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2005 DIGILAW 24 (UTT)

HINDUSTAN LEVER LIMITED v. JITENDER KUMAR GUPTA

2005-02-11

K.D.SHAHI, LUXMI SINGH, SURENDRA KUMAR

body2005
ORDER Mr. Justice K.D. Shahi, President—The complainant purchased the surf of 1 kg. He found it 600 gms. He was not heard by the appellant, therefore he filed the complaint before the learned Forum. The learned Forum allowed the complaint for refund of the price for 400 gms which was less and compensation of Rs. 5,000/-, cost of litigation of Rs. 2,000/- and also levied a penalty of Rs. 1,00,000/- to be deposited in the Govt. Treasury, against which order the present appeal has been filed. 2. The complainant Sh. Jitender Kumar Gupta has purchased 1 kg. of surf in sealed condition from opposite party No. 3, M/s. Ashok Kumar Anil Kumar, who is retailer. This retailer has received one carry bag of 30 packets of 1 kg. each from opposite party No. 2, M/s. Raja Ram Nanak Chand, who is said to be distributor. The opposite party No. 1, Hindustan Lever Limited is said to be manufacturer. According to the complainant on 15.12.1995 he purchased one packet of surf from M/s. Ashok Kumar Anil Kumar vide cash memo for Rs. 54/-. He weighed the said packet of surf and found its weight only 600 gms. According to the complainant he went to the opposite party No. 3 but when he did not get any satisfactory reply, he made a complaint to opposite party No. 1 on 28.12.1995. There was no action then he sent another letter by registered post on 12.2.1996 attaching the copy of the letter dated 28.12.1995. He was assured that he shall be given 3 of surf of 500 gms each as a matter of good gesture and the complainant should finish the matter. When the representative of the appellant did not contact, the complainant sent another letter to the opposite party No. 1 on 18.3.1996. He was not heard, then he gave notice through his Counsel on 24.4.1996. It was replied that the decrease in weight is possible due to atmospheric and weather conditions. The complainant again wrote a letter on 19.6.1996 but he was not heard. Then he filed the complaint before the learned Forum. 3. We will take first the written statement of the opposite party No. 3. He has admitted the sale, cash memo and the price of the surf of 1 kg. as Rs. 54/-. The complainant again wrote a letter on 19.6.1996 but he was not heard. Then he filed the complaint before the learned Forum. 3. We will take first the written statement of the opposite party No. 3. He has admitted the sale, cash memo and the price of the surf of 1 kg. as Rs. 54/-. He has specifically admitted that the packet regarding which the complaint was made was manufactured by opposite party No. 1. When he asked the complainant to leave the packet with him, the complainant did not leave the packet. He has alleged that he has purchased the carry bag of the disputed surf from opposite party No. 2, M/s. Raja Ram Nanak Chand, who is the distributor. He has admitted that he did not suspect about the weight, therefore, he never weighed the packets. He has also admitted that the carry bags are always given to them in sealed condition. The opposite party No. 3 appears to have admitted every fact, however he did not say that the packet, which was sold to the complainant, was of inadequate weight. He only said that he has purchased it from M/s. Raja Ram Nanak Chand and he has specifically admitted that the disputed surf has been purchased from opposite party No. 2. Disputed means disputed and that is the packet in dispute. 4. The opposite party No. 2 filed written statement and admitted that he is local distributor of the opposite party No. 1. He has alleged that he has sold the carry bag of 30 packets of surf to opposite party No. 3. He denied that the carry bag, which was sold to the complainant, is that of opposite party No. 1. He further alleged that the opposite party No. 3 is in collusion with the complainant. 5. The main dispute is with the appellant Hindustan Lever Limited, who has alleged that the surf may be spurious. The District Forum was duty bound to send the packet for analysis to show that it was manufactured by the opposite party No. 1. The receipt issued by the opposite party No. 3 is not according to rules. The O.P. No. 3 was asked to produce all his papers but he did not produce. There is no question of any compensation. 6. The receipt issued by the opposite party No. 3 is not according to rules. The O.P. No. 3 was asked to produce all his papers but he did not produce. There is no question of any compensation. 6. After taking the evidence of the parties and hearing them the learned Forum allowed the complaint, against which order the present appeal has been filed. During the course of arguments as is also clear from the records the complainant has produced the packet before the learned Forum. It was found intact. It did not have any hole and it was not open from any side. The learned Forum has weighed it and has found it only 600 gms. Now we will first take the argument of the learned Counsel for the appellant whether the complainant could prove that the packet surf was manufactured by the appellant or not. When the facts are admitted, this need not be proved. Hindustan Lever Limited does not itself sell the packets to ordinary consumers. These are sold through distributors and retailers. The distributor has admitted that he has sold 30 packets to the retailer in July, 1995 and the retailer has specifically admitted that it is the same packet, which he has received from the opposite party No. 2 that has been sold to the complainant. The complainant has produced the packet before the learned Forum. It is very surprising to know that the opposite party No. 1 never saw the packet, never confirmed itself that it is not its own packet, it has merely started saying that since it is a full proof perfect company which commits no mistake, therefore, if the packet was less weighed, it must not belong to them. During the course of arguments it was conceded by Mr. Sewak Ram Aggarwal, learned Counsel for the appellant that he was present in the learned Forum when the packet was produced and he was unable to say without the inspection of the packet by his client whether it belonged to the opposite party No. 1 or not. Record shows that the opposite party No. 1 or for that purpose its officials, employees have never seen the packet till date. It is very fantastic to argue that the packet may be spurious because it is under weight. Record shows that the opposite party No. 1 or for that purpose its officials, employees have never seen the packet till date. It is very fantastic to argue that the packet may be spurious because it is under weight. The opposite party No. 1 should have first inspected the packet and then could only have said that it is their packet or not. Without any inspection merely by saying that it is the duty of the complainant to prove, the onus of the appellant is not shifted. 7. It was very hotly argued by the learned Counsel for the appellant that there is no proper analysis of the disputed article to show that it was spurious or genuine, therefore, the complaint should have been dismissed. For that our attention was drawn on Section 13 of the Consumer Protection Act. It is provided in Section 13(1)(c) of the Consumer Protection Act that where the complainant alleges a defect in the goods, which cannot be determined without proper analysis or test of the goods, the District Forum shall obtain sample and then will take proceedings for analysis. What is mandatory is that there must be allegation by the complainant regarding the defect in the goods. The complainant has not alleged anywhere that the surf was defective. He did not say anywhere that it was spurious. It is obligatory on the part of the complainant or Forum to get it analysed at the expenses of the complainant when the allegation is that of the complainant but in this case there is absolutely no allegation by the complainant that there is defect in the goods and its analysis is necessary. His entire grievance is regarding under weight, which was weighed by the Forum itself and the Forum found that the packet was under weight. Then what for the complainant should have been asked to get it examined? It is the allegation of the appellant that it may not be their article, therefore its analysis was necessary. As said above the appellant should have got it inspected itself and should have definitely told that it is not their packet. Without even a formal look over the packet, merely by saying that this may be spurious, there was no allegation on the part of the complainant to show that this is genuine. Secondly also the consumer is an ordinary consumer. Without even a formal look over the packet, merely by saying that this may be spurious, there was no allegation on the part of the complainant to show that this is genuine. Secondly also the consumer is an ordinary consumer. Hindustan Lever Limited is a company of highest recognition in the country. It must have got its own laboratory. It must have got its own testing machines. It should have applied to the Forum that please take out a sample from the packet, give it to us so that we may test it whether it is our product or not and only after the examination in their laboratory, they could have told that this is not their product and, therefore, if the Forum deems fit, it should get it analysed by a recognized laboratory either at his expenses or should have requested the Forum to press the complainant to get it analysed but in our view in the circumstances as such since the allegation is that of the appellant that the article may be spurious one, therefore, it was their duty to get it analysed to show that actually it was not their product and, therefore, they are not bound to pay any compensation if it is under weighed but by the every argument the appellant wanted to throw the burden at the complainant which they should themselves have discharged. 8. Even if the allegation is that of spurious, merely by saying that opposite party No. 3 has colluded with the complainant, the entire responsibility of the appellant is not discharged. It did not take any action against the opposite party No. 3. The opposite party No. 3 has purchased the carry bag from the opposite party No. 2. He has got no other alternative except to say that he has purchased it from opposite party No. 2. He has given cash memo to the complainant. He has got no alternative except saying that he has sold it to the complainant and, therefore, if he tried to speak the truth, it cannot be said that he has colluded with the complainant. At any rate the appellant did not take any action to survey the market, to see the spurious goods and to produce any packet, which could have been spurious and had been sold by the opposite party No. 2 or 3. At any rate the appellant did not take any action to survey the market, to see the spurious goods and to produce any packet, which could have been spurious and had been sold by the opposite party No. 2 or 3. For these infringements of the trademarks, there is specific provision of prosecution under the Trademarks and Merchandize Marks Act but the appellant did not take any action to save their goodwill or reputation and merely started saying that the article may be spurious because it was under weight, they are never in the habit of making any packet which could have been under weight, such a plea cannot be appreciated. 9. In the written statement the appellant has taken the plea that if the packet was under weight, the Weights and Measures Rules make provision for that. May it be so but when there is deficiency in service irrespective of any other remedy available to the complainant, he can raise the matter in the Consumer Forum. In para 3 of the written statement the appellant has alleged that the complainant has not deposited the impugned carry bag of surf in the District Forum. That has been deposited. It is the appellant, which did not take any action or proceed to get it tested or weighed, if it thought that this was not under weight. To our utter surprise it was never argued by the learned Counsel for the appellant that the packet, which was deposited before the Forum, was not under weight, it is of 1000 gms. Even today it is said that it can be under weight due to weather and atmospheric conditions. The surf is not such an article, which shall evaporate in the packet unless it is mixed with water. In para 4 it is alleged that spurious products are also in the market so without proper analysis, it cannot be ascertained that it was due to the negligence of the appellant. No other defect is alleged. There was no necessity of any examination because the Forum itself has found it to be under weight. Necessity of sending is only where there is any allegation of defect. It is alleged in para 5 that no affidavit has been filed by the complainant. No other defect is alleged. There was no necessity of any examination because the Forum itself has found it to be under weight. Necessity of sending is only where there is any allegation of defect. It is alleged in para 5 that no affidavit has been filed by the complainant. What is the necessity of the filing the affidavit when the opposite party No. 3 has admitted the sale of the surf to the complainant. In our view the case of the complainant is fully proved. He has purchased it. There was shortage in weight. The learned Forum has rightly allowed the complaint for refund of the price of the less weight. The complainant has been put to harassment. He issued a number of letters to the appellant but the appellant did not hear, then he filed the complaint. Mere offer of 3 bags in place of 1 was after all no solution. The appellant should have met the complainant, should have ventilated his grievances and being of such a highest repute and goodwill should have given an undertaking that such deficiency in service shall never occur in future. In this way if the complainant has been awarded a compensation of Rs. 5,000/-, it cannot be said to be on the higher side. He has been put to unnecessary litigation. The complainant cannot be blamed because he has approached the Forum only for a shortage of 400 gms. Everybody has a right to ventilate his genuine grievances in the Court or Forum if the party does not hear even it may be worth Re. 1/- only. Actually these are the real consumer disputes, which should be agitated in Consumer Foras to make the public aware of their rights in consumer matters. The cost of Rs. 2,000/- has properly been awarded. One thing which we could not understand is under what provision of law, the learned Forum has directed the appellant to deposit a sum of Rs. 1,00,000/- in the Government Treasury. This is in the nature of fine. The Forum can give relief to the consumer provided under Section 14 of the Act. It has got no jurisdiction to direct for deposit of such punitive amounts, therefore, this part of the order is to be quashed. 10. On facts and merits the order of the learned Forum is fit to be confirmed. The Forum can give relief to the consumer provided under Section 14 of the Act. It has got no jurisdiction to direct for deposit of such punitive amounts, therefore, this part of the order is to be quashed. 10. On facts and merits the order of the learned Forum is fit to be confirmed. However the appeal is partly to be allowed and partly to be dismissed. ORDER The appeal is hereby partly allowed and partly dismissed. The order regarding deposit of Rs. 1,00,000/- in Government Treasury is hereby quashed. Rest part of the order passed by the learned Forum is hereby confirmed. Cost of this appeal shall be easy. Appeal partly allowed.