(These appeals coming before us for final hearing on 26.10.2018 and on hearing the arguments of both sides and upon perusing the material records, this Commission made the following:-)
K. Baskaran, Presiding Judicial Member
1. As both these appeals arose out of a common order and as the appellants are the same persons and the points involved are same and as per the request of the parties both these appeals are disposed off by way of this common order. FA 35/2012 was filed by the aggrieved 2nd and 3rd opposite parties in CC.No.193/2006 on the file of the District Consumer Disputes Redressal Forum, Chennai (North) and F.A.No.190/2012 was filed by the same parties against the order passed the C.C.No.212/2006 by the same District Forum.
2. For the sake of brevity and convenience the parties are referred here as they stood arrayed in the District Forum.
3. The factual matrix behind these two appeals:
That the complainant in CC.No.193/2006 Thiru.Elumalai and the complainant Thiru.Gulam Mohamed in C.C.No.212/2006 had filed separate complaints before the District Forum seeking the relief of direction to the opposite parties who are the distributors and manufacturers of a detergent powder to supply the products with correct weight and measure and to pay Rs.1 Lakh as compensation besides cost of litigation alleging, interalia, that they had, on 25.04.2006 purchased three packets each of Rin soap powder of 200 grams from one retail dealer; it was found with shortage by 25 to 50 grams in each packet and when it was brought to the notice of the 1st opposite party, the distributor of the commodity it pleaded ignorance and informed that it was only the 2nd and 3rd opposite parties who were the manufacturers of the said commodity and they alone were responsible and liable for the quality and quantity of the commodity; that the complainants had lodged a complaint with the Inspector of Labour, Chennai on 09.05.2006 along with bills and a packet and it was again found by the said Labour Inspector to contain lesser quantity than the declared quantity; that the complainant had sent a lawyer’s notice to all the opposite parties stating that they had committed unfair trade practice and calling upon them to pay Rs.1 Lakh as compensation for mental agony but there was no reply from them and hence this complaint.
The complaints were resisted by the opposite parties by setting up a common defence to the effect that the complainants had not proved the alleged shortage in quantity through legal means; that the 2nd and 3rd opposite parties are leading manufacturers and suppliers of variety of consumer products and each product is manufactured after strictly complying with the various quality and quantity checks at various levels during the process of manufacturing, packing and marketing and hence there was no possibility for any shortage in the quantity as alleged by the complainant; that the complainants did not produce the commodities purchased by them to the representatives of the 2nd and 3rd opposite parties so as to enable them to investigate into the allegations and to find out the correct picture and to report back to the complainants; that as per the relevant provision of law namely Sec.39 (4) of the Standard of Weights and Measures Act and Rule 11 (4) of the Standards of Weights and Measures (Packaged Commodities) Rules 1977 read with schedule IV, the commodity namely Rin Soap Powder could be packed with a declaration inrespect of the net contents with a qualification “when packed” and as such the opposite parties are not liable for the alleged shortage of quantity which might be due to various factors including climatic and environmental changes, due to passage of time and as such the correct percentage of loss in weight having regard to the duration of time and environmental condition could be determined only by resorting to technical investigation by the experts possessing the required expertise and devices and in this case the alleged weighment was done by a Labour Inspector and that too after two years from the date of manufacture and that if at all there was any loss in weight it could be due to loss of moisture due to passage of time and hence there was no adoption of unfair trade practice on the part of the opposite parties and hence the complaints deserved dismissal.
Based on the pleadings of the respective parties the learned District Forum had framed two points for consideration and by answering those points held that there was defect in the products manufactured by the 2nd and 3rd opposite parties and that the complainant was entitled to some reliefs and had finally allowed the complaint in part directing the opposite parties 2 & 3 to supply the products with correct weight and measures to the consumers and to pay Rs.50,000/- as compensation for the mental agony and Rs.5,000/- towards costs to each of the complainant with a default provisio for interest and dismissed the complaint against the 1st opposite party. Feeling aggrieved the 2nd and 3rd opposite parties have preferred these appeals.
4. Points for consideration in these appeals:-
1. Whether the complainants had not proved the shortage in quantity in the subject commodity?
2. Whether such shortage in quantity fell within the permissible limits prescribed under the provisions of the Standards of Weights and Measures Act, 1976 and the Rules framed thereunder?
3. Whether the opposite parties 2 & 3 are guilty of manufacturing and marketing defective goods?
4. What reliefs the complainants are entitled to?
5. Points No.1 to 3:- The simple case of the complainants is that when they had each purchased 3 packets of Rin soap powder each 200 grams from a retail trader by name M/s.Bakialakshmi Stores in Royapuram, Chennai on 24.04.2006 they noticed some shortage in the weight and when they had brought it to the notice of the 1st opposite party who is the distributor of the said commodity it had simply pleaded ingnorance and informed that the 2nd and 3rd opposite parties being the manufactures and packers alone were responsible for the defect in the goods. Hence they had lodged a complaint with the concerned Labour Inspector along with a sample packet for taking action. But there was no action from the said officer and hence they had sent a lawyer’s notice on 18.05.2006 to the opposite parties about the unfair trade practice and called upon them to pay a compensation of Rs.1,00,000/- but with no response.
6. The defence of the 2nd and 3rd opposite parties is that the complainants had not proved before the learned District Forum that there was shortage in quantity of the said commodity and that as per the provisions of the Standards of Weights and Measures Act and rules framed thereunder, the manufacturers could declare the quantity with a qualification “when packed” and hence it would be compliance of the legal requirements if the packet contained the net declared quantity of 200grams when the commodity was packed and if there was any variation in the quantity over the period of time due to various factors like climatic conditions etc., the manufactures are not responsible and liable for such variations.
7. Regarding the contention that the complainants had failed to prove the alleged shortage in the quantity, we are of the view that the complainants had proved the same for the purpose of this case filed under the provisions of the Consumer Protection Act, 1986. The complainants had purchased 3 packets of Rin soap powder declared to contain 200 grams of net content on 25.04.2006 from a retail trader and they had noticed some shortage in weight and hence they had brought it to the notice of the 1st opposite party who is the dealer of the said commodity from whom the retail trader got the supply for retail sale. This factum of bringing the alleged shortage in quantity to the 1st opposite party had not been specifically denied by the 1st opposite party in its written version. Thereafter, the complainants had lodged a complaint with the concerned Labour Inspector through Ex.A3 on 09.05.2006 alleging that they suspected some shortage in the contents of the packet and hence they themselves had weighed the packet and found that there was lesser weight than the declared one and hence requested the authority to take action against the dealer and manufacturer of the said product. But, a copy of this complaint was not sent to any of the opposite party. We are of the view that if there was no shortage in weight in the packet the complainants would not have taken pains in sending the same to the Labour Inspector for taking action. Further, as there was no action from the said officer the complainants had issued a lawyer notice to the opposite parties 1 & 3 on 18.05.2006 alleging that the product purchased by them was found to be defective as regards its quantity and that they had lodged with the Inspector of Labour and calling upon them to pay a compensation of Rs.l Lakh but there was no reply from the opposite parties 1 & 3 and the Regional Office of the 2nd opposite party alone had on 18.10.2006 sent a reply to the complainants stating that their representatives called on the complainants’ lawyer on 13.10.2006 and apprised him of the details of the quality and quantity check followed by the manufacturer and further requesting to hand over the disputed packets to their executive so as to enable them to investigate the matter and to ascertain as to how the alleged shortage could have occurred and offering to replace the sample packets with 6 packs of Rin detergent powder. Even in this belated reply under Ex.B6 the 2nd opposite party had not denied the allegations contained in Ex.A4 lawyer notice dated 18.05.2006 sent by the complainants. What was stated in the reply is that the complainants could hand over the disputed packs to the representative of the 2nd and 3rd opposite parties for which the complainant would be given 6 packets of similar commodity so that the 2nd opposite party could investigate into the matter for ascertaining the reason for such shortage.
8. In addition to the above, in this case the complainants had filed application before the learned District Forum to send the disputed packets to the concerned authority for weighing the same and that application was allowed and the disputed packets were sent to the Labour Inspector, who had weighed the said packets using the facilities available in the office of the Controller of Legal Metrology, Chennai and sent a report that the disputed packet weighed only 180g and 930mg inclusive of wrapper in C.C.No.212/2006 and the disputed packet concerned in C.C.No.193/2006 weighed only 177 grams and 440 mgs. These reports formed part of the records in these two cases.
9. We are of the considered view that this report of the Labour Inspector is sufficient for the purpose of deciding the consumer dispute arising in our case involving shortage in the declared net quantity of the contents in a packet manufactured, packed and sold by the opposite parties. Further, this is not a complaint lodged with the authority like the Controller of Legal Metrology Department for taking action against the opposite parties for the alleged violation of the provisions of the Standards of Weights and Measures Act and the Rules framed thereunder.
10. Hence, based on the discussions held above, we are of the view that the complainants had proved the shortage in quantity of the contents of the disputed packets and we answer point No.1 accordingly.
11. The quantity in weight of the subject commodity in the disputed packet in C.C.No.193/2006 concerned in F.A.No.35/2012 was 180g and 930mg inclusive of wrapper against the declared quantity of 200g and hence there was shortage of 19g and 70mg. Likewisly, the weight of the disputed packet in C.C.No.212/2006 concerned in F.A.No.190/20012 was 177g and 440mg inclusive of wrapper against the declared weight of 200g and hence there was a shortage of 22g and 560mg. Now, we have to see that this deficit in the quantity is permissible under the provisions of the Standards of Weights and Measures Act. As per table 1 of schedule I of the Standards of Weights and Measures (Packaged Commodities) Rules, 1977 for the declared quantity of 200g the permissible error in excess or in deficiency is 4.5% and it comes around 9g for the commodity declared weighing 200g. But in our case it was 19g and 70mg in F.A.No.190/2012 and 22g 560mg in F.A.No.35/2012 which are much more than the permissible limit. A perusal of the schedule IV does not show that Detergent not soaps is exempted from the application of permissible limit of variation in the net quantity.
12. A combined reading of Sec.39 (4) of the Standards of Weights and Measures Act, 1976 and the relevant rules and the schedules annexed to the rules made thereunder would show that the consumer should receive the same quantity of the commodity packed as declared on the package whether in volume, weight, measure or number; if the commodity is of such a nature that it may lose or gain weight due to some factors and if such variation in the quantity is negligible then the manufacturer should take into account such variation while packing the contents so as to ensure that the end consumer should receive the declared quantity; that if the variation in quantity is not so negligible then the manufacturer could use the words “when packed” while declaring the weight; that in any event, the percentage of permissible limits of variation should not exceed the limits mentioned in Schedule I ; the schedules list the commodities which are likely to variation due to various factors like climatic conditions and environmental conditions etc.,
“As per the Standards of Weights and Measures (Packaged Commodities) Rules, 1977, THE SECOND SCHEDULE
[See Rule 2(i)(ii)]
Maximum permissible errors in relation to packaged commodities not specified in the First Schedule
1. Maximum permissible errors on net quantity declared by weight or volume.-(1) The maximum permissible error, in excess or in deficiency, in the net quantity by weight or volume of any commodity not specified in the First Schedule, shall be as specified in Table I below:-
Maximum permissible errors on net quantities declared by weight or by volume
Sl. Declared quantity Maximum permissible error in excess or in deficiency
As percentage of declared quantity g or ml
(i) upto 50 9
ii) 50 to 100 4.5
(iii) 100 to 200 4.5
(iv) 200 to 300 9
(v) 300 to 500 3
(vi) 500 to 1000 15
(vii)1000 to 10000 1.5
(viii) 10000 to 15000 150
(ix) more than 15000 1.0
13. But, the subject commodity namely Rin soap powder does not enjoy any special concession in the said rules and the schedules so as to claim that the manufacturer is not liable for any variation in the quantity when purchased by a consumer. As stated above the variation in the quantity in the disputed packet should not exceed 9g whereas it was much more in our case.
14. Hence in the light of the discussions held above, we are of the considered view that the Rin Soap powder pocket purchased by the complainants in these two cases which were manufactured and marketed by the 2nd and 3rd opposite parties and distributed by the 1st opposite party was a defective goods in as much there was deficit in the quantity declared on the wrapper and the actual quantity available to the consumer/complainant.
15. The learned counsel for the appellant would vehemently contended that the authority who weighed the subject commodity on being ordered by the learned District Forum was not competent enough to weigh the product as it involved more investigations with reference to the various factors which may cause variations in the quantity. But we are of the view that the subject commodity was sent to the concerned authority only for the purpose of finding the quantity in weight and not for the purpose of finding the causes for variations if any in the quantity in the weight. Mere weighment could be done by the Labour Inspector who did the test in our case.
16. Further at last after receipt of report from the Labour Inspector regarding the weight of the subject pockets, the opposite parties could have moved an application before the learned District Forum for sending the disputed pockets to the experts in the office of the Controller of Legal Metrology in the State of Tamil Nadu to find out the deficit/shortage in the weight and the reasons for such variations and the possibilities of such variations due to passage of such time as happened in our case between the date of purchase and the date of weighment. Having kept mum during the enquiry before the District Forum now the appellants could not be heard complaining that the officer who did the weighment of the disputed packets was not technically competent to perform the said test and it could be done only by the Department of legal Metrology. In any event th
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e facts remain that the variation was more than the permissible limit of variation as prescribed under the rules framed under the Standards of Weight and Measures Act, 1976. We cannot subscribe our seal of approval to the contentions of the appellants that when they were permitted to use the word “when packed” with reference to the net quantity of the contents then they are not responsible for the variations if any in the quantity of net contents in the hands of the ultimate consumer as these contentions are baseless and cannot be accepted as per the provisions of Standards of Weight and Measures Act, 1976 and the rules framed thereunder r/w the schedule thereunder which prescribed the maximum permissible limits for the variations in the net weight of packaged commodities. When such deficit was more than permissible limit prescribed under the relevant Act and Rules the opposite parties 2 and 3 were guilty of manufacturing and marketing and defective goods. Hence point Nos. 2 and 3 are answered accordingly. 17. Point No.4:- We are of the considered view, taking into account the facts and circumstances of this case, the reliefs granted by the learned District Forum are just and reasonable which the complainants are also entitled to and answer this point accordingly. 18. The learned District Forum has also held the points in favour of the complainants and we do not find any reasons or any grounds to interfere with the findings of the learned District Forum. We are of the view that both the appeals fail and have to be dismissed. FA.NO. 35/2012 In the result, this appeal is dismissed. The appellants/opposite parties 2 and 3 shall pay a cost of Rs.10,000/- to the 1st Respondent/complainant. FA.NO. 190/2012 In the result, this appeal is dismissed. The appellants/opposite parties 2 and 3 shall pay a cost of Rs.10,000/- to the 1st Respondent/complainant.