State Consumer Disputes Redressal Commission
Manasa Fertilizer Store vs Sri Prabhat Chandra Barman on 17 March, 2011
State Consumer Disputes Redressal Commission State Consumer Disputes Redressal Commission West Bengal BHABANI BHAVAN (GROUND FLOOR) 31, BELVEDERE ROAD, ALIPORE KOLKATA 700 027 S.C. CASE NO- FA/ 400/2010 DATE OF FILING : 19.07.2010 DATE OF FINAL ORDER: 17.03.2011 APPELLANT : Manasa Fertilizer Store, A. K. Sen Sharma & Aniruddha Sengupta, Sahid Corner, Main Road, Dinhata, Cooch Behar. RESPONDENT : Sri Prabhat Chandra Barman, P.O. & Village- Bhagni-1, Cooch Behar, BEFORE HONBLE JUSTICE : Mr. Prabir Kumar Samanta, President. HONBLE MEMBER : Smt. Silpi Majumder. HONBLE MEMBER : Sri Shankar Coari. FOR THE APPELLANT : Mr. Barun Prasad, Advocate. FOR THE RESPONDENT : Mr. Sankar Mukhopadhyay, Advocate. Silpi Majumder, Member
This appeal has been preferred by the OP-1-Appellant being dissatisfied by the judgment passed by the Ld. District Forum, Coochbehar, on 24.06.2010, in the case no-DF/32/2009, wherein the Ld. Forum below allowing the complaint on contest with cost of Rs.2,000/- in favour of the Complainant has directed the OP-1 to pay a sum of Rs.15,000/- towards compensation and for loss in cultivation within 45 days from the date of passing of the judgment, in default a penal interest @ 9% p.a. would be levied upon the unpaid amount till realization.
In the grounds of memorandum of appeal the Appellant has stated that as the Ld. Forum has failed to apply its mind at the time of passing of this judgment, arrived at a wrong conclusion causing injustice to the Appellant. It has been mentioned by the Appellant that the Ld. Forum below should have considered that the Appellant has issued approval slip to the Respondent no-1 which included cost of transportation, but the said amount has not been received from the Complainant. At the time of purchase the Appellant issued cash memo which the Respondent no-1 suppressed and denied intentionally. It is stated that the Ld. Forum below passed the impugned judgment on the basis of some personal observation, but not on the basis of any evidence which the Complainant failed to produce and therefore, the Forum should not pass the impugned judgment on the basis of surmise and conjecture. The Ld. Forum below has wrongly hold that the Appellant did not issue any cash memo at the time of sale of the said product and issued only on 05.06.2007 before the sub divisional agricultural officer. Whereas the Complainant did not produce the cash memo, the Appellant submitted the copy of cash memo before the said officer to prove the case but that does not mean that the Appellant issued cash memo on 05.06.2007 before the said officer. But unfortunately the Ld. Forum has been misguided by the statements of the Complainant whereas the Complainant failed to prove the same by any evidence. It has been further submitted by the Appellant that the Ld. Forum has committed wrong and crossed the jurisdiction by deciding the issue of cheating which is to be decided only by the criminal or civil court and where elaborate evidence is necessary. As the proceeding before the Forum below is a summery trial in nature, case, which involves cheating, cannot be decided without any elaborate evidence and hence, the present complaint is beyond the jurisdiction of the Ld. Forum below. The Forum should have considered that the Complainant though by furnishing a hand written chart tried to establish the rate of the product but no such slip has been produced to substantiate the same, so, mere filing of hand written statement cannot prove the contention of the Complainant. Moreover, the Complainant did not file any evidence in support of the same, but the Ld. Forum without considering all wrongly held and decided the matter on that basis. The Ld. Forum below should have considered that mere filing of any approval slip would not constitute that the Complainant purchased the products on the basis of approval slip and also should not considered the same as because any approval slip would not constitute any contract between the parties. According to the Appellant the judgment passed by the Ld. Forum below being erroneous and illegal is liable to be set aside and has prayed for allowing of this appeal.
The brief facts of the case of the Complainant is that he purchased one bag of Urea (50 Kg) and two bags of single super phosphate from the OP-1-the owner of the said shop. At the time of purchasing of the said goods the OP-1 gave an approval slip in stead of any cash memo. The Complainant asked for the cash memo to the OP-1, the OP-1 behaved badly with him. The OP had taken excess price than the actual rate as per Governments order though they had no repentance about their wrongful act. The Complainant made representation to the SDO, Dinhata on 05.06.2009 and to the District Magistrate on 09.06.2009 for justice, but to no effect. After that the OP-1 submitted a cash memo in presence of SDO, Coochbehar, in the said cash memo it is reflected that the Governments rate though on 04.06.2009 the OP-1 took excess price than the rate as fixed by the Government which has been revealed from the approval slip. The OP-1 also took a sum of Rs.156.20/- as a freight charge on 05.06.2009 from the Complainant which is illegal. The OP had taken excess price without issuing any cash memo at the time of purchasing goods and deprived the Complainant. Due to such deprivation the Complainant is suffering from mental pain and agony. He was also cheated by the proprietor of OP-1. Due to the above reason the Complainant faced much trouble and pecuniary loss in cultivation and prayed for proper justice and compensation from the OP-1.
Before the Ld. Forum below the OP-1 has denied all the material allegations as mentioned by the Complainant in the petition of complainant by filing written version, wherein it has been contended that the Complainant never purchased any product from his counter at higher price than the maximum retail price or subsidized rate fixed for the same. The OP-1 has also stated that the quotation of rates in approval slip does not amount to any sell and therefore, the said approval slip cannot be considered as cash memo or bill. The materials mentioned in the approval does not always match with the final cash memo as the purchaser may have chosen to take different materials at the time of final purchase. According to the OP-1 the Complainant filed the complainant with an ulterior motive only to snatch illegal gain and to harass the OP-1 and prayed for dismissal of the complaint as the Complainant is not entitled to any relief.
We have carefully considered the papers and documents as available in the record and heard the submissions advanced by the Counsel for the parties. After perusing the material documents and hearing the arguments of the Counsel for the parties it is seen by us that undisputedly the Complainant purchased one bag urea and two bags of single super phosphate on 04.06.2009 and one bag urea and three bags phosphate on 11.03.2009 from the OP-1. The moot point of the dispute between the Complainant and OP-1 is that the OP-1 sold the said goods only by issuing approval slip and received excess amount than the Government rate without issuing cash memo. OP-1 also had taken that a sum of Rs.156.20/- on 05.06.2009 as freight charge and issued an approval slip which is also illegal. It is the specific case of the Complainant that he was cheated by the OP-1 who is running a business of selling fertilizer products in the name and style of Manasa Fertilizer. The Complainant brought some anomalies to the notice of the Agricultural Officer, but to no effect. But we have noticed curiously that after interference of the Sub-divisional Agricultural Officer, cash memo was issued accordingly to the Complainant, but on the contrary freight charge with which included is not shown separately as per norms. In the written version before the Ld. Forum below it was stated by the OP-1 that during the business hours customer came to know the price of different products, so, the OP-1 quoted the rate in the approval slip and the same cannot be considered as the cash memo or bill. In the instance case the Complainant purchased some fertilizer products for which OP-1 issued only approval slip and rate also mentioned therein in the style of a cash memo and sellers signature is also there.
It is well known that as per Governments order display of the rate chart in every shop or sells counter for the public interest should be displayed. Therefore, the story of the quoted in approval slip by the OP-1 cannot be sustainable. We have noticed that the OP-1 did not issue the cash memo at the time of selling fertilizer and in spite of several requests made on behalf of the Complainant, the OP-1 did not provide the same to the Complainant and the OP-1 issued the cash memo on 05.06.2009 only i.e. when the matter came to the notice of the Sub-Divisional Agriculture Officer. But the OP -1 did not mention the freight charge in the cash memo, which is illegal; on the contrary they issued another approval slip mentioning freight charge on 05.06.2009. Before the Ld. Forum below the OP-1 has failed to satisfy the Forum below in respect of their activities and also failed to produce in single documents in favour of their statement. The Ld. Forum below has observed from the copy of the notice issued by the Government of West Bengal wherein it has been clearly stated that the Fertilizer businessman must mention the freight charge separately in the cash memo which cannot cross the MRP. The rate of freight charge and the MRP never crossed the limit of the rate decided by the Monitoring Committee of the locality.
Before this Commission as well as the before the Forum below the Appellant-OP-1 has submitted that as the present complaint relates to the allegation of cheating, for which elaborate evidence is necessary, such case involving cheating cannot be adjudicated before the Consumer Forum as per C.P. Act and it should be decided by the competent Civil Court. But in respect of such submission we are to say that selling of fertilizer to the consumers without issuing cash memo can be termed as unfair trade practice as per section 2 (1)( r ) of the C.P. Act. In the instant case the cash memo was produced in presence of SDO, Coochbehar by the OP-1, which the OP-1 cannot do at all. Without issuing any receipt or cash memo in proper way selling of goods can be termed as illegal which the OP-1 did. Therefore, the present case does not involve with any cheating but involves with unfair trade practice and as per above mentioned section the complaint is very much maintainable before the Consumer Forum/ Commission. The approval slip as well as the cash memo which was produced later reflects that the OP-1 sold fertilizer products from his counter at higher price than the MRP or rate fixed for the same by the Government. The OP-1 never stated that he had taken excess amount towards freight charge and he does not mention separately in the cash memo/ approval slip about the freight charges with the actual rate of the particulars. The Forum below was also unable to find out any record in the cash memo mentioning the batch no, manufacturing date, expiry date etc, which is essential and mandatory to mention. In this respect we are to say that by selling of products in this manner the OP-1/Appellant has adopted the restrictive trade practice, which cannot be entertained in the eye of law.
Going by the foregoing discussion hence, it is ordered that the Ld. Forum below has passed a very well reasoned order and we are not inclined to interfere. But for further harassment the Appellant has preferred the present appeal before this Commission. For such harassment the Respondent no-1 is entitled to get litigation cost and in our considered view it will meet justice if we direct the Appellant to pay a sum of Rs.500/- to the Respondent-1-Complainant towards cost. The Appeal be dismissed on contest with cost of Rs.5,00/-. The judgment passed by the Ld. Forum below is hereby affirmed. The Appellant shall pay the cost of Rs.5,00/- as awarded by this Commission within 45 days from the date of passing of this judgment, failing which Rs.500/- will carry interest @ 9% p.a. for the default period. The judgment passed by the Ld. Forum below will remain unaltered. Thus the appeal is disposed of accordingly.
Silpi Majumder Shankar Coari Justice Prabir Kumar Samanta (Member) (Member) (President)