State Consumer Disputes Redressal Commission
Oxford University Press India vs Akash Pateria on 24 April, 2018
CHHATTISGARH STATE
CONSUMER DISPUTES REDRESSAL COMMISSION,
PANDRI, RAIPUR (C.G).
Appeal No.FA/2018/20
Instituted on : 31.01.2018
Oxford University Press India
World Trade Tower,
12th Floor, C-1, Sector 16, Main DND Road,
Rajnigandha Chowk,
Noida (U.P.) India 201301 ..... Appellant (O.P. No.2)
Vs.
01. Akash Pateria, Aged 43 years,
S/o Shri Uma Shankar Pateria,
Flat No.402, Block A, Phase - 1,
Near Shankaracharya College, Lotus Arcade,
Junwani, Bhilai, Dist. Durg (C.G.) 490020 ... Respondent No.1 (Complainant)
02. Manager, M/s Anil Enterprises,
Shop - 199, A-Market, Sector -6,
Bhilai, District Durg (Chhattisgarh) 490006 ... Respondent No.2 (O.P. No.1)
PRESENT :
HON'BLE SHRI JUSTICE R.S. SHARMA, PRESIDENT
HON'BLE SHRI D.K. PODDAR, MEMBER
HON'BLE SMT RUCHI GOEL, MEMBER
COUNSEL FOR THE PARTIES :
Shri Ankit Renal and Shri Sidhart Tiwari, Advocates for the appellant (O.P. No.2).
Respondent No.1 (complainant), present in person.
Shri Prashant Kumar Mishra, Advocate for the respondent No.2 (O.P. No.1).
ORDER
DATED : 24/April/2018 PER :- HON'BLE SHRI JUSTICE R.S. SHARMA, PRESIDENT.
This appeal is directed against the order dated 12th December, 2017, , passed by District Consumer Disputes Redressal Forum, Durg (C.G.) (henceforth "District Forum") in Complaint Case No.C.C.2017/422.. By the impugned order, learned District Forum, has partly allowed the complaint of the complainant and directed that :-
// 2 // (1) The O.P. No.1 and O.P. No.2 will jointly and severally pay a sum of Rs.156 (Rupees One Hundred Fifty Six) (Rs.78 + Rs.78), which was recovered in excess in respect of two set of books.
(2) If the O.P. No.1 and O.P. No.2 will not pay the above amount to the complainant within the stipulated period, then the O.P. No.1 & O.P. No.2, will jointly and severally, pay interest @ 09% p.a. from the date of order till realization.
(3) The O.P. No.1 and O.P. No.2 will jointly and severally pay a sum of Rs.50,000/- (Rupees Fifty Thousand) towards compensation for mental agony to the complainant.
(4) The O.P. No.1 & O.P. No.2 will jointly and severally pay a sum of Rs.10,000/-
(Rupees Ten Thousand) towards cost of litigation to the complainant.
2. Briefly stated the facts of the complaint of the complainant are that the complainant is natural guardian of his son, who is studying in Class 5th. The O.P. No.1 is a book seller and O.P. No.2 is publisher of the book. The complainant purchased two set of books from the O.P. No.1 and paid a sum of Rs.4094/- (Rs.2047 x 2). The complainant purchased book "Learn With Linux - 5" in two sets from the O.P. No.1, which was published by the O.P. No.2. In the last page of main page of the book, the bar code was blackened and the price of Rs.175/- was mentioned separately. When the complainant erased the blackest spot, then he found that the M.R.P. of the book is Rs.97/- and it was published in the year 2011 and the O.P. No.2 sold old published book mentioning publication year 2017 and fixing the price Rs.175/-. The complainant contacted the O.P. No.1 and the O.P. No.1 told the complainant that he purchased the book from the O.P. No.2 and O.P. No.2 fixed the // 3 // price of the book and the O.P.No.1 only sold the book on the price fixed by the O.P. No.2. Then the complainant contacted the O.P. No.2 on 03.04.2017 and gave intimation regarding the additional price and also sent email to O.P. No.2 on different dates, but the O.P. No.2 did not give any response, which comes in the category of unfair trade practice. The complainant and his son suffered mental agony. The complainant filed the instant complaint before the District Forum and prayed for granting reliefs, as mentioned in the relief clause of the complaint.
3. The O.P. No.1 filed its written statement and averred that it is only book seller. The price of the books is fixed by the publisher. The O.P. No.1 sold the book titled as Learn with Linux. The price was fixed by the O.P. No.2. The M.R.P. was printed as 175 in sticker and 20% rebate was given to the complainant. The book was sold at Rs.140/-. If the sale price of the book Rs.97/- is mentioned in the book and price was enhanced by the publisher, then for the same, the publisher is liable and the O.P. No.1 is not liable. Therefore, the complainant is not entitled to get any compensation from the O.P. No.1 and the complaint is liable to be dismissed against the O.P. No.1.
4. The O.P. No.2 has filed its written statement and averred that there is no prohibition on a Publisher from enhancing the price over the original printed price of the book. The revision and change of the price does not come within purview of unfair trade practice under Section 2(1)(r) of the Consumer Protection Act. The complainant has falsely stated that he had purchased the text book at Rs.175/-, whereas the fact of the matter is that the complainant purchased the book from the O.P. No.1 at Rs.140/-. It is settled law that publishers are permitted to change the price of old book. It is submitted that on 22nd May, 2017, a new text book was // 4 // received by the complainant, which was dispatched on 17th May, 2017. In furtherance to the same on 13th June, 2017 a letter was sent to the complainant to resolve the matter and a new set of book was provided to the complainant. Therefore, the O.P. No.2 did not commit any unfair trade practice , hence the complaint is liable to be dismissed against O.P. No.2.
5. The complainant has filed documents. Annexure A-1 is receipt dated 27.02.2017 issued by M/s Anil Enterprises, Bhilai, Annexure A-2 is photocopy of last page of the book, Annexure A-3 is internal page of the book, Annexure A-4 is last page of book published in the year 2017, Annexure A-5 is email sent to O.P. No.2 on 02.04.2017, Annexure A-6 is email dated 03.04.2017 sent to the O.P. No.2, Annexure A-7 is reply sent by O.P. No.2 on 06.04.2017, Annexure A-8 is email sent on 05.04.2017, Annexure A-9 is notice dated 28.04.2017 sent to the OPs, Annexure A-10 is reply sent by the .P. No.1 dated 22.05.2017, Annexure A-11 is copy of telephone bill of the complainant.
6. The O.P. No.1 has filed documents. Annexure NA-1 is reply sent by the O.P. No.1 to the complainant, Annexure NA-2 is acknowledgement, Annexure 3 are tax invoice.
7. The O.P. No.2 has filed documents. Annexure NA-1 is Authority Letter dated 9th August, 2017, Annexure 2 are tax invoice, Annexure NA-3 is receipt issued by Shree Maruti Courier Service Pvt. Ltd., Annexure NA-4 is letter dated 13th June, 2017 sent by Oxford University Press to the complainant.
8. Shri Ankit Renal and Shri Sidharth Tiwari, learned counsel appearing for the appellant (O.P. No.2), have argued that on 27.05.2017, the complainant had // 5 // purchased a textbook titled "Learned With Linux-5" from the respondent No.2 (O.P. No.1), which was published by the appellant (O.P. No.2). The first page of the book contained a clear and categorical declaration that the book was published in the year 2011 and the last page of the text book contained a declaration about the price of the book, in which the MRP of the book is mentioned as Rs.175/-. The publisher has every right to fix the price of the book. The O.P. No.2 has specifically fixed the price of book as Rs.175/- for the year 2017. The book was published in the year 2011, but it was sold in the year 2017, therefore, the price was rightly fixed by the O.P. No.2 as the O.P. No.2 has every right to revise the prices of the earlier impressions/editions of its publications as per its discretion. In Pustak Mahal Vs. Rattan Lal Premi, III (2004) CPJ 52 (NC), Hon'ble National Commission has held that the publisher has a right to fix the price. In Mahipal Singh Vs. UNBVNL, I (2012) CPJ 241 (NC), Hon'ble National Commission has held that fixation of price does not come within purview of unfair trade practice under Section 2(1)(r) of the Consumer Protection Act, 1986. The complainant is utterly failed to prove that the O.P. No.2 committed unfair trade practice, therefore, the impugned order passed by the District Forum, is erroneous and is liable to be set aside. They placed reliance on Appeal N.F.A./23/2014 - The State of Tripura Through Sri Partha Pratim Bhattacharjee Vs The Principal Officer, Oxford University Press, decided by State Consumer Disputes Redressal Commission, Tripura vide order dated 13.02.2015, Pustak Mahal Vs. Rattan Lal Premi, III (2004) CPJ 52 (NC); First Appeal No.1021 of 2007 Bal Krishan Sharma Vs. Kamla David Singh, decided by State Consumer Disputes Redressal Commission, Haryana, Panchkula vide order dated 09.02.2012, Mahipal Singh Vs. UNBVNL, I (2012) CPJ 241 (NC); and Kranti Associates Pvt. Ltd. and Anr. Vs. Sh. Masood Ahmed Khan and Ors., IV (2010) CPJ 61 (SC).
// 6 //
9. The respondent No.1 (complainant) who is present in person has argued that the complainant is natural guardian of his son, who is studying in Class 5th. The O.P. No.1 is a book seller and O.P. No.2 is publisher of the book. The complainant purchased two sets of books from the O.P. No.1 and paid a sum of Rs.4094/- (Rs.2047 x 2). The complainant purchased book "Learn With Linux - 5" in two sets from the O.P. No.1, which was published by the O.P. No.2. In the last page of main page of the book, the bar code was blackened and the price of Rs.175/- was mentioned separately. When the complainant erased the blackest spot, then he found that the price of the book is Rs.97/- and it was published in the year 2011 and the O.P. No.2 sold the old published book mentioning publication year 2017 and fixing the price Rs.175/-. The complainant contacted the O.P. No.1 and the O.P. No.1 told the complainant that he purchased the book from the O.P. No.2 and O.P. No.2 fixed the price of the book and the O.P.No.1 only sold the book on the price mentioned by the O.P. No.2. Then the complainant contacted the O.P. No.2 on 03.04.2017 and gave intimation regarding the additional price and also sent email to O.P. No.2 on different dates, but the O.P. No.2 did not give any response, which comes in the category of unfair trade practice. The complainant and his son suffered mental agony. The impugned order passed by the District Forum is just and proper and does not call for any interference by this Commission. The appeal filed by the appellant (O.P. No.2) is liable to be dismissed.
10. Shri Prashant Kumar Mishra, learned counsel appearing for the respondent No.2 (O.P. No.1) has argued that that it is only book seller. The price of the books is fixed by the publisher. The O.P. No.1 sold the book titled as Learn with Linux. The price was fixed by the O.P. The M.R.P. was printed as 175 in sticker and 20% // 7 // rebate was given to the complainant. The book was sold on Rs.140/-. If the sale price of the book Rs.97/- is mentioned in the book and price was enhanced by the publisher, then for the same, the publisher is liable and the O.P. No.1 is not liable. The impugned order passed by the District Forum is just and proper and does not call for any interference by this Commission. The appeal filed by the appellant (O.P. No.2) is liable to be dismissed.
11. We have heard learned counsels appearing for both the parties and have also perused the record of the District Forum and the impugned order.
12. Now we shall examine whether the OPs committed unfair trade practice by selling old book which was published in the year 2011 (2014) with enhanced price of Rs.175/- ?
13. Section 2(1)(r) of The Consumer Protection Act, 1986 runs thus :-
"(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 :-
(1) The practice of making any statement, whether orally or in writing or by visible representation which,-
(i) Falsely represent that the goods are of a particular standard, quality, quantity, grade, composition, style or model;
(ii) Falsely represents that the services are of a particular standard, quality or grade;
(iii) Falsely represents any re-built, second-hand, renovated reconditioned or old goods as new goods;
// 8 //
(iv) Represents that the goods or services have sponsorship, approval, performance, characteristics, accessories, uses or benefits which such goods or services do not have;
(v) Represent that the seller or the supplier has a sponsorship or approval or affiliation which such seller or supplier does not have;
(vi) Makes a false or misleading representation concerning the need for, or the usefulness of, any goods or services;
(vii) Gives to the public any warranty or guarantee of the performance, efficacy or length of life of a produce or of any goods that is not based on the adequate or proper test thereof:
Provided that where a defence is raised to the effect that such warranty or guarantee is based on adequate or proper test, the burden of proof of such defence shall lie on the person raising such defence;
(viii) Makes to the public a representation in a form that purports to be -
(i) A warranty or guarantee of a product or of any goods or services; or
(ii) A promise to replace, maintain or repair an article or any part thereof or to repeat or continue a service until it has achieved a specified result.
If such purported warranty or guarantee or promise is materially misleading or if there is no reasonable prospect materially misleading or if there is no prospect // 9 // that such warranty, guarantee or promise will be carried out;
(ix) 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..
(x) Gives false or misleading facts disparaging the goods, services or trade of another person.
Explanation - For the purposes of clause (1) a statement that is
-
(a) Expressed on an article offered or displayed for sale, or on its wrapper or container; or
(b) Expressed on anything attached to, inserted in, or accompanying, an article offered or displayed for sale, or on anyting on which the article is mounted for display or sale; or
(c) Contained in or on anything that is sold, sent delivered, transmitted or in any other manner whatsoever made available to a member of the public.
// 10 // Shall be deemed to be a statement made to the public by, and only by, the person who had caused the statement to be so expressed, made or contained.
(2) .......
(3) ......"
14. The main allegation of the complainant is that he purchased two sest of book "Learn With Linux-5" from the O.P. No.1. In last page of the book, the bar code was printed in sticker and the price was mentioned at Rs.175/- in side of the sticker. The complainant tried to erase the blackest spot, then he found that the price of the book is mentioned Rs.97/-.
15. Now we shall examine whether the price of the old book enhanced by the O.P. No.2 comes within restrictive trade practice or unfair trade practice ?
16. In Shyam Brothers Vs. Saroj Sharma, II (2007) CPJ 310, West Bengal State Consumer Disputes Redressal Commission, Kolkata, has observed thus :-
"6. We have carefully perused the impugned order and the memo of appeal and have also considered the argument put forward by the learned Advocate for the appellant. The Forum held the O.P. to be guilty of unfair trade practice on the basis of allegedly lower price for the same book being charged by another book shop in Siliguri. But as rightly pointed out by the learned Advocate this document namely the receipt showing the price of Rs.50 has not been proved by anybody - the purchaser of the book or the seller of the book by swearing an affidavit to that effect. Moreover, it is far from clear whether the book which was purchased from the shop in Siliguri was a copy supplied to the shop after revision of price in the year 2002. It is also not clear whether the said shop received the revised price list and carried out the change of price in the copies of the book lying with him. In such circumstances the allegation of unfair trade practice based on the allegedly lower price being accepted by the Siliguri shop has not been really established and hence the Form's order in this regard cannot be sustained. We also do not accepted the observation of the Forum that increase in // 11 // the price of the book should be in tandem with the movement of general price. The publisher of a book has the unfettered right to revise the price of book from time-to- time and if he sells the book at a price which has been declared in the price list, the question of any unfair trade practice cannot arise. Hence, it cannot be said there was any deficiency in service on the part of the appellant."
17. In Revision Petition No.F.A.23/2014 - The State of Tripura, Through Sri Partha Pratim Bhattacharjee Vs. The Principal Officer, Oxford University Press (Supra), vide order dated 13.02.2015, State Consumer Disputes Redressal Commission, Tripura, has observed thus :-
"10. We have gone through the decision of the Hon'ble National Commission (Supra) referred by the learned counsel for the respondent. From the said decision, it is found that the learned counsel for the publisher of that case i.e. Pustak Mahal argued before Hon'ble National Commission in favour of enhancing the price of the books by screen printing or by putting stickers of the enhanced price on the original printed price of the books referring to the publication of rare books and out of print books, but the case as narrated in that revision case does not disclose that the respondent of that case purchased four books from the Pustak Mahal, revision petitioner if the same were of rare books and / or out of print books. But the fact remains that the Hon'ble National Commission in the said referred revision case has been pleased to accept the argument advanced by the learned counsel for the publisher. It further appears that the Hon'ble National Commission in the said revision petition case has been pleased to hold that the enhancement of price of the books by screen printing or by putting stickers of the enhanced prices on the original printed price of the books does not come within the definition of unfair trade practice as provided under Section 2(1)(r) of the C.P. Act, 1986. In fact, the Hon'ble National Commission has been pleased to hold that in doing so, the revision petitioner adopted no unfair trade practice. That being the position, it goes without saying that the putting of stickers or by screen printing of the enhanced price on the original printed price of the books is legally permissible to a publisher of books and that does not tantamount to unfair trade practice. Not only so, the Inspector, Legal Metrology could not show us any provision of law prohibiting the publisher to refix the prices of the books at an enhanced rate. So, considering all and relying on the decision of the Hon'ble National Commission, pronounced in the revision case (Supra), we are of the view that the allegation of the adopting unfair trade practice by the respondent - O.P., Oxford University Press, by way of enhancing the prices of the books has not been proved. So, the argument advanced by the Inspector, Legal Metrology appearing for the appellant - complainant is found not acceptable legally."
// 12 //
18. In Revision Petition No.817 of 2002 - Pustak Mahal Vs. Rattan Lal Premi, III (2004) CPJ 52 (NC), vide order dated 22.03.2004, Hon'ble National Commission has observed thus :-
"6. The learned counsel for the petitioner argued that the complainant knew the enhanced prices when he came to purchase the books. In fact the complainant himself persuaded and prevailed on the petitioner to sell the books. It is an agreed transaction between the parties and there was neither any deception nor any coercion. No law prohibits the publisher to re-fix the price of the books where such books are out of print and only a few copies are available. A publisher has no other method other than applying a sticker of the enhanced price on rate books and that this is a practice universally followed. It is argued that the State Commission grossly erred in holding that it is an unfair trade practice and further directing him to desist from practices of applying enhanced price stickers.
7. The issue, therefore, before us is whether action of the Revision Petitioner in enhancing the price of certain rare books which are out of print amount to an unfair trade practice. There is an exhaustive definition of the word 'unfair trade practice' under Section 2(1)(r). None of clauses of the definition , except perhaps Clause (r)(i)(ix) are even remotely relevant to the facts of the case. However, a close perusal would show that even this clause has no application to the facts of this case before us. This clause reads as follows :-'
(ix) materially misleads the public concerning the price at which a product or like products or goods or services have been or are, ordinarily sold at provided..."
19. In the instant case also the complainant had purchased two set of books "Learn With Linux-5, which has been annexed with complaint by the complainant before the District Forum which is marked as Annexure C-2 page 101 and Annexure C-1 page 102. We have perused Annexure C-1 and Annexure C-2. In annexure C-2 Page 101, in first page the year of publication is mentioned as 2010 and Eighth impression 2017 is mentioned. In the last page of the book sticker was affixed and in the sticker the price of the book is printed as Rs.175/-. In Annexure C-1 Page // 13 // 102, in the first page the year of publication is mentioned as 2010 and the Third Impression 2014 is mentioned. In the last page, the sticker was affixed and blackest spot was put and price was mentioned Rs.175/-. It appears that the lastly book was published in the year 2017 (Annexure C-2) and Annexure C-1 was published in the year 2014. According to the complainant the book was published in the year 2011. It is settled law that the publisher of the book has unfettered right to revise the price of book from time to time and no question of unfair trade practice arise if he sells thee book at a price which has been declared in the price list. In the instant case the book was published in the year 2014 but it was sold in the year 2017, therefore the publisher has right to revive the price of the book. Merely on the ground that the book was published in the year 2011 or 2014, and old MRP was mentioned Rs.97 under the sticker and new price was mentioned Rs.175, which does not come within purview of unfair trade practice. Therefore, the impugned order passed by the District Forum is erroneous and is liable to be set aside. 20 Hence, the appeal filed by the appellant (O.P. No.2) is allowed and the impugned order dated 12.12.2017, passed by the District Forum, is set aside. Consequently, the complaint filed by the respondent No.1 (complainant), shall stand dismissed. No order as to the cost of this appeal.
(Justice R.S. Sharma) (D.K. Poddar) (Smt. Ruchi Goel)
President Member Member
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