State Consumer Disputes Redressal Commission
Cargill India Pvt. Ltd., vs Sameer Ranjan Baboo, on 5 August, 2020
STATE CONSUMER DISPUTES REDRESSALCOMMISSION,ODISHA,CUTTACK
FIRST APPEAL NO. 276 OF 2008
(From an order dated 04.3.2008 passed by the District Forum,
Sambalpur in C.D. Case No. 123 of 2006)
Cargill India Pvt. Ltd.,
Represented by its Authorized Signatory,
Venkatesh Bhat N., aged about 36 years,
S/o V.Vasudev Bhat,
Working as Assistant Manager Process,
Oil Terminal Road, Atharbanki,
Paradeep, Jagatsinghpur, Orissa
... Appellant
Vrs.
Sameer Ranjan Baboo,
S/o Late Krushna Chandra Babu,
R/o Nandapara, Po - Jharuapara,
Ps - Town, Dist - Sambalpur
... Respondent
____________
For the appellant : M/s D.Panda & Associates
For the respondent : None
_____________
P R E S E N T:
THE HON'BLE DR. JUSTICE D.P.CHOUDHURY, PRESIDENT
AND
DR. S.MOHANTY, MEMBER
2
DATED THE 05th AUGUST, 2020
ORDER
DR. D.P. CHOUDHURY, J., PRESIDENT This appeal is directed u/s 15 of the Consumer Protection Act, 1986 (hereinafter called the "Act") against the order dated 04.3.2008 passed by the learned District Forum, Sambalpur in C.D. Case No. 123 of 2006 wherein the District Forum has directed the OPs jointly and severally to return Rs.435/- to the complainant besides payment of compensation of Rs.5,000/-. The OPs are further directed to deposit Rs.50,000/- as punitive damages in Consumer Welfare Fund.
2. Appellant was OP No.1 whereas respondent was the complainant before the learned District Forum. Hereinafter the parties to this appeal shall be referred to with reference to their respective status before the District Forum. OP No.2 before the District Forum has not been made party by appellant in this case.
3. Learned counsel for the appellant submitted that the complainant filed complaint before the learned District Forum, Sambalpur alleging therein that he has purchased one carton of 3 "Nature Fresh Purita" Refined Soybean oil consisting of 10 packets of containing 1 litre pack each on payment of Rs.435/- as purchase price from OP No.2. The complainant alleged that while he opened three packets, he found two packets only contained water and not oil. Claiming compensation against the OPs, complainant filed the case before the learned District Forum.
4. Learned counsel for the appellant further submitted that the learned District Forum sent some packets for chemical examination and the reports allegedly contained that the oil purchased by the complainant are not fit for human consumption. In fact the appellant contested the matter but OP No.2 did not participate in the hearing. Learned counsel for the appellant narrated that the appellant is the manufacturer of the said Nature Fresh Purita Refined Soyabin oil and after proper packing and seal had sold the same to the whole seller at Cuttack, who sold the same to the retailer - OP No.2 from whom the complainant purchased the said alleged oil pack. According 4 to him, learned District Forum has not considered the fact of the case with proper perspective. Since OP No.1 - appellant has no any role to sell directly said product to the complainant and it was sold under proper seal and packaging, any tampering or the adulteration by the retailer or the whole seller should not make the appellant liable and in this regard the learned District Forum has committed error by directing the appellant to return the price and to pay compensation.
5. Learned counsel for the appellant further contended that the order of the learned District Forum is palpably wrong in not interpreting the unfair trade practice defined u/s 2(1)(r) of the Act, 1986. The learned District Forum ought to have decided that there is no any deficiency of service or unfair trade practice on the part of the appellant when the appellant was not negligent in any manner in packaging and sailing of the product. According to him, when some of the packets were found tampered either at the time of sale either by whole seller or dealer, the learned District Forum should have absolved the present appellant of the 5 charges. Learned District Forum should not have accepted the case of the complainant when no evidence has been led by the complainant either orally or by way of affidavit to establish allegation against the present appellant. For that the impugned order is liable to be set aside against appellant by allowing the appeal.
6. In spite of notice, the respondent has not appeared for which it is made sufficient.
7. Considered the submissions of learned counsel for the appellant and perused the DFR including the impugned order.
8. It is admitted fact that the complainant had purchased one carton containing 10 packets of one litre each Nature Fresh Purita Refined Soyabin oil on payment of cash of Rs.435/- from OP No.2. It is admitted fact that while three packets were opened first two packets out of three were found to have contained water and not oil. The order sheets of the District Forum show that after filing of the case, the purchased packets 6 were sent for chemical examination by Public Analyst. The report of Public Analyst shows that packet No. 1, 4, 5 were unfit for human consumption under Prevention of Food Adulteration Rules, 1955 and other two packets were fit for human consumption.
9. Be that as it may, the complainant has proved that he has purchased the Nature Fresh Purita Soyabin oil which is unfit for human consumption from OP No.2.
10. On the other hand, learned counsel for the appellant supporting the written version submitted that this Nature Fresh Soyabin Purita oil is their product but he has not sold directly to OP No.2 but he has sold the same to the whole seller at Cuttack who is not made a party in this case and at the time of selling the same to such C & F Agent, there was proper seal and packaging of the packets and question of adulteration does not arise. Thus, the fact remains that the complainant since has not purchased the said packets from the appellant directly although the appellant is the manufacturer of goods for sale which do not 7 comply the standard prescribed by the competent authority relating to composition, contents of packaging which are necessary to prevent the injury to the persons using the goods.
11. Section 2(1)(q) the definition of "Trader" is as follows:-
"trader" in relation to any goods means a person who sells or distributes any goods for sale and includes the manufacturer thereof, and where such goods are sold or distributed in package form, includes the packer thereof"
12. Section 2(1)(r) "Unfair Trade Practice" is as follows:-
"(r) "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 unfair or deceptive practice including any of the following practices, namely:
xxx xxx xxx
(iv) represents that the goods or services have sponsorship, approval, performance, characteristics, accessories, uses or benefits which such goods or services do not have;"
13. By conjoint reading of the two definitions, it is culled out that the person who sells or distributes goods for sale and same does not meet the standard prescribed by the competent 8 authority will be called a trader and would be involved with unfair trade practice. So the person who sells products may be a dealer or retailer, manufacturer has not sold the products directly to the consumer only can be called trader. There are instances where the manufacturer directly sells the goods to the customers through their agents. In such cases manufacturer is held liable if the goods were found to be injurious to health of the human being or found to have manufacturing defect. If the retailer or the whole seller directly deals with the goods by selling same to the customer, he is also liable and this person can be said to be involved with unfair trade practice. So the main crux of the matter is to show that the person who is selling the adulated goods which are unfit for human consumption to consumer should be proceeded under the Act.
14. Now adverting to the facts of the case, we find the complainant no doubt has purchased the Nature Fresh Purita Soyabin oil manufactured by the appellant from OP No.2 on payment of consideration but not from OP No.1. OP No.1 has 9 categorically stated that he has sold the product under proper seal and packaging to C & F Agent, Cuttack who sold the same to OP No.2. Therefore in such scenario, the appellant even if the manufacturer of the said product but cannot be termed as trader who is involved in unfair trade practice as per provisions of this Act. Learned District Forum simply passed the following order:-
"xxx xxx xxx
4. Now coming to the stand taken by the OP No.1 that he is not liable for the act of the dealer. It is necessary to quote the definition of Trader as defined under the C.P.Act Seciton-2(1)(g) defines:
"trader in relation to any goods means a person, who sells or distributes any gods for sale and includes the manufacturer thereof and where such goods are sold or distributed in package form, includes the packer thereof."
Therefore, the OP No.1 is coming within the meaning of trader. Manufacturer of spurious goods or offering such goods for sale is coming within the meaning of unfair trade practice as defined u/s 2(1)(r) of the C.P.Act. Therefore, the 10 OP No.1 cannot escape from its liability and guilty in adopting unfair trade practice.
5. Now-a-days it is seen from the news paper that adulteration in edible oil is found in Sambalpur District and the same has to be protected u/s 6 of the C.P.Act. In this case imposing punitive damages will met the ends of justice. Hence ordered:
The OPs are directed to discontinue the unfair trade practice and not to repeat the same in future. The OPs are further directed to return the price of Rs.435/- (Rupees Four hundred thirty five) and to pay Rs.5,000/- (Rupees Five thousand) jointly an severally towards compensation to teh complainant within one month from the date order. The OPs are further directed to pay Rs.50,000/- (Rupees Fifty thousand) as punitive damages within the aforesaid time. On realization of the punitive damages, deposit the same in Consumer Welfare Fund.
Accordingly, the case of teh complainant is allowed."
15. The aforesaid order has not explained how the appellant -
manufacturer in the facts and circumstances this case would be called as trader and involved with unfair trade practice although it is proved that packets of oil purchased by complainant from OP No.2 is unfit for human consumption. Therefore, the 11 impugned order against the appellant being devoid of proper assessment of facts and law is liable to be set aside and we do so. This order is confined to appellant only but not to OP No.2 who is to comply the impugned order as no appeal has been preferred by him.
16. Thus, the appeal is allowed. No cost.
Supply free copy of this order to the respective parties. DFR be sent back forthwith.
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(Dr.D.P.Choudhury, J President I agree.
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(Dr.S.Mohanty) Member Cuttack Dated 05th August, 2020