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2013 DIGILAW 539 (JK)

Bhatia Sons v. Ujjal Singh

2013-09-12

DHIRAJ SINGH THAKUR, MOHAMMAD YAQOOB MIR

body2013
D.S. Thakur, J. 1. In the present petition, petitioner challenges the order dt. 13.2.2009, passed by the J&K State Consumer Disputes Redressal Commission, Jammu (for short State Consumer Commission). 2. In order to understand the controversy in its right perspective, it is necessary to give in brief the background in the light of which, the present, controversy has arisen. 3. A complaint carne to be filed before the Divisional Forum by the complainant-respondent No.1, stating therein that in the month of April, 2003, the complainant had purchased a trouser manufactured by the company Allen Solly, for an amount of Rs. 1099/-. After having used the trouser for four days, the colour of the trouser faded away. Upon this, the complainant approached the petitioner who did not pay any heed to his grievance. The Complainant was constrained to file a complaint before the Divisional Forum with a prayer that he may be allowed a sum of Rs. 1099/-along with interest @18% as also a sum of Rs.5000/- on account of mental torture and harassment. Besides this, an amount of Rs. 1000/- was also prayed for, as litigation expenses. 4. The petitioner herein, respondent before the Divisional Forum denied the factual averments made in the complaint and stated that in the month of February-March'03, the complainant had purchased a trouser whose original cost was Rs.1099/-. However, on account of clearance sale, the price was reduced to 50% of the original cost and was, accordingly, sold for Rs.550/-, to the complainant on 16th of Feb'03, A stand was taken that during the clearance sale, it was specifically displayed that there would be no exchange and no guarantee for the goods sold. It was denied that the colour of the trouser had faded away. 5. The Divisional Forum after having gone through the pleadings and the evidence on record, passed an award dt. 16th of Sept'04, directing the petitioner to refund an amount of Rs.1099/- as the cost of trouser as also allowed an amount of Rs.l000/- as litigation expenses. 6. Feeling aggrieved of the order dt. 16th of Sept' 04, passed by the Divisional Forum, an appeal was preferred before the State Consumer Commission. 16th of Sept'04, directing the petitioner to refund an amount of Rs.1099/- as the cost of trouser as also allowed an amount of Rs.l000/- as litigation expenses. 6. Feeling aggrieved of the order dt. 16th of Sept' 04, passed by the Divisional Forum, an appeal was preferred before the State Consumer Commission. By virtue of order impugned dt, 13th of Feb'09, the State Consumer Commission modified the order passed by the Divisional Forum and in addition to awarding cost of Rs.1099/- as the cost of trouser, an amount of Rs.5000/- was allowed as compensation for mental harassment and financial loss. Besides this, an amount of Rs.50,000/- was directed to be paid as general compensation and the petitioner was directed to deposit the said amount in the Advocates' Welfare Fund. It is against this order that the present petition has been filed by the petitioner. 7. Mr. D.C. Raina, learned Senior counsel, appearing for the petitioner, fairly stated that the issue primarily arising in the writ petition is as regards the legality of the order passed by the State Consumer Commission in awarding Rs,50,000/- as general compensation as a measure of deterrence, which according to him did not carry with it the sanction of law. 8. The respondent No. l, present in person, fairly stated that he was not so much concerned about the award of Rs.50,000/-, as general compensation, which in any case, was to go to the Advocates' Welfare Fund. According to him, it was on a matter of principle that he was contesting the case with a view to highlight, the unfair trade practice of the petitioner in selling substandard goods through their posh outlets which had caused considerable harassment and anguish to his person. 9. The issue, therefore, arises as to the legality and reasonableness of the order of the State Consumer Commission to the extent it ordered an amount of Rs.50,000/- as general compensation to be deposited in the Advocates' Welfare Fund. 10. Heard learned counsel for the petitioner as also respondent No. l, who has appeared in person. 11. 9. The issue, therefore, arises as to the legality and reasonableness of the order of the State Consumer Commission to the extent it ordered an amount of Rs.50,000/- as general compensation to be deposited in the Advocates' Welfare Fund. 10. Heard learned counsel for the petitioner as also respondent No. l, who has appeared in person. 11. A reference to Section 12 of the J&K Consumer Protection Act, 1987, would show that upon being satisfied that the goods complained against suffered from any of the defects specified in the complaint or that any of the allegations contained in the complaint about the services are proved, the Divisional Forum shall issue an order directing the opposite party inter-alia to pay such amount as may be awarded by it as compensation to the consumer for any loss or injury suffered by him due to the negligence of the opposite party. This is in addition to the power of the Divisional Forum to order replacement of the goods with new goods or to return to the complainant the price or the charges paid by the complainant. 12. For facility of reference, Section 12(1)(b), (c) and (d), be noticed, which reads as under:- "12(1), if after the proceeding conducted under Section 11, the Divisional Forum is satisfied that the goods complained against suffer from any of the defect 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:- ........................... ........................... (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; 13. The word `compensation' as figures in the aforementioned Section has not been exhaustively defined in the Jammu and Kashmir Consumer Protection Act, 1987. 14. The word `compensation' as figures in the aforementioned Section has not been exhaustively defined in the Jammu and Kashmir Consumer Protection Act, 1987. 14. While dealing with the issue of grant of compensation in favour of consumers on account of misfeasance in public office, the Apex Court in the case reported as Ghaziabad Development Authority v. Balbir Singh, (2004) 5 SCC 65 , held that the compensation is to be awarded for vindicating the strength of law. It acts as a check on arbitrary and capricious exercise of power and helps in curing social evil, results in improving the work culture and changing the outlook of the officer/public servant. The Apex Court further held that in such cases, the Commission/Forum must direct the authority to pay the compensation and direct recovery from those found responsible for such unpardonable behaviour. 15. In Charan Singh v. Healing Touch Hospital and others, (2000) 7 SCC 668 , the Apex Court held as under:- "While quantifying damages, Consumer Forums are required to make an attempt to serve the ends of justice so that compensation is awarded, in an established case, which not only serves the purpose of recompensing the individual, but which also at the same time, aims to bring about a qualitative change in the attitude of the service provider. Indeed, calculation of damages depends on the facts and circumstances of each case. No hard and fast rule can be laid down for universal application. While awarding compensation, a Consumer Forum has to take into account all the relevant factors and assess compensation on the basis of accepted legal principles, on moderation.........." 16. The above was a case where the complainant approached the Healing Touch hospital for treatment of his stomach ache. The doctor admitted the complainant for operation for removal of stone from the Urethra. Certain complications arose in administering an-aesthesia leading to paralysis of a part of his body. He was subsequently discharged but re-admitted when his left kidney was illegally removed without his knowledge or consent. 17. The Apex Court in paragraph 13 of the aforementioned judgment further held as under:- "It is not merely the alleged harm or mental pain, agony or physical discomfort, loss of salary and emoluments etc. He was subsequently discharged but re-admitted when his left kidney was illegally removed without his knowledge or consent. 17. The Apex Court in paragraph 13 of the aforementioned judgment further held as under:- "It is not merely the alleged harm or mental pain, agony or physical discomfort, loss of salary and emoluments etc. suffered by the appellant which is in issue-it is also the quality of conduct committed by the respondents upon which attention is required to be founded in a case of proven negligence." 18. The Divisional Forum in the present case, had awarded only Rs.1099/- as cost of trouser and an amount of Rs.1000/- as litigation expenses and awarded nothing on account of harassment and mental pain and agony suffered by the complainant. The State Consumer Commission additionally allowed an amount of Rs.5000/- to the complainant on account of mental torture and harassment. The complainant was also allowed interest @9% on the awarded amount in case, the same was not paid to the complainant within one month. Therefore, whatever had been claimed by the complainant stood awarded by the State Consumer Commission. 19. The amount of Rs.50,000/- awarded by the State Consumer Commission was not ordered to be paid as compensation to the complainant but the said amount was directed to be paid in the Advocates' Welfare Fund. This amount, as per the impugned order was awarded to act as a deterrent measure with a view to send a right signal to all the traders who carry on unfair trade practices. 20. Following the principle of law as laid down by the Apex Court in Charan Singh's case (supra), the State Consumer Commission, besides awarding compensation for mental pain, agony and physical discomfort, could have awarded compensation with an aim to bring about a qualitative change in the attitude of the opposite party in the complaint, i.e., the petitioner herein. But the amount awarded to bring about such a change should have been based upon the principles of moderation. 21. As stated above, we feel that whatever had been claimed by the complainant-respondent No. 1, in his complaint, stood awarded by the State Consumer Commission i.e. refund of the cost of the trouser at Rs.1099 as also an additional amount of Rs.5000/- on account of mental torture and harassment, and therefore, an amount of Rs.50,000/- on account of deterrent measure appears to be much on the higher side. Applying the principles of moderation, we feel that an amount of Rs.2000/- would be apt, in the facts and circumstances of the case instead of Rs.50,000/- as awarded by the State Consumer Commission. 22. The order dt. 13th of Feb'09, passed by the State Consumer Commission is, accordingly, modified to the limited extent that instead of Rs. 50,000/-, an amount of Rs.2000/- would be deposited by the appellant in the Advocates' Welfare Fund within a period of two weeks from the date of passing of this order. 23. The writ petition is, accordingly, disposed of with the above modification.