State Consumer Disputes Redressal Commission
Anoop Verma vs Manmohan Sabharwaal on 24 April, 2024
1
Complaint No.01/2018
Date of Filing: 01.01.2018
Date of Disposal :24.04.2024
BEFORE THE KARNATAKA STATE CONSUMER DISPUTES
REDRESSAL COMMISSION, BENGALURU (PRINCIPAL BENCH)
DATED:24.04.2024
PRESENT
HON'BLE Mr JUSTICE HULUVADI G RAMESH: PRESIDENT
Mrs DIVYASHREE M:LADY MEMBER
CONSUMER COMPLAINT No.01/2018
Mr Anoop Verma
"Aioli Bbq and Grill"
No.7, 5th Main,
2nd Block, Kalyan Nagar
HRBR Layout
Bengaluru -560 043 Complainant
(By Mrs Vidya Selvamony, Advocate)
V/s
Mr Manmohan Sabharwaal
Punjab Stores
No.23/6, Ebrahim Sahib Street
Bengaluru -560 001 Opposite Party
(By Ms Manasi Kumar, Advocate)
:ORDER:
HON'BLE Mr JUSTICE HULUVADI G RAMESH, PRESIDENT
1. This is a Complaint filed U/S 17 of CP Act 1986, by the Complainant seeking directions to the OP, to refund Rs.20 Lakhs, along with interest at the rate of 18% per annum, from the time the Complainant had started purchasing the ingredients for the purpose of running a Restaurant from the OP and compensation of Rs.5 Lakhs as Damages for physical strain, mental agony, pain suffered by the 2 Complaint No.01/2018 Complainant, due to such action & inaction of the OP and litigation expenses.
2. The facts in brief of the case is that the Complainant runs a Mediterranean Fusion Cuisine Restaurant viz., 'Aioli Bbq and Grill', where, all dishes are cooked over charcoal and oak wood fire,which was inaugurated on 15.08.2010 and it is a source to earn his livelihood, is the India's first and only Restaurant dedicated to Indian Armed Forces. Further, OP used to supply Cheese, Olive Oil, Mocktail Syrups, dry ingredients and few others items required for the purpose of cooking at the Restaurant. The relationship between the parties has been from the time the Restaurant was opened and OP also supplying ingredients to number of other Hotels as well. He has been procuring the ingredients for his restaurant from the OP in good faith from the time restaurant was opened. In a recent incident, the complainant was shocked to find out that certain ingredient purchased from OP was overpriced than the Market Retail Price. Though this was recently noticed by the complainant on perusal of past invoices it is found that OP has been indulging in such alteration and over pricing since the beginning of this relationship. Further it is the averment of the Complainant that he noticed that price of some of the ingredients purchased from the alternative Vendor was found to be much lower, compared to the price charged by the OP, post giving an almost 10% discount and found that the maximum retail price mentioned on the packing of the item and price on the packing of some of the ingredients purchased from the OP was altered. The Complainant submitted a Photograph of one such packing, wherein, the Bottle on the right hand side is of an item purchased from OP, while the Bottle on the left hand side is of the item purchased from an alternative Vendor and it could be established from the image, that the MRP on the packing of the right hand side bottle has been altered. After verification, it was found that there has been a reduction in price during the period October 2016 to 3 Complaint No.01/2018 May 2017. The investigation revealed that whenever there has been any revision in price, the pricing for both the bottles should have been the same, even though there is a difference of seven months in the manufacturing of the subject items.
3. The Complainant submits that, the Invoice dated 13.06.2017 clearly shows that, both the MRP price of INR 200/- and Discounted rate of Rs.180/-, is higher than the MRP of Rs.140/-, as appearing in the packaged bottle sold by alternative vendor. Thus, OP was in the habit of cheating the Buyers, by tampering the MRP printed on the product and by showing a discount of 10%, while the fact remains that the discounted price is higher by 28.5%(Rs 180/- : Discounted price - Rs 140/- actual price = 40 and 40/140 x 100). This act of tampering with the MRP of a product is not only fraudulent, but also, planned systematic cheating and committed repeated acts of Unfair Trade Practice on the un-suspecting Consumers. Such act, not only results in the loss to the Consumer, but also results in increasing the input cost of the final product, whereby, due to 30% increase in the input cost there would be a minimum increase of 30% in the price of the finished products. By doing so, the OP has not only cheated this Complainant in particular, but also, all his Customers in general and such act led to increase in the food cost not only to the general public but also to the entire society, being put through false inflation. Complainant further submits that he is running a small eatery business, which is the only source of income for him and for his family. The Complainant has communicated this fact to OP through an e-mail dated 12.08.2017 and later through a Legal Notice dated 16.12.2017 but, no response was received from OP. The Complainant further submits that, he was also surprised that the product is being produced by a reputed manufacturer, who has not been able to identify the flaws committed by the OP and this an organized crime and is to be viewed as an act of serious Unfair Trade Practice. The loss is not only to this 4 Complaint No.01/2018 Complainant and such losses could have been incurred by number of other consumers as well, who buy their requirement of this product from this OP by tampering with the price and this increase in the price for the products amounts to Unfair Trade Practice. The Complainant being a customer of OP for the past many years and the differential in pricing on the product done by the OP is more than Rs.20 Lakhs. Hence, Complainant lodged the present Complaint, alleging deficiency in service and Unfair Trade Practice, as defined under the provisions of the CP Act, 1986.
4. On service of notice, OP entered appearance through his learned Counsel and has submitted his Version along with documents and pleaded that Complainant is not a Consumer as defined under Consumer Protection Act 1986 and admitted that the Complainant had purchased several items from the OP for commercial purpose for use in his Restaurant and hence, complaint is liable to be Dismissed on this sole ground and also for mis-joinder and non-joinder of necessary & proper parties, since, OP is the Managing Partnership Firm called M/s Punjab Stores, through which the sale of items to the Complainant were made.
5. OP further pleaded that, the Complainant had raised frivolous allegations and filed the present case belatedly, after regularly consuming all the goods supplied to him from 2012 to 2017l, therefore, the Complaint is barred by delay and latches. Further, OP denied that the Complainant runs the Restaurant to earn his livelihood. Some documents obtained from the Internet are in public domain and testimony to this fact is the screenshots of the Complainant's Profile on Linkedln; a business and employment oriented online service and a newspaper article respectively. OP has not overpriced than the MRP and not indulged in such alteration of the product and denied that ingredients purchased from the alternative vendor was found to be 5 Complaint No.01/2018 much lower, compared to the price charged by the OP, post giving an almost 10% discount and the observation led to the complainant to carry out an investigation into the Maximum Retail Price mentioned on the packing of the item. Further, OP denied the allegations of the Complainant with regard to the photograph consists of bottle purchased from an alternative vendor and the OP and also reduction in price from October 2016 to May 2017 and the investigation is alleged to have revealed that there has not been any revision in price and thus the pricing for both the bottles should have been the same though there is a difference of seven months in the manufacturing.
6. OP further pleaded that, he has not been cheating the Buyers by altering the MRP printed on the product and has also cheating the Buyers by showing a Discount of 10%, while the discounted price is higher by 28.5%. Complainant has been running a full-fledged posh restaurant business, having employed several people and there can be no iota of doubt that his purchases from the OP were for a commercial purpose and on the other hand, his wife also has her business of running a boutique. OP has replied to the email dated 12.08.2017, 05.10.2017 and also replied to the Legal Notice of the Complainant dated 06.02.2018 and this clearly shows that the Complainant is trying to escape his liability of clearing the OP dues by filing a frivolous Consumer Complaint The allegation that the differential pricing done by the OP amounts to INR 20 lakhs and more are all bald, baseless and false. The total amount of all invoices (Paid and un-paid) raised by the OP on the Complainant between the period 07.04.2012 and 13.06.2017 is INR 10,65,020/-. OP further denied all other allegations made in the Complaint and sought Dismissal of the Complaint.
7. In view of rival contentions of the respective parties and upon examination of the Affidavit Evidence of both the parties and 6 Complaint No.01/2018 documents produced by the Complainant is marked as Ex-C1 to C7 and that of the OP as Ex-R1 to R7.
8. This Commission heard the arguments of both the parties.
9. Now, the Commission has to decide, whether the Complainant has made out a case of deficiency in service and Unfair Trade Practice on the part of OP as alleged and to decide whether OP has cheated the buyers, fraudulently acted by altering the price of MRP of the product and increased the price for the products?
10. The Learned Counsel appearing for OP submitted that the Complainant has running the Restaurant for commercial purpose and complaint is not maintainable either on law or on facts. Further,he relied upon the decision of Hon'ble Supreme Court in the case of Cheema Engineering Services and Rajan Singh reported in (1997) I Supreme Court Cases 131, wherein, it was held that 'Consumer Protection Act, 1986 - S.2(1) (d) Expln.-Consumer-Whether goods used for 'Commercial Purpose' within the meaning of exception clause (d) (i) or 'Exclusively for the purpose of earning his livelihood, by means of self-employment' within the meaning of the Expln. - To be determined on the basis of evidence - Burden of proof of applicability of the Expln. On the person seeking to invoke it for his claim of being a consumer - Where a respondent purchased a machine (Brickman) from appellant for brick-moulding, brick-dying and brick burning, he has to prove that he and his family members were alone using the machine for producing bricks for earning his livelihood.
11. The Learned Counsel for appearing for the Complainant submits that the Complainant runs a Mediterranean Fusion Cuisine Restaurant viz., 'Aioli Bbq and Grill', where, all dishes are cooked over charcoal and oak wood fire which was inaugurated on 15.08.2010 to earn his livelihood, is the India's first and only Restaurant dedicated to Indian 7 Complaint No.01/2018 Armed Forces. The investigation revealed that OP has revised the price and there is a difference of seven months in the manufacturing items. Further she relied upon the decision of Hon'ble Supreme Court in the case of Lakshmi Engineering Works Vs PSG Industrial Institute reported in 1995 SCC (3) 583, wherein, it was held that, if the Buyer of goods uses them himself, i.e., by self- employment, for earning his livelihood, it would not be treated as a "commercial purpose" and he does not cease to be a Consumer for the purposes of the Act. Therefore, the contention of OP that Complainant is not a Consumer is not accepted and Complainant is a Consumer as defined under Section 2 (d) of CP Act, 1986.
12. On perusal of the decision relied upon by the parties, it seen that the Complainant is running a Restaurant from the year 2010 to earn his livelihood and hence, he is Consumer as defined under the Consumer Protection Act and burden of proof is on the Complainant to prove the same.
13. It is an admitted fact that the Complainant is running the Mediterranean Fusion Cuisine Restaurant viz., 'Aioli Bbq and Grill' since 2010 to earn his livelihood and OP used to supply cheese, Olive Oil, Mocktail Syrups, dry ingredients and few others items for the purpose of cooking at the restaurant. The allegation of the Complainant that OP has been indulging in alteration and over pricing. The main allegation of the Complainant is with regard to MRP variation on two bottles of 'Lemonji 1000 ml' pre-packed and the pricing for both the bottles should have been the same, even though there is a difference of seven months in the manufacturing of these items. OP is cheating the Buyers by altering the MRP printed on the product and by showing a discount of 10%, is not only cheating and committed Unfair Trade Practice on the Consumer and claiming refund of Rs.20 lakhs with interest 2 18% p.a from the date of purchase from OP with 8 Complaint No.01/2018 documents. Per contra, OP has taken a stand that he conducts business in a fair and ethical manner and does not indulge in practices that are un-ethical or un-professional in any way. Further, never indulged in any kind of price alteration or practices that amount to altering the MRP to detrimental to the customer and there are many changes that occur with Fast Moving Consumer Goods (FMCG) products and therefore there is a possibility that there is a variation in prices due to the changes in the company policy which manufactured the product and which sets the MRP rates and claiming refund of Rs.20 lakhs is baseless and untrue. The sum of all invoices (paid and unpaid) raised between the period 07.04.2012 and 13.06.2017 is INR 10,65,020/- i.e., in the 2012-13 for Rs.1,31,270/-, 2013-14 for Rs.1,62,348/-, 2014-15 for Rs.2,97,120/-, 2015-16 for Rs.1,37,421/-, 2016-17 for Rs.3,13,221/- and 2017-18 for Rs.23,190/-. The Complainant averred in the Complaint that the value of purchases made of materials amounts to more than Rs.20,00,000/- is false and un-true. The documents produced in support of this averment of the Complainant itself do not amount to a total of Rs.20 lakhs and the present Complaint is not within the pecuniary jurisdiction of this Commission. According to OP, the Complainant has falsely stated that he runs a 'small eatery' 'Aioli Bbq and Grill' to earn his livelihood and that it is the only source of income for him and his family and in fact he runs a fully fledged Restaurant that serves exotic dishes for a high price and employs several other people to run a commercial and a very profitable venture of a Restaurant.
14. To conclude, this Commission examined documents placed by the Complainant at Annexure A1 & A2. A1 is the Tax Invoice dated 13.06.2017, wherein, the Complainant had placed an Order for supply of goods amounting to Rs.11,265/- on OP, wherein, at Sl No7 is ELM021, ELMAC, Lemonji 1000 ML BOT (MRP Rs 200/-) Qty : 24, Rate: Rs 180/-, Vat: Rs 5.50 &Rs.4,320/-. Annexure-A2 is the copy of 9 Complaint No.01/2018 the Invoice dated 13.06.2017, wherein, OP has supplied various types of 11 items to the Complainant, for a total sale amount Rs.11,265/-, in which,SlNo11 is the item of EL M021-ELMAC -LEMONJI 1000 ML BOT(MRP 200-00-Qty 24 Rate 180.00 Vat 5.50 amounting to Rs.4,320/-. Annexure-A3 is copy of the Tax Invoice dated 21.09.2017 of Global Gourmetz, wherein, the Complainant had purchased 10 items of Rs.5,205/-value, wherein, at SlNo1 is Elmac Lemon Juice (Lemonji) 1 Ltr, GST rate: 12%, Quantity : 12 Nos, Rate Rs 99/-, amounting to Rs.1,188/-.
15. The fact in dispute between the parties is with regard to MRP price. On 02.01.2020, the Complainant had filed an application under Order XXVI Rule 10 A, read with Section 45 of India Evidence Act 1872 to send the samples of bottle 'Lemonji 1000 ml' to Department of Legal Metrology for proper examination on monitoring prices and get the expert opinion regarding the actual price of the product of Rs.140/-, but it is shown as Rs.200/-. To determine the issue, whether there is tampering or not, allowed the application of the Complainant and, sent the sample to the Department of Legal Metrology, seeking to give opinion in this regard. On 13.01.2021, the Asst. Controller, Department of Legal Metrology, Bangalore submitted the report as hereunder:
Particulars Sample-1 Sample 2
*Product Name Lemon Juice Lemon Juice
Concentrate
Brand Name Elmac Elmac
Net quantity 1000 ml 1L
declared
*MRP Rs.200/- Rs.150/-
*Lot/Batch No. L-061016 L-011117A
*Manufacturing 10/16 02/11/17
Date
*Shelf Life 24 months 12 months
*Online information Lot No. and Mfd MRP, Batch No.
and Mfd
10
Complaint No.01/2018
The font pattern of the MRP printed on the sample bottle-1 is different from the font pattern of other online information like Lot Number and Manufacturing Date.
Also the particulars marked as (*) are different for both the bottles. We called for clarification from the manufacturer of Lemon Juice, M/s Elmac Agro Manufacturing Pvt. Ltd., West Bengal vide letter dated 26.11.2020 (Annexure-1) asking them to give their clarification regarding variation of MRP printed on the said bottles.
As to the point, the Company accepted the changes in MRP vide their letter (email) dated 07.01.2021 stating that from April 2017 onwards, there was reduction on MRP of this product from Rs.200/- per 1L to Rs.140/- per 1L (Annexure-2) Reducing the MRP of pre-packed packages is not a violation under the provisions of The Legal Metrology Act, 2009 and the Legal Metrology (Packed Commodities) Rules, 2011. Also deciding the MRP on a pre-packed commodity is the sole liberty of the manufacturer. Unless the commodity is covered under the price control mechanism of the essential commodities Act, the Government has no role in deciding the MRP of any pre-packed goods.
Hence, after observing all above facts, there is no possibility of tampering the MRP of the disputed Lemon Juice-1L bottle motioned at Serial Number-1.
16. The opinion of Asst. Controller, Department of Legal Metrology, Bengaluru clearly establishes that Reducing the MRP of pre-packed packages is not a violation under the provisions of The Legal Metrology Act 2009 and the Legal Metrology (Packed Commodities) Rules, 2011. Also, deciding the MRP on a pre-packed commodity is the sole liberty of the Manufacturer. Unless the commodity is covered under the price control mechanism of the Essential Commodities Act, the Government has no role in deciding the MRP of any pre-packed goods. The allegation of the Complainant on variation in MRP of samples of bottle 'Lemonji 1000 ml' does not hold water. After in-depth consideration of the matters in its entirety, this Commission is of the considered view 11 Complaint No.01/2018 that, there is no deficiency in service and unfair trade practice on the part of OP, as alleged.
17. Further, as per the records, the allegation of the Complainant that OP has replied to the legal notice dated 16.12.2017 and failed to refund of Rs.20 lakhs and more, to which OP had replied to the Legal Notice of the Complainant on 06.02.2018, wherein, it was stated that 'the allegation and making pinpoints with regard to over pricing the products than the MRP is nothing but to escape your liability to pay Rs.1,96,540/- demanded by our client not only orally, but also by email messages. It is not out of place to mention that for the first time you made the communication on 12.08.2017 bringing certain draw backs with regard to over pricing and old stock supply of products, when our client contacted you after receipt of said communication and clarified the issues raised in your communication, you agreed to pay the outstanding amount of Rs.1,96,540/- and out of the said outstanding liability you issued cheque for a sum of Rs.11,265/- towards part of outstanding Bill amount. When my client presented the said cheque, the same was returned with an endorsement 'Stop Payment' dated 24.07.2017. When this fact was brought to your notice, your client promised our client to pay the outstanding amount and gained time, as your client's father was hospitalized and later, once again your client gave a reason due to the theft took place at his wife's boutique. Due to the said reason, our client extended his co-operation to receive the outstanding said amount and kept quiet. In fact, our client has made a communication dated 05.10.2017 through email bringing the above said facts and requested once again to pay the outstanding amount of Rs.1,96,540/-.
18. Further materials placed on record by the complainant particularly Annexure-6 (page Nos.19 to 47) is the Invoice of Bills of different items on various dates amounting to Rs.20,60,661/- but, 12 Complaint No.01/2018 failed to rebut the evidence in violation under the provisions of the Legal Metrology Act, 2009, and the Legal Metrology (Packaged Commodities) Rules, 2011. The invoices produced by the Complainant are from 2013 onwards. The present complaint is filed in the year 2018. If there was any kind of cheating on the part of OP, nothing prevented the complainant from taking immediate legal action against the OP at the earliest point of time. It appears from the record, that the complainant slept over his alleged right and now he has approached the Commission making allegation of cheating when alleged act came to his knowledge way back in the year 2013 itself. Therefore, complainant himself is guilty of latches and delay on his part and complaint appears to be an afterthought.
19. Presently we witnessing the International Global Liberalized Economy and that the Consumer is the King in the Buyers' Market, why this Complainant could not open up his mind for getting the best buy at the lowest cost, that is to say, to get 5 star facility at road side cost, simultaneously keeping in view the expert opinion regarding the price fixation of commodities is Manufacturers' prerogative and the situation is BUYERS BEWARD. With the above such conclusion, we are of the considered opinion that the Complainant is not entitled for any reliefs. Accordingly, this Commission Dismiss the Complaint filed u/s 17 of the CP Act, 1986.
20. Send a copy of this Order to the parties concerned.
Lady Member President *s