State Consumer Disputes Redressal Commission
M/S Procter And Gamble Home Products ... vs Ms. Taranjit Kaur Daughter Of Amarjit ... on 16 September, 2013
2nd Additional Bench
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB
DAKSHIN MARG, SECTOR 37-A, CHANDIGARH
First Appeal No. 1841 of 2009
Date of institution: 24.12.2009
Date of Decision : 16.9.2013
M/s Procter and Gamble Home Products Ltd. Plot No. 1, Industrial Area,
Katha, P.O. Baddi, District Solan, Himachal Pradesh through its Managing
Director Sh. Amit Vyas.
.....Appellant/OP No. 1
Versus
1. Ms. Taranjit Kaur Daughter of Amarjit Singh, Ward No. 8, Guru
Teg Bahadur Nagar, Dhuri, Punjab.
...Respondent No.1/complainant
2. M/s Raj Agency, Bhatti Cold Storage Complex, Maithapur Road,
village Alipur, Outside Octroi, Jalandhar, Punjab.
3. Sh. Dharam Pal C/o Bansal Kiryana Store, Opposite Garg
Palace, Dhuri, Punjab.
4. M/s Vandana Luthra Care Clinic, Ansal Plaza, Ferozepur Road,
Ludhiana, Punjab.
.....Respondents No.2 to 4/Ops No. 2 to 4
Argued By:-
For the appellant : Sh. Deepak Suri, Advocate
For the respondents : Ex.-parte.
First Appeal against the order dated
14.10.2009 passed by the District Consumer
Disputes Redressal Forum, Sangrur.
Quorum:-
Shri Gurcharan Singh Saran, Presiding Judicial Member
Shri Piare Lal Garg, Member Shri Jasbir Singh Gill, Member Gurcharan Singh Saran, Presiding Judicial Member The appellant/opposite party No. 1 has filed the present appeal against the order dated 14.10.2009 passed by the District Consumer Disputes Redressal Forum, Sangrur (hereinafter called "the District Forum") in consumer complaint No. 281 dated 4.5.2009. FIRST APPEAL NO. 1841 OF 2009 2
2. The complainant-Taranjit Kaur has filed the complaint under Section 12 of the Consumer Protection Act, 1986 (in short 'the C.P. Act') against the opposite parties on the allegations that father of the complainant had purchased one pouch of 9 ML of Pantene Shampoo for a sum of Rs. 3/- from OP No. 3, who refused to give any cash memo. It was mentioned on the pouch that the shampoo is made for long black hair and in case she makes the try, dull faded hair to look black and shiny. On use of the shampoo as per specifications, the hairs of the complainant got damaged and she tried her best to bring the hairs into its original position but did not succeed and then approached OP No. 3 and explained the entire facts. OP No. 3 took the complainant to OP No. 2, who is Distributor of OP No. 1 and OP No. 2 after discussing the matter with officials of OP No. 1 offered him to get treated the hairs of the complainant from VLCC, Ludhiana but her hair could not recover the original position despite the efforts made by OP No. 4 and they stated that there is no other solution except to remove the hair so the hair of the complainant had been removed. The removed hairs were handed over to the complainant by OP No. 4 and the same are in its original position. The appearance of the complainant became awkward due to the error of OP No. 1, therefore, the opposite parties are liable to pay Rs. 10,00,000/- as compensation on account of mental agony and harassment. Hence, the complaint.
3. The complaint was contested by OP Nos. 1 & 3. OP No. 1 in its written statement has taken the preliminary objections that the District Forum does not have the territorial jurisdiction as the opposite FIRST APPEAL NO. 1841 OF 2009 3 party does not actually or voluntarily resides or carry on business or has a branch office, or personally works for gains, within the jurisdiction of the Ld. District Forum; OP No. 1 has not been supplied the annexures annexed with the complaint; the complainant has not approached the Hon'ble District Forum with clean hands; there is no deficiency in service on the part of opposite party No.1; the complaint has been filed only with a view to harass opposite party No. 1; OP No. 1 is not responsible for any mental unrest or alleged loss of physical stress or monetary loss suffered by the complainant as there is no direct negligence on the part of OP No. 1; the compensation demanded is highly exaggerated; the complaint is false, frivolous and vexatious and liable to be dismissed under Section 26 of the Act; the Pantene was launched by OP No. 1 in the year 1995 and the product of OP No. 1 evolve only after through research by leading hair care specialists and subject to highest testing of the same at global standards; the complainant is not consumer since the complainant has failed to show the sachet of the shampoo purchased by her; the complainant has failed to hand over the sachet of the shampoo used by her to the official of OP No. 1 so that the same can be tested in the laboratory of OP No. 1 for testing genuinity of the same but as a goodwill gesture and on humanitarian grounds OP No. 1 had agreed to fund the one time treatment of the complainant at VLCC-OP No. 4; the complainant has failed to file any affidavit in support of averments made in the complaint; the complainant has not filed any test report to prove the same to be defective, therefore, the complaint is liable to be dismissed; there is no analysis of the disputed goods to show that it FIRST APPEAL NO. 1841 OF 2009 4 was spurious or genuine; since there was no negligence on the part of OP No. 1, therefore, the complainant is not entitled to any compensation and that the complainant has failed to substantiate the contention that only with the use of the product of OP No. 1 has caused damage to her hair. On merits, it was denied that father of the complainant purchased one shampoo from OP No. 3. It was also denied that OP No. 3 refused to issue the bill of shampoo alleged to be purchased from him. It was denied that the complainant used the shampoo as per the specifications mentioned on the pouch. It was denied that father of the complainant approached OP No. 3, who in turn took the complainant to OP No. 2 Distributor of OP No. 1. Even the complainant failed to hand over the sachet of the shampoo to OP No. 1 for testing in the laboratory, however, as a goodwill gesture they have agreed to provide one time treatment to complainant before VLCC OP No. 4. It has been denied that OP No. 1 is liable to pay Rs. 10,00,000/- and ultimately, it was stated that there is no merit in the complaint and the same be dismissed.
4. OP/Respondent No. 3 filed written statement taking legal objections that the complainant is not consumer; the complaint is bad for mis-joinder of parties; OP No. 3 has no concern with Bansal Karyana Store, Dhuri, the Ld. District Forum has no jurisdiction to try and decide the complaint and that the matter involved complicated questions in this case and is required detailed evidence, therefore, the matter be relegated to the Civil Court. On merits, it was denied that the complainant purchased one pouch of Shampoo from OP No. 3 for a sum of Rs. 3/-. It was denied that he denied to issue the bill as FIRST APPEAL NO. 1841 OF 2009 5 OP No. 3 is not doing any work of sale of Karyana Goods. It was denied that with the use of the pouch, the hair of the complainant got damaged. It was also denied that this OP took the complainant to OP No. 2 or that they have agreed to get treated the hair of the complainant from OP No. 4. It was denied that Ops are liable to pay damages of Rs. 10 lacs as compensation and ultimately, it was stated that there is no merit in the complaint and the same be dismissed.
5. The parties were allowed by the learned District Forum to lead their evidence.
6. In support of his allegations, the complainant had tendered into evidence Ex. C-1 legal notice, Exs. C-2 to 5 postal receipts, Ex. C-6 reply of OP No. 1, Ex. C-7 pouch, Exs. C-8 to C-10 photographs, Ex. C-11 affidavit of Amarjit Singh, Ex. C-12 photograph, Ex. C-13 affidavit of Lakhvir Singh, Ex. C-14 affidavit of Ramla Devi, Ex. C-15 removed damaged hair. On the other hand, opposite party No. 1 had tendered into evidence Ex. R-1 affidavit of Amit Vyas, Authorised representative of OP No. 1, Ex. R-2 affidavit of Dharampal, Prop. M/s Bansal STD, PCO & Photostat, Ex. R-3 affidavit of Tarsem Kumar, Ex. R-4 affidavit of Vinod Kumar, Ex. R-5 copy of bill book.
7. After going through the allegations in the complaint, written statement, replications, evidence and documents on the record, the learned District Forum vide its impugned order observed that although the opposite parties have taken the objection that no bill was produced by the complainant regarding the purchase of the Shampoo from OP No. 3, the judgment of "Darshan Singh Ahuja Vs. FIRST APPEAL NO. 1841 OF 2009 6 Hamdard (Wake) Laboratories & Another", III (2005) CPJ 312 is not applicable to the facts of the case as the father of the complainant had filed affidavit of having purchased the pouch of Pantene Shampoo from OP No. 3. So far as the testing of pouch is concerned, the same is not tenable as only one pouch of shampoo Ex. C-7 was purchased and it was just 9 MLs packet and it was used by the complainant, therefore, there was no material left for testing of the same and with regard to the territorial jurisdiction, since the part of cause of action accrued at Dhuri, as the complainant is resident of Dhuri and purchased the pouch at Dhuri, which falls within the territorial jurisdiction of District Forum Sangrur, therefore, it was observed that the learned District Forum has the jurisdiction and ultimately, the complaint of the complainant was allowed and OP Nos. 1 & 3 were held jointly and severally liable to pay a sum of Rs. 25,000/- as consolidated amount of compensation to the complainant.
8. Feeling aggrieved with the order passed by the learned District Forum, the appellant/opposite party No. 1 has filed the present appeal.
9. In the grounds of appeal, it has been contended that the order passed by the learned District Forum is without application of mind, unjust and arbitrary as the complainant is not a 'consumer' in respect of the appellant. According to the judgment of the "Director, Himachal Institute of Engineering & Technology versus Anil Kumar Gupta", 1994(I) CPR 182, deficiency in service has to be proved. It was wrongly observed that agreeing one time treatment of the complainant at OP/respondent No. 4 amounted to its FIRST APPEAL NO. 1841 OF 2009 7 acknowledgement that the shampoo was manufactured by the appellant was either spurious or inferior quality. The complainant has failed to produce the sachet used by her. There is no test report that it was spurious. The District Forum has also failed to appreciate that the product of the appellant was time tested and scientifically tested, therefore, the order of the learned District Forum is liable to be set- aside.
10. The first point raised by the counsel for the appellant is that the complainant is not a 'consumer'. Their allegations in the complaint are that father of the complainant had purchased the pouch of the Pantene Shampoo from shop of OP No. 3 but he refused to issue the bill and there is affidavit of the father of the appellant to this effect. In affidavit it has been further contended that father of the complainant had lodged a complaint and took the complainant to OP No. 3 and they showed the damaged hair of the complainant and he in turn took her to OP No. 2 i.e. his Distributor and after having discussion with OP No. 1, it was agreed that they will refund/offer one time treatment of the complainant with OP No. 4, in case the product was of the appellant, which the complainant duly purchased from OP No. 3.
11. The Ops had agreed to give VLCC treatment to the complainant only in case her father had purchased the product of OP No. 1 from OP No. 3. Mere non issue of bill is not sufficient to deny that it was not their product. The Sachet has already been tendered into evidence. In case the product was not upto the mark it will certainly amount to deficiency in service and unfair trade practice, FIRST APPEAL NO. 1841 OF 2009 8 which will cover the complainant under the purview of 'consumer' as defined under Section 2 of the Act, therefore, we do not agree with the proposition raised by the counsel for the appellant that the complainant is not a 'consumer'.
12. The next point raised is with regard to the jurisdiction. Since the Shampoo was purchased from Dhuri and it was used by the complainant at Dhuri, which is Sub Division of Sangrur and falls within the territorial jurisdiction of Sangrur, a part of cause of action had accrued at Dhuri within the territorial jurisdiction of the learned District Forum and Section 11 of the Act defines that where partly the cause of action accrued then that place has the jurisdiction to entertain the complaint, therefore, we are of the opinion that the learned District Forum had the territorial jurisdiction to entertain the complaint.
13. The next question is whether the Shampoo so purchased and used by the complainant was spurious and that the sachet of the Shampoo was not handed over to the official of OP No. 1 for test in the laboratory or anywhere else. The sachet has been placed on the record of the District Forum as Ex. C-7. In case OP No. 1 was of the opinion that it is to be got tested from his laboratory or from some other laboratory, the request can be made before the District Forum but no such request was made by OP No. 1.
14. It is not denied that Sachet Ex. C-7 is not of OP No. 1. OP No. 1 had number of similar pouches of Shampoo and anyone can be sent for test. It has also been stated that this shampoo was tested from laboratory and is of a standard shampoo but no such test report FIRST APPEAL NO. 1841 OF 2009 9 has been tendered by the Ops. The contention of the complainant that the hair of the complainant were totally damaged and even did not look good after treatment with VLCC, which is a leading firm in India regarding care of the hair and ultimately, these have to be cut and cut hair have also been placed on the record, which support her version. Even cut hair could also be sent by OP No. 1 to its laboratory to know whether the damage to the hair has been with the use of Shampoo of OP No. 1 and to controvert the evidence of the complainant in the form of affidavit. The counsel for the appellant has referred judgment "Hindustan Lever Limited Versus Jitender Kumar Gupta & Ors." II (2005) CPJ 499 (Uttranchal)", wherein it was held that analysis is necessary when there is defect in the goods. However, it has been rightly stated by the complainant in the complaint that there was only 9 ML Shampoo in the pouch, which was used and nothing was left in the Shampoo, which could be sent for test. OP No. 1 has similar pouches in their business establishment and the same could also be sent for test to prove that these are not spurious but this was not done, therefore, the test was not done at the instance of the complainant, as the complainant was left with no material, which can be sent for test. Since the complainant's hair damaged on account of use of spurious Shampoo of OP No. 1, which was sold through OP No. 3, therefore, they both are jointly and severally liable to pay the damages and we are of the opinion that the findings so recorded by the learned District Forum are correct findings and we do not see any infirmity in the same and the same are, therefore, affirmed.
FIRST APPEAL NO. 1841 OF 2009 10
14. In view of the above discussion, we do not find any merit in the appeal and the same is dismissed with costs of Rs. 2,000/-.
15. The arguments in this appeal were heard on 4.9.2013 and the order was reserved. Now the order be communicated to the parties as per rules.
16. The appellant had deposited an amount of Rs. 12,500/- with this Commission at the time of filing the appeal. This amount of Rs. 12,500/- with interest accrued thereon, if any, be remitted by the registry to respondent No. 1 by way of a crossed cheque/demand draft after the expiry of 45 days under intimation to the learned District Forum and to the appellant.
17. Remaining amount shall be paid by the appellant and respondent No. 3 to respondent No. 1 within 30 days from the receipt of the copy of the order.
18. The appeal could not be decided within the statutory period due to heavy pendency of Court cases.
(Gurcharan Singh Saran) Presiding Judicial Member (Piare Lal Garg) Member September 16, 2013. (Jasbir Singh Gill) as Member