State Consumer Disputes Redressal Commission
Mrs. Mani Narayan Through Ms. Varashree ... vs The Proprietor ,Azamin Enterprise Pvt. ... on 18 July, 2025
1
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
MUMBAI, MAHARASHTRA
APPEAL NO.A/24/491
IN
CONSUMER COMPLAINT NO.CC/26/2023
Mrs. Mani Narayan
(Through Ms. Varashree Narayan)
Residing at 21, Guide Building,
6th Floor, 16, L.D. Ruparel Marg,
Malabar Hill, Mumbai - 400 006. ...Appellant/ Org. Complainant
V/s
The Proprietor
Azamin Enterprise Pvt. Ltd.,
274/290, Nagdevi Street,
Ground Floor, Mumbai - 400 003. ...Respondent /Org. Opponent
BEFORE:
Mr. Mukesh V. Sharma - Presiding Member
Ms. Poonam V. Maharshi - Member
APPEARANCE
For Appellant : In Person
For Respondent : None
JUDGMENT
(18/07/2025)
Per : Hon'ble Mukesh V. Sharma, Presiding Member :
1. The present appeal is filed under Section 41 of the Consumer Protection Act, 2019, challenging the judgment and order dated 21.08.2024 passed by the District Consumer Disputes Redressal Commission, South Mumbai, in Complaint No. CC/26/2023, whereby the consumer complaint filed by the appellant was dismissed.
2. The grievance raised in the complaint related to deficiency in service and unfair trade practices allegedly committed by the respondent in connection with the sale of a heating gun product, which, according to the 2 appellant, was not only sold at a price far in excess of the prevailing market rate but was also supplied without a necessary accompanying gas regulator, rendering the product unusable.
3. The District Commission, despite the matter proceeding ex parte against the respondent and the evidence being uncontroverted, dismissed the complaint on the ground of insufficiency of proof. Aggrieved thereby, the appellant has preferred the present appeal.
4. The facts in brief are that on 17.10.2022, the appellant visited the respondent's retail store to purchase a heating torch for gifting purposes. She was informed that the Penta brand heating gun was available and that, although the necessary gas regulator was not presently in stock, the same would be made available for pickup the next day if she made full advance payment. Believing this oral assurance, the appellant paid ₹1,416/- inclusive of GST, as per cash memo no. CG0241/12. However, when she visited the shop the next day, the respondent refused to provide the gas regulator and even denied having made any such assurance. When the appellant offered to return the unused product and sought a refund, the respondent refused, citing a printed term on the invoice that "goods once sold will not be taken back."
5. It is the appellant's case that the heating torch was unusable without the promised attachment, and despite the product being intact and returned within 24 hours, the respondent acted high-handedly, refused to accept legal notice, and misled her.
6. Additionally, the appellant alleged that she discovered through another local trader named Bharat Light House, where the same model of heating torch was sold in the local market for ₹578.20 (inclusive of GST), nearly ₹838 less than what she had paid. Relying on this, she contended that the respondent charged above MRP and engaged in unfair trade practice under Section 2(47) of the Consumer Protection Act, 2019.
37. Upon filing of the complaint before the District Commission on 16.02.2023, notice was issued to the respondent and was returned with the postal endorsement "refused" dated 15.01.2024. Accordingly, the matter proceeded ex parte.
8. The Appellant / original complainant had filed her affidavit of evidence along with supporting documents, including the original invoice, price quotation from Bharat Light House, postal tracking proof, photographs, and legal citations. However, the District Commission dismissed the complaint by observing that there was no conclusive evidence about the oral assurance regarding the gas regulator, no established MRP on the packaging, and lack of clarity on whether the product sold by Bharat Light House was of the same make and specification.
9. The District Commission further held that since the buyer voluntarily purchased the product without MRP and accepted the invoice with the printed non-return condition, no case of deficiency in service or unfair trade practice was made out.
10. In support of her case, the appellant had placed reliance on the following authorities in her Appeal and argued as follows :
A. Kerala State Commission in The Officer In Charge, Cochin Duty Free Shop v. Manohar & Ors. (Order dated 31.10.2012), wherein it was held that printing "goods once sold will not be taken back" on invoices constitutes an unfair trade practice, as it misleads consumers about their rights in case of defective goods.
B. Ernakulum District Commission in Sanjay Raj v. Binesh Chacko (Order dated 16.08.2024), where the ex parte affidavit of the complainant was accepted as unchallenged and reliable, as the opposite party failed to file a written version despite notice. C. Bihar State Commission in Nagneshwar Sharma v. Titan Industries Ltd. & Ors., which emphasized that charging prices in 4 excess of MRP amounts to unfair trade practice under the Legal Metrology Act and Consumer Goods (Mandatory Printing of Cost of Production and MRP) Act.
D. NCDRC in M/s Cargo Tarpaulin Industries v. Sri Mallikarjun B. Kori (Order dated 05.07.2007), where the Commission upheld imposition of ₹10,000/- penalty on a trader for selling a product at ₹20/- above MRP.
These authorities' appellant alleged though placed before the District Commission, were not appropriately considered in the impugned order.
11. We heard the appellant and carefully perused the record, we find that the District Commission has committed a error in ignoring settled principles of law governing ex parte adjudication under the Consumer Protection Act, 2019. Once the respondent failed to appear despite valid service of notice which stood returned with the endorsement "refused" and did not file a written version, the complainant's evidence, including affidavit and documents, ought to have been treated as uncontroverted unless it raises any reasonable doubt in the mind which require any further evidence.
12. The District Commission's finding that the complainant failed to prove oral assurance or unfair trade practice disregards the legal presumption arising from unchallenged and unrebutted sworn testimony when the opposite party fails to contest or rebut, the statements of fact stand admitted unless inherently improbable.
13. The Commission further erred in accepting the respondent's printed clause "goods once sold will not be taken back" at face value, without testing its validity in the context of consumer rights. The clause, by its very nature, precludes return of even unused, defective, or incomplete goods and is patently inconsistent with Section 2(47)(j)(viii) of the Consumer Protection Act, 2019, which defines "unfair trade practice" to include refusal to take back or refund consideration for defective goods.
514. Further, the issue of overpricing is supported by documentary evidence. The invoice from the respondent shows a price of ₹1,416/- whereas the quotation from Bharat Light House--situated in the same locality--quotes the identical heating gun at ₹578.20, inclusive of 18% GST. The difference of ₹837.80 is not minor or negligible and clearly establishes that the respondent charged substantially over the prevailing market price. In absence of any MRP on the product packaging or carton, the burden lay on the seller to disclose correct pricing. The conduct of the respondent thus falls squarely under unfair trade practices, and also violates Rule 18 (2) of the Legal Metrology (Packaged Commodities) Rules, 2011, and provisions of the Consumer Goods (Mandatory Printing of Cost of Production and MRP) Act, 2006.
15. Notice was also issued by this State Commission and Service Affidavit has been filed by the appellant, which shows that the notice along with compilation was duly served to the respondent on 13/01/2025. The notice clearly informed the respondent that "if you fail to attend on the aforesaid date, time and place either in person or through your Authorised Agent, or a lawyer, the Commission may in its discretion pass the order in your absence or dispose off the matter." Despite such service, the respondent failed to appear. The appeal was heard at length, and in the interest of justice, the matter was adjourned to afford an opportunity to the respondent. However, even on the subsequent date, the respondent remained absent and did not or made any submissions. Hence, we are satisfied that the respondent is not interested, and there is no point in keeping the matter pending waiting for the respondent.
16. The District Commission's reasoning that the complainant acted voluntarily and should have checked the MRP or refused to buy the product overlooks the fundamental principle that consumer protection law in India is based on caveat venditor (let the seller beware) and not on caveat emptor (let the buyer beware). Sellers are under a statutory obligation to ensure transparency, disclose accurate information, and not 6 indulge in misrepresentation or coercive disclaimers. The complainant, in this case, was misled by an oral promise, sold a product that was incomplete and non-functional without the regulator, and when she tried to return it in less than 24 hours, was unreasonably denied. The subsequent refusal to accept Notice of Commission further shows the respondent's disregard for due process.
17. In light of the foregoing discussion, we find that the appellant has successfully established that (i) the product sold to her was functionally incomplete and unusable without the promised gas regulator; (ii) the respondent refused to honour the oral assurance or accept return within 24 hours despite the product being unused; and (iii) the product was sold at a price significantly higher than the prevailing local market price, without affixing the MRP label or disclosing full details. The entire transaction reflects a combination of unfair trade practice and deficiency in service, as defined under Sections 2(47) and 2(11) respectively of the Consumer Protection Act, 2019. The impugned order of the District Commission, therefore, deserves to be set aside being contrary to law and settled judicial principles.
18. We also take note that the appellant, a senior citizen acting through her daughter, has pursued this matter in person and placed considerable effort in compiling documentary proof, including judgments from other State Commissions, postal tracking records, and contemporaneous price quotations. The respondent, on the other hand, not only failed to participate in proceedings but also refused to accept service of notices, which in itself raises a presumption of evasiveness and non-cooperation. Considering the entirety of the circumstances and the legal violations established, the appellant is entitled to reliefs towards refund, compensation, and litigation costs.
19. However, the appellant's prayer for criminal prosecution, cancellation of license, or imposition of 500 times penal cost is unreasonable and beyond the scope and jurisdiction of this Consumer 7 Commission. We are therefore not inclined to entertain such prayers. Nevertheless, our present order shall not preclude the appellant from pursuing any criminal or regulatory remedy, if advised. In view of the above, we proceed to pass the following:
FINAL ORDER
(a) The appeal is partly allowed.
(b) The impugned order dated 21.08.2024 passed by the District Consumer Disputes Redressal Commission, South Mumbai in CC/26/2023 is hereby set aside.
(c) The respondent is directed to refund ₹1,416/- (Rupees One Thousand Four Hundred Sixteen only) to the appellant within 30 days from the date of this order.
(d) The respondent is directed to pay ₹20,000/- (Rupees Twenty Thousand only) to the appellant as compensation for mental agony, harassment.
(e) The respondent is directed to pay ₹20,000/- (Rupees Twenty Thousand only) as costs of litigation incurred by the appellant for pursuing the complaint and this appeal.
(f) Copies of this order be sent free of cost to both parties.
[Mukesh V. Sharma] Presiding Member [Poonam V. Maharshi] Member MVS/aj