State Consumer Disputes Redressal Commission
Colgate Palmolive India Ltd vs Bighneswar Kumar Shroff on 10 March, 2023
STATE CONSUMER DISPUTES REDRESSALCOMMISSION,ODISHA,CUTTACK
FIRST APPEAL NO.69 OF 2021
(From an order dated 08.02.2021 passed by the District Commission,
Sambalpur in C.C. No. 30 of 2019)
Colgate Palmolive (India) Ltd., Colgate
Research Centre, Main Street, Hiranandani
Gardens, Powai, Mumbai-400076, Maharashtra,
Represented by its Assistant Manager-Legal and
Authorised Signatory Mr. Sandesh Kasabe,
Aged about 34 years, son of Mr. Pralhad Kasabe.
... Appellant
Vrs.
Bighneswar Kumar Shroff, aged 36 years,
Son of - Not known, At Sunaripara,
Bara Bazar, P.O.Khetrajpur,
Dist. Sambalpur.
... Respondent
____________
For the appellants: M/s S.K.Mishra & Associates
For the respondent: None
____________
P R E S E N T:
THE HON'BLE DR. JUSTICE D.P.CHOUDHURY, PRESIDENT,
DR.P.K.PRUSTY, MEMBER
AND
MISS S.L.PATTNAIK, MEMBER
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DATED THE 10th MARCH, 2023
ORDER
DR. D.P. CHOUDHURY J., PRESIDENT Captioned appeal is filed u/s 41 of the erstwhile Consumer Protection Act, 2019 (hereinafter called the 'Act'). Parties to this appeal shall be referred to with reference to their respective status before the District Commission.
PLEADINGS
2. The factual matrix leading to the case of the complainant is that the complainant has purchased a Colgate Swarna Ved Shakti Toothpaste of 100 gms from O.P.1 on payment of Rs.55/- including VAT. According to him, the MRP of the said Toothpaste was written on the cover as Rs.46/-. The opposite party no.1 has charged excess amount than the MRP which is illegal and unfair trade practice. Not only but also, it is alleged inter alia that opposite party no.1 charged Rs.4/- for the poly bag having an 3 endorsement of Anand Super Bazaar on the back which is also not justified. The complainant found in the bazaar that the same product by the manufacturer are being available in the market less than the MRP between Rs.44/- to Rs. 46/- on the cover/package having the same batch number and product. Therefore, the complainant visited opposite party no.1 and narrated all the problems but the opposite party no.1 did not respond to him. The complainant made opposite party no.2 because he is the manufacturer of the said product at higher price fixed by opposite part no.2. So the complainant filed the complaint case.
3. Opposite party no.1 is set ex parte. Opposite party no.2 filed a written version stating that the product purchased by complainant does not bear any batch number and date of manufacturer to show that it belongs to opposite party no.2. Moreover, the Cash Memo has not been filed with the complaint petition. It is also stated that the case should have been filed before the Civil Court instead of filing the same in the Consumer 4 Forum. Opposite party no.2 has taken further plea that there is no relationship between opposite party no.1 an opposite party no.2 for which it is not maintainable. According to the opposite party no.2, the Distributor should be made a party to the case. However, the complainant is not a consumer as per law and he has no cause of action against the opposite party no.2. Opposite party no.2 has never instructed to sell the product in higher price than the MRP as alleged by the complainant. Therefore, there is no deficiency of service on the part of opposite party no.2. DECISIONS OF DISTRICT COMMISSION
4. After hearing both the parties, learned District Commission passed the following order:-
" The Complaint petition is allowed. The O.P.1 is directed to refund of an amount of Rs.9/- ( Rupees Nine) charged in excess by the O.P.1 for the Colgate Swarna Ved Shakti Toothpaste and an amount of Rs.4/- (Rupees Four) wrongly charged by the O.P.1 for the Poly Bag besides payment of Rs.5000/- (Rupees Five Thousand) to the complainant towards compensation for mental and physical harassment and Rs. 2000/- (Rupees Two Thousand) towards litigation expenses. Further the O.P.1 and 2 are jointly and severally directed to pay Rs.3000/- (Rupees Three Thousand) only as compensation towards inconvenience made to the 5 complainant by printing double MRPs on the same product. All the orders are to be complied within 30(Thirty) days of receipt of this copy of order failing which the O.Ps are liable to p[ay penal interest of 9% per annum on the above amounts.
Office is directed to supply the free copies of the order to the parties receiving acknowledgement of the delivery of thereof.
Order pronounced in the open court today i.e. 8th day of February, 2021 under my hand and seal of this Commission."
SUBMISSIONS
5. Learned counsel for the appellant submitted that learned District Commission passed the impugned order illegally by directing the appellant along with opposite party no.2 jointly and severally to pay Rs. 3000/- as compensation towards inconvenience made to the complainant by printing double MRPs on the same product. According to him when the opposite party no.2 has no direct relationship with the complainant and the MRP has been fixed by opposite party no.1 who IS set ex parte, question of his joint liability with opposite party no.1 does not arise. Apart from this, the complainant has not been put into any harassment or inconvenience about any act of opposite 6 party no.2. He submitted that the entire allegation made against the dealer opposite party no.1. Moreover, it is submitted that as per the definition of Trader, in the instant case, there being o relationship between the complainant and opposite party no.2, any liability fixed on opposite party no.2 is untenable. Therefore, he submitted to set aside the impugned order by allowing the appeal. Respondent did not participate in the hearing. DECISIONS
6. Considered the submissions, perused the DFR and the impugned order. No doubt, law is well settled that the complainant has to prove the complaint case against opposite party no.2-appellant, and deficiency in service and unfair trade practice on the part of O.P.No.2. On perusal of the complaint petition, it appears that the complainant has purchased the Toothpaste of 100 grams manufactured by opposite party no.2 from opposite party no.1. In support of his submission, he has filed affidavit evidence. Further, he has also filed copy of the cover of the product where it is clearly mentioned that it was 7 earlier priced at Rs. 60/-, then it became Rs.55/- and thereafter it is re-valued at Rs. 46/-. When Rs.60/- has been reduced to Rs. 55/- and then to Rs.46/-, the opposite party no.1 is at fault in collecting Rs.55/- as against MRP of Rs.46/- of the said Colgate Swarna Ved Shakti Toothpaste. It is clearly mentioned that if any price is taken over and above the price fixed in the product, then it is wrong in the sale of the product. On the other hand, it is a unfair trade practice as per the definition under Section 2(r) of the Act. Not only this but also the charge of Rs.4/- for poly bag as collected from the complainant is also another unfair trade practice because there is nothing available from the evidence of the complainant that before supply of poly bags, a charge of Rs.4/- would be payable by the complainant and he was asked by opposite party no.1 as to whether the complainant brought any bag or would purchase the poly bag by paying Rs.4/-. The collection of Rs.4/- for poly bag is also another defect in the service referred to by opposite party no.1.
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7. In view of the above, we are of the view that there is clear deficiency of service and unfair trade practice on the part of opposite party no.1 proved by the complainant.
8. So far the liability of opposite party no.2 is concerned, we find that definition of Trader as per the Act, opposite party no.2 has no relationship with the complainant because the complainant has not purchased the product from opposite party no.2 directly and complainant has clearly admitted that there is no allegation with regard to the quality of the product but his allegation is about the sale price. For better clarification, Section 2(q) and 2(r) of the Act are quoted.
"Section 2(q) -'trader' in relation to any goods means a person who sells or distributes any goods for sale and includes the manufacturer thereof, and where such goods are sold or distributed in package form, includes the packer thereof"9
"Section- 2(r) Unfair Trade Practice-
"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, ......"
9. With reference to definition, it appears that the said goods having not been sold or distributed by opposite party no.2 directly to the complainant or opposite party no.1. The definition of 'Trade' is not proved against appellant/O.P.No.2 and for that ingredients under Section 2(r) against appellant is not proved. Therefore, the liability of opposite party no.2 as found by the learned District Commission is untenable. Moreover, the allegation of the complainant is against opposite party no.1, but opposite party no.2 has been arrayed being manufacturer of such product. As the price is fixed by opposite party no.1 before sale and received money, the question of liability of sale of such product in higher price by opposite party no.2 does not arise. Not 10 only this but also the complainant has admitted that in the ordinary sense, such product is to be sold at Rs. 44/- to Rs. 46/-, there is no reason to believe that opposite party no.2 has acted upon the opposite party no.1 to sell the concerned good at Rs. 55/-. On the other hand, the entire allegation is against opposite party no.1 and the complainant has successfully proved the same.
10. In view of the aforesaid analysis, we are of the view that there is no case made out against the appellant-opposite party no.2 but sole allegation is against opposite party no.1 which has been substantiated well by the complainant. Therefore, the joint liability of appellant with opposite party no.1 as found by the learned District commission is hereby set aside. On the other hand, the appeal succeeds against the appellant. Therefore, we hereby confirmed the entire order of payment of compensation to be made by the opposite party no.1. The rest of the impugned order also stands against opposite party no.1/Respondent no.2 solely.
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DFR be sent back forthwith.
Supply free copy of this order to the respective parties or the copy of this order be downloaded from Confonet or Website of this Commission to treat same as copy supplied from this Commission.
(Dr.D.P.Choudhury J) President (Dr.P.K.Prusty) Member (Miss. S.L.Pattnaik) Member