The instant appeal under Section 15 of the Consumer Protection Act, 1986 (hereinafter referred to as ‘the Act’) is at the instance of complainant to impeach the final order/judgment dated 09.11.2017 passed by the District Consumer Disputes Redressal Forum, Hooghly at Chinsurah (for short, ‘Ld. District Forum’) in Consumer Complaint No. 130/2016 whereby the complaint lodged by the Appellant under Section 12 of the Act was dismissed on contest without any order as to costs.

The Appellant herein being complainant lodged the complaint before the Ld. District Forum asserting that on 18.08.2014 she purchased one sealed packet of ‘Horlicks biscuits’ and brought it in her home situated at Holding No.70, Kabi Kirnadhan Road, P.O. – Bhadrakali, Dist-Hooghly and when she handed over the same to her mother-in-law Smt. Narayani Majumder, she reported that the packet is weighing less i.e. below the printed net wet of 300 gms. Thereafter, the complainant checked it out in another weighing machine in the locality and found that the packet of biscuits containing of 250 grams. The complainant had alleged that she purchased the same from the shop of OP No.4 i.e. ‘Sankar Stores’ of Bhadrakali on payment of Rs.28/- and in this regard, bill has been issued to the complainant. The complainant has alleged that the OP Company has violated the Rule 2 (e) of the Legal Metrology (Packaged Commodities) Rules, 2011 and thereby responsible for defect and/or deficiency as defined under Section 2(1)(f) and Section 2(1)(g) of the Act. Hence, the complainant/appellant approached the Ld. District Forum with prayer for several reliefs, viz. – (a) an order directing OP Nos. 1 to 3 to pay a sum of Rs.1,00,000/- as compensation for the loss and injury suffered by her; (b) an order directing OP Nos. 1 to 3 for granting punitive damages of Rs.1,00,000/-; (c) to award litigation cost of Rs.10,000/- etc.

The Respondent Nos. 1 & 2 being Opposite Party Nos. 1 & 2 by filing a written version have stated that the complaint is barred by limitation. The specific defence of OP Nos. 1 & 2 is that the complainant did not adduce any evidence of purchase, except of a piece of paper which is not reliable of piece of evidence and as there is no sufficient evidence, the complaint should be dismissed.

The Respondent No.3/OP No.3 by filing a separate written version has stated that at the time of purchase of the biscuits from the store of OP No.4, the complainant did not have any complaints as to the weight and/or quantity of biscuits contained in the packet purchased by the complainant. OP No.3 has stated that the weighing of 250 grams in place of 300 grams indicate 10 biscuits lesser than the usual quantity. When the manufacturing of biscuits is done through machine, there is no likelihood of having 50 grams less in a 300 grams packet as the machine itself will not be able to pack the stack of a lesser number of biscuits.

On the basis of pleadings, evidence on record and the submission made by the Ld. Advocates appearing for the parties, the Ld. District Forum by the impugned order dismissed the complaint. To assail the said order, the complainant has come up in this Commission with the present appeal.

Mr. Barun Prasad, Ld. Advocate for the Appellant has submitted that the Ld. District Forum passed the impugned order without considering a clear shortcoming in quantity which attracts the violation of stipulations as made in Rule 2(e) of the Legal Metrology (Packaged Commodities) Rules, 2011. He has further drawing our attention to the impugned judgement has submitted that when the Ld. District Forum referred the biscuits to Legal Metrology Department for weighing and the said Department came at a finding that the packet of biscuit contained of 250 grams, basing upon the same, the Ld. District Forum should have held that there was deficiency in services. He has further submitted that the question of limitation does no arise as the packet of biscuits was purchased on 18.08.2014 and the complaint was lodged on 16.08.2016 i.e. within the period of limitation as prescribed under Section 24A of the Act.

On the other hand, Ld. Advocate for Respondent Nos. 1 & 2 has contended that the appellant had no reason to wait for long two years in filing the complaint without referring the matter to the Department of Biscuit Company for ascertaining the actual state of affairs. She has also contended that the appellant has failed to adduce any evidence whatsoever in support of the allegation to show that packet weighed less than the particulars on the packaging.

Ld. Advocate for Opposite Party No.3 has urged that the complaint has been filed baselessly because though the appellant has stated that she had weight the packet of biscuits on a weighing machine in her locality but she has failed to adduce any evidence to establish her claim.

We have given due consideration to the submission made by the Ld. Advocates appearing for the parties and travelled through the materials available on the record.

It is alleged by the Appellant that on 18.08.2014 she purchased one sealed packet of Horlicks biscuits from the shop of respondent no.4 on payment of Rs.28/-. After purchase of the same, when she went to her house and handed over the same to her mother-in-law Smt. Narayani Majumder for domestic consumption, it is reported by her mother-in-law that the packet is weighing less i.e. below the printed net wet of 300 grams. The appellant has also stated that thereafter, she checked it out in another weighing machine in the locality and found that the packet containing Horlicks biscuits of 250 grams. Surprisingly enough, the appellant did not try to corroborate her statement through her mother-in-law Smt. Narayani Majumder or any other person in presence of whom she weigh the packet of biscuits. The shop keeper, from whose shop the biscuits alleged to have been purchased was made a party but the said shop keeper has not supported the case of complaint by adducing any evidence excepting one bill showing payment of Rs.28/- against the biscuits.

Assuming that, the Appellant purchased the biscuits on 18.08.2014 and the complaint was lodged on 16.08.2016 i.e. after waiting for a long two years and in between this long period, appellant never raised her grievances to the company for ascertaining the actual state of affairs. It is not clear why the appellant awaited for long two years in filing the complaint before the Ld. District Forum. Even after filing of the complaint, the appellant did not produce the said biscuits before the Ld. District Forum for testing/measuring the same from a laboratory. In this regard, the provisions of Section 13(C) of the Act appears to be noteworthy which provides –

“(c) where the complaint alleges a defect in the goods which cannot be determined without proper analysis or test of the goods, the District Forum shall obtain a sample of the goods from the complainant, seal it an authenticate it in the manner prescribed and refer the sample so sealed to the appropriate laboratory along with a direction that such a laboratory may can analysis or test, whichever may necessary, with a view to finding out whether such goods suffer from any defect alleged in the complaint or from any other defect and to report its finding thereon to the District Forum within a period of forty-five days of the receipt of the reference or within such extended period as may be granted by the District Forum”.

Section 13(4) of the Act provides that the District Forum shall have the same power as have vested in a Civil Court under the Code of Civil Procedure in requisitioning of the report of the concerned analysis or test from the appropriate laboratory or from any other relevant source.

Apparently, there has been no delay in filing complaint in accordance with the provisions of Section 24A of the Act. But it has become quite doubtful why a person after ascertaining the deficiency will wait for long two years in filing the complaint and that too without producing the packet of biscuits for testing the same from a competent authority at the time of filing the complaint.

No one can deny that Horlicks biscuits is a well known brand in the market and its manufacturing is done through machine and there is weight checking process by quality personnel through Calibrated weighing balance. Even assuming that the biscuits packet was indeed deficient in quantity, the logical course of action for a consumer would have been to approach to the store and demand for exchange or refund of money even if the appellant did not approach the shop keeper, an aware consumer who invokes the rights under the Act would have written to the Consumer Affairs and Fair Business Practices Department or she would have written to the consumer services department of respondent no.1 company, details whereof are printed in each package and the same has been annexed to the appellant itself.

The masterly inactivity on the part of the Appellant for about long two years without complaining the s

ame either to the Consumer Affairs Department of the State of West Bengal or the Consumer Affairs Department of Respondent No.1 Company creates doubt as to the genuineness of the claim. In that perspective, the report given by the Assistant Controller of Legal Metrology, Hooghly to the President of District Forum, Hooghly dated 02.03.2017 cannot be the sole basis for drawing a conclusion that the respondents were deficient. After giving due consideration to the submission made by the Ld. Advocates for the respective parties and on perusal of the record, we do not find any reason to differ with the view of Ld. District Forum in dismissing the case. In view of the above, the appeal is dismissed on contest. However, there will be no order as to costs. The impugned judgement/final order is hereby affirmed. The Registrar of the Commission is directed to send a copy of the order to the Ld. District Consumer Disputes Redressal Forum, Hooghly at Chinsurah for information.