For the Complainant nos.1 & 2 : Mr. Dinesh Shah, Advocate
For the Opposite Party no.1 : Khar Legal Chambers, Advocates
For the Opposite Party no.2 : Mr. H.L.Mohite, Advocate
-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-
Per :- Mr. J. L. Deshpande, President Place : Bandra
-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-
::::: JUDGMENT :::::
Facts giving rise to this complaint may be stated, in brief, as follows :
The Complainant no.2 is father of the Complainant no.1. The Opposite party no.1 is exclusive and authorized Dealer of Tommy Hilfiger Watch and the Opposite party no.2 is a Retailer having outlet at Bandra, Mumbai. The Complainant no.1 purchased of Tommy Hilfiger Watch (hereinafter Tommy Hilfiger referred to as T.H.) from the Opposite party no.2 on 17.07.2007 for consideration of Rs.5,500/-. On or about 02.05.2008, the Complainant no.2 went to M/s.Commercial Watch Company to change the cell in the said watch and he was informed that said watch was made in China and not in U.S.A. The machine was ETA, which is Swiss product the movement is China made inscribed at the plate at China made. This was shock to the Complainants because they found that the watch was in fact China made and not in U.S.A.. The Complainants collected the report, dated, 02.05.2008 from M/s. Commerical Watch Company in respect of quality and genialness of the said watch. Thereafter, the Complainants addressed letter to the Opposite party no.2 making complaint about the said watch and the Opposite party no.2 by their letter, dated, 04.06.2008 admitted the transaction in respect of the sell of the watch to the Complainant. However, the Opposite party no.2 denied that the watch was duplicate or fake watch. The Complainants then took the issue to both the Opposite parties but he was not satisfied. According to the Complainants, though the watch was China made, the Opposite party no.2 never disclosed that it was China made. The said fact was not mentioned in the invoice or guaranty card. Thus, according to the Complainant, the Opposite parties indulged into unfair trade practice under section-2(1)(r) of Consumer Protection Act, 1986. The Complainants filed the present complaint for refund of price of the watch in sum of Rs.5,500/- besides compensation in sum of Rs.25,000/-.
2 The Opposite party no.1 authorized Dealer –Titan Industrial Limited filed their written version of defence and submitted that due to various economic conditions and various Labour problems, the manufacturing and assembling activities has been out sourced by the manufacturer but the product is sold under their own Brand Name. There is no defect in the watch or any deficiency in providing services by the Opposite parties. In paragraph no.6 of written version of defence, the Opposite party no.1 has further explained that Tommy Hilfiger watch is an American Branded and Products are assembled in China. Tommy Hilfiger watches are designed in conjunction with the MGI (Movado Group) who are its licensed, manufacturer and retailers of Tommy Hilfiger Watches. ‘Tommy Hilfiger is an American brand having its presence across the world. However, the Tommy Hilfiger products are assembled in China. Tommy Hilfiger watches are designed in conjunction with the Movado Group (MGI) who are its licensee to manufacturer and retail Tommy Hilfiger watches for most of the countries in the world. The designs so created by the Tommy Hilfiger team are manufactured at various appointed manufacturing units located across China and other Far East Countries. These watches are manufactured as per the quality standards established by MGI as required by Tommy Hilfiger. Further, each manufactured watch passes through the quality control system stipulated by MGI. The first respondent is the authorized licensee for retailing and marketing the Tommy Hilfiger watches in India along with authority to suppliers’.
3 The role of the Opposite party no.1 vis-à-vis Tommy Hilfiger Watches is further explained in the written notes of arguments by the Opposite party no.1 where it is stated that ‘Tommy Hilfiger Licensing Inc., a wholly owned subsidiary of Tommy Hilfiger Corporation, has licensed the New York-based Murjani Group Through GVM International to manufacture Tommy Hilfiger lifestyle products. In February-March, 2004, Titan Industries entered into an exclusive marketing and distribution arrangement with the Murjani Group to sale the International fashion watch brand Tommy Hilfiger in the country.
4 Similar, the statements appeared in the written version of defence filed by the Opposite party no.2 –Retailer.
5 Thus the Opposite party no.1 denied misrepresentation to the Complainants as well as denied allegations of unfair trade practice.
6 The Opposite party no.2 –Vendor filed separate written version of defence and admitted the transaction of sell of Tommy Hilfiger watch to the Complainants. However, according to the Opposite party no.2, merely because Tommy Hilfiger watch is manufactured in China, it could not be presumed that it is of an inferior quality. According to the Opposite party no.2, there is no defect in the watch and its running smoothly. Thus, according to the Opposite party no.2, the machine of the watch was Swiss made and it was genuine and branded watch. Rest of the contention in the written version of defence of the Opposite party no.2 are similar to the contentions raised by the Opposite party no.1 in its written version of defence. Therefore, they are not repeated.
7 The Complainant filed affidavit of rejoinder and reiterated that watch was sold to the Complainants without disclosing that the same was manufactured or assembled in China. Thus, there was concealment of material fact on the part of the Opposite party no.2 and there is unfair trade practice.
8 The Complainant produced original report given by M/s. Commerical Watch Company. In addition to that the Complainant had made available watch Technician before this Forum and watch was opened for observations to find out what is inscribed on its inferior plate. The Opposite party no.2 filed affidavit of evidence of its Sr.Manager and annexed to that affidavit certificate given by Marketing Manager of Titan Industrial Limited. The Complainants as well as the Opposite parties filed written notes of arguments and copies of the case laws. We have heard learned Advocate for the Complainants as well as learned Advocate for the Opposite parties at length.
9 We have gone through the complaint, written versions of defence, affidavits, documents, written notes of arguments and copies of case laws relied upon by the parties.
10 Following points arise for our considerations and our findings thereon are as follows.
Nos. | Points | Findings |
1 | Whether the Complainants have proved that the Opposite parties have indulged into unfair trade practice by selling Tommy Hilfiger as a branded watch though it was manufactured and assembled at China ? | No. |
2 | Whether the Complainants are entitled to refund of price of the watch and compensation ? | Question does not survive. |
3 | What order ? | Complaint stands dismissed. |
REASONS FOR FINDINGS :-
11 There is no dispute about the fact that the Opposite party no.2 sold watch to the Complainants under branded name Tommy Hilfiger. The Opposite party no.2 has not denied the transaction and payment of considerations. According to the Complainants, after the some period when cell inside the watch was to be replaced, they found that the watch was manufactured at China. According to the Complainants, they purchased the watch in question under the belief that it was manufactured at U.S.A. and at the time of transactions the Opposite party no.2 did not inform them that the watch in question was manufactured or assembled at China.
12 According to the Complainants by this conduct the Opposite party no.2 misled the Complainants. The Opposite party no.1 being Authorized Dealer and the Opposite party no.2 being Retailer are guilty of unfair trade practice. The Complainants have thus invoked section-2(1)(r)(1)(i) of Consumer Protection Act, 1986 which reads as follows,
Section-2(1)(r)(1)(i) :-
“Falsely represents that the goods are of a particular standard, quality, quantity, grade, composition, style or model”.
13 Section-2(1)(r) in the Consumer Protection Act, 1986 illustrates unfair trade practice through its 10 clauses which are included in section-2(1) of the Act. We are not concerned with the rest of the clauses of section-2(r)(1) because neither they are applicable nor they are invoked. The provisions contained in section 2(r) of Consumer Protection Act, 1986 are synonyms to section-36(a) of MRTP (Monopolies and Restrictive Trade Practices, 1991) Act except sub section-6 of section-2(r) of the Act.
14 The Complainant has produced original certificate report given by M/s. Commercial Watch Company to whom; the Complainant had taken watch for replacement of cell. In the report, M/s. Commerical Watch Company has stated that machine in the watch is ETA which is a Swiss Product, besides the movement is China made. M/s. Commercial Watch Company then added that the watch denies genuine qualities of Marketing Watch proving it be fake and un-genuine/ watch. The Complainants have not filed affidavit of M/s.Commerical Watch Company in support of this report / certificate. But it was found at the time of demonstrations before the Forum that the machine is ETA and it is admitted by both the sides that it is Swiss Product, then it is not disputed by the Opposite parties that the watch in question was manufactured / assembled at China. However, the Opposite parties contend that, that in itself does not amount to misrepresentation or deceptions of the Complainants.
15 In this regard, the Opposite party no.1 has filed affidavit of its Sr.Manager (legal) and in paragraph no. 6 of the affidavit it is deposed that the machine of the watch is ETA which is Swiss Product. The witness in this affidavit further stated that manufacturing units of Tommy Hilfiger Watch are scattered across the globe which does not mean that the watch is not genuine. In paragraph no.9 of the same affidavit, the witness has further deposed about Tommy Hilfiger,
“I say that the Tommy Hilfiger Watch is an American brand which are designed in conjunction with the MGI (Movado Group) who are licensee to Manufacture Tommy Hilfiger watches for India for most of the countries in the world and each manufactured watch passes through the quality control system stipulated by MGI and therefore the contention of the Opponent that the watch is a fake one is totally misconceived and false”.
16 Below that affidavit, there is notarized certificate given by Marketing Manager of the Opposite party no.1-Titan Industrial Limited. Contents of this certificate explain the stand taken by the Opposite party no.1 vis-à-vis, this transactions and, therefore, we find it proper to reproduce contents of that notarized certificate here,
“Tommy Hilfiger (“TH”) is an American brand having its presence across the world. However, not all TH products are manufactured in America.
TH watches are designed by the TH team in conjunction with the Movado Group (“MGI”) who are its licensee to manufacture and retail TH watches for most countries in the world. The designs so created by the team are manufactured at various appointed manufacturing units located across China and other Far East Countries.
Though these watches are manufactured at various manufacturing units across the world, they are manufactured as per the quality standards established by MGI as required by TH. Further, each manufactured watch passes through the Quality Control System stipulated by MGI.
Titan Industries Limited, (“Titan”) is the exclusive and authorized licensee for manufacturing, retailing and marketing of Tommy Hilfiger (“TH”) Watches in India along with the authority to import TH watches from TH’s watches from TH’s authorized suppliers.
The TH watches retailed in India through Titan are imported from the authorized suppliers of TH and are all genuine TH watches which are meant to be exclusively marketed / retailed as TH watches by an arrangement with Tommy Hilfiger Corporate”.
17 The Opposite party no.1 in the additional written argument filed on 23.09.2011 has further, elaborated on this issue and has explained the status of the Opposite party no.1 vis-à-vis TH watches and the process of manufacture and sell of the said watches. The Opposite party no.1 has explained that in the year, 2004 M/s.Titan Industries entered into and exclusive marketing and distribution arrangement with New York based Murjani Group through GVM to sale watch branded TH in India. Thus as claimed in the certificate given by Marketing Manager of the Opposite party no.1, the manufacturer units of TH Watches are located across China and other Far-east Countries. The Opposite party no.1, however, in the written version of defence as well as in the written arguments has claimed that these watches are manufactured as per the quality standard establish by MGI as required by TH. Further, each manufactured watch passes through the quality control system stipulated by MGI. As pointed out above, the Opposite party no.1 is authorized licensee for retailing and marketing TH watches in India. Thus, the stand articulated from various contentions of the Opposite parties no.1 and 2 is that was irrespective of place of manufacture, TH watches have to pass quality control standard established by MGI and that standard having being maintained, it does not matter where the watch is manufactured or assembled.
18 Additional written arguments filed by the Complainant on 11.10.2011 are in the form of rejoinder to the additional written arguments filed by the Opposite party no.1. There, the Complainants have elaborated the nature of the grievance by making statement that the complaint is not filed on account of its defective functioning but on account of unfair trade practice for not disclosing at the time of sale that the watch though American branded as Tommy Hilfiger, is in fact made in China with elements in it of Swiss and China and with no element of American origin in it. In paragraph no.9 in the additional written argument the Complainant referred to this as unfair trade practice. In fact the paragraph no.9 starts with statements that the Complainant has no issue on the watch made in China.
19 It be noted in this regard that the Complainants have no where alleged that the watch is defective. As mentioned above and as expressed by the Complainants in their additional written arguments, dated, 11.10.2011, that they are aggrieved because the watch in question is manufactured at China. It be noted in this context that the in the complaint it is not averred that the Complainant asked the Opposite party no.2, vendor of the watch, at the time of purchase of the watch about the place of manufacture and the Opposite party no.2 disclosed that it was manufactured at U.S.A. From the contents and tenor of the complaint, it is seen that the Complainant purchased the watch as Tommy Hilfiger branded watch. The Opposite party no.2 also sold the same as Tommy Hilfiger branded watch. The Complainants claims that she was misrepresented or deceived because she was not informed at the time of transaction that the place of manufacture of the watch was China. This is, further, articulated by the statements which appear in additional written notes of the arguments. In the additional written notes of the arguments, dated, 11.09.2011 paragraph no.12(E) following statements made by the Complainants appear,
“All China products are well known for only quantitative production with no quality make. No sooner a product is disclosed to have been made in China, and in this case admittedly with China movement, the said product would neither command any goodwill nor any price as genuine American branded watch would command. It cannot be said to be of standard quality model”.
20 This explains mindset and perception of the Complainants. They believe that products manufactured at China are substandard or low quality. It appears that the Complainants carry impression that to possess China made article is a Stigma.
21 We have closely reading the provisions contained in section-2(r)(1)(i) of Consumer Protection Act, 1986 to find out substance in the grievance expressed by the Complainants and we find that the grievance expressed by the Complainants does not amount to false representation on the part of the Opposite party no.2 with regard to standard, quality, quantity, agreed, style or model. In fact in the complaint, we do not find such allegations. We also do not file allegations in the complaint that the Complainants had specifically asked the Opposite party no.2-vendor about the place of manufacturer or place of assembly of the watch and there was statement from the Opposite party no.2 that it was manufactured at U.S.A. That having not taken place, there is no question of misrepresentation on the part of the Opposite party no.2.
22 In this context, definition of manufacturer as given in section-2(1)(j) with its explanation of Consumer Protection Act, 1986 needs to be considered. It reads as follows, :-
2(1)(j) “manufacturer” means a person who-
(i) makes or manufactures any goods or part thereof; or
(ii) does not make or manufacture any goods
but assembles parts thereof made or manufactured by others; or
(iii) puts or causes to be put his own mark on any goods made or manufactured by any other manufacturer;
Explanation :- Where a manufacturer dispatches any goods or part thereof to any branch office maintained by him, such branch office shall not be deemed to be the manufacturer even though the parts so dispatched to it are assembled at such branch office and are sold or distributed from such branch office;
23 Close reading of definition of manufacturer as given in section-2(1)(j) of that reveals that manufacturer includes, person who has assembled parts of the goods or it branch office. Even if goods are manufacturer by branch office in that case, original establishment which has dispatched goods to the branch office is to be considered as manufacturer and not the branch office. Clause-iii of section-2(1)(j) further makes it clear that any person which has allowed another person to put his mark on any goods made or manufacturer by any other person has to be treated as manufacturer and not the another person. Clause no.3 of section-2(1)(j) is clearly applicable to the present case because TH had allowed its brand to be used by the establishment where other parts of the watch were manufactured or assembled. Thus scanning of section-2(1)(j) use no doubt that ultimately manufacturer is a same person who had allowed its brand to be used by others.
24 In this context, the Opposite party no.1 in the additional written arguments has relied upon section-16 of the Sale of Goods Act, 1930 which reads as follows,
Subject to the provisions of this Act and of any other law for the time being in force, there is no implied warranty or condition as to the quality or fitness for any particular purpose of goods supplied under a contract of sale, excepts as follows :-
(1) Where the buyer, expressly or by implication, makes known to the seller the particular purpose for which the goods are required, so as to show that the buyer relies on the seller’s skill or judgment, and the goods are of a description which it is in the course of the seller’s business to supply (whether he is the manufacturer or producer or not), there is an implied condition that the goods shall be reasonably fit for such purpose”.
25 This shows that unless purpose is explained, there is no implied warranty. Same can not be said of place of manufacture or assembled. Unless asked by the buyer, the vendor is not under legal obligations to mention is the same.
26 Still then, the Complainants have relied upon certain decisions to substantiate their contentions. The Complainants have relied upon the decision in the case of, Hon’ble National Consumer Disputes Redressal Commission, (First Appeal No.247/1991) M/s. India Fabricators & ors. Versus M/s. Pineapple Marketing Co-op. Society Ltd.
27 In that case, the appellant –Vendor, represented that they had supplied non-IBF Boiler type boiler and also to commission the Boiler to the satisfaction of the society. To convert IBR type boiler into non-boiler was not an easy and feasible proportion from the points of view of efficiency and economy. Obviously there was misrepresentation. The Complainant then relied upon the decision of Hon’ble Karnataka State Consumer Disputes Redressal Commission, Bangalore, in the case of The Secretary, Bellary Citizens Forum Versus M/s. Sipani Automobiles Ltd. & Anr. In that case, the Opposite party advertised that car was fitted with Mitsubishi (Japan) engine but it was Jaya engine. Car was not working properly and it was found that the Complainant had specifically requested the Opposite party no.2 (Dealer) that he must be supplied car fitted with Mitsubishi engine. Obviously, there was misrepresentation on the part of the Dealer. The Complainants then relied upon the decision of Hon’ble Uttar Pradesh State Consumer Disputes Redressal Commission, Lucknow, Moti Dharani Versus Godrej G.E.Appliances Ltd. & anr. (III (2000) CPJ 389. In that case, Back wall of fridge was made of aluminium foil instead of steel. The Foil was eaten by rats. There was obviously, deficiency in service on the part of the Opposite party-Dealer of the Fridge. Thus ratio of the case can not be made applicable. The Complainants next relied upon the decision of Hon’ble National Commission, in the case of Gemcraft Engineering Company Pvt. Ltd. Versus K.K. Satyanarayana & anr. (III (2001) CPJ 18 (NC)). In that case, the Complainant found that the trailer was not manufactured by the Opposite party no.2-TAFE, but it was locally made by a sister concern of the Dealer. The Complainant had paid the amount in respect of TAFE Dealer. It was found by the District Forum that the trailer supplied by the Opposite party was of sub-standard quality. The facts of that case were different because it is not the case of the Complainant here that the watch is substandard nature. His grievance is that as the watch is manufactured in China, the said watch is not genuine. Thus, the ratio of the case can not be made applicable. Next case relied upon by the Complainants is decision of Hon’ble National Commission in the case of Scooters India Ltd. Through its Marketing Executive, Lucknow Versus Smt. G. Kanakalakshmi & anr. In that case, there was representation that the vehicle will run 24 kms., in one liter of petrol, however, it was found that it could run only 12 kms., in one liter of petrol. Obviously, there was misrepresentation qua consumption of petrol. Thus on facts case can not be made applicable.
28 As against this, the Opposite parties have relied upon certain orders passed by MRTP Commission but the copies of the orders are not produced by the Opposite party. We, therefore, do not refer the same.
29 What we find from the material on the record is that the Complainants got aggrieved because the watch purchased by them was manufactured at China. Now-a-days out sourcing has become common. Many Inter-National Companies out source their various activities, the distances between the countries are narrowing up. The economy has opened up world over and particularly branded goods are manufactured at various centres in the world. Tommy Hilfiger Watches also are not the exception to the same. The Complainants have not alleged, any defect in the watch. They have not alleged substandard quality of watch. In the absence of such allegations, it is must be presumed that watch in question is of good quality as vouched by the Opposite parties. Therefore, we find that the grievances of the Complainants are outcome of perceptional prejudice. It does not fit in section-2(r)(1)(i) of Consumer Protection Act, 1986. Thus, there is no unfair trade practice or deficiency in service on the part of the Opposite parties.
30 We are however, not inclined to prefer the criticism by the Opposite parties that the complaint has been filed with object to extract money from the Opposite parties. This complaint appears to be outcome of wrong notions, belief and prejudice.
With this, we proceed to pass the following order.
::::: ORDER :::::
1 Complaint stands dismissed with no order as to costs.
2 Original warranty card to be returned to the
Complainants after period is over.
3 Certified copies of this order to be furnished to both
the parties, free of costs, as per rule.
