ORDER
(Per: Mrs. Veena Sharma, Member):
This is an appeal under Section 15 of the Consumer Protection Act, 1986, against the order dated 19.08.2014 passed by the District Forum, Haridwar in consumer complaint No. 141 of 2013. By the impugned order, the District Forum has allowed the consumer complaint and directed the opposite party to pay to the complainant a sum of Rs. 1,00,000/- as compensation and shall deposit Rs. 5,00,000/- as penalty in the District Forum within a period of one month from the date of order. The District Forum has also directed the opposite party to destroy the item of expiry date within the knowledge of District Forum.
2. Briefly stated the facts of the case are that the complainant-Mrs. Vanita had purchased some products from the opposite party-Vishal Mega Mart, Haridwar on 17.02.2013 by cash payment vide bill No. 068/6040000048773. On 19.02.2013 she came to know that the products were of expiry dates, so she went to the opposite party to exchange the said products, but the employees of Vishal Mega Mart refused to exchange the same. Thereafter, she sent a legal notice to the opposite party through her advocate, but the same was not replied. Aggrieved by this act of the opposite party, the complainant has filed a consumer complaint before the District Forum, Haridwar.
3. The opposite party has filed the written statement before the District Forum and has pleaded that the customers chooses the products themselves from the counter, so they have to check the expiry date of the products. The opposite party never sold the expiry date products. The opposite party has further alleged that the bill, which the complainant has shown, itself proves that the complainant has not purchased the said products from the opposite party. It is wrong to say that the complainant has gifted the said items to someone else. They further stated that the complainant is a Press Reporter and she intends to take advantage of her profession. The opposite party keeps the products on shelf which are within the prescribed standards and stipulated period within which the same can be sold. No products are displayed. Mere submissions of alleged bill cannot conclusively prove that the alleged products were actually sold from the opposite party’s shelf, whose shell life had expired on the date of the sale. Mere submissions of alleged bill dated 17.02.2013 and complainant’s submission is that the alleged products were purchased by the complainant a month later, i.e. 17.03.2013, will not substantially prove that the alleged products so allegedly sold actually belonged to the opposite party and were sold after its shell life had already expired on the date of its sale from the shelf of the opposite party. Onus to substantiate that the alleged products so purchased by the complainant, shell life had already expired on the date of its alleged sale, has not been discharged by the complainant.
4. The District Forum on an appreciation of the material on record, allowed the consumer complaint vide order dated 19.08.2014 in the above manner. Aggrieved by the said order, the opposite party-appellant has filed the present appeal.
5. We have heard learned counsel for the appellant and respondent in person and also gone through the record.
6. Learned counsel for the appellant-opposite party has submitted that the District Forum has failed to appreciate the facts of the case. In the grounds of appeal, the appellant-opposite party stated that the District Forum below has simply gone by the allegations of the complainant, a journalist, and with disdain brushed aside the defense of the opposite party on guesses and surmises. According to the opposite party the complainant is an educated as well as responsible person and a journalist, as submitted by the complainant in the consumer complaint, and in case for argument sake only without admitting that any product after its expiry date was kept on the shelf, as a vigilant responsible person, duty lay in bringing immediately forthwith of such alleged anomaly, if any, to have actually existed to any official on duty of the appellant about the same. The products so sold, as contained in the alleged bill, were taken away admittedly as per complainant’s submission and is alleged to have been brought back after some days, whereby it cannot be ascertained that the products so allegedly sold and of which complaint after days is being alleged, were actually the same ones which actually were sold from the counter of the opposite party. It is submitted that the items shown to have been alleged sold were worth Rs. 272/-, whereas the damages awarded are Rs. 1.00 lac plus Rs. 5.00 lacs as punitive damages. Loss, if any, do not bear any correlation with the amount of damages awarded. Further, huge punitive damages beyond proportion have been awarded. The respondent had purchased the products after expiry without seen its expiry date. How can she purchase the products without seen the expiry date. Learned counsel has further argued that it is for the complainant to establish the loss suffered by her on account of any defect in the products supplied by producing acceptable evidence, supported by document. Mere claim of loss or compensation of a certain amount cannot be accepted.
7. The respondent in person has argued that she had purchased some products from the opposite party. At the time of purchasing the products she was in hurry, so she could not see the expiry date of the products. When she gifted the said products to her friend, then she came to know that the said products were of expiry date. She contacted the appellant for exchanging the products, but they refused the same.
8. There is no dispute with regard to the fact that the respondent had purchased the some products from the appellant on 17.02.2013 for a sum of Rs. 272/-. The only dispute is with regard to the fact that the products were of expiry date or not. The complainant-respondent has drew our attention towards expiry date of the products as mentioned below:-
Sone papdi of Haldiram : Expiry date 31.01.2013
Premium bake rusk : Expiry date 03.09.2012
Almond salted : Expiry date 01.02.2013
Kaju salted : Expiry date 01.02.2013
9. The respondent has filed the copy of the bill dated 17.02.2013 (paper No. 12).
10. The appellant has filed an affidavit of Sh. Prakash Khanduri, Departmental Manager of Vishal Mega Mart, Rajpur Road, Dehradun (paper No. 15).
11. From the perusal of the evidences filed by the parties, we are of the view that the District Forum was justified in allowing the consumer complaint filed by the complainant. However, the compensation of Rs. 1.00 lacs and a levy a penalty Rs. 5.00 lacs awarded by the District Forum is not justified.
12. Learned counsel for the appellant cited a decision of Hon’ble National Commission, New Delhi in the case of Amit Swami vs. Coca Cola India Ltd. & Ors.; II (2007) CPJ 256 (NC). In the said case, the National Commission has held that the reliefs granted by Consumer Fora enumerated in Section 14 of Consumer Protection Act, 1986. The Commission cannot pass any order for levy of penalty being credited in Consumer Welfare Fund. This citation is fully applicable in the instant case.
13. We considered the submissions made by the learned counsel for the appellant and respondent in person. The disputed products, which were of expiry date, sold by the opposite party-appellant in a carelessness manner comes under unfair trade practice.
14. The District Forum has properly considered all the facts and circumstances of the case and has rightly allowed the consumer complaint per impugned order. Further, the compensation of Rs. 1.00 lac as awarded by the District Forum, appears to be on higher side. We reduce it to Rs. 10,000/-. Accordingly, the impugned order needs modification.
15. For the reasons aforesaid, the appeal is partly allowed. The order impugned dated 19.08.2014 of the District Forum in respect of punitive damages of Rs. 5.00 lacs, which is to be deposited in the District Forum is set aside and the compensation of Rs. 1.00 lac is reduced to Rs. 10,000/-. The order is modified accordingly. No order as to costs.
