unfair trade practice as defined in Section 2 (1) (r) of the Consumer Protection Act which reads as under.

“Unfair trade practice” means a trade practice which, for the purpose of promoting the sale, use or supply of any goods or for the provision of any service, adopts any unfair method or unfair or deceptive practice including any of the following practices, namely :-

(1) the practice of making any statement, whether orally or in writing or by visible representation which, -

1. falsely represents that the goods are of a particular standard, quality, quantity, grade, composition, style or model;

2. falsely represents that the services are of a particular standard, quality or grade;

3. falsely represents any re-built, second-hand, renovated reconditioned or old goods as new goods;

4. represents that the goods or services have sponsorship, approval, performance, characteristics, accessories, uses or benefits which such goods or services do not have;

5. represents that the seller or the supplier has a sponsorship or approval or affiliation which such seller or supplier does not have;

6. makes a false or misleading representation concerning the need for, or the usefulness of, any goods or services;

7. gives to the public any warranty or guarantee of the performance, efficacy or length of life of a product or of any goods that is not based on an adequate or proper test thereof :

   Provided that where a defence is raised to the effect that such warranty or guarantee is based on adequate or proper test, the burden of proof of such defence shall lie on the person raising such defence;

8. makes to the public a representation in a form that purports to be -

    

   (i) a warranty or guarantee of a product or of any goods or services; or

   (ii) a promise to replace, maintain or repair an article or any part thereof or to repeat or continue a service until it has achieved a specified result, if such purported warranty or guarantee or promise is materially misleading or if there is no reasonable prospect that such warranty, guarantee or promise will be carried out;

    

9. materially misleads the public concerning the price at which a product or like products or goods or services, have been or are, ordinarily sold or provided, and, for this purpose, a representation as to price shall be deemed to refer to the price at which the product or goods or services has or have been sold by sellers or provided by suppliers generally in the relevant market unless it is clearly specified to be the price at which the product has been sold or services have been provided by the person by whom or on whose behalf the representation is made;

    

10. gives false or misleading facts disparaging the goods, services or trade of another person.

    Explanation – For the purposes of clause (1), a statement that is -

(a) expressed on an article offered or displayed for sale, or on its wrapper or container; or

(b) expressed on anything attached to, inserted in, or accompanying an article offered or displayed for sale, or on anything on which the article is mounted for display or sale; or

(c) contained in or on anything that is sold, sent, delivered, transmitted or in any other manner whatsoever made available to a member of the public, shall be deemed to be statement made to the public by, and only by, the person who had caused the statement to be so expressed, made or contained;”

9. It seems that the right of the consumer is being surpassed unobtrusively. The 1^st opposite party in their version stated that the statement in the bills that “goods once sold will not be taken back or exchanged” never usually implemented or enforced in practice which goes to show that a long lee-way is extended to a genuine consumer against which no recorded complaints has been hither to. In that view of the matter, if the 1^st opposite party would delete the lettering that “goods once sold will not be taken back or exchanged” from the bills in future, the grievance of the complainant would be settled right.

10. Point No. iii. :- The complainant having had to entail to expenses for the furtherance of the case is necessarily entitled to get costs of the proceedings, which we allow.

11. In the result, we close the proceedings in this complaint with the following directions :-

1. The 1^st opposite party shall delete the lettering that “goods once sold will not be taken back” from their bills in future.

2. The 1^st opposite party shall pay Rs. 5,000/- to the complainants towards costs of the proceedings for the reasons stated above within 30 days from the date of receipt of a copy of this order.

3. The Registry is directed to forward a copy of this order to the Secretary to Government, Consumer Affairs Department, Government of Kerala for further follow up and action, if found necessary.

Pronounced in the open Forum on this the 31^st day of October 2012.

Sd/- A. Rajesh, President.

Sd/- Paul Gomez, Member.

Sd/-C.K. Lekhamma, Member.

Forwarded/By order,

Senior Superintendent.

A P P E N D I X

Complainant's Exhibits :-

Opposite party's Exhibits :: Nil

=========