DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MANSA.
(exercising the powers of Judicial Magistrate, 1st Class)
Ex.Appl. No.11/14/02/2011
Conviction date :25.03.2011 Decided on : 29.03.2011
Dr.Rajesh Kumar, Patiala Clinic Lab., X-Ray Centre, Panchvati Market, Shop No.19, Budhlada, District Mansa.
….. Applicant/DH.
VERSUS
France Vita Nature (P) Ltd., (for a natural life), No.110, Kamatchi Amman Koil Street, Pondicherry 605 001
….. Respondent/JD.
Executive Application under Section 25 & 27 of the Consumer Protection Act, 1986.
…..
Present: Sh.Sunil K.Garg, Advocate counsel for the Applicant/DH.
Sh.Lakhvir Singh, Advocate counsel for the Respondent/JD.
Quorum: Sh.George, President.
Sh.Sarat Chander, Member.
Smt.Neena Rani Gupta, Member.
ORDER:-
Sh.George, President:
The applicant Dr.Rajesh Kumar has filed this application under Section 25 & 27 of the Consumer Protection Act, 1986 (hereinafter referred to as “Act”) with the allegations, that the OP published an advertisement in the Daily Jag Bani newspaper dated 9.6.2010, that by consuming the tablets manufactured by the OP, one can loose weight to the extent of 20 to 30 kgs within 25 days. 25 days course fee was mentioned as Rs.2990/-. Opinion of several persons was also published in the aforesaid advertisement alongwith the contact numbers of the OP. Allured with the advertisement, the applicant /complainant, having 135 kg weight and with the intent to loose weight, contacted the respondent/OP. The respondent/OP assured the complainant, that if within 25 days, the complainant would not loose his weight, then the full price of the medicine/tablets alongwith cost shall be refunded to him by the OP. As such, on the assurance of the respondent/OP, the complainant placed an order from Budhlada with the respondent/OP for three bottles of medicine and received the parcel containing medicine at Budhlada itself from respondent/OP on 24.6.2010 vide bill No.290282. As per the advise of the respondent/OP, complainant started taking the medicine, but even after consuming three bottles of medicines/tablets, complainant did not loose weight and his weight remained as it is i.e. 135 kgs. The complainant contacted the respondent/OP and informed about the non-effect of the medicine, but the respondent/OP did not respond satisfactorily. Thereafter the complainant requested the respondent/OP to refund the prize thereof, but the OP flatly refused to accede to his request. The complainant, feeling aggrieved with the adamant attitude adopted by the respondent/OP, by not listening to his complaint, had to file a complaint before this Forum.
2. OP contested the allegations of the complaint and filed written reply wherein while admitting the purchase of product against invoice dated 24.6.2010, it was alleged, that exact weight of the complainant is not known to the OP either before or after the consumption of the product. In the money back scheme the postal charges are not to be returned back. Since the complainant/applicant has failed to follow the norms and hence cannot claim any remedy from the OP. The product was delivered to the complainant through VPP. Complainant did not consume the medicine sent by the OP and did not undergo treatment as per instructions, however, OP still sticks to money back offer, subject to fulfilling of norms by the complainant.
3. This Forum vide order dated 09.12.2010 directed OP i.e. the Respondent to do as under:
(i) To refund Rs. 3340/-of medicine/tablets alongwith interest @ 9% p.a from the date of filing of the complaint till final realization of the payment.
(ii) to pay an amount of Rs. 20,000/- to the complainant for mental torture, harassment inconvenience and mental agony.
(iii)(a)To pay an amount of Rs. 10,000/- as punitive charges for issuing misleading advertisement by adopting unfair trade practice for alluring the innocent consumers by making exaggerated claims which are not otherwise acceptable and otherwise recognized by any medical science for, reducing the weight by consuming any such product/ medicine that too to the extent of 20Kgs to 30 Kgs within a period of 25 days only.
(iii)(b)We further direct the OP to have restrain and should refrain himself from publishing any such “misleading”, “unprofessional” advertisement through any newspaper or otherwise in the entire District of Mansa of the State of Punjab.
(iv) Since the complainant has filed the complaint under forced circumstances due to callous and adamant attitude of OP and, therefore, complainant is also entitled for reasonable and adequate litigation expenses which we assess in the facts and circumstances of the case to the tune of Rs. 5,000/-.
It was further ordered that compliance of the order be made by OP within a period of 30 days from the date of receipt of the copy of the order, which shall be supplied, to the parties through their counsel in person as well as through Registered AD
4. The copy of the order dated 09.12.2010 was issued by this Forum on 16.12.2010 to Sh.S.K.Mehta, Advocate counsel for OP/ Respondent and also sent through registered post. Despite receipt of copy of the order, OP/ Respondent did not bother to comply with the same within the stipulated period. The complainant/applicant has thus filed this present application and has pleaded, that since OP/Respondent has failed to comply with the order of this Forum, knowingly and intentionally with impunity, therefore, he is required to be dealt with under Section 27 of the Act, for omitting compliance of the order of this Forum.
5. On this application of the complainant, OP/Respondent was issued show cause notice dated 23.02.2011, whereby OP/ Respondent was informed, that a complaint filed against him was decided by this Forum vide order dated 09.12.2010, copy of which was delivered to his counsel Sh.S.K.Mehta on 16.12.2010 and also sent through registered post and OP/ Respondent was directed to comply with the orders within a period of one month from the date of receipt of the copy of the same. It was made clear to him that in case he failed to show cause by not appearing in person on 17.03.2011, exparte proceedings may be taken against him.
6. Sh.Lakhvir Singh, Advocate appeared before this Forum on 17.03.2011 on behalf of OP/ Respondent and he made statement wherein he stated, that:
“Respondent has conveyed him that he has not to file any appeal and will make compliance of the order passed by this Forum.”
Learned counsel sought an adjournment, and accordingly, the execution application was adjourned for 24.3.2011. On 24.3.2011, again Sh.Lakhvir Singh Advocate appeared, however, the compliance is not reported, and therefore, the execution application was fixed for orders for 25.3.2011. On 25.3.2011 Sh.Lakhvir Singh, Advocate appeared on behalf of respondent. Conviction Order of the respondent was pronounced and his counsel Sh.Lakhvir Singh was directed to inform the respondent to appear before this Forum on 29.3.2011 for hearing him on “quantum of sentence”.
7. We are also conscious of the fact, that in a criminal case, judgment, wherein accused is to be sentenced in general, has to be pronounced in his presence seeking and affording him opportunity of being heard on the quantum of sentence. Further in the present case, the facts and circumstances are totally different where the conduct of the OP is such, that he is avoiding his appearance before this Forum and in case the proceedings under Section 27 of the Act pending before us, are deferred, to procure the presence of the opposite party/respondent for pronouncing the judgment in his presence, it will further cause undue delay in the disposal of the proceedings. If the respondent would have been serious enough for adequately defending himself, he would have definitely appeared before this Forum, but he evaded to appear. Therefore, taking assistance from the proviso of Sub Section 6 of Section 353 of the Code of Criminal Procedure, in order to avoid undue delay in disposal of the proceedings, we are of the opinion, that it is a fit case, where judgment can be pronounced, notwithstanding absence of the opposite party/respondent .
Pronounced on 25.03.2011
Neena Rani Gupta, Sarat Chander, George,
Member. Member. President.
(exercising the powers of Judicial Magistrate, 1st Class)
29.03.2011
Present: Vice counsel Sh.Rishu Singla Vice Sh.Sunil Kumar Garg, Advocate counsel for the applicant.
None for the respondent.
Respondent is also not present.
Since the respondent is avoiding to appear before this Forum and intend to delay the proceedings for the reasons, as referred to herein above, however, he was afforded opportunity through his counsel Sh.Lakhvir Singh, Advocate to inform the respondent to appear in person before this Forum for his personal hearing on “quantum of sentence”, today neither Sh.Lakhvir Singh, Advocate nor the respondent is present. The absence of Sh.Lakhvir Singh, Advocate is sufficient under the circumstances to draw irresistible conclusion that he must have informed the respondent to appear in person before this Forum for personal hearing on “quantum of sentence”. The absence of the respondent shows that he is not interested in putting his personal hearing for being heard on “quantum of sentence”, and therefore, we have no alternative, but to finally dispose of this Execution Application by sentencing the respondent. The conduct of the OP is such, which does not move us to take a lenient view, as he has failed and also omitted to comply the order of this Forum with impunity. Taking into consideration all pros and cons, facts and circumstances and the adamant attitude of the OP, we proceed to sentence the General Manager of France Vita Nature (P) Ltd., (for a natural life), No.110, Kamatchi Amman Koil Street, Pondicherry 605 001 to undergo simple imprisonment for one year and also to pay a fine of Rs.10,000/-. In case of default of payment of fine, the General Manager, shall further undergo imprisonment for a period of three months.
8. In case of deposit of payment of fine by the General Manager of the OP, the same may be deposited in the Legal Aid Fund Account of this Forum.
9. The Jail Warrant alongwith copy of this order, be issued to the concerned jail authorities, which is to be sent to the Senior Superintendent of Police, Mansa, for getting the warrants executed, for proper execution in accordance with the law.
10. The copy of this order be sent to the parties concerned free of costs and file be arranged, indexed and consigned to record.
Pronounced:
29.03.2011
Neena Rani Gupta, Sarat Chander, George,
Member. Member. President.
(exercising the powers of Judicial Magistrate, 1st Class)