BROOKE BOND LIPTON (I) LIMITED vs DESH DEEPAK

ALTHOUGH application for postponement of the case was filed, it is not considered appropriate to adjourn the case as Counsel for the respondent No. 1 has come from outside and opposes the same. We have gone through the grounds of appeal and the record of the District Forum with the assistance of Counsel for the respondent. The appeal is being disposed of on merits.

MR. Desh Deepak, complainant, approached District Forum, Patiala with the complaint that a pouch of Dalda Ghee alleged to be containing 1 Ltr. (897 gms.) was found to be containing only 570 gms. of ghee. It was purchased on July 3,1996 vide receipt (Ex. C-2) for Rs. 37/- from M/s. Gulati Karyana Store, opposite party No. 1 as manufactured and packed by opposite party No. 2-Brook Bond Lipton Limited. On weighing, it was found 327 gms. of Ghee was less. Compensation of Rs. 50,000/- and costs were claimed in the complaint. The opposite party No. 1 in its reply admitted the sale of pouch of Dalda Ghee for Rs. 37/-, the price then prevalent. It was also admitted that the complainant approached him with the complaint of lesser weight of the pouch. The opposite party No. 2, however, denied the allegations. It was stated that no such complaint from any customer of lesser weight in the pouch was ever received. Some preliminary objections were taken that the complaint was not maintainable as the complainant was not a consumer. It was illustrated to be frivolous complaint for extracting money. During the pendency of the proceedings, an application was moved by opposite party No. 2 for sending the pouch of the Ghee for analysis. Vide order dated March 9, 1998, the aforesaid application was ordered to be decided with the main case. After both the parties had led their evidence on affidavits and documents, to verify the factual position, the District Forum got the pouch weighed and it was found to be 570 gms. indicating 327 gms. less than the printed weight. The batch No. on the pouch was 06053 dated 5/96. On the evidence produced by the parties, the impugned order was passed holding the sale of underweight articles to be unfair trade practice and directing opposite party No. 2 to pay compensation of Rs. 10,000/- to the complainant which order is challenged by opposite party No. 2-Brook Bond Lipton Limited in this appeal. The grounds of the appeal are given in para 5. The question of territorial jurisdiction of the District Forum to entertain the complaint is raised therein {(ground No. (b)). It is asserted that the opposite party is not having either head office or branch office at Patiala hence District Forum, Patiala could not entertain the complaint. There is no merit in this contention. Section 11(2) of the Consumer Protection Act deals with the subject of jurisdiction of the District Forums to entertain the complaints. It provides Clauses (a), (b) and (c) as under : "11.(2) A complaint shall be instituted in a District Forum within the local limits of whose jurisdiction,- (a) the opposite party or each of the opposite parties, where there are more than one, at the time of the institution of the complaint, actually and voluntarily resides or (carries on business or has a branch office or) personally works for gain, or (b) any of the opposite parties, where there are more than one, at the time of the institution of the complaint, actually and voluntarily resides, or (carries on business or has a branch office), or personally works for gain, provided that in such case either the permission of the District Forum is given, or the opposite parties who do not reside, or (carry on business or have a branch office), or personally work for gain, as the case may be, acquiesce in such institution; or (c) the cause of action, wholly or in part, arises."

If either of the clauses referred to above is made applicable, District Forum of that particular place would have jurisdiction to entertain the complaint. The present case is covered by Clause (c) as the pouch of the Ghee was purchased from opposite party No. 1 at Patiala which was ultimately found to be less in weight. Hence, District Forum, Patiala has the jurisdiction to entertain the complaint.

IN ground , it is mentioned that there may be possibility of leakage or pilferage or tampering of the pouch and the benefit should be given to the appellant. Reference is made to an application filed for sending the pouch for analysis. There is no merit in this ground of appeal. The leakage could be observed without getting analysis of the contents. When the pouch was examined by the District Forum and got weighed, the leakage, if any, in the pouch would have been noticed and pointed out. Likewise the pilferage or tampering of the pouch, if any, should have been otherwise noticed visually. On such matters, no presumption can be raised. It is not a case where quality of the product is disputed that the pouch could be sent for analysis to the laboratory. No useful purpose would have been served by getting the analysis done. In the other ground (d) it is stated that opposite party No. 1 might have colluded with the complainant in filing the complaint. His affidavit should not be treated as evidence against the appellant. There is no merit in this contention. The evidence is of the consumer himself, may be by way of affidavit that he had purchased the pouch of Ghee from opposite party No. 1. Since the pouch was produced before the District Forum, it was open to the appellant to allege that the said pouch was not an item manufactured or packed by the appellant that such a question could be gone into. There is no separate provision for rebuttal of evidence, opportunity to be allowed to the opposite party under Section 13 of the Consumer Protection Act. It was open to the opposite party to lead such evidence as was considered necessary before the District Fora.

IN ground (e), it is mentioned that the complainant did not suffer loss except Rs. 37/- for which he had purchased pouch against the printing price of Rs. 46.80. There was no ground for granting compensation to him. There is no merit in this ground. The question for consideration is not as to how much loss the complainant has suffered in the case of proof of unfair trade practice adopted by the opposite party. Needless to be said that when the manufacturer of such product packs the items through mechanical process, such shortage would be in all the pouches packed in a lot. Thus, keeping in view this aspect of the matter, it is to be considered that the opposite party should not be allowed unlawful enrichment by adopting unfair trade practice as referred to above at the cost of public at large. IN such like cases, compensation has to be such that would deter the opposite party in repeating such unfair trade practices. The grant of Rs. 10,000/-compensation is not at all excessive to call for interference in the appeal. Even if the Company had not received complaints from others regarding lesser weight in the product sold is no ground to deny relief to the complainant. It cannot be said that on proof of unfair trade practice, the complainant has either misused or exploited provisions of Consumer Protection Act. Such a matter came up before this Commission in M/s. Nestle INdia Limited v. Vijay Verma & Ors., 1997 (1) CPC 172. That was also a case of lesser quantity of ghee found in a tin as manufactured and packed by Nestle INdia Limited. It was found to be unfair trade practice. IN that case, there was shortage of 170 gms. of ghee and compensation of Rs. 5,000/-was granted. IN the present case, shortage of 327 gms. has been found and a sum of Rs. 10,000/- is considered just compensation. For the reasons recorded above, we find no merit in this appeal which is dismissed with costs of Rs. 1,000/-. Appeal dismissed.