N.G. RAJAGOPALAN vs BRANCH MANAGER, M/S. I.T.C. LTD.

THIS action is one initiated against M/s. India Tobacco Company (for short "M/s. I.T.C. Ltd.") claiming for compensation for certain deficiencies said to have been committed by it. The complainant is one N.G. Rajagopalan, residing at K-6, Benco Building, 1st Cross Street, Besant Nagar, Chennai-600 090. He, it appears, was working in the Audit Department, Defence Services and is now retired. He, it is said, had been smoking cigarettes manufactured and marketed by M/s. I.T.C. Limited, since 1944. He was stated to have been serving in Bombay, New Delhi and various other places while in service and he is now settled down in Chennai from 1973.

DURING these years till 1990, he would say, he had detected certain deficiencies in the cigarettes sold by M/s. I.T.C. Ltd. on several occasions, but there being no remedy, the deficiencies were left unreported. However, during the end of 1990, he said to have detected deficiency in the service rendered by the opposite parties namely, (1) The Branch Manager, M/s. I.T.C. Ltd., 90, Chamiers Road, Chennai-600 018, and (2) M/s. I.T.C. Ltd., India Tabacco Division, represented by its Chairman and Managing Director, Virginia House, 37, Chowringee, Calcutta-700 071, in selling cigarettes manufactured by them.

He had been smoking Wills Filter tipped cigarettes and during 12/90, he found out that in two packets, there was shortage of one cigarette in each packet. He also subsequently detected deficiencies in other respects, namely "filterless cigarette sticks in certain packets; tobaccoless cigarette sticks on two occasions, besides damaged, bent and broken cigarettes in some packets".

BECAUSE of the deficiencies as stated above, he would say, he was put to huge financial loss; besides great inconvenience, he was also not able to derive sufficient satisfaction during the course of smoking. As a consequence, his normal routine was stated to have been affected. He was also stated to have great mental disturbances and imbalance, besides mental agony. He was stated to have sent a letter dated 26.10.1991 to M/s. I.T.C. Ltd. (opposite party-2) about the deficiencies in the services rendered by the first opposite party, namely the Branch Office serving Tamil Nadu, etc. areas, to the smoking public.

ON 4.2.1991, the opposite party No. 1, he would say, wrote him on behalf of the opposite party No. 2 admitting their deficiencies as pointed out by him, besides stating that one and two packets out of millions of packets manufactured may contain such deficiency. The opposite parties 1 and 2 made advertisement in hoardings, advertisement in newspapers and magazines all over India. The subject-matter in those advertisements, was highlighted thus : "Filter and tobacco perfectly matched" "Quality for ever" Such wordings in those advertisements, he would say, sway the smoking public to go for the cigarettes manufactured and marketed by the opposite parties. On the face of such advertisements, he would say, that the nature of the deficiency committed by them would tantamount to commission of unfair trade practice.

OWING to deficiency in service in manufacturing and selling defective goods - cigarettes during all these years, the opposite parties, he would say, had collected full value of the deficient cigarettes and consequently he was naturally put to huge financial losses over these years. So saying, he quantified the damage in the following manner : (1) Loss suffered for the past 48 years for various kinds of deficiencies in service at : Rs. 1,00,000/- (2) Loss suffered on account of mental disturbance, mental agony, loss of efficiency, loss of prestige at : Rs. 2,00,000/- Total Rs. 3,00,000/-

ALLEGING the factors as above, he knocked at the doors of this Commission for the reliefs as stated above. The opposite parties, in pith and substance, would contend as below : (a) It is misconceived to call the alleged grievance as one relating to "deficiency in service". Even assuming the facts complained of to be correct, it is only a case of a shortage in supply of goods, namely cigarettes, for which the remedy is either, (a) replacement; or (b) refund to the tune of the shortfall. There could be no question of compensation at all, as claimed by the complainant. (b) The trader from whom the complainant was said to have purchased the alleged cigarettes had not been impleaded in and, therefore, it is the complaint as filed is bad for non-joinder of necessary party. (c) The damage or defect in the goods, allegedly existing at the time of purchase is not proved. If he had really found any shortage in a pack, or damage to a cigarette inside, he should have immediately brought it to the notice of the trader selling them and got a replacement. (d) The complaint as instituted is not well within the period of limitation. (e) The complainant, claiming to be a consumer of the Company''s cigarettes had, in 1990, sent a complaint to the Company that in three packets of Wills Filter brand of cigarettes he bought, two cigarettes were short and one was damaged. In effect, his complaint was that he was deprived of three cigarettes in the transaction. An employee of the Company met him personally and as a pure gesture of goodwill, gave him five packets of cigarettes. Such gesture of the Company was only based on its policy of maintaining good customer relations and goodwill, and was not an admission or acknowledgement of any defect or deficiency in its products. This was made clear to him in the letters written by the Company dated 4.12.1991, 25.3.1992 and 16.4.1992. (f) The complainant however, continued to write a barrage of letters and interestingly all of them contained a request of grant of Rs. 1,00,000/- from the Company, which was termed by him in each letter, either as ''largess'' or ''reward'', or ''rehabilitation fund'', or ''compassionate grant'', etc. All these letters, they would say, had been written with a motive of getting such sort of grant rather than making a genuine effort of seeking redressal of a customer grievance. This sort of request had been turned down by the Company in the letters written to him, clearly stating that such a payment cannot be made under the Company''s policies. Since he persistently wrote to various persons in the hierarchy for cash grant, the Company had to eventually write to him on 22.5.1992 that no further correspondence can be entertained on the above subject. Even after that, he has written a few more letters on similar lines and he had ultimately chosen to resort to file this frivolous complaint. (g) For the reasons as above, the complaint deserves to be dismissed with exemplary costs to the opposite parties.

Both the parties filed proof affidavits in support of their stand taken in the complaint as well as the counter.

THE complainant marked Ex. A1 to Ex. A19 and marked material objects, i.e. MOs 1 to 6. The opposite parties, however, did not place any materials on record either by making exhibits or by producing material objects.

AT the fage end of the enquiry, i.e. to say before commencement and conclusion of the arguments by either parties, M/s. I.T.C. Ltd. had chosen to knock at the doors of the High Court of Judicature, Madras and filed Writ Petition No. 3405/93 challenging certain provisions of the Act as ultra-vires and unconstitutional, impleading in the said petition, (1) Union of India represented by the Secretary, Government of India, Ministry of Law (Justice and Company Affairs), New Delhi; (2) State Consumer Disputes Redressal Commission, 212, R.K. Mutt Road, Mylapore, Chennai-4; and (3) N.G. Rajagopalan as parties/respondents. Alongwith the writ petition, W.M.P. 5393/93 had also been filed for stay of further proceedings of the matter before this Commission. The High Court, it appears, in the said W.M.P. granted interim stay pending disposal of the main writ petition. The proceedings before this Commission as a consequence of such interim stay was kept pending all along.

THE High Court dismissed the writ petition without costs and issued a direction for the proceedings before this Commission getting terminated within the time stipulated therein. THE copy of the order in the writ petition had been communicated to this Commission and the same was received by this Commission on 28.4.2000.

SUBSEQUENT to the receipt of the order of the High Court, steps were taken to cause a notice to be served on the complainant and the fact, it was served on 31.7.2000. The complainant Mr. N.G. Rajagopalan, right from the beginning, was making representations by himself without engaging a Counsel of his choice. We heard the arguments of the complainant Mr. N.G. Rajagopalan and arguments of learned Counsel Mr. R.L. Narayanan representing M/s. Rank Associates appearing for the opposite parties on 4.8.2000. The arguments of both the parties were completed on the said date at the fag end of the evening of that day. There was no time to dictate the order in open Court on that day. Saturday and Sunday intervening, the next working day is Monday, viz. , on which date, we dictated the order in the open Court in the presence of the complainant Mr. N.G. Rajagopalan and learned Counsel Mr. R.L. Narayanan representing M/s. Rank Associates appearing for the opposite parties.

The gravamen of the accusation as levelled in the complaint bristles to this : "The complainant, being a consumer of Wills Filter tipped cigarette, was able to find out during 12/90 in two packets, existence of shortage of one cigarette in each packet. He also found out certain defects, namely filterless cigarette sticks in certain packets, tobaccoless cigarette sticks on two occasions and damaged, bent and broken cigarette sticks in some packets. This apart, the opposite parties are said to have committed unfair trade practice, falsely representing that the goods are of particular standard, quality, grade, composition, style or model."

HAVING come forward with such an accusation, it is for him to clinchingly prove the defects as pointed out by him existed in the cigarettes purchased for consideration as a consumer in certain outlets of M/s. I.T.C. Ltd.-opposite party-2, especially, when the opposite party took a definite stand by stoutly denying the averments as incorporated by the complainant in his complaint. No material worth the name in the shape of documents such as purchase bills had been filed by the complainant to prove that the MOs marked in question had been purchased by him from certain outlets belonging to the opposite party-2 for consideration. When this aspect to the matter was pointed out to the complainant during the course of argument, he would say that to expect a purchase bill for the purchase of cigarettes from a retail outlet, is nothing but the expectation of the existence of a thing in the vaccum and, therefore, it is, he cannot at all be expected to perform such a feat which is not feasible, if not impossible in the very nature of things. Such an answer, we rather feel, will not give any solution in an enquiry before this Commission, when the matter is hotly contested between the parties. The complainant on the purchase of cigarette packets finding defects in the cigarettes so purchased ought to have insisted the outlet retailer to have issued a bill for such purchase and on such instance, it behoves upon such retailer to issue a bill as demanded by the complainant. Even in such case of refusal of issuance of a bill by a retailer, it is not as if, the complainant is incapable of adducing evidence by way of proof of such refusal by a retailer in issuing bills. The possibility of adducing oral evidence on this aspect of the matter by the complainant is always there. Oral evidence as per the salient features adumbrated under Section 60 of the Indian Evidence Act, 1872 must be direct : - if it refers to a fact which could be seen, it must be the evidence of a witness, who says he saw it; - if it refers to a fact which could be heard, it must be the evidence of a witness, who says, he heard it. The complainant failed to adduce in a colossal way oral evidence in the shape of a person who could have either seen the transaction of the purchase of the cigarette by the complainant and the refusal of the outlet dealer in issuing the bills or receipts therefor, as demanded by the complainant. He also failed to adduce evidence from a person, who could have heard the conversation that took place between the complainant and the retail outlet dealer. As a matter of fact, he did not at all place such oral evidence before this Commission. This apart, he had not even incorporated by way of any averment in the complaint, even the name of the retail outlet dealer from whom he was said to have purchased the cigarette packets marked as MOs 1-6 in this case, besides giving other details relatable to date of purchase, etc. As such, there is dearth of evidence on the side of the complainant relatable to the purchase effected by him from a retail outlet dealer for consideration and that apart, other details relatable to time and date of purchase. As per Section 2(1)(d) of the Act, the complainant becomes a consumer in the manner as defined therein; it is incumbent on him to prove that he purchased the cigarette packets marked as MOs 1-6 for consideration. The consideration may be adequate or inadequate, partly paid or promised or even deferred. No material worth the name had been placed on record by the complainant to make it appear that he, in fact, purchased the cigarette packets MOs 1-6 in the manner contemplated by Section 2(1)(d) of the Act. He may be smoking cigarettes of the opposite parties for innumerable number of years. Such fact of the consumption of cigarette belonging to the opposite parties by itself is not sufficient to make him a consumer under the salient provision as adumbrated under Section 2(1)(d) of the Act, unless and until, he was able to prove that he purchased the cigarettes marked as MOs 1-6 for consideration from some retail outlets although he may be called as a consumer of such cigarettes in the ordinary parlance. In such state of affairs, to say, that the complainant is a consumer as defined in the Act cannot at all be acceded to on the facts and in the circumstances of the case.

THE alternate case of the complainant is that even in the extreme case of this Commission holding that the complainant failed to prove the defects in the cigarette sticks manufactured and marketed by the opposite parties, the complaint cannot be thrown out in the sense of dismissal inasmuch as the opposite parties in the exchange of correspondence, practically admitted the defects or deficiencies in the goods so manufactured by them. In this context, he would place implicit reliance upon Ex. A2, Ex. A9 and Ex. A10. Ex. A2 is the letter dated 4.12.1991 from the opposite party to the complainant. THE relevant portion in the said exhibit is as below : "We note from your letter that there are some deficiencies in the cigarette packets purchased by you. As was explained to you by our Mr. Amal Pramanik when he met you in person subsequent to your aforesaid letter, our factories take every possible care and caution in the manufacture and packing of the cigarettes, which operations are carried out with the aid of highly sophisticated machines and undergo rigorous tests to avoid any defect or deficiency. However, you will appreciate that it is not impossible that one or two packets, out of millions of packets of cigarettes manufactured and packed, should contain such deficiencies as pointed out by you. You will also appreciate that to generalise such deficiency as being present in every packet of cigarettes, will be a gross exaggeration."

The term and tenor of the portion extracted from Ex. A2 letter if read alongwith the other two letters Ex. A9 dated 25.3.1992 and Ex. A10 dated 16.4.1992 from the opposite parties to the complainant will make it clear that at no point of time the opposite parties did make any admission as to the existence of any defect or deficiency in the goods, namely cigarette sticks manufactured and marketed by them. The relevant portion in Ex. A9 letter reads as below : "As already explained to you by our Mr. Amal Pramanik and in our letter dated 4.2.1991, our factories exercise every possible care and caution, and carry out rigorous tests for quality and quantity, all with a view to preventing defects and deficiencies in the cigarettes manufactured by them. Thus as a manufacturer, the Company conducts itself with due diligence and responsibility to the consumers. This in fact was the tenor of our letter dated 4.12.1991 where we referred to the hypothetical event of deficiency. We note that you have misunderstood this as an acknowledgement of the existence of such defect or deficiency as complained by you. We wish to clarify that the Company does not and has not admitted the presence of any of the defects or deficiencies complained of by you. We would also like you to appreciate that the Company, without verifying or admitting the correctness of your complaint, and as a pure gesture of goodwill, had deputed its representative to explain to you the above facts."

THE term and tenor of Ex. A10 reads as under : "Subsequent to your letter dated 24th March, 1992, we understand that the Member Marketing - ITD has written to you on 25th March, 1992, clarifying the points raised by you and setting at rest your misgivings. I wish to add that there has been no acceptance or admission by us of any defect of deficiency of whatsoever nature, as contended by you."

THUS construing the terms and tenor of letters Exs. A2, A9 and A10 that, as already indicated, it cannot be said that there was any candid admission as to the existence of any deficiency or defect as complained of by the complainant, in the goods, namely cigarettes manufactured and marketed by the opposite parties. Looking at from any angle, practically there is little or no evidence on the part of the complainant pointing out the existence of any deficiency or defect in the goods, viz. cigarettes manufactured and marketed by the opposite parties.

Other ground of attack, we are called upon to consider in this action is that the opposite party falsely represented that the goods are of a particular stand, quality, grade, composition, style or model and that such sort of representation by them, is an unfair trade practice liable for action under Section 2(1)(r) of the Act. The said Section 2(1)(r) of the Act as said, stood them reads as under : 2. Definitions-In this Act, unless the context otherwise requires xxx xxx xxx xxx xxx xxx (r) "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 : (1) the practice of making any statement, whether orally or in writing or by visible representation which, (i) falsely represents that the goods are of a particular standard, quality, quantity, grade, composition, style or model; (ii) falsely represents that the services are of a particular standard, quality or grade; (iii) falsely represents any re-built, second-hand,renovated, recondi-tioned or old goods as new goods; (iv) represents that the goods or services have sponsorship, approval, performance, characteristics accessories, uses or benefits which such goods or services do not have; (v) represents that the seller or the supplier has a sponsorship or approval or affiliation which such seller or supplier does not have; (vi) make a false or misleading representation concerning the need for, or the usefulness of, any goods or services; (vii) gives to the public any warranty or guarantee of the performance, efficacy or length of life of a product or of any goods that is not based on an adequate or proper test thereof : Provided that where a defence is raised to the effect that such warranty or guarantee is based on adequate or proper test, the burden of proof of such defence shall lie on the person raising such defence. (viii) makes to the public a representation in a form that purports to be,- (i) a warranty or guarantee of a product or of any goods or services; or (ii) a promise to replace, maintain or repair an article or any part thereof or to repeat or continue a service until it has achieved a specified result, If such purported warranty or guarantee or promise is materially misleading or if there is no reasonable prospect that such warranty, guarantee or promise will be carried out; (ix) materially misleads the public concerning the price at which a product or like products or goods or services, have been or are, ordinarily sold or provided, and for this purpose, a representation as to price shall be deemed to refer to the price at which the product or goods or services has or have been sold by sellers or provided by suppliers generally in the relevant market unless it is clearly specified to be the price at which the product has been sold or services have been provided by the person by whom or on whose behalf the representation is made; (x) gives false or misleading facts disparaging the goods, services or trade of another person."

THE expression "unfair trade practice" shall have the same meaning as in Section 36A of the Monopolies and Restrictive Trade Practices Act, 1969. But it shall not include an unfair trade practice adopted by the owner of an undertaking to which Part A, Chapter III of the Act applies or by any person acting on behalf, or for the benefit of such owner. Section 36A(1)(i) is relevant for our present purpose and it reads as under : (i) falsely represents that the goods are of a particular standard, quality, grade, composition, style or model; In this part, unless the context otherwise, requires, "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 services, adopts one or more of the following practices and thereby causes loss or injury to the consumers of such goods or services, whether by eliminating or restricting competition or otherwise, namely : (1) the practice of making any statement, whether orally or in writing or by visible representation which,- (i) falsely represents that the goods are of a particular standard, quality, grade, composition, style or model; (ii) falsely represents that the services are of a particular standard, quality or grade; (iii) falsely represents any re-built, second-hand, renovated, recondi-tioned or old goods as new goods; (iv) represents that the goods or services have sponsorship, approval, performance, characteristics, accessories, uses or benefits which such goods or services do not have; (v) represents that the seller or the supplier has a sponsorship or approval or affiliation which such seller or supplier does not have; (vi) makes a false or misleading representation concerning the need for, or the usefulness of, any goods or services; (vii) gives to the public any warranty or guarantee of the performance, efficacy or length of life of a product or of any goods that is not based on an adequate or proper test thereof : Provided that where a defence is raised to the effect that such warranty or guarantee is based on adequate or proper test, the burden of proof of such defence shall like on the person raising such defence; (viii) makes to the public a representation in a form that purports to be,- (a) a warranty or guarantee of a product or of any goods or services; or (b) a promise to replace, maintain or repair an article or any part thereof or to repeat or continue a service until it has achieved a specified result, such purported warranty or guarantee or promise is materially misleading or if there is no reasonable prospect that such warranty, guarantee or promise will be carried out; (ix) materially misleads the public concerning the price at which a product or like products or goods or services, have been, or are, ordinarily sold or provided, and, for this purpose, a representation as to price shall be deemed to refer to the price at which the product or goods or services has or have been sold by sellers or provided by suppliers generally in the relevant market unless it is clearly specified to be the price at which the product has been sold or services have been provided by the person by whom or on whose behalf the representation is made; (x) gives false or misleading facts disparaging the goods, services or trade of another person. Explanation : For the purpose of Clause (1), a statement that is- (a) expressed on an article offered or displayed for sale, or on its wrapper or container; or (b) expressed on anything attached to, inserted in, or accom-panying, an article offered or displayed for sale, or on anything on which the article is mounted for display or sale; or (c) contained in or on anything that is sold, sent, delivered, transmitted or in any other manner whatsoever made available to a member of the public, shall be deemed to be a statement made to the public by, and only by, the person who had caused the statement to be so expressed, made or contained.

THE averments on this aspect of the matter is referred to in paragraph 10 of the complaint. In the said paragraph, the complainant would state that opposite parties issued advertisement in the shape of hoardings, besides making advertisements in newspapers and magazines all over India. Besides, he would say, the said matter in those advertisements highlighted thus : "Filter and tobacco perfectly matched" "Quality for ever" Such hoardings in those advertisements, the complainant would say, sway the smoking public to go for the cigarettes manufactured and marketed by the opposite parties. In proof of such averments, the complainant did not place on record by exhibiting the advertisements said to have been made by the opposite parties in the newspapers and magazines, by the production of advertisements so made by them in certain newspapers and magazines. THE advertisement said to have been made by the opposite parties by way of hoardings can be proved by resorting to secondary evidence in the manner adumbrated by Section 65 of the Evidence Act, 1872. Normally the complainant cannot be expected to move the hoarding before this Commission. If the hoarding is of such a nature as be moved, he could not in such circumstances, resort to adduce secondary evidence of the existence of such hoarding. THErefore, it cannot at all be stated that the complainant satisfactorily proved the advertisement said to have been made by the opposite parties either in newspapers or magazines or by way of hoardings as relatable to the quality of the cigarettes manufactured and marked by them. Even assuming for arguments, we would say, that even if the opposite parties issued such advertisements in newspapers and magazines besides making such advertisements in hoarding as stated by the complainant in paragraph 10 of the complaint, the complainant miserably failed to prove by adducing evidence that the filter and tobacco in the cigarette manufactured and marketed by the opposite parties did not perfectly match and, there was no quality at all in such cigarettes. No doubt, he would say, by way of averments in paragraph 3 of the complaint that certain cigarettes he had purchased, there was no filter at all in certain packets and that apart, in certain packets the contents of tobacco was less in cigarette sticks and also found some of them damaged, bent and broken cigarette sticks. Apart from, allegations on such aspects of the matter in the complaint, he had not placed any evidence in the manner contemplated by Section 60 of the Evidence Act. Such being the case, it cannot at all be stated that the opposite parties falsely represented that the goods, namely the cigarettes manufactured and marketed by them, are of a particular standard, quality, grade, composition, style or model, thereby falling within the salient provisions as adumbrated under Section 36A(1)(i) of Monopolies and Restrictive Trade Practice Act, 1969 calling for action under Section 2(1)(r) of the Act. We are also called upon to decide the question relatable to limitation in the view of the stand taken by the opposite parties in their counter. According to the opposite parties, the complaint as filed is barred by limitation. Allegations made in the complaint in that regard are very vague and, therefore, the complaint deserves to be dismissed on the question of limitation even if the complaint is otherwise maintainable. During the course of argument, this sort of ground on the question of limitation was further developed by learned Counsel appearing for the opposite parties. What the said learned Counsel would contend is that the cumulative effect of the averments made in the complaint is taken into account, it would appear, that the cause of action for the institution of the complaint, is inseprably integrated in such a way for a period of last 50 years as is not possible for the complainant to separate the cause of action limited to a particular period and thereby making it to fall within a period of one year as had been prescribed by salient statutory provisions as adumbrated in Section 24-A of the Act. No doubt, the complainant incorporated allegations in the complaint that he had been smoking cigarettes manufactured and marketed by the opposite parties for over 50 years and, he would also say in the preamble portion of the complaint that during these years till 1990, though he was able to detect certain deficiencies in the cigarettes sold by the opposite parties on several occasions, there was no remedy and consequently the defects, he had noticed, were left unreported in the sense of himself not being in a position to take action inasmuch as the Consumer Protection Act came into being at a later date providing remedy for such defects. The plea of limitation as resorted to be taken by the opposite parties, we rather feel on the fact and in the circumstances of the case, cannot at all be acceded to. The complainant himself narrated in the preamble portion of the complaint that notwithstanding the fact that he had been the consumer of cigarette manufactured and marketed by the opposite parties for pretty long, say, more than 50 years, for such defects he was unable to take any action inasmuch as there was no law available prior to the year 1990. What he would further say in his complaint is that he wrote to the opposite party-2 on 26.10.1991 about deficiency in service of the opposite party-1 to the smoking public and thereafter, there were exchange of correspondence between the complainant and the opposite parties and consequently he filed the present action before this Commission on 1st September, 1992. In such circumstances, it cannot at all be stated that he filed the complaint before this Commission beyond the period of limitation. We may point out here that for the first time the provision relatable to limitation had been inserted in the Act by Act 24/93 w.e.f. 18.6.1993 and the period of limitation provided for filing the complaint was one year. Thereafter, Act 50/93 made the period of limitation of two years and this became effective from 27.8.1993. Practically, there was no period of limitation prescribed under the Act, prior to 18.6.1993. The period of limitation that was applicable the case of the complainant instituted under the Act is the one prescribed under the general law of limitation and the period prescribed in the general law of limitation was for three years. In such circumstances, it cannot at all be stated that the complaint instituted by the complainant against the opposite parties is barred by limitation on the facts and in the circumstances of the case. As such the plea of limitation as taken up by the opposite parties brizzles next to nothing.

IN view of our finding that the complainant miserably failed in proving the existence of any defect or deficiency in the goods manufactured and marketed by the opposite parties 1 and 2, it goes without saying that the complainant is not entitled to the relief of damage or compensation as prayed for by him.

EVEN in the extreme case of assuming that there was existence of defect or deficiency in the goods manufactured and marketed by the opposite parties as complained of by the complainant, the question that would arise for consideration is as to whether he would be entitled to the damage as claimed for by him in paragraph 18 of the complaint. The answer to such a question, we are of the view cannot be any one other than an emphatic "NO" on the facts and in the circumstances of the case. This will become patent if we happen to examine as to how the complainant computed or calculated the loss suffered by him. He will evaluate the loss suffered for 48 years for various kinds of deficiency in service at Rs. 1,00,000/- and on account of mental disturbances, mental agony, loss of efficiency, etc. at Rs. 2,00,000/-, all totalling to Rs. 3,00,000/-. He used in the complaint the phraseology "deficiency" in a loose manner without understanding the connotation of the term deficiency as contemplated by the Act. "Deficiency" under the Act is relatable to service and it cannot mean any defect in the goods. The complainant used the expression "deficiency" in his complaint to refer to the defects in the goods, i.e. cigarettes manufactured and marketed by the opposite parties. The deficiency as stated therein cannot be anyone other than the defect in the cigarette said to have been purchased and used by him. He would say therein that he purchased such defective cigarettes and consumed them for the last 48 years, and for that he would claim damage in a sum of Rs. 1 lakh. He has also claimed damage for mental agony, etc. for the last 48 years at Rs. 2 lakhs. If at all, he had suffered any loss on account of the purchase of defective cigarettes falling within the period of limitation as stated by him in paragraph 3, is relatable to, (1) filterless cigarette sticks in certain packets; (2) tobaccoless cigarette sticks on two occasions; and (3) damaged, bent and broken cigarette sticks in some packets. He had also not quantified the value of the defective or damaged cigarettes as stated therein. If at all any loss he had sustained therefor, it can be only in minimising sum representing the cost or value of those cigarettes. EVEN here, we may point out that the complainant had been supplied with five packets of cigarette by the representative of the opposite parties'' Company as admitted by him in his Ex. A1 letter dated 26.10.1991. This apart, the complainant right from the beginning till upto the filing of this complaint wrote several letters to the opposite parties seeking a grant of Rs. 1,00,000/- out of compassionate fund or other sources with a view to rehabilitate him and making his future bright and at no point of time, he sought for damage or compensation for the loss suffered by him. This, we were able to infer from two of the letters, namely Ex. A1 dated 26.10.1991 and Ex. A14 dated 21.5.1992 emanating from him to the opposite parties 1 and 2. The relevant passage in the letters may be related here for better appreciation of the case as projected by him. The relevant portion in Ex. A1 letter reads as under : "I am an economically backward government servant retired leading a some sort of hand to mouth living. But my dove to ITC remains and hence my appeal. In your mind full of compassion, a place has to be found for me, in rehabilitating me and making my future bright, like all your sponsorship. For my future enjoyment and reasonable living, I seek ad-hoc grant of Rs. 1 lakh out of your compassionate fund or other sources. This will help me and my wife to live a reasonably happy life at least from now. Such a merciful act from you will restore our confidence in your philanthrophy and greatness of the name of ITC. I feel this is not a big amount for you and this grant will go a long way to make my life happy."

The relevant portion in Ex. A14 letter gets reflected as below : "My submission is that instead of going to the Consumer Protection and Redressal Forum or National Commission or creating adverse media publicity, it will not be improper for the ITC management to relax the rules and as a special case sanction me a grant of Rs. 1 lakh thus helping a smoker of 4 decades, wedded to ITC family."

THE terms and tenor of the relevant portion of the letters as extracted above points out in no uncertain terms nothing short of black-mailing and issuance of threat to the opposite parties. Thus practically, there is no material whatsoever for the grant of compensation quantified in a sum of Rs. 3,00,000/- as prayed for by him even in the extreme case of admitting the existence of any defect or deficiency in the goods manufactured and marketed by the opposite parties.

THE question that is left for consideration on the face of the definite stand taken by the opposite parties in their counter is as to whether the opposite parties are entitled to for compensatory cost for the alleged frivolous complaint instituted against them by the complainant. No doubt, to it is, that this Act contains specific provision in Section 26(2) providing for cost to the opposite parties not exceeding Rs. 10,000/- for reasons to be stated in writing in the case of dismissal of the complaint instituted being frivolous and vexatious in nature. For the reasons stated above, there is no other way go for us but to dismiss the complaint. Mere dismissal of the complaint will not enable the opposite parties to get the costs as had been provided in Section 26 of the Act, unless and until the finding is recorded to the effect that the complaint as instituted is either frivolous or vexatious. The question herein is whether the complaint as instituted is frivolous or vexatious on the facts and in the circumstances of the case. The complainant rather appears to be an enthusiastic consumer smoking the cigarettes manufactured and marketed by the Company for well over 5 decades. The complaint was instituted by him in the year 1992, that is to say immediately after the implementation of the Act by the constitution of the District Fora, the State Commission in the State. The Act providing new remedies to the consumers for the deficiency in service hired or availed of for consideration and defect in the goods purchased for consideration, the enthusiastic consumer like the complainant was rather impelled to resort to the present action for certain defects or deficiencies as complained of by him in the goods manufactured and marketed by the opposite parties. As respects the existence of the alleged defects or deficiencies in the cigarettes manufactured and marketed by the opposite parties, we have already recorded findings that the complaint faced dismal failure to prove such defects or deficiencies. The fact that the complainant was unable to prove such defects or deficiencies as complained of by him in the goods, does not mean that the complaint so instituted by him is either frivolous or vexatious. On the facts and in the circumstances of the case, we are of the view that the complaint as instituted by him cannot be stated to be frivolous or vexatious in nature.

THIS apart, we also want to make an observation with regard to one intriguing factor, which the mighty M/s. ITC Limited because of its money power dragged the complainant to the High Court of Judicature, Madras by resorting to initiate writ proceedings under the facade of challenging the vires of the provisions of the Act and kept the matter pending on for well over 7 years. THIS mighty M/s. I.T.C. Ltd. must have the inkling of a feeling that in case, the complainant was able to prove the existence of deficiency or defect in the goods manufactured and marketed by them, it is going to tell upon their business and perhaps, the reason, it appears, that they wanted to postpone the evil days in rather a bid to have the controversy settled down quietly in the passage of sands of time by resorting to writ proceedings before the High Court of Judicature, Madras and kept in pending for quite long. In the view that we have taken as above, the opposite parties are not entitled to the compensatory costs as prayed for by them, even though we are dismissing the complaint as instituted by the complainant.

IN fine, the complaint deserves dismissal and the same is accordingly dismissed. We, however, make no order as to costs on the facts and in the circumstances of the case. Complaint dismissed.