RAKESH MANGAL vs Pioma Industries

THE complainant purchased Rasna Mango ripe soft drink concentrate on 17.4.91 for Rs. 13/- from M/s. Pragti Stores, Sodala, Jaipur vide cash memo No. 854 dated 17.4.91. He purchased it assuming that he would be able to prepare the drink just be diluting the concentrate with water. THE complainant has alleged that the complainant after opening the pack and seeing the contents and going through the "Directions for use" given on the pack, he was shocked and felt that he has been cheated by the opposite party the so-called manufacturers of the packet Rasna. This pack contains two things which are (i) a small glass bottle duly sealed; and (ii) a sealed pouch. According to the complainant the sealed pouch bears words "Rasna Soft drink concentrate." Pioma Industries, Ahmedabad. This pouch, according to the complainant, indicates the information about its contents. THE glass bottle''s cap has just the name Rasna but no information about its contents. THE information given on the bottom of the pack according to that is that the pouch contains a powder having malic and citric acids, permitted stabilisers. Emulsifiers Class II preservatives colours and the bottle contains a liquid (6 ml.) of permitted flavours. On the face of the pack another statement is, "New refreshing." According to the complainant the word refreshing is highly objectionable as in the contents of the pack there is nothing refreshing at all. It his further been stated by the complainant in the complaint. "An important point is that to prepare a soft drink from ''Rasna'' a syrup of sugar is to be prepared first. So in the soft drink prepared, the sugar gives the body to the drink and also the sweet taste to it. THEre is no sweetening agent in the product. This product can not be called a "concentrate". Had it been a concentrate, a soft drink could have been obtained from it by diluting the concentrate with a required amount of water only, but this is not the case. As a matter of fact the Company M/s. Pioma Industries of Ahmedabad (manufacturers of Rasna) have been misguiding the public of this country for so many years. THEre is a lot of publicity of this product on Television, Radio and Newspapers etc. and in no advertisement, the fact of preparing a sugar syrup by the consumer himself/herself is mentioned and the consumers think, it is a concentrate (as advertised.)"

ACCORDING to the complainant the publicity given by opposite party is to mislead/misguide the public. The pouch contained ISI mark and for that the complainant has said that this has been put on the soft drink concentrate inasmuch as some of the advertisements say it is a first ISI approved soft drink concentrate. An averment has been made in the complaint which reads as under: "Furthermore, I would like to submit the fact that an actual soft drink concentrate is a Food Product which can include permitted colours, flavours, preservatives and sugar. It is understood that this company is selling "Rasna" in different flavours calling them e.g. "Mango Ripe", "Kesar-Ilaichi", "Shahi Gulab", "Pineapple". But on the pack it is not mentioned that no natural flavours are used. It just informs that permitted colours & flavours are there. As the natural flavours are also permitted, so a clear mention of it should have been there."

On account of the above facts it was submitted by the complainant that a ban should be imposed on its sale and also on all the advertisements of this product Rasna throughout the country. An immediate stay may be granted. He, therefore, filed the complaint praying that the opposite party (manufacturers of Rasna) may be directed to pay compensation of Rs. 6 lakhs alongwith the other expenses. This complaint was filed on 17.4.92. With the complaint cash memo of Pragti Stores, Advertisement of the mango ripe of Rasna and other advertisements of Rasna were submitted.

Notice was issued to the opposite party. The opposite party submitted version of the case stoutly opposing the complaint. It is not necessary to detail the defences taken by the opposite party. Suffice it to state that the opposite party has pleaded that the complaint does not disclose any cause of action and that the cash memo does not mention name of complainant. The cash memo was issued by Pragti Stores which has not been impleaded as a party. It was also submitted that the relief which the complainant has claimed in regard to the banning of the product etc. cannot be granted by a Redressal Forum constituted under the Act. It was inter alia, stated that there has been compliance of Rule 32 of the Prevention of Food Adulteration Rules, 1955. Particular reference was made to the Bureau of Indian Standards, Manak Bhavan, New Delhi (BIS) which is a statutory body. It has framed Indian Standards IS: 13819: 1991 in respect of soft drink concentrates and laid down the specifications for domestic use and Rasna soft drink concentrate bears ISI mark of BIS. According to the opposite party, the complaint by the complainant is a gross abuse of law. It has been urged that the complaint is false, frivolous, vexatious, malicious, malafide per se grossly defamatory of the opposite party.

AS certain preliminary objections were raised it was ordered that the preliminary objections will be considered on 26.6-91. By our order dated 3.12.91 it was directed that the preliminary objections raised shall be determined at the time of the final decision of the complaint and the decision was deferred and the parties were directed to submit the affidavits. On 4.2.92 learned Counsel for the opposite party produced a photostat copy of the order of Monopolies Restrictive Trade Practices Commission (MRTPC) dated 19.11.91 and submitted that the complaint should not be tried and it should be dismissed. Its copy was delivered to the learned Counsel for the complainant who took time to seek instructions in the matter. Time was allowed. Adjournment was also sought on 23.4.92. The complaint has come up before us whether the trial should be further proceeded within view of the order of MRTPC dated 19.11.91. A careful perusal of the complaint shows that averments relating to unfair trade practice have been made in the complaint. Unfair trade practice has been defined in Sec. 2(1)(r) which is as follows: "2.(1) In this Act unless the context otherwise requires"- (r) the expression "unfair trade practice" shall have the same meaning as in Section 36-A of the Monopolies and Restrictive Trade Practices Act, 1969 but shall not include an unfair trade practice adopted by the owner of an undertaking to which Part A of Chapter III of that Act applies or by any person acting on behalf of, or for the benefit of, such owner."

Sec. 36-A of the Monopolies and Restrictive Trade Practices Act, 1969 deals with unfair trade practices. They have been enumerated in it. A letter which was sent by Section Officer to AShok Pachouri, New Delhi is as under: "F.No. 30(6715)UTP/91 Monopolies and Restrictive Trade Practices Commission Travancore House, Kasturba Gandhi Marg, New Delhi-1, the 18th November, 1991. Shri AShok Pachauri, Zonal Manager Pioma Industries H 24, Green Park Extension, New Delhi-110 016 Subject: Complaint of Shri Rakesh Mangal through Sajag Upbhokta Shakti Sanghthan. Sir, I am directed to refer to your communication No. PID/MRTPC/406/91 dated 15th October, 1991 on the above cited subject and to inform you that after considering the Preliminary Investigation Report, comments of ADC, Bureau of Indian Standards Communication and the communication of Ministry of Food Processing Industries, it has been found that M/s. Pioma Industries Ahmedabad has not indulged in any unfair trade practice under the provisions of the MRTP Act and as such the Commission has decided not to proceed further in the matter."

This was sent in regard to the complaint of the complainant through Sajag Upbhokta Shakti Sanghthan. Shri Rakesh Mangal has filed this present complaint. In I (1991) CPJ 586 the State Commission of Delhi has held that the complainant-respondent have chosen MRTP Forum for seeking reliefs of his grievance, he could not invoke the jurisdiction of the District Forum under the Act in respect of the same matter. According to the State Commission, Delhi the complainant-respondent having already approached MRTPC for the redress of his grievance he could not take paralled proceedings before the District Forum. The question which we are called upon to determine also arose before the National Commission in II (1992) CPJ 108. In that case the complainant had anxiously opted to approach MRTP Commission for relief and the said Commission after consideration of the whole matter granted relief by way of the engine being replaced which has been done. It was held that thereafter it was not open to the complainant to approach the Consumer Redressal Commission for relief in respect of the same matter. If she was not satisfied with the relief granted by the MRTP Commission, the proper course to be adopted by the complainant was to go in appeal to the higher authority, which is the Supreme Court. The complainant in the present complaint has made allegations of unfair trade practices. He filed a complaint and after preliminary investigation report, comments of ADC Bureau of Indian Standards Communication and the Communication of Ministry of Food Processing Industries, it was found that M/s. Pioma Industries, Ahmedabad has not indulged in any unfair trade practice under the provisions of the MRTP Act and so the Commission decided not to proceed further in the matter. We have already stated that the unfair trade practice has defined in the Act as defined under Sec. 36-A of the MRTP Act. The complainant having opted to approach the MRTP Commission for the relief and after consideration the Commission declined to proceed further in the matter. Thereafter it is not open to him to approach the State Commission for relief in respect of the same subject-matter. If the complainant was not satisfied with the order passed by the MRTP Commission the proper course which he should have adopted was to got to appeal to the higher authority, which is in this case is Supreme Court.

IT may be stated that the cash memo produced by the complainant shows that Rasna mango ripe was purchased from M/s. Pragti Store for Rs. 13/- vide cash memo No. 854 dated 17.4.91. IT is strange that the dealer (seller) has not been impleaded as a party to the complaint. One of the prayer made is that in the interest of public immediate ban should be imposed on the sale of Rasna and also on all the advertisements of product Rasna throughout country and immediate steps to ban sale and advertisements were prayed for. Reliefs which the Redressal Forum are competent to grant are enumerated in Sec. 14(1) of the Act. A Redressal Forum established under the Act cannot grant any relief beyond the Act. Sec. 14(1) of the Act reads as follows: "14.(1) If, after the proceeding conducted under Section 13, the District Forum is satisfied that the goods complained against suffer from any of the defects 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 take one or more of the following things namely:- (a) to remove the defect pointed out by the appropriate laboratory from the goods in question; (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 charge 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."

Banning of the sale of the article and advertisements is not contemplated under Sec. 14(1) of the Act. The State Commission has no jurisdiction to grant relief banning the sale of product Rasna and all the advertisements throughout the country. In this view of the matter also the complaint is not maintainable. The complainant has purchased as stated above the packet of Rasna for Rs. 13/-. The complainant has claimed Rs. 6 lakhs as compensation on the ground that he purchased the soft drink concentrate assuming that he would be able to prepare the drink just by diluting the concentrate with water and as this could not be the situation, this caused him lot of inconvenience and embarrassment in front of his guests. The complainant has produced the advertisement with the bill which is printed on the packet which when translated into English reads as under: "Take 6 cups (900 ml.) water. Add 750 gms sugar and the entire quantity of Rasna powder and liquid. Still until sugar dissolves and filter mixture to get 2 full bottles of syrup. To serve and 3 parts water or milk to one part syrup."

The complainant does not seem to have read the directions for use. Had he read them the imaginary inconvenience and embarrassment could be well voided. A sum of Rs. 6 lakhs is deliberately an inflated amount which is purely hypothetical and this he has done as he is not required to pay Court fee on the amount of Rs. 6 lakhs. As the complainant has already approached the MRTP Commission in regard to the subject-matter of the complaint and has failed there, it is not open to him to file this complaint under the Act.

FOR the aforesaid reasons the complaint is not maintainable and it is frivolous.

THE complaint is not maintainable and it is, therefore, dismissed. THE complainant shall pay Rs. 500/- as costs to the opposite party within one month from the date of the receipt of the order. Complaint dismissed with costs. _______________