M/S. NIVEA INDIA PVT. LTD. vs DATTATRAY H. JOSHI & ANR.

This revision petition has been filed by the petitioner against the order dated 27.8.2012 passed by the Maharashtra State Consumer Disputes Redressal Commission, Mumbai (in short, ''the State Commission'') in First Appeal No. 520 of 2011, M/s. Nivea India Ltd. Vs. Dattatray H. Joshi & Anr., by which, appeal was dismissed.

Brief facts of the case are that complainant/respondent No. 1 has purchased tube of 70 grams weight of Nivea Shaving Cream from opposite party No. 2/Respondent No. 2 on 2.6.2009 for Rs. 55/-, which was manufactured by opposite party No. 1/petitioner. After opening the tin of tube for shaving on next day i.e. on 3.6.2009, the complainant found that cream in tube has become solid and it is not coming out. The complainant inquired with the vendor, opposite party No. 2. However, he was told by opposite party No. 2 that the period of tube use is 24 months from manufacturing and use during that period is valid. The complainant could not shave by using Nivea cream and complainant has suffered financial loss as also mental agony. The complainant gave notice dated 4 th June 2009 to the manufacturer opposite party No. 1. However, opposite party No. 1 did not give any reply to the said notice. Alleging deficiency on the part of opposite parties, complainant filed complaint before District Forum. Opposite Party No. 1 resisted complaint and submitted that only complainant had bad experience in respect of such shaving cream. However, no other customer of shaving cream had experience of such nature. Opposite party No. 1 further stated that before filing the present complaint, the complainant ought to have contacted the opposite party No. 1. Opposite Party No. 1 showed their willingness to return the price of shaving cream tube to the complainant and prayed for dismissal of complaint.

Opposite party No. 2 did not file written statement.

Learned District Forum, after hearing both the parties, partly allowed complaint and directed opposite parties to pay Rs.10,000/- to the complainant for mental agony and complainant was directed to deposit the aforesaid amount with Consumer Welfare Fund and opposite parties were also directed to pay Rs. 5,000/- to the complainant towards price of cream and expenses of complaint. It was further directed that opposite party should not supply defective manufactured goods of this type and was also directed to publish advertisement in local and main English Newspaper that in future no such defective cream will be manufactured and supplied for use of consumers. Opposite party No. 1 filed appeal before the State Commission, which was dismissed by learned State Commission vide impugned order, against which this Revision Petition has been filed.

Respondent No. 1 did not appear but sent written submissions. None appeared for respondent No. 2, even after service of notice.

Heard learned Counsel for the petitioner and perused record.

Learned Counsel for petitioner submitted that inspite of no proof regarding any defects in Nivea Shaving Cream and no complaint by any other user of aforesaid goods and inspite of the fact that it is not hazardous goods, learned District Forum committed error in allowing complaint and giving unwarranted directions to opposite party and learned State Commission further committed error in dismissing appeal; hence revision petition be allowed and impugned order be set aside.

It is not disputed that complainant purchased Nivea Shaving Cream tube of 70 grams for Rs. 55/- from opposite party No. 2 on 2.6.2009, which was manufactured by opposite party No. 1.

As per allegation of the complainant in the complaint that after opening the tin of tube of shaving on 3.6.2009, he found that cream in tube become solid and was not coming out. From record, it appears that complainant produced purchased tube of Nivea Cream before District Forum and at the request of complainant, tube was sent to the laboratory of Food and Drugs

Administration and report dated 5.01.2010 made by Drug Control Laboratory runs as under: "Sir,

Reference: GTNM/MUM/601-09/TA/09 Dated:31/12/2009

Report No. COM/73/2009 Batch Nos. 8005

Mfg. Date: 01/01/2008 Expiry Date:31/12/2009

Quantity received: 1x91 G

Date of receipt: 31/12/2009

Condition of Seal: Not intact

Container Label: LATHER SHAVING CREAM

MILD & CARING

FOR MEN

QTY INGREDIENTS: PROPYLENE GLYCOL, COCONUT

OIL,OLIVE OIL

Manufactured by: J.L.MORISON (INDIA) LTD.

J.L.MORSON (INDIA) LTD., E-95/1, MIDC, WALLAD 431136".

"Description: DARK BLUE COLOURED UNEVENTLY BEND METAL

TUBE THE CONTENT OF THE TUBE COULD NOT BE

SQUEEZED WITH APPLICATION OF NORMAL FORCE

WHEN TUBE WEAS SQUEEZED WITH APPLICATION OF GREAT FORCE 1.52 GM. OF HARD, THICK MASS IS OBSERVED AFTER SQUEEZING OUT THE HARD MASS THE SOFT CREAM WITH ALMOST WHITE IN COLOUR AND PLEASANT ODOUR IS FOUND. (TESTED AS PER IS)

The sample complies with IS 9740-1981 for following STABILITY FREE CAUSTIC ALKALI TEST

TEST FOUND LIMIT

TOTAL FATTY SUBSTANCE 40.73% W/W NLT-30%W/W

WATER CONTENT 31.94% W/V NMT-60% W/V

LATHERING (FOAMING) 164 ML NLT-100 MI

Result of Test:

DARK BLUE COLOURED UNEVERLY BEND METAL TUBE. THE CONTENT OF THE TUBE COULD NOT BE SQUEEZED WITH APPLICATION OF NORMAL FORCE WHEN TUBE WAS SQUEEZED WITH APPLICATION OF GREAT FORCE 1.52 GRAM OF HARD THICK MASS IS OBSERVED. AFTER SQUEEZING OUT THE HARD MASS, THE SOFT CREAM WITH ALMOST WHITE IN COLOUR AND PLEASANT ODOUR IS FOUND.

1.THE SAMPLE COMPLIES WITH ''IS 9740-1981'' SPECIFICATION FOR SHAVING CREAM TYPE-1. AS GIVEN IN THE PROTOCOL".

Perusal of aforesaid report reveals that complainant purchased aforesaid Shaving Cream tube after 17 months of its manufacture and it was received by Laboratory after 2 years of manufacture and its seal was not intact, meaning thereby while sending tube to the laboratory, District Forum did not seal it properly. It further reveals that content of tube could not be squeezed with application of normal force but when tube was squeezed with application of great force 1.52 gram of hard thick mass came out and after that soft cream with almost white in colour and pleasant odour was found. Upon analysis, it was further found that its total fatty substance, water content, lathering (foaming) was found within limits, meaning thereby substance in the tube was in accordance with standards prescribed by Drug Controller and in such circumstances, it cannot be said that there was any fault, imperfection, shortcoming in the quality, quantity, potency, purity or standard of the tube, as required to be maintained by law. Merely because 1.52 gram mass on the top of tube became thick which could be squeezed by applying great force, it cannot be presumed that there was any fault, imperfection, shortcoming in the quality, quantity, potency, purity or standard of the tube. No doubt application of great force in squeezing tube is not required to be applied but in the case in hand only after applying great force 1.52 gram of hard thick mass came out of tube and it is just possible on account of not sealing tube properly by learned District Forum and it is just possible that on account of weather, moisture, mass on the top of tube might have dried which could be squeezed only after great force as Laboratory conducted test after 7 months of its purchase.

Learned District Forum in para-9 of the order observed that cream manufactured by opposite party was defective due to its becoming thick and some part therein was not useable but in the next sentence observed that cream manufactured by opposite party was not adverse to the standard recorded by laboratory. Thus, it becomes clear that observation regarding manufacturing of defective cream in aforesaid para is not correct in the light of Drug Control Laboratory report and it can be held that cream was not defective in any manner.

Learned District Forum in para-10 of the order observed that as tube was not packed properly, air went inside the tube and some part towards opening side became thick and not useable. Only on the basis of this observation, it cannot be termed that manufactured cream was defective in any way and at the same time it can also be observed that packing was also not defective as it might have dried and could have been squeezed only after great force as it did not reach to laboratory intact and lab test was conducted after 7 months of its purchase.

Learned District Forum in para-13 of the order observed that besides complainant, other customers must have also faced inconvenience, though they have not made complaint. Learned State Commission upheld order of the learned District Forum and all the findings recorded in the order. Unless there is any other complaint, there was no basis for learned District Forum to observe that other customers must have also faced inconvenience due to defective packing of cream and in such circumstances, aforesaid observation was not called for only on the basis of surmises and conjectures.

Learned District Forum directed opposite party under Section 14(f)(g) and (ha) of the Consumer Protection Act not to supply defective manufactured goods of such type. We do not find any basis in the order to find that shaving cream was hazardous goods and in such circumstances when goods purchased by complainant were not hazardous at all, there was no occasion for learned District Forum to give direction to opposite party under Section 14(g) and (ha) to withdraw aforesaid shaving cream and manufacturing of aforesaid cream and learned State Commission further committed error in upholding aforesaid order. We also do not find any justification for issuing direction to opposite party under Section 14(f) for dis-continuing the unfair trade practice or restrictive trade practice because we do not find any unfair or restrictive trade practice practised by opposite party by manufacturing or selling aforesaid shaving cream. Learned District Forum further committed error in directing opposite party to publish advertisement in local and main English Newspaper (since original advertisement is in English) and advertisement be given that in future no such defective cream will be manufactured and supplied for sale to the consumers. Record does not contain any advertisement given by opposite party for sale of aforesaid shaving cream in any Newspaper and in such circumstances, there was no occasion to give direction to opposite party to publish advertisement in local and main English Newspaper that no such defective cream will be manufactured and supplied for sale to the consumers.

Learned counsel for petitioner rightly submitted that complainant paid Rs.55/- for tube containing 70 gms. alongwith 21 gms. free and even if 1.52 grams of cream was not useable, complainant has not suffered any loss because he got 21 grams extra cream and in such circumstances there was no deficiency on the part of opposite party in manufacturing and selling aforesaid cream.

In the light of aforesaid discussion, it becomes clear that learned District Forum committed error in allowing complaint and learned State Commission further committed error in dismissing appeal and revision petition is to be allowed.

Consequently, revision petition filed by petitioner is allowed and impugned order dated 27.8.2012 passed by learned State Commission in First Appeal No. 520 of 2011 - M/s. Nivea India Pvt. Ltd. vs. Mr. Dattatray Haribhau Joshi & Anr. and order of the District Forum dated 29.4.2011 passed in complaint No. 601 of 2009 - Mr. Dattatray Haribhau Joshi vs. M/s. Nivea India Pvt. Ltd. & Anr. is set aside and complaint stands dismissed with no order as to costs.