State Consumer Disputes Redressal Commission
Reliance Retail Ltd vs Shailendrakumar Narsinbhai Solanki on 3 May, 2023
Details DD MM YY
Date of Judgment 03 05 2023
Date of filing 08 12 2022
Duration 04 26 -
IN THE CONSUMER DISPUTES REDRESSAL COMMISSION
GUJARAT STATE, AHMEDABAD.
Court No. 1
First Appeal No.858/22
Reliance Retail Ltd.
Through its authorized representative
Mr.Trilok Nayak
Add. 3rd, Floor, Court House,
Lokmanya Tilak Marg, Dhobi Talao,
Mumbai IN 400002.
(On Behalf of all three Original
Respondents in consumer case no.5 of 2022
Decided by Ld. Consumer Disputes Redressal
Commission, Bharuch) ...Appellant
V/s
Shailendrakumar Narsinhbhai Solanki
Aged: adult, Occ: Lawyer,
Add. A/12, Ashutosh Nagar-1,
Link Road, Bharuch. ...Respondent.
CORAM : Hon'ble Justice Mr. V. P. Patel, President
Hon'ble Ms. A.C. Raval, Member
Hon'ble Ms P. R. Shah, Member APPEARANCE : Mr. Nimit Shukla, Ld. Advocate for the appellant Ms. Reema J Patel, Ld. Advocate for the respondent Order by Ms. P. R. Shah, Member
1. The appellant has filed the appeal under Section 41 of the Consumer Protection Act, 2019, being aggrieved by and dissatisfied with the order dated 02.11.2022 of the Ld. District Commission, Bharuch in complaint no. 5/2022.
2. Heard Ld. Adv. Mr. Nimit Shukla for the appellant and Ms. Reema J Patel for the complainant.
Akshay A/858/22 Page 1 of 11Order under challenge
3. The Ld. District Commission has partly allowed the complaint and has ordered and directed the opponents no.1 to 3 to jointly and severally pay Rs.5/- charged more than MRP with 7% interest from the date of complaint.
3.1 The Ld. District Commission has imposed a penalty of Rs.1,00,000/- because of unfair trade practice adopted by the opponents and has directed and ordered the opponents 1 and 3 to jointly and severally pay this amount within 30 days of the order in the Consumer Welfare Fund.
3.2 The Ld. District Commission has also directed and ordered that the opponents should take care that they do not adopt such unfair trade practice in future.
3.3 The Ld. District Commission has further directed and ordered the opponents 1 to 3 to jointly and severally pay to the complainant Rs.3,000/- for mental agony and Rs.3,000/- as litigation cost.
Facts of the case
4. The complainant on 31/10/2021 bought a lakme sun screen product for Rs.275/- from the opponent no.1. However it was found by the complainant that the lakme sun screen had a MRP of Rs.270/- and yet the complainant was charged Rs.275/- for the same. The complainant brought this to the notice of the staff of opponent no.1, but was informed that the price in the computer system is Rs.275/-. The sales manager also informed the billing staff that the MRP of the product is Rs.270/- only. However billing staff did not give any satisfactory response and insisted that the complainant has to pay Rs275/- for the product. Complainant therefore filed a complaint before the Ld. District Commission alleging unfair trade practice and violation of the MRP rules and prayed that strict action should be taken against the opponent. Complainant along with his complaint has submitted the Akshay A/858/22 Page 2 of 11 opponent's bill, payment receipt, Xerox copy of the lakme sun screen bottle showing the MRP and reply given to the legal notice by the opponent.
Arguments of the appellant
5. Appellant vide page 16 has submitted the list of documents: copy of the application/complaint filed by complainant dated 11.01.2022,copy of the list of documents produced by complainant on 11.02.2022, copy of the reply filed by the appellant-original respondent on 02.09.2022, copy of the additional list of documents produced by the respondent on 02.11.2022, copy of the counter affidavit filed by respondent on 02.11.2022 against the reply filed by appellant on 02.11.2022 against the reply filed appellant- original respondent on 02.09.2022.
5.1 The appellant submits that the appellant is only a retailer of the product and is liable to be penalized for the act and/or omission conducted by third party.
5.2 The Ld. Adv. for the appellant has referred to WS from page 40 to 43 and pointed to para 5 wherein the appellant denies that on 30/10/2021, there was a lakme sun screen product sold to the complainant as alleged by the complainant and avers that the complainant has failed to produce the proof of payment receipt of Rs.4,420/- dated 30/10/2021. Further it is the case of the appellant that the alleged Rs.5/- charged more than MRP would be as per the computer system generated bill and the appellant has no authorization to make any changes without the authorization from the manufacturer/producer and therefore there is a non- joinder of parties as the complainant has not joined as party the lakme Company or it's sales manager.
5.3 It is averred by the appellant that the offer to return Rs.5/- due to the mistake in the automatic system was made to the complainant but the complainant chose to buy the product at an elevated price Akshay A/858/22 Page 3 of 11 and thereafter filed the present complaint. It is the case of the appellant that the complainant has not made any averments in the complaint that many consumers are affected by the alleged act of charging of Rs. 5/- more than the MRP.
5.4 It is also the case of the appellant that the Ld. District Commission has not taken into account any cogent quantification method as to how the penalty of Rs. 1,00,000/- is imposed upon the appellant and has imposed a huge penalty on the opponents, only based on assumptions and vehemently appealed to reduce the penalty imposed.
5.5 Appellant has submitted 4 citations to support his case. The appellant has prayed to quash and set aside the order of the Ld. District Commission and submitted that as per the order of the Ld. District Commission the opponents are ready to refund Rs.5/- taken more than the MRP.
Arguments of the complainant
6. The complainant has submitted written arguments in response to the appeal reiterating all the issues raised in the complaint before the Ld. District Commission and a colour picture of the lakme sun screen product showing the MRP.
6.1 The complainant has further made reference to the pursis dated 2/11/2022 submitted before the Ld. District Commission relating to the typing error in the legal notice and complaint, stating thatthe correct date of purchase was 31/10/2021 and opponent had not raised any objection and had received it.
6.2 The complainant further avers that the Government is undertaking various consumer awareness programmes on the provisions of MRP,encouraging consumers to complain if there are violations of the said provisions. The complainant submits that the order of the Ld. District Commission is just, fair and reasonable and the appeal should be dismissed with costs Akshay A/858/22 Page 4 of 11 Merits of the case
7. The instant case revolves on the issue of determination where the appellant's act of charging the complainant more than MRP is an unfair trade practice or not.
8. The complainant bought a lakme sun screen product among other products from the opponents on 31/10/2021 and was charged Rs.275/- instead of Rs.270/- as per the MRP of the product. The complainant has established his purchase, with the copy of the bill, debit card transaction details and picture of the product from page 24 to 26 and page 48. The complainant has averred that such act of charging more than MRP should be dealt with strictly as many consumers would be affected by such unfair trade practice adopted by the opponents.
9. We may refer the definition of unfair trade practice in The consumer Protection Act 2019 (hereinafter referred to as the "ACT") Section 2(47): "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 deceptive practice including any of the following practice, namely:-
(i) Making any statement, whether orally or in writing or by visible representation including by means of electronic record, which-
(i) 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;
(vii) not issuing bill or cash memo or receipt for the goods sold or services rendered in such manner as may be prescribed;
9.1 In the instant case the opponents have sold the lakme sun screen product to the complainant by charging more than MRP, which is against the prescribed standards, have adopted an unfair method Akshay A/858/22 Page 5 of 11 and followed unfair and deceptive practice. This action of opponent of having charged Rs.5/- more than MRP falls clearly into the purview of the definition of Section 2(47), 2(47)(i) and 2(47)(vii) of unfair trade practice of the "Act".
10. It is also necessary to refer the provisions of the Legal Metrology (Packaged Commodities) Rules 2011.
Legal Metrology (Packaged Commodities) Rules, 2011
2. Definitions:-
(m) "retail sale price" means the maximum price at which the commodity in packaged form may be sold to the consumer inclusive of all taxes.
6.Declaration to be made on every package.- (1) Every package shall bear thereon or on label securely affixed thereto, a definite, plain and conspicuous declaration madein accordance with the provisions of this chapter as, to-
(e)the retail sale price of the package (shall clearly indicate that it is the maximum retail price inclusive of all taxes in Indian currency.)
18. Provisions relating to wholesale dealer and retail dealers.- (2) No retail dealer or other person including manufacturer, packer, importer and wholesale dealer shall make any sale of any commodity in packed form at a price exceeding the retail sale price thereof.
10.1 M/S Cargo Tarpaulin Industries vs Sri Mallikarjun B. Kori on 5 July, 2007. NCDRC. R P NO. 2132 OF 2007 We have gone through the impugned order. It is apparent that the petitioner has charged Rs.112/- for Duck Back Baby Sheet sold to the complainant. Its Maximum Retail Price was Rs.90/-. According to the petitioner that though M.R.P was Rs.124/- but the Duck Back Baby Sheet was having an old label of Rs.92/- and after discussions, the price was settled at Rs.112/-. If there was an old label on the Duck Back Baby Sheet, indicating M.R.P. of Rs.92/- its M.R.P. would not increase, if subsequently due to increased cost of production, transportation etc. M.R.P. of subsequently manufactured goods is increased. If in these circumstances, the State Commission has imposed exemplary compensation of Rs.10,000/-, we think that Akshay A/858/22 Page 6 of 11 the order passed by the State Commission does not call for any interference.
Revision petition is dismissed accordingly.
10.2 In the above cases, it is held that charging more than MRP is an unfair trade practice. We are therefore in agreement with the finding of the Ld. District Commission that the opponents have adopted unfair trade practice.
10.3 The above provisions clearly states that no manufacturer can sell any product in packed form at a price exceeding the retail sale price i.e. more than MRP. The opponents having charged Rs.5/- more than MRP which is not as prescribed and thus there is a violation of the provisions of Rule 18(2) of the Packaged Commodities Rules 2011, and thus also can be termed as unfair trade practice under Section 2(47)(vii) of the "Act".
Compensation and punitive damages
11. We may take note of the following provision of CP Act, 2019 which are as under:
Section 39. Findings of District Commission- (1) Where the District Commission is satisfied that the goods complained against suffer from any of the defects specified in the complaint or that any of the allegations contained in the complaint about the services or any unfair trade practices, or claims for compensation under product liability are proved, it shall issue an order to the opposite party directing him to do any or more of the following, namely:-
(c) to return to the complainant the price, or, as the case may be, the charges paid by the complainant along with such interest on such price or charges as may be decided;
(d) to pay such amount as may be awarded by it as compensation to the consumer for any loss or injury suffered by the consumer due to the negligence of the opposite party:
Provided that the District Commission shall have power to grant punitive damages in such circumstances as it deems fit;
(m) to provide for adequate costs to parties; and 11.1 As per all the above provisions under this section, the commission has the powers to return to the complainant the price or as the case may be the charges paid by the complainant along with Akshay A/858/22 Page 7 of 11 interest and also to pay such amount as may be awarded by it as compensation to the consumer for any loss or injury suffered due to the negligence of the opposite party, punitive damages and to provide adequate cost to the parties.
12. The Ld. District Commission observed that as the opponents are into large retail sale, it can be assumed that they would be charging more than MRP and earning huge profit by adopting unfair trade practice.
12.1 The Ld. District Commission has rightly relied on the judgment Hotel Nyay Mandir Vs Inshvarlal Jinabhai Desai on 14th December, 2010.NCDRC RP No. 550 of 2006 .....Besides, the District Forum had also directed the petitioner/opposite party no.1 to pay a sum of Rs.1,50,000/- to be deposited in a Consumer Welfare Fund within a period of 30 days.....
.....We have considered this submission, painstakingly argued by the learned counsel for the petitioner. Suffice it to say that these very arguments were raised before the State Commission, who in its order dated 9th of January, 2006 has very elaborately discussed the same from para 7 to para 12 of its order. We are in agreement with the view expressed by the State Commission that provision of Rule 8, Order I of the Code of Civil Procedure applies to cases where there are large number of specified persons who can be identified and who can have their claim canvassed against other parties or defence set up against suitor, while after the amendment of the Consumer Protection Act (Act of 2002) which came into force on 15th of March, 2003, Section 14 of the Act says that if the District Forum is satisfied that the goods complained against suffer from any of the defects specified in the complaint or that any of the allegations contained in the complaint about the services are proved, it shall issue an order to the opposite party to do one or more things that have been specified in Clauses (a) to (i). Clause (hb) has been introduced by the aforesaid amendment act which reads to pay such sum as may be determined by it, if it is of the opinion that loss or injury has been suffered by a large number of consumers who are not identifiable conveniently. The State Commission has rightly distinguished the present complaint as a class action maintainable under the provisions of Section 14 of the Act and would not attract the provisions of Rule 8, Order I of the Code of Civil Procedure. Thus, even on the point of law, we do not find any infirmity with the order passed by the State Commission. Reliance by the learned counsel for the petitioner on the judgment of the Honble Apex Court in the Akshay A/858/22 Page 8 of 11 case of Godfrey Phillips India Ltd. Vs. Ajay Kumar [(2008) 4 SCC 504] is misplaced, inasmuch as in that case the complainant had pleaded that he was filing a petition in public interest and had made no allegation with regard to any loss suffered by him whereas in the case in hand the complainant has made out a case of unfair trade practice resulting in not only loss to him but loss to a large number of unidentifiable consumers.
12.2 The findings of the above case are applicable to the instant case as the complainant has averred in his complaint that many more consumers would have suffered loss because of the unfair trade practice by the opponents.
Section 39(1)(k) of the ACT reads as follows:
(k)to pay such sum as may be determined by it, if it is of the opinion that loss or injury has been suffered by a large number of consumerswho are not identifiable conveniently:
Provided that the minimum amount of sum so payable shall not be less than twenty-five per cent. of the value of such defective goods sold or service provided, as the case may be, to such consumers.
13. The Ld. district commission has opined that because the opponents are into large retail business, a large number of consumers who are not identifiable conveniently could have suffered loss because of its unfair trade practice. The Ld. District Commission under the provision of Section 39(1)(d) read with section 39(1)(k) has imposed the penalty of Rs.1,00,000/- on the opponents to jointly and severally pay in the consumer welfare fund.
Other arguments
14. It is contended by the appellant that they are only retailers and it is the manufacturer who should be made responsible for the price captured by the computer in the bill. This argument does not sustain as the consumer has been charged more than MRP by the opponents and the contract is between the consumer and the opponent and the opponent has not produced any agreement between the retailer and manufacturer.
Akshay A/858/22 Page 9 of 1115. As per the complainant, the pursis was submitted before the Ld. District Commission stating that there was an error in typing the date in the complaint and this pursis was received by the opponent and not objected.
16. It is the case of the appellant that the charging of Rs.5/- more than MRP is not an unfair trade practice as the alleged Rs.5 more than MRP was captured in the bill only for one product and therefore it can be assumed that it was not done intentionally as all bills are computer generated. The opponents have not produced anything on record to establish this contention and therefore it stands nullified.
17. Appellant have referred to 4 citations which are as follows:
(1) General Motors Pvt Ltd. Vs. Ashok RamnikTolat Civil Appeal no. 8072-8073/2009 (Supreme Court) (2) Hindustan Coca-Coca Vs. Kalpesh Patel &Anr. State, CDRC Gujarat (3) Balaji Wafers Pvt Ltd Vs. JayeshChitroda, State, CDRC, Gujarat (4) Varinder Bansal Vs. Vishal Mega Mart, CDRC, Punjab 17.1 The facts of the case in citation no. 1, 2 and 3 are not applicable to the instant case and the citation no.4 supports the case of the complainant.
18. We are of the opinion that it is not very often that consumers come to the court to get justice for a wrongful charge of such small amounts. It is to be appreciated in the instant case that the consumer has spent time and resources to come to the court to expose the unfair trade practice adopted by the opponents and thereby has rendered service to protect the interest of large number of consumers. We thus find no error in the order of the Ld. district Commission in imposing the penalty of Rs.100000/- on the opponents. This would not only act as a deterrent to the opponents but also send a message to all traders to desist from such unfair trade practice.Akshay A/858/22 Page 10 of 11
19. From the above discussions and observations, none of the grounds raised in the appeal are tenable and therefore the appeal is dismissed at the admission stage. We are of the view that the order of the Ld. District Commission is fair, just.reasonable with no infirmity in law and needs no interference. We hereby confirm the order of the Ld. district commission.
ORDER
1. Appeal no. 858/2022 is dismissed at the stage of admission.
2. The order of the Ld. District Commission, Bharuch dated 02.11.2022 in complaint no. 5/2022 is hereby confirmed.
3. No order as to cost.
4. Registry is directed to verify the amount deposited by the appellant in appeal no. 858/2022 and if found deposited, refund the same with interest, if any, accrued on the deposit to the appellant by RTGS after following due procedure and verification. For this purpose the appellant has to file an application with details to the account branch of this commission.
5. Registry is directed to send certified copy of this judgment to the parties free of cost. Registry is further directed to send copy of this judgment to the District Commission Bharuch through E-mail in PDF format for taking necessary action.
Pronounced in open court today on 03/05/2023.
[Ms. P. R . Shah] [Ms. A.C. Raval] [Justice Mr. V.P. Patel]
Member Member President
Akshay A/858/22 Page 11 of 11