State Consumer Disputes Redressal Commission
Hindustan Coca-Cola Beverages Private ... vs Siddharth Manchanda And Others on 21 July, 2017
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, UTTARAKHAND, DEHRADUN
FIRST APPEAL NO. 299 / 2014
Hindustan Coca-Cola Beverages Pvt. Ltd.
1105/7/8/33 Pirangut, Tal, Mulshi
District Pune 41211, Maharashtra
......Appellant / Opposite Party No. 3
Versus
1. Sh. Siddharth Manchanda, Advocate
S/o Sh. Pawan Manchanda
R/o Ram Bhawan Near Lal Mandir, Arya Nagar Chowk
Jwalapur, Haridwar
......Respondent No. 1 / Complainant
2. Multiplex Cinevision Pvt. Ltd.
Wave Cinemas, The Pentagon Mall
3rd Floor, C-1, Sector -12, SIDCUL, Haridwar
......Respondent No. 2 / Opposite Party No. 1
3. The Pentagon Mall
C-1, Sector-12, SIDCUL, Haridwar, Uttarakhand
......Respondent No. 3 / Opposite Party No. 2
Sh. T.S. Bindra, Learned Counsel for the Appellant
None for Respondent Nos. 1 & 3
Sh. Sanjay Gupta, Learned Counsel for Respondent No. 2
AND
FIRST APPEAL NO. 01 / 2015
Multiplex Cinevision Pvt. Ltd.
Wave Cinemas, The Pentagon Mall
3rd Floor, C-1, Sector -12, SIDCUL, Haridwar
.......Appellant / Opposite Party No. 1
Versus
1. Sh. Siddharth Manchanda, Advocate
S/o Sh. Pawan Manchanda
R/o Ram Bhawan Near Lal Mandir,
Arya Nagar Chowk, Jwalapur, Haridwar
......Respondent No. 1 / Complainant
2. The Pentagon Mall
C-1, Sector-12, SIDCUL, Haridwar, Uttarakhand
......Respondent No. 2 / Opposite Party No. 2
2
3. Hindustan Coca-Cola Beverages Pvt. Ltd.
1105/7/8/33 Pirangut, Tal, Mulshi
District Pune 41211, Maharashtra
......Respondent No. 3 / Opposite Party No. 3
Sh. Sanjay Gupta, Learned Counsel for the Appellant
None for Respondent Nos. 1 & 2
Sh. T.S. Bindra, Learned Counsel for Respondent No. 3
Coram: Mr. D.K. Tyagi, H.J.S., Member
Mrs. Veena Sharma, Member
Dated: 21/07/2017
ORDER
(Per: Mr. D.K. Tyagi, Member):
These two appeals, one by the opposite party No. 3 and another by opposite party No. 1, under Section 15 of the Consumer Protection Act, 1986, are directed against the order dated 14.11.2014 passed by the District Forum, Haridwar in consumer complaint No. 115 of 2014, whereby the District Forum has allowed the consumer complaint and directed the opposite party No. 1 to pay Rs. 1,000/- to the complainant within a month from the date of order and also directed to the opposite party No. 3 to deposit Rs. 10.00 lacs with the District Forum as penalty within a month from the date of order. Since both the appeals arise out of the same order passed by the District Forum, therefore, these appeals are being disposed of by this Common order.
2. Briefly stated the facts of the case, as mentioned in the consumer complaint, are that the applicant had purchased a 330 ml. Diet Coke Cane bearing batch No. PNBN016 manufactured on 06.02.2014 from the opposite party No. 1 whose office is situated at the premises of opposite party No. 2 manufactured by opposite party No. 3 via bill No. 143037 on 18.02.2014. For the above said product the opposite party No. 1 had charged Rs. 60/- including VAT and other taxes from the applicant. The complainant had told the opposite party No. 1 that the price Rs. 60/- for the above noted Diet Coke Cane is very high and this produce is available in Indian market near about Rs. 30/-, but after listening, the opposite party No. 1 began arguing with the 3 complainant that the product will be sold on Rs. 60/-, as the price has been increased and also said that if you want this Diet Coke Cane then you have to purchase at Rs. 60/- only. The complainant for enquiring the price for the product noted above, purchased another identical piece of Diet Coke Cane of the same quantity i.e. 330ml. bearing batch No. PNBN016 manufactured on 06.02.2014 by the opposite party No. 3 from another local shop named "Easy Day" via bill No. 07849 dated 08.03.2014 of Rs. 30/-. The complainant surprised after discovering that the two product of same quantity manufactured by same manufacturer bearing the same batch number and manufacturing date of selling with two different price tags Rs. 60/- and Rs. 30/-respectively, even ingredients and packing is also same and identical to each other. The complainant after discovering such discrepancies in prices of the same and identical type of product immediately rushed to opposite party No. 1 regarding this matter. But opposite party No. 1 refuses to talk. Later on complainant went to opposite party No. 2 for complaining for unfair trade practice of opposite party No. 1. But opposite party No. 2 said this is not his responsibility. Although the opposite party No. 1 is running his business under the supervision of opposite party No. 2 as opposite party No. 1 office is situated at opposite party No. 2 premises. Though the product is available at much lower price in the Indian market, then the price offered by opposite party No. 1 and befooling ordinary people of India by selling the product at much higher price and such act comes under the unfair trade practice. The complainant is the customer of opposite parties and the above act of opposite parties shows deficiency in service and comes under unfair trade practice. Due to the act of opposite parties, the complainant suffered mental, social and economic damage, for which the opposite parties are responsible.
3. The opposite party No. 1-Multiplex Cinevision Pvt. Ltd. has filed written statement before the District Forum and has pleaded that there was no occasion available to the answering opposite party to argue with the complainant to sale the produce in question at higher or lower price. It is 4 pertinent to clarify that the M.R.P. printed on Diet Coke Cane is Rs. 60/- and no higher rate were demanded or charged by the answering opposite party. The answering opposite party has no concern with the contents that the complainant purchased the identical piece of Diet Coke Cane of same quantity from another shop at price of Rs. 30/- only. It is clarified that there may be two or more prices for same product to sale at different places. There was no occasion to cause any mental, social and economic loss to the complainant. There was no terms and conditions labelled behave of answering opposite party that bound to the complainant to drink the Diet Coke Cane, if he visits to see the cinema in Wave Cinema. In the specific pleas, the answering opposite party has stated that the complaint is not maintainable. The complaint in question is not duly instituted for the reason that answering opposite party is not a legal entity and cannot be sued directly. The product sold to the complainant was sold on the M.R.P. printed on the product, which was mentioned on the product nothing was concealed. Therefore, it cannot be said that the answering opposite party has committed any wrong by selling the product on its printed price. It is not prohibited to fix or declare more than one M.R.P. for the same product available for the sale at different places for different classes of customers. There is no cause of action for the present complaint under the Consumer Protection Act, 1986. Under PC Rules and LM Rules, the only requirement is to declare the M.R.P. on each bottle. There is no law that a particular commodity cannot have a dual fixation of price. The declaring different M.R.Ps. for the similar goods to be sold from different channels at different locations in the same state, cannot be considered to be an unfair trade practice or malpractice, resulting in manipulation of prices and imposing unjustified costs on the consumer. Matters relating to declaration of M.R.P. on the package are specifically with in the erstwhile PC Rules framed under the SWM Act and now under the LM Rules framed under the LM Act. There are a variety of situations in which commodities are sold at different locations and in different circumstances at different prices. Retailers may require higher margins to make it commercially viable to deal with a commodity. Because retailers may have to 5 incur additional expenses of diverse nature for selling their commodities from a particular outlet. For a particular outlet, the costs in the outlet to deal with a particular produce may be higher than the other outlets. This could be for a variety of reasons. The outlet may be in an expensive retail mall or it may be in a cinema hall, where the retailer may be incurring a much higher cost to maintain the outlet by way of higher lease rentals, air conditioning costs and other operating and fixed overheads, where only limited buyers come for short intervals. The costs at such outlets cannot be compared to the costs of other shop or a stall on the road side. Since there is no price control, such products may be sold at such outlets at such prices as are considered feasible. The M.R.P. would be different from the M.R.P. declared on other packages of similar goods for sale from different channels at different locations. It is submitted that the answering opposite party is a movie theatre having world class Digital Sound, Audio and Projection System in a mall, i.e. opposite party No. 2 and its maintenance costs and other costs are much higher than that of a other shop or a stall on the roadside. If the complaint does not relate to any defect of the goods for deficiency in service the complaint will not lie and the Forum have no jurisdiction. The practice of declaring different M.R.Ps. on Diet Coke Cane sold from different locations, neither constitutes 'Deficiency in service' or 'unfair trade practice' nor has it caused any 'loss' or 'injury' to a large number of consumers and cannot therefore be deemed to have caused any kind of loss to the complainant. The answering opposite party has neither manipulated the price nor overcharged for the Diet Coke Cane allegedly purchased by the complainant. It is further stated that a single product can have two different M.R.Ps. in the same state. Declaring M.R.Ps. on the packages of similar products for sale from different channels in different locations is a legislatively recognized principle which has also been approved and enumerated by the Supreme Court. The declaring of different M.R.P. on bottles of Diet Coke Cane made available for different channels cannot tantamount to 'Deficiency in Service', 'unfair trade practice' or even 'malpractice' as claimed in the complaint, especially since this practice is legislatively recognized and has been approved by the Hon'ble Supreme 6 Court. Declaring of different M.R.P. on Diet Coke Cane made available at different channels in different locations has not caused any suffering to many other consumers. It is reiterated that a practice which is legislatively recognized cannot be said to have caused any 'loss' or 'injury' to a large number of consumers. There is no consumer who has suffered, as claimed in the complaint. Under Section 14(1), with respect to 'goods' the Forum below can only deal with and give compensation in case there is a defect in the goods. The present complaint only relates to the 'declaration' of M.R.P. on the Diet Coke Cane.
4. The opposite party No. 2-The Pentagon Mall has filed written statement before the District Forum and has pleaded that the complainant was never the customer of answering opposite party. The answering opposite party has only given an area/accommodation to the opposite party No. 1 and for this simple reason he cannot be held responsible or made party to any dispute, if arises between opposite party No. 1 and any third party. The answering opposite party has nothing to do with any deal or transaction between opposite party No. 1 and any third party. Complainant has no cause of action against the answering opposite party.
5. The opposite party No. 3-Hindustan Coca-Cola Beverages Pvt. Ltd. has filed written statement before the District Forum and has pleaded there is nothing to show in the complaint that the two separate 330ml. canes of Diet Coke, allegedly purchased by the complainant, was manufactured and sold by the answering opposite party to opposite party No. 1. There is no cause of action for the present complaint either under the Consumer Protection Act, 1986 or any other law for the time being in force. It is stated that Rule 6(1)(e) of The Legal Metrology (Packaged Commodities) Rules, 2011 issued under The Legal Metrology Act, 2009, the retail sale price of a package, being the maximum retail price (M.R.P.) at which the package may be sold to the ultimate consumer is required to be duly declared on the package, which has been duly declared by the answering opposite party on its products. Under the LM Rules, the only requirement is to declare the M.R.P. on each cane.
7The LM Rules do not prohibit fixation / declaration of more than one M.R.P. for the same product made available for sale at different places for different classes of customers. There is no law which requires that a product must be sold to all parties, at a uniform price. There is no price control with regard to sale of soft drinks. The requirement of M.R.P. declaration on a package is provided for only under the LM Rules framed under the LM Act, which is the comprehensive legislation dealing with packaged commodities and for declaration of M.R.P. thereon. In relation to packaged commodities, such as carbonated water, the only requirement under the LM Rules is that every package (including canes) must bear a declaration of M.R.P. as provided under Rule 6(1)(e) of the LM Rules to ensure that the canes are not sold in retail at a price higher than the M.R.P. declared thereon. The aforesaid practice is not only permissible in law, but is also legislatively recognized. It is submitted that declaring different M.R.Ps. for the similar goods of answering opposite party, to be sold from different channels at different locations in the same state, cannot be considered to be an Unfair Trade Practice. If the prices are declared and clearly known the choice is of the customer to buy the product at the offered price. In such cases, there can be no manipulation of prices. Merely because a product may be sold at certain location at a higher price, which is declared, it cannot be said that unjustified costs are imposed on the consumer. Additional expenses are incurred by the outlets situated at various malls and the product from such outlets cannot be expected to be sold at the same price at which it may be sold at outlets where additional expenses are not incurred. In any event, it is the choice of the consumer to buy the product from an expensive outlet and also enjoy the facilities and ambience of such location. The jurisdiction of the District Forum to pass an order on a complaint filed before it is confined to matters which are set out in Section 14(1) of the Consumer Protection Act. The said section provides for directions which may be issued in respect of 'goods' as well as 'services'. In the present case, the allegation relates to 'goods', i.e. Diet Coke. The said section provides that a direction may be given in relation to 'goods', if the District Forum is satisfied that the goods complained against 8 suffer from any 'defects' specified in the complaint. As such, the jurisdiction of the District Forum, while dealing with 'goods' is confined only to cases where the allegation relates to 'defect' in goods and not when no 'defect' in goods is alleged in the complaint. The reliefs sought in the present complaint are beyond the scope of the directions and relief contemplated under the various clauses of Section 14(1) of the Consumer Protection Act, 1986. There are a variety of situations in which commodities are sold at different locations and in different circumstances at different prices. Certain retailers may require higher margins to make it commercially viable to deal with a commodity. Retailers may have to incur additional expenses of diverse nature for selling their commodities from a particular outlet. Such a practice of charging different prices for the same commodity is commonly observed in most commodities and the rationale for similar practice for packaged commodities would be no different. Declaration of different M.R.Ps. on similar packages may be done for a number of commercial reasons. It may be for promotion of the product or to compete effectively in the market with competing manufacturers or to give incentive to select channels or for increasing market share. Business / commercial considerations have to be kept in mind for this purpose, which may also change from time to time. It is stated that for a particular outlet, the costs in the outlet to deal with a particular product may be higher than the other outlets. This could be for a variety of reasons. The outlet may be in an expensive retail mall or it may be in a cinema hall where the retailer may be incurring a much higher cost to maintain the outlet by way of higher lease rentals, air-conditioning costs and other operating and fixed overheads, where only limited buyers come for short intervals. The costs at such outlets cannot be compared to the costs of a petal shop or a stall on the road side. It is submitted that Wave Cinema is a movie theatre in a mall and its maintenance costs and other costs are much higher than that of a petal shop or a stall on the roadside. The Supreme Court has categorically held that dual pricing is permissible. In reply of para No. 6 of the consumer complaint, the answering opposite party has stated that the practice of declaring of different M.R.P. on canes of Diet Coke made 9 available at different channels in different locations does not befool ordinary people of India or be deemed as unfair trade practice. The answering opposite party in compliance with the LM Rules is conspicuously declared on the cane, to enable the customer to make an informed choice. It is further stated that once the product has been purchased by the customer, issues related to the declaration of prices cannot be brought under the Consumer Protection Act, only issue related to deficiency of service or defects in goods can be brought under the Consumer Protection Act. The answering opposite party is neither the necessary nor proper party to the present complaint, as there is nothing in the consumer complaint to show that the answering opposite party is sold the said cane to the complainant. The District Forum does not have jurisdiction to entertain the present complaint. Jurisdiction of the District Forum is confined to matters, which are set out in Section 14(1) of the Consumer Protection Act. The said section provides that a direction may be given in relation to goods, if the District Forum is satisfied that the goods complained against suffer from any defects specified in the complaint. The complaint is wholly misconceived without any basis and is not maintainable against the answering opposite party and is, therefore, liable to be dismissed.
6. The District Forum on an appreciation of the material on record has allowed the consumer complaint vide order dated 14.11.2014 in the above manner. Aggrieved by the said order, the opposite party No. 3 has filed First Appeal No. 299 of 2014 and the opposite party No. 1 has filed First Appeal No. 01 of 2015, thereby assailing the propriety and legality of the impugned order passed by the District Forum.
7. We have heard Sh. T.S. Bindra, learned counsel for the appellant, Sh. Sanjay Gupta, learned counsel for respondent No. 2 in First Appeal No. 299 of 2014. None appeared on behalf of respondent Nos. 1 & 3 in the First Appeal No. 299 of 2014. We also heard Sh. Sanjay Gupta, learned counsel for the appellant and Sh. T.S. Bindra, learned counsel for respondent No. 3 in First Appeal No. 01 of 2015. None appeared on behalf of respondent 10 Nos. 1 & 2 in First Appeal No. 01 of 2015. We have also perused the entire record of the District Forum as well as material placed on record.
8. There is no dispute with regard to the fact that the complainant- respondent No. 1 has purchased a 330ml. Diet Coke Cane bearing batch No. PNBN016 from the opposite party No. 1-Multiplex Cinevision Pvt. Ltd. on 18.02.2014 @ Rs. 60/-. It is also undisputed that one more Diet Coke Cane of 330ml. was purchased by the respondent No. 1 from the department store 'Easyday' at Saharanpur for Rs. 30/- on 08.03.2014. It is to be seen whether appellant-opposite party No. 1 had charged higher price of Diet Coke Cane, then price of the available coke at lower rates in the market or not, and committed deficiency in service as well as unfair trade practice.
9. Learned counsel for the appellant-opposite party No. 3 in First Appeal No. 299 of 2014 has submitted before this Commission that the impugned order is illegal and contrary to law as dual pricing is not prohibited in law. The complainant has failed to make out a case of unfair trade practice. The District Forum erred in law and committed judicial impropriety by advancing the date of hearing of the complaint from 01.12.2014 to 14.11.2014. On 13.11.2014, the District Forum directed that the matter be next listed for hearing on 01.12.2014. On 14.11.2014, counsel for respondent No. 1- complainant approached counsel for the appellant with an application for early hearing of the complaint. Since, the appellant's counsel had only read such application and was not served a copy, he noted on the application that he had 'seen' it. On 06.12.2014 , learned counsel for the appellant was shocked to be informed that a final order had already been passed in the complaint, which had been allowed. It transpired that counsel for complainant-respondent No. 1 had purportedly moved the application for early hearing of the complaint on 14.11.2014 and the complaint was heard by the District Forum on the very same day without notice of the application being issued to the appellant. The District Forum had heard arguments by the complainant on the complaint, had decided the complaint and even passed its order all on 14.11.2014. The complaint was heard and decided on 14.11.2014 11 without presence or knowledge of the appellant. The appellant was deprived of a right of fair hearing as the District Forum advanced the date of hearing of the complaint from 01.12.2014 to 14.11.2014 without notice to the appellant. Learned counsel has argued that the District Forum has failed to consider that the fixation or adoption of dual pricing for the Diet Coke Cane for different consumers is not prohibited under law. It is well settled that there is no prohibition on dual pricing of products. The appellant can fix different prices for the same product for different consumers. The District Forum has failed to consider that the concept of dual pricing has been judicially upheld and also legislatively recognized. The District Forum erred in law in failing to consider that the provisions of the Legal Metrology Act, 2009 and the Legal Metrology Rules, 2011 only required the appellant to declare the Maximum Retail Sale Price of the Diet Coke Cane on the cane itself. Admittedly, the M.R.P. of Rs. 60/- was displayed on the Diet Coke Cane sold at the mall. The District Forum further failed to consider that there is no law regulating the fixation of the M.R.P. The appellant was free to fix M.R.P., the appellant has two broad categories of M.R.Ps. that it uses for its products, one being for products sold as part of general trade and the other being in relation to products sold in select channels, where higher M.R.Ps. are charged since such products target different consumers. The complainant-respondent No. 1 purchased the product of his own free will and enjoyed the comfort of the Mall. The District Forum has failed to appreciate that at the time of purchasing the Diet Coke Cane for Rs. 60/- in the Mall, respondent No. 1- complainant was fully aware that a similar product was available outside the mall for Rs. 30/- and yet consciously and of his own volition purchased the Diet Coke Cane for Rs. 60/-. It is not the case of respondent No. 1 that he was compelled to purchase the Diet Coke Cane at the M.R.P. of Rs. 60/-. Further, the Diet Coke Cane for Rs. 60/- was an offer for sale and there was no compulsion for the respondent No. 1 to buy the Cane. In such circumstances, the respondent No. 1 could not be permitted to complain against the appellant for his own voluntary actions. In the present case, it is admitted that the Diet Coke Cane was not sold above the M.R.P. In fact, in 12 certain situations, courts have recognized that it is even permissible to charge over and above the M.R.P. of a product. The District Forum ought to have appreciated that respondent No. 1 had decided to purchase the Diet Coke Cane within the ambience and comfort of the mall, although a similar product was available at a road side shop for half the price, which he was free to visit. The District Forum has failed to appreciate that the M.R.P. did not amount to an unfair trade practice, rather a trade practice permitted by law. The complaint filed by respondent No. 1 did not satisfy the definition of 'complaint' as defined in Section 2(1)(c) of the Consumer Protection Act, 1986. The complaint does not fall within any definition of 'unfair trade practice' under Section 2(r) of the Act. No unfair method or unfair or deceptive practice was used to promote the sale of the Cane of Diet Coke. The District Forum exceeded its jurisdiction under Section 14(1) of the Act by imposing the fine. Powers of the District Forum are limited by Section 14(1) of the Act and there is nothing in Section 14(1) which empowers the District Forum to direct the deposit of the fine or penalty in the Forum. The District Forum cannot accept or receive funds from the non-Government sources without the authority of law. The District Forum did not pass a reasoned order and brushed aside the reply and written arguments filed by the appellant.
10. Learned counsel for the appellant-opposite party No. 1 in First Appeal No. 01 of 2015 has submitted before this Commission that the District Forum erred in law and committed judicial impropriety by advancing the date of hearing of the complaint from 01.12.2014 to 14.11.2014 and decided the complaint behind the back of the appellant on 14.11.2014 itself. In the case of cold drinks and beverages the manufacturers are free to fix the price of their products without any interference by the Government or any other agency. It is not the case of respondent No. 1-complainant that M.R.P. mentioned on the Cane is Rs. 30/- and the same is being sold for Rs. 60/-. There is no law prohibited dual pricing of products. Dual fixation of price bases on reasonable distinction between the different types of customers has 13 met with the approval of the Courts. The appellant had sold the Cane at the price printed on the Cane and no more. The District Forum has failed to note that purchasing of a Diet Coke Cane from a grosser store and purchasing of a Diet Coke Cane at a Cinema Hall / Mall involved payment of extra duties and liabilities towards the Government, on account of which there is difference in the M.R.P. of the Diet Coke.
11. We have gone through the record of the District Forum, Haridwar. Date 13.11.2014 was fixed for arguments and further on 13.11.2014, the case was listed for arguments on 01.12.2014. On 14.11.2014, an application was moved by the complainant-respondent No. 1 to expedite the matter. Application was endorsed with remark "seen" by learned counsel for the opposite parties. No objection was filed by the counsel for the opposite parties. It was directed by the Forum to argue the case on 14.11.2014 itself. Thereafter, arguments were heard and fixed for judgment and later on, on the same date judgment was delivered. Learned counsel for the appellants in both the appeals have submitted before us that on 14.11.2014, learned counsel for the complainant-respondent No. 1 was heard without notice of the application being issued to the appellants. The District Forum had heard arguments of the respondent No. 1-complainant on complaint, had decided the complaint and even passed its order, all on 14.11.2014. It is submitted that the complaint was heard and decided on 14.11.2014 without the presence or knowledge of the appellant. From the perusal of the order dated 14.11.2014 on the District Forum's record there is no specific and speaking order that the District Forum had heard both the parties and decided the matter on the very same date. It creates suspicion in the mind of this Commission.
12. Learned counsel for the appellants in First Appeal No. 299 of 2014 and First Appeal No. 01 of 2015, have relied on the judgment of the Hon'ble Supreme Court in the case of Pallavi Refractories vs. Sangarenni Collieries Company Limited (2005) 2 SCC 227 on the question of dual price. In the said judgment, the Hon'ble Apex Court has held that there is no such law that a particular commodity cannot have a dual fixation of price and that dual 14 fixation of price based on reasonable classification from different types of customers has met with approval from the courts. Learned counsel for the appellants have also relied upon the judgment of the Hon'ble Supreme Court in State of Punjab vs. Associated Hotels of India (1972) 1 SCC 472 and Northern India Caterers (India) Ltd. vs. Lt. Governor of Delhi (1978) 4 SCC 36. In the said judgment, the Hon'ble Apex Court has held that it was recognized that there is no sale when food and drink are supplied to guests residing in a hotel or in a restaurant. The rational is that the customer is paying more than the price of the good including the services provided, for instance, enjoying the ambience of the hotel or restaurant. Learned counsel also relied upon the judgment of Hon'ble Delhi High Court in the case of Federation of Hotels and Restaurants Association of India and Others vs. Union of India and others 139 (2007) DLT 7. In the said judgment, the Hon'ble Delhi High Court has held that charging prices for mineral water in excess of the M.R.P. printed on the packaging during the service of customers in hotels and restaurants does not violate any of the provisions of the Standards of Weights and Measurement Act, 1976. In the case of Prabhudayal Keshwani vs. The Commissioner, Chattisgarh Housing Board decided on 08.05.2014, the State Consumer Disputes Redressal Commission, Chattisgarh has held that it is now a settled law that consumer fora cannot go into the question of 'pricing'. It also does not amount to consumer disputes as per law laid down by the Hon'ble National Commission in earlier cases. Learned counsel also relied upon the judgment of Kerala State Consumer Disputes Redressal Commission, Thiruvananthapuram in the case of The Secretary, K.S.E.B. and Anr. vs. Yesu Adimanadar; 2009 (4) CPR 140. In the said case, the State Commission has held that Consumer Forum could not interfere with the pricing. It is to be noted that Fora has no jurisdiction to go into the question of pricing. Learned counsel also relied upon the judgment of Maharashtra State Consumer Disputes Redressal Commission, Mumbai in the case of City and Industrial Development Corporation Maharashtra Ltd. vs. Sunita Naganath Gadewar; 2009 (4) CPR 274. In this case the State Commission has held that Forum had no 15 locus standi to direct the opposite party to accept particular price. In First Appeal No. 1132 of 2009; Hindustan Coca-Cola Beverages Private Limited vs. Consumer Guidance Society and Others, the State Consumer Disputes Redressal Commission, Hyderabad has held that if the complaint does not relate to any defect of the goods for deficiency in service the complaint will not lie and the Forum have no jurisdiction. If the complaint does not relate to any of the defects in the goods supplied but relates to a breach of contract of the sale of goods on the ground of failure to supply of full quality of goods agreed to be supplied. It is a civil liability for which remedy is available elsewhere. In the absence of any allegations of any defective goods or deficiency in service, it is not a consumer dispute at all.
13. Section 14(1) of the Consumer Protection Act, 1986 provides procedure for finding of the District Forum, as defined as follows:-
Finding of the District Forum -- (1) If, after the proceeding conducted under Section 13, the District Forum is satisfied that the goods complained against suffer from any of the defects specified in the complaint or that any of the allegations contained in the complaint about the services are proved, it shall issue an order to the opposite party directing him to do one or more of the following things, namely:--
(a) to remove the defect pointed out by the appropriate laboratory from the goods in question;
(b) to replace the goods with new goods of similar description which shall be free from any defect;
(c) to return to the complainant the price, or, as the case may be, the charges paid by the complainant;
(d) to pay such amount as may be awarded by it as compensation to the consumer for any loss or injury suffered by the consumer due to the negligence of the opposite party.
Provided that the District Forum shall have the power to grant punitive damages in such circumstances as it deems fit;
(e) to remove the defects in goods or deficiencies in the services in question, etc. In the instant case, the respondent No. 1-complainant has not come before the District Forum with a prayer about the defects in product, i.e. Diet Coke Cane, therefore, in these circumstances, we are of the view that the District Forum has no power to entertain such complaints, in which there was no question of defect in goods or regarding services. The respondent No. 1 16 has failed to prove the allegations against the opposite parties-appellants. The respondent No. 1-complainant has not placed any law or citation of higher courts in support of his consumer complaint, whereas on the other side, the opposite parties-appellants have relied on so many judgments of Hon'ble Apex Court, Delhi High Court as well as other State Commission that there is no law that a particular commodity cannot have a dual fixation of price. Citations relied upon by the appellants as stated above are fully applicable in the instant case. Admittedly, respondent No. 1-complainant had purchased Diet Coke Cane at a printed M.R.P. of Rs. 60/- at the counter of opposite party-Multiplex Cinevision Pvt. Ltd., an air conditioned cinema, known as Wave Cinemas. No extra money was demanded or charged by the Multiplex Cinevision Pvt. Ltd. from the respondent No. 1-complainant. The complainant was not bound to purchase the Diet Coke Cane @ Rs. 60/- in the Wave Cinemas. The appellant-opposite party No. 1 has not sold the product at higher rate from the printed M.R.P. on Diet Coke Cane from the respondent No. 1-complainant. Respondent No. 1 has not filed any replication against the pleadings of the appellants regarding The Legal Metrology Act, 2009 and The Legal Metrology (Packaged Commodities) Rules, 2011 regarding the declaration of M.R.P.
14. The District Forum has failed to consider that the fixation or adoption of dual pricing for the Diet Coke Cane for different consumers is not prohibited under law and concept of dual pricing has been judicially upheld and also legislatively recognized. The manufacturer is free to fix M.R.P. for its products, one being for products sold as part of general trade and the other being in relation to products sold in select channels, where higher M.R.Ps. are charged since such products target different consumers. Respondent No. 1 purchased the product of his own free will and enjoyed the comfort of the Mall. It is not the case of respondent No. 1 that he was compelled to purchase the Diet Coke Cane at the M.R.P. of Rs. 60/-. It was an offer for sale and there was no compulsion for the respondent No. 1 to buy the Cane. The District Forum ought to have appreciated that respondent No. 1 had decided to 17 purchase the Diet Coke Cane within the ambience and comfort of the mall, although a similar product was available at a road side shop for half the price, which he was free to visit. The District Forum has failed to appreciate that M.R.P. did not amount to an unfair trade practice, rather a trade practice permitted by law. In this way, we are of the view that the respondent No. 1 has failed to prove that there was any deficiency of service or unfair trade practice on the part of the appellants by charging Rs. 60/- on printed M.R.P. of Diet Coke Cane at Multiplex Cinevision Pvt. Ltd. situated in The Pentagon Mall.
15. So far as the punitive damages imposed by the District Forum upon the appellant-Multiplex Cinevision Pvt. Ltd. are concerned, as per Section 14(1)(d) of the Consumer Protection Act, 1986, a consumer is entitled to an amount as compensation as to the actual loss or injury suffered by him due to the negligence on the part of the opposite party, which should be reasonable. The object of the Consumer Protection Act, 1986 is not to unjustly enrich the consumer and allow them to raise whimsical and capricious claims. Normally punitive damages are awarded against a conscious wrong doing unrelated to the actual loss suffered. Such a claim has to be pleaded, as has been held by the Hon'ble Apex Court in the case of General Motors (India) Private Limited vs. Ashok Ramnik Lal, Lal Tolat and another; AIR 2015 Supreme Court 562. In the present case, no averment has been made in the consumer complaint to the effect that other consumers have also suffered loss. No such prayer was made in the consumer complaint to award punitive damages. The District Forum has awarded the punitive damages without assigning any reason and did not consider the fact that no such averment has been made in the consumer complaint.
16. For the reasons aforesaid, the appeals are fit to be allowed and the order impugned passed by the District Forum is liable to be set aside.
17. In view of the above, both the appeals are allowed. Impugned judgment and order dated 14.11.2014 passed by the District Forum, Haridwar 18 is set aside and the consumer complaint No. 115 of 2014 is dismissed. No order as to costs. Amount deposited by the appellant in First Appeal No. 299 of 2014 and amount deposited by the appellant in First Appeal No. 01 of 2015 be released in their favour.
18. Let the copy of the order be kept on the record of First Appeal No. 01 of 2015.
(MRS. VEENA SHARMA) (D.K. TYAGI)