State Consumer Disputes Redressal Commission
Daljeet Kaur vs Madan Provision Store on 14 July, 2017
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, CHANDIGARH.
First Appeal No.29 of 2017
Date of institution : 10.01.2017
Reserved On : 03.07.2017
Date of decision : 14.07.2017
Daljeet Kaur w/o Rajinder Singh, resident of 7-B, Majithia Enclave,
Patiala, Mob. No.9855241433.
.... Appellant/Complainant
Versus
1.Madan Provision Store, Majithia Enclave, Patiala.
2. The Consumer Services Manager, PEPSICO Holdings Pvt.
Ltd., Fritolay Division, P.O Box No. 27, DLF, Qutab Enclave, Phase-I, Gurgaon -122002, Haryana.
....Respondents/ Opposite Parties First Appeal against the order dated 21.12.2016 of the District Consumer Disputes Redressal Forum, Patiala.
Quorum:-
Hon'ble Mr. Justice Paramjeet Singh Dhaliwal, President Present:-
For the appellant : Sh. Rajinder Singh, Auth. Rep. For respondent No.1 : Ex parte For respondent No.2 : Sh. Sumeet Mahajan, Sr. Advocate, with Sh. Manvender Rathi, Advocate.
JUSTICE PARAMJEET SINGH DHALIWAL, PRESIDENT It is an appeal preferred by the appellant/ complainant against the order dated 21.12.2016 passed by the District Consumer Dispute Redressal Forum, Patiala (in short District Forum), whereby complaint filed by her, under Section 12 of the Consumer Protection Act, 1986 (in short, "the Act"), was allowed First Appeal No.29 of 2017 2 and respondent No.2/opposite party No.2 was directed to pay ₹10,000/- as lump sum compensation to the complainant within one month from receipt of certified copy of the date of order.
2. It would be apposite to mention that hereinafter the parties will be referred, as have been arrayed before the District Forum.
Facts of the Complaint
3. The detailed facts are already mentioned in the impugned order of District Forum. However, relevant facts in brief, for disposal of this appeal, are to the effect that the complainant filed complaint against Madan Provision Store- opposite party No.1 and against the Consumer Service Manager, Pepsico India Holding Private Limited-opposite party No.2, alleging that she purchased 5 packets of Namkeen "Lehar Karare Peanuts' for ₹10/- each from opposite party No.1, alongwith other products, vide receipt dated 20/10/2015, Ex.C1. The said product is being marketed by the opposite party No.2. Out of 5 packets, one packet bearing batch No. FA250615 manufactured on 25/06/2015 showed net quantity as 50 gms. (40gm+10gm i.e 25% extra) and she noticed that they appeared to be underweight. Opposite Party No.2 is not marketing products according to the contents mentioned on the labelled packing and is not following the quality control program. Opposite party No.2 has sophisticated imported weighing machines and a packet having even one gram less cannot pass through the built-in checking system. Opposite party First Appeal No.29 of 2017 3 No. 2 on the regular packing has been mentioning its weight as 40 gms. and had sold the same by giving special offer of 25% extra; thereby giving net quantity of 50 gms. It appears that wrappers stating 25% extra have been changed, but weight command has not been changed. In this manner, opposite party No. 2 is selling underweight goods, which amounts to unfair trade practice; resulting into fleecing of large section of consumers spread over the entire country. Opposite party No.2, by marketing and selling underweight products, is earning huge amount at the cost of consumers. Hence, she being an alert consumer approached the District Forum, seeking compensation of ₹80,000/- and for imposing heavy penalty upon the opposite parties. Defence of Opposite Party No.2
4. The District Forum admitted the complaint against opposite party No.2 only and upon notice opposite party No.2 filed written reply and pleaded that the complainant is not a consumer. The District Forum has no territorial jurisdiction. Complainant be put to strict proof of purchase of the packets of Namkeen "Lehar Karare Peanuts' (in short, "Lehar") from the retailer and the retailer had purchased from its authorized distributor. The packet, in question, does not belong to opposite party No.2, in any manner. All the products manufactured by opposite party No.2 are duly weighed and packed. The complainant had not suffered any loss or injury and, therefore, she is not entitled to any relief. First Appeal No.29 of 2017 4 Finding of the District Forum
5. The parties filed affidavits and documents on record. In the course of trial, the weight of the packet in question was done on the direction of the District Forum.
6. The District Forum after appreciation of evidence held that opposite party No.2 was guilty of deficiency in service and the objection of the opposite party No.2 that complainant had not produced the bill of purchase was turned down as the complaint against opposite party No.1 was not admitted. The Forum below, relying on weight measured before it, held that weight of the product, in question, was less and opposite party No.2 was responsible for the marketing of underweight goods to the complainant, through opposite party No.1. Therefore, it allowed the complaint against opposite party No.2 and passed impugned judgment directing payment of ₹10,000/- in all to the complainant. Still feeling aggrieved, the complainant has come up in this appeal.
Contentions of the Parties
7. I have heard the Authorized Representative of the appellant/complainant and Sh. Sumeet Mahajan, Senior Advocate, assisted by Sh. Manvender Rathi, Advocate, learned counsel for respondent No.2/opposite party No.2, as none appeared for the respondent No.1/opposite party No.1, despite its service and was proceeded against ex parte. I have also perused the impugned order and the record of the District Forum.
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8. The Authorized Representative of the complainant vehemently contended that the goods, in question, are meant for mass consumption. Earlier also, the complainant had filed similar complaints against the opposite parties, in which they were found deficient and the said complaints were allowed. It is the third complaint against the same opposite parties, in which also the opposite party No.2- Company has been found to be deficient in providing proper weight goods. The goods supplied were under- weight and the opposite parties deserve to be burdened with exemplary costs and compensation. The weight has been measured in this Commission on 03.07.2017 itself and was also measured before the District Forum and less weight was found in the packet on both the occasions. In such circumstances, the appeal is liable to be allowed and the impugned order needs to be modified.
9. Per contra, learned senior counsel for opposite party No.2 contended that opposite party No.2 is an international company and is providing job to the various persons and question of selling less weight products does not arise. They are weighing the products on the scales, which are of standard quality. The complainant is claiming compensation, which is on higher side and reasonable compensation has been awarded by the District Forum. The value of one pack is only ₹10/-; although ₹10,000/- have been awarded. It was further contended that due to dryness etc., the weight of the goods reduces naturally. There was no First Appeal No.29 of 2017 6 deficiency in service on the part of opposite party No.2 and the appeal is liable to be dismissed.
Consideration of Contentions
10. I have given a thoughtful consideration to the contentions raised by the Authorized Representative of the complainant and learned counsel for opposite party No.2.
11. The facts are clear that the product, in question, is marketed by opposite party No.2-Company, through suppliers and retailers, and no evidence has been led by opposite party No.2 to show that product, in question, is not their product. Opposite party No.1 sold the product to the complainant, vide receipt Ex.C-1, and the complainant found that it is having less material and is underweight. This fact was confirmed, when the District Forum below weighed the product in the presence of parties and sealed the same. This Commission also got weighed the product by calling Weight and Measure Inspectors of Legal Metrology Department, Patiala, Punjab on 03.7.2017 and recorded the same in the order of even date, which reads as under:
"In pursuance of order dated 22.05.2017, Sh. Anil Kumar, Inspector, Legal Metrology, Patiala-2 and Sh. Gurpreet Singh, Inspector, Legal Metrology, Patiala-1 are present, along with electronic weighing scale. The electronic weighing scale was checked and found to be in order. The weight of extra sample was checked to verify the accuracy of the electronic weighing scale and it First Appeal No.29 of 2017 7 was found to be 45.24 gm and in actual the weight mentioned on the sample test packet 42 gm. The packet in dispute as well as sample packet brought by the counsel for OP No.2 have been weighed in presence of the parties. The weight of the disputed sealed packet after opening was done in this Commission, which turned out to be 38.71 gm. against the gross weight written on the packet as 40 gm + 10 (Total 50 gm)."
12. The unsuspecting buyers/consumers are duped by the Company and traders, by selling underweight goods. The sealed product was weighed by the inspectors on their electronic weighing scale in the presence of the Authorized Representative of the complainant and learned counsel for opposite party No.2 and it was found to be under weight, as detailed in the above referred order. The Company, like PepsiCo, should have taken reasonable and greatest care in selling the pre-packed material, being an international Company. The Company cannot escape its liability, if consumer finds that the packet supplied is underweight. In pre-packaged articles, small mistake of less weight adds upto a big overall impact. These items are meant for mass consumption. The consumer pays the full amount, including taxes, for purchasing the specific goods and selling underweight goods amounts to unfair trade practice and deceptive trade practice. The appellant/consumer had taken a lot of pains to file complaint First Appeal No.29 of 2017 8 against giant Company, like the opposite party No.2 herein. The same is covered under the definition of unfair trade practice. This Commission too, on weighing the packet, found gap between the actual and marked weight on the packet. The complaint was rightly held tenable in law, in view of the fact that it was pertaining to goods, which were underweight and which were being offered for sale to the general public, in contravention of the standards relating to the weight and measure of such goods under the law for the time being in force. So, there was contravention of clause 6 of Section 2 (1) (c), (r) of the Act. Therefore, the Forum below rightly took cognizance of the complaint and held that the goods, in question, were underweight; which are offered for sale to the general public at large scale, as mentioned in Section 2 of the Act. It was certainly underweight goods claimed to be genuine, but actually it was not so, as mentioned in Section 2(1) of the Act. Therefore, the Forum below rightly allowed the complaint and held opposite party No.2 guilty of deficiency in service and unfair trade practice. Not only this, I hold that selling underweight goods of mass consumption is also a deceptive trade practice.
13. It is well known that the weighing machine used with the Legal Metrology Department is expected to be much more scientific and accurate than ordinary weighment made by scales available in the market. In the present case, the discrepancy in the weight is more than 11 gms., but the fact remains that packet, in question, is underweight. I am, therefore, one with the District First Appeal No.29 of 2017 9 Forum that the packet, in question, manufactured and marketed by opposite party No.2, was less by 11 gms., as printed on the packet and this amounts to gross deficiency in service and unfair trade practice and deceptive trade practice.
14. The other point, which has been urged by the learned counsel for opposite party No.2 is that the complainant has failed to produce any evidence to show that she purchased the packet, in question, from the retailer and that the same, in any way, belongs to opposite party No.2. In this respect, it is relevant to mention that the complainant has produced on record the bill, Ex.C-1, vide which she purchased five packets of 'Lehar', along with other goods. The Packaged Commodities Rules require that any commodity, which is sold in packets, must on the outer cover of the package contain certain particulars, out of which weight is one. The manufacturer has, therefore, to give correct weight of the packet, so that a customer shall not be misled. There is no dispute that the "Lehar', in question, was marketed by opposite party No.2. On the outer cover, the name of opposite party is duly mentioned. Therefore, it cannot be said that the packet of the goods, in question, does not belong to opposite party No.2. Opposite party No.2, who is marketing pre-packed product under its name, cannot avoid its liability for selling less weight products to the unsuspecting consumers.
15. It is true that the purpose of the Act is not to make the consumer unjustly rich, by awarding excessive compensation. It is First Appeal No.29 of 2017 10 also true that the consumer cannot be allowed to blackmail the manufacturer, marketer and the seller; when the manufacturer produces the goods in bulk quantity every day. However, I am of the opinion that punitive damages are required to be imposed only when the manufacturer or the Company, which is marketing the products, is found to be deficient on account of defect in goods, sub-standard quality, less quantity, impurity etc. in such cases. In the present case, the Authorized Representative of the complainant, during his arguments, has submitted that he has come from USA and is an alert consumer. Earlier, compensation of ₹20,000/- was awarded in C.C. No.364 of 2013 (Rajinder Singh v. Madan Provision Store & Anr.) decided on 05.03.2014 and compensation of ₹30,000/- was awarded in C.C. No.270 of 2014 (Rajinder Singh v. Madan Provision Store & Anr.), decided on 22.04.2015. This is the third complaint, out of which the present appeal has arisen. The complainant has filed this appeal, through her Authorized Representative, Sh. Rajinder Singh, who is her husband, and contended that exemplary compensation should have been awarded in the present case and the same may be deposited in the Consumer Legal Aid Account of this Commission. The complainant is not interested in getting the amount of compensation. Being an alert citizen of India, her grievance is that the sale of bulk quantity of the goods, in question, is affecting the masses and the poor citizens of this country. The international Company, like opposite party No.2, cannot be given liberty to sell First Appeal No.29 of 2017 11 less quantity of the goods, in question, and to charge more price for the same. Rather, it is the Company, which is being unduly enriched by supplying underweight goods, in question. I am of the view that such like products are meant for mass consumption, which the poor people, specifically the children and young generation consume. Although, the complainant has purchased 5 packets of "Lehar Karare Peanuts", out of which one packet was found to be underweight. As against 50 gms., it was found to be 38.71 gms. i.e. more than 11 gms. less; meaning thereby that 20.5% less. Keeping in view the mass consumption, it has huge impact and the company derives huge benefits by selling underweight pre-packed products. Earlier too, opposite party No.2 was found deficient in services and compensation was imposed. The complainant has claimed ₹80,000/- in the complaint, as compensation. Resultantly, this Commission is of the view that the compensation of ₹10,000/- was not adequate as granted by the District Forum. Therefore, the impugned order needs to be modified.
16. I find substance in the appeal preferred by the complainant. This was really a full proof case brought before the Forum by the diligent consumer, who has exposed opposite party No.2-Company's recklessness and is a chronic offender, as earlier too it was found to be deficient in service. So, the impugned order is required to be modified. The appeal is liable to be accepted at the stage of admission itself.
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17. In my opinion, opposite party No.2 can be directed to pay ₹80,000/- as compensation, which should be deposited in the Consumer Legal Aid Account of this Commission. Conclusion
18. As a sequel to the above discussion, the appeal is allowed and the impugned order dated 21/12/2016 passed by the District Forum is modified. Opposite party No.2 is directed to pay ₹80,000/-, along with interest at the rate of 12% per annum from the date of complaint till realization, which shall be deposited by it in the Consumer Legal Aid Account of this Commission. Complainant is held entitled to litigation costs for litigating before the District Forum as well as before this Commission, which are assessed as ₹10,000/. This order shall be complied with by opposite party No.2 within 45 days from the receipt of certified copy of this order.
19. This Commission deems it appropriate that these pre- packed articles are required to be randomly audited and weighed nationwide to find out the deficiency, if any, and appropriate measures should be taken in the interest of the citizens of the country, who are consuming such goods. Therefore, the Legal Metrological Department of the State of Punjab is directed to make sure that pre-packed articles are randomly audited and weighed Statewide to find out the deficiency, if any, in the interest of the consumers of the State and the country. A copy of the order be First Appeal No.29 of 2017 13 also sent to the Legal Metrology Department of the State of Punjab for compliance of the order.
(JUSTICE PARAMJEET SINGH DHALIWAL) PRESIDENT July 14, 2017.
(Gurmeet S)