Tamil Murasu ePaper
Also read FULL Judgment as follows:
BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,
PRESENT: THIRU.L.KRISHNAN, B.A.B.L., …..PRESIDENT. TMT.S.POONGODI, M.A.B.Ed., …. MEMBER –I THIRU.J.KABILAN, MA., ….. MEMBER –II. --------
COP.No. 13 /1999
DECIDED ON THIS 6TH DAY OF JANUARY 2010.
Punganoor Consumer Protection Council
represented by its Advisor,
8, Chinna kannara Street,
Mayiladurai 609 001. Complainant.
1.Managing Director/General Manager,
Hindustan Liver Ltd.,
Mumbai 400 026.
2. General Manager,
Hindustan Lever Ltd.,
Regd Office: NH-45/A,
3. Secretary – Health
Ministry of Health,
4. Secretary – Health
Ministry of Health,
Government of Tamil Nadu,
5. Director of Drugs Control,
259-261, Anna Salai,
Chennai 600 006. Opposite parties
This complaint is coming up for hearing today in the presence of Punganoor Consumer Protection Council by its advisor Thiru S.Vijaya kumar, Thiru.D.Vasudevan, Advocate, For Opposite party No.1 & 2 For Opposite Parties 3,4,&5 Thiru. A.M.Hasan Mohamed , Heard the arguments of the both sides this forum passes the following
Order pronounced by Thiru. L. Krishnan, B.A.B.L.,
Complaint filed by the complainant against the Opposite Parties 1 to 14 under Section 12 of the Consumer Protection Act, 1986. The gist of the complainant is as follows.
The members of the consumer counsel and all the people of
Without knowing the fact the people are purchasing the Rexona Bathing bar by thinking that they are purchasing the Rexona Toilet soap. Changing the well marketed branded toilet soap to bathing bar leads to unfair trade practice. The 1st opposite wants to produce bathing bar they can supply the bathing bar by some other name. So the 1st opposite party has utilized the ignorance of the people will lead to cheating which is an unfair trade practice. Toilet soaps or bathing bars are excepted to be the same for the use of consumers. Manufactures may be held responsible for any health hazard, since it is directly applied to the skin. It is reported by the consumers including our members that the skin became dry when bathing bar is used. Following marking should be marked for consumer’s verification for toilet soaps and bathing bars.
1 Name of the manufactures.
2. Brand name of the material and recognized trade mark
3. Grade of the material
4. Net Mass when packed.
5. Batch No. or lot no. in code or otherwise.
6. Year and month of manufacture and
also package must contain ISI mark and details of condition under which license of use ISI certification mark may be granted to the manufacturers by ISI. If no ISI mark is obtained then the manufacturer should print all the details in the wrapper and must give a statement that no harmful ingredients are used. Non obtaining certificate will lead that the manufacturers do not want to comply the standard and requirements as specified and tested by ISI. Manufacturer cannot change the Toilet soaps to Bathing bars easily If they have obtained ISI certificate. For Bathing Bar following marking to be indicated.
1.Indication of the source of manufacture.
2.Brand name of the material and recognized trade mark if any.
3.Grade of the matrial
4.Net Mass when packed.
5.Batch No. or
6.Year and month of the manufacture and
7.The statement that no harmful ingredients are used in the manufacture of bathing bar.
Above and all Total Fatty Matter ratio(TFM) shold be marked in the wrapper which will maintain the increase or decrease the dryness of the skin. If dryness of the skin is increased it lead to health hazard. 1st opposite failed to mark the above details in the package in the wrapper leads to unfair trade practice. On the other hand 1st opposite party failed to comply and give details as per the provision of Package Commodities Act and MRP Act. 1st opposite party has gained a very good profit for Hamam, Rexona toilet soaps and changed to Bathing bars by using the recognized Trade Mark leads to unfair trade practice.1st opposite party is the member of soaps and other surface active agents sensational committee. CDC-35 and convener of soaps subcommittee CDC35:1 The above committee has to decide the fact of the toilet soaps gives room to all other the toilet soap manufacturers, to follow the above acts which leads to unfair trade practice.
2nd opposite party is the manufacturer and supplying the products all over Tamil Nadu as per the directions of the 1st opposite party. Opposite party 3 and 4 are the Secretaries of Ministry of Health, Government of India and Government of Tamil Nadu and they are failed to frame Acts and Rules to avoid the unfair trade practice, and they gave room for the unhealthy and unlawful acts of toilet soaps manufacturers, who are misleading and cheating the public. Because of the service deficiency of the opposite parties 3 and 4, the innocent consumers and public are misleaded and cheated the consumer and public. They have not taken any action when Welly marketed toilet soaps having trade mark has been changed to Bathing Bar by having the same trade mark and name and marketed by reputed company. So it leads to service deficiency and negligence of the opposite parties 3 and 4. 5th Opposite party is the proper person to take action against the soap manufacturer who did not sell as per the patterning and marking rules. He also should not allow any manufacturer to change the toilet soaps into bathing bars in the same reputed trade mark and in the same name. He failed to take action when Hamam, Rexona toilet soap manufacturers by the 1st opposite party were changed to Bathing bar and supplied in the same trade mark and name which is an unfair trade practice. Because of the unfair trade practice and service deficiency all the opposite parties, all the people of
Hence prayed 1st Opposite party not to sell the bathing bar and other products in the trade name of Hamam, Rexona. To supply the details of the Indian Standard Institutions Act and Rules for toilet soaps/bathing bars. To print Total Fatting Matters (TFM) contents To direct the Bathing Bar manufactures to print in the wrapper that it is not a toilet soap it is only a bathing bar . To direct Opposite parties 3 to 5 to take action against the 1st opposite party and other soap manufactures. To print the details in the regional language for consumers verification. To award compensation Rs.4,99,000 and cost of the complaint.
Brief Version filed by the opposite parties 1 and 2
The complaint is vague and does not having any material facts and does not disclose any cause of action against the opposite parties. The complainant is not competent to file the complaint as it is not a consumer as per the Consumer Protection Act 1986. Consumer Protection Council is not registered under the Companies Act. There are also various manufactures manufacturing both Bathing Bars and Toilet Soaps who have not been made party in the suit. Without to resolve the matter amicably by mutual discussion with opposite parties the complainant is directly approached the court without even informing the opposite parties. The complaint is totally unfound and has no legal basis. There is no requirement of any law the Total Fatty Matter (TFM) of Bathing Bar has to be declared. In this contact it is relevant to note that the recent amendment of the Standard of Weights and Measures Packaged Commodities Rules, the requirement to print TFM even as toilet soaps has been done away with. There is no law that necessitates the obtaining and declaring of the ISI mark on the wrapper of the Bathing Bar nor is there any requirements that Bathing Bar must be manufacturer in accordance with ISI specifications. There is no legal requirement to obtain the license of the manufacturer of bathing bar from the Drugs Authority and following the institutions, license are not being issued by most Drug Controller of States and in absence of grant of license the mention of numbers thereon in any event is not possible and there is no question of declaring of license number in the wrapper. There are no requirements in the wrapper declaration set out in the BIS specifications and MRTP Act as claimed by the complainant and thus they cannot be said to be any breach of the same. But the complainant has not established any defect as defined under section of 2(f) of Consumer Protection Act. 1986. As he has to failed to make out the defects in the goods mentioned in the complaint. For a consumer to complaint about a product or service there must be a defect or deficiency in the product of service offered. But that there is fault or short coming in the product. Hence the complainant has not suffered any loss as alleged. The relief prayed by the complainant in the complaint is outside the scope of the Consumer Protection Act 1986. Section of 24A of Consumer Protection Act sets out the Period of Limitation as 2 years and therefore this complaint is time barred one and ought to be dismissed.
Brief version filed by 5th opposite party and adopted by opposite parties 3 and 4
The complaint is very clear that some competitive manufacturer’s are master brains behind this complaint and that as per the instructions the said association filed this complaint. Opposite parties 1 and 2 and 3 to 5 are all residing at different places out of jurisdiction of the consumer forum. Hence the complaint is to be dismissed, simply because one soap was purchased in Mayilduthurai shop, it cannot be said cause of action is within the territorial and pecuniary jurisdiction of this forum. Complainant has filed a bill copy for having purchased one Rexona soap in a shop to prove the cause of action within the jurisdiction of this forum. Really the bill copy does not prove the cause of action, the said bill either the association’s name or its member’s name is not mentioned. Therefore under the definition of consumer the said association is not comes and has no right to file this complaint. Until and unless those things are proved the forum cannot taken into consideration that there is a cause of action arose at Mayilduthurai .So that there is no cause of action the complainant is to be dismissed. The complaint are all in the nature of injunctions and mandatory injunctions. This forum has no jurisdictions to issue such injunctions. As such the complainant ought to have file a complaint either in civil court or in High court by way of writ by public interest litigation under Article 226 of the Constitution and not in this forum.
Opposite parties 3-5 are higher officials representing the Central Government and the State Government. Against this opposite parties 3-5 the compliant is not maintainable thrown out of this forum. The complaint is filed that the bathing bar is causing the injury of the health of the general public more particularly to the skins, becoming dryness when used. So far against the said soaps, there is no complaint from the general public either to Central Government or to State Government or to its high officials. The Central Government and State Government have periodically sent the soaps for chemical analysis and so far not found that the said bathing bar soaps are injuries to the skin it is learnt the Pondicherry Government has issued license for the manufacture the said soaps. However the Central Government and State Government’s Health Department in future also would then and there check up the said soaps about the quality and would take appropriate steps to maintain Indian standard and its quality as required and if necessary, both the Governments may prohibit the said manufacturing of soaps, if found injurious to the consumers’ skins.
In the instance case, the Director of Drugs Control is not the licensing authority for manufacture of toilet soaps such as Hamam, Rexona, Pears, etc ., in the State of
The Total Fatty Matter required for the Grade 1,2,3 stands at 76%, 70%, 60% respectively .For bathing bar the total fatty matter is less than 60% and hence not covered by the Drugs and Cosmetics Act and Rules there under. Regarding the marketing and sale of the above products namely Hamam, Rexona, Pears, etc., samples are periodically taken, sent for Government analysis and found to be of Standard quality hitherto. The 5th opposite party being the licensing authority for the manufacturer of the above soaps cannot dwell in length regarding the manufacturing process of the above product
Therefore the complaint against the opposite parties 3-5 are certainly not maintainable and dismissed with exemplary cost as per section 26 of Consumer Protection Act and frivolous and vexatious complaint.
Complainant filed Ex.A1 to A11 documents
Opposite parties filed Ex.B1 to B4 documents
POINTS FOR CONSIDERATION
1. Whether this forum having jurisdiction to entertain the complaint?
2. Whether complaint is maintainable or not before this forum?
3. The Opposite parties 1 and 2 committed any unfair trade practice under the Consumer Protection Act 1986?
4. Whether Opposite parties 3 – 5 committed any deficiency in service as stated in the complaint?
5. Whether complainant is entailed for compensation as prayed in the complaint?
6. To what relief if any to the complainant?
POINT NOS 1 and 2
1st opposite party is a Managing director of Hindustan Lever Ltd. ,and they are manufacturing Bathing Bars like Hamam, Rexona, Pears etc., He is having office at Mayilduthurai. The company is supplying their products all over
POINT No 3
1st opposite party has purchased Hamam Toilet soap pattern right from Tata Oil Mills Company Ltd., and marketed the Hamam Toilet Soaps in the same name since the Hamam Toilet soap is having a very good market. After some time without the knowledge of the people or consumer, the toilet soap have been changed to Bathing bar without any notification. 1st opposite party is marketing the Hamam Bathing Bar. Ex-A1 is a Hamam soap wrapper called as Bathing Bar. Ex.A11 is called as Toilet soap. Ex-A3 is Rexona soap called as bathing bar. Ex A2 Rexona wrapper called as toilet soap. Ex-A2 and Ex-A3 seems to be same but A3 is bathing bar. Ex-A2 is toilet soap. Toilet soap, Bathing Bar is expected to be the same for the use of consumers. It was reported by the consumers including customers of the Mayilduthurai.. When bathing bar is used the skin became dry. As Indian Standard Institution Act and Rules and Regulations the following markings should be marketed for consumers verification for toilet soaps and bathing bar and also the package must contain ISI and details of condition under which the licence for the use of ISI Certification mark may be granted to manufacturer by ISI. If no ISI mark is obtained then the manufacturer should print all the details in the wrapper and must give a statement that no harmful ingredients are used in the manufacturer are used. The manufacturer cannot change the toilet soap to bathing bar easily of they have obtained ISI certificate. As per the Ex-A1, A2 not mentioned as harmful ingredients are used by the manufacturer of Bathing bar. Since there is no ISI mark. The Total Fatty Matter contents has been properly mixed in order to made the skin free from dryness. As per the marking both Hmam and Rexona wrapper every soap should be mentioned about the TFM percentage. But in Ex.A1, bathing bar has not mentioned about the TFM content. But in Ex.A2 mentioned has TFM76%, illiterate and literate people are purchasing the bathing bar thinking that they are purchasing the toilet soap without knowing the fact the toilet soap has been changed to bathing bar. Hence the changing well marketed branded toilet soap to bathing bar leads to unfair trade practice. 1st opposite party wants to produce bathing bar they can supply the bathing bar by some other name. But utilized the ignorance of the people, the opposite party soled the bathing bar in the same brand as toilet soaps . Hence it is leads to unfair trade practice. One of the costumers examined as witness by name Thiru. Selvaganapathy S/o Kungithapatham in his oral evidence
mt® kæyhLJiwæš tÁ¡F« ó§f}® Ef®nth® ghfh¥ò r§f¤Â‹ cW¥Ãd®. mt® nkY« TW« nghJ ehD« vdJ FL«g¤ÂdU« Akh« Fëaš nrh¥ cgnah»¤J tªnjh«. Ã‹ò njhèš tw£Á V‰g£lJ. Ã‹ò kU¤Jtçl« nf£l nghJ Fëaš nrh¥ig kh‰w brh‹dh®. bu¡nrhdh F¿aš nrh¥ò cgnah»¤J tªnjh« Û©L« njhš tw£Á V‰gl Mu«Ã¤jJ, fhuz« v‹dbt‹W gh®¤j nghJ jh‹ cgnah»¤j bu¡nrhdh Fëaš nrh¥ò jh‹. vªj m¿é¥ò«ä‹¿ gh¤Â§ nrh¥ghf kh‰w¥g£lJ bjçatªjJ. njhš tu£ÁæD‹ nghJ ehD« vdJ FL«g¤ÂdU« étu« òçahkš kd ntjid milªnjh«. ezg®fS« Ïnj T¿dh®fŸ. Mfnt Ïªj Ãu¢rid FG T£l¤Âš éthÂ¡f¥g£lJ. cW¥Ãdç‹ FG T£l¤Â‹ cW¥Ãd® ÂU.é#aFkh® mt®fis FGé‹ rh®ghf tH¡F gÂÎ brŒJ eZl<£L bjhifæid xU bghJ ey ãÂ¡F tH§F«go tH¡F gÂÎ brŒÍkhW nf£L¡ bfh©LŸsh®. mt® j‹Dila FW¡F érhuidæš TW« nghJ Rkh® 10 tUl fhy« Akh« nrh¥ò cgnagf¥gL¤Â tªjjjhfÎ« 1998« M©L njhèš tu£Á V‰g£ljhš bu¡nrhdh nrh¥ig cgnah»¡f Mu«Ã¤jhfÎ«, tw¢Áædhš V‰g£l cghijfS¡F Á»¢ir bgw kU¤Jtiu mDféšiy. tw£Á V‰g£LŸs fhuz¤ij bjçªJ bfhŸs kU¤Jtiu mQ»ajhfÎ«, Ïªj tw£Á cgnah»¡F« nrh¥Ãdhš V‰g£LŸsJ v‹W kU¤Jt® brh‹dÂ‹ ngçš ehdhfnt bu¡nrhdh nrh¥ig cgnah»¡f Mu«Ã¤nj‹. bu¡nrhdh nrh¥ cgnahf¥gL¤j Mu«Ã¤jÎl‹ 1 khj¤Â‰¡FŸ njhš tu£Á rçah»é£lJ, mnj nrh¥ig 1999 #dtç khj« Kjš cgnahf¥gL¤Â tªbjh«. Û©L« v§fŸ všnyhU¡F« njhèš tw£Á V‰g£lJ. njhš tw£Á V‰g£lÎl‹ jh‹ cgnahf¥gL¤Âa Akh«, bu¡nrhdh ng¡»§m£ilia gh®¤jnghJ jh‹ vªj K‹ m¿é¥òä‹W gh¤Â§ gh® v‹W F¿¡f¥g£oUªjij gh®¤nj‹. Mjdhš ikN® rh‹lš nrh¥ig cgnah»¡f Mu«Ã¤nj‹ v‹W T¿ÍŸsh®.
Hence as per the above evidence we came to know that the toilet soap has changed without the knowledge of the people as Bathing bar, it will affect the human skin. Hence the manufacturer shall be held responsible for any health hazard as per the definition 2(1)(r) of Consumer Protection Act 1986.
Unfair trade practice means a trade practice which, for the purpose of promoting the sale, use or supply of any goods or for the provision of any service, adopts any unfair method or unfair or deceptive practice including any of the following practices, namely:-
(1) the practice of making any statement, whether orally or in wirting or by visible representation which,-
(i) falsely represents that the goods are of a particular standard, quality, quantity, grade, composition, style or model;
(ii) falsely represents that the services are of a particular standard, quality or grade;
(iii) falsely represents any re-built, second-hand, renovated, reconditioned or old goods as new goods;
(iv) represents that the goods or services have sponsorship, approval, performance,
characteristics, accessories, uses or benefits which such goods or services do not have;
(v) represents that the seller or the supplier has a sponsorship or approval or
affiliation which such seller or supplier does not have;
(vi) make a false or misleading representation concerning the need for, or the usefulness of , any goods or services;
(vii) gives to the public any warranty or guarantee of the performance, efficacy or
length of life of a product or of any goods that, is not based on an adequate or proper test thereof;
(viii) makes to the public a representation in a form that purports to be –
(i) a warranty or guarantee of a product or of any goods or services; or
(ii) a promise to replace, maintain or repair an article or any part thereof or to repeat or continue a service until it has achieved a specified result,
If such purported warranty or guarantee or promise is materially misleading or if there is no reasonable prospect that such warranty, gurantee or promise will be carried out;
(ix) materially misleads the public concerning the price at which a product or like products or goods or services, have been or are, ordinarily sold or provided, and for this purpose, a representation as to price shall be deemed to refer to the price at which the product or goods or services has or have been sold by seller or provided by suppliers generally in the relevant market unless it is clearly specified to be the price have been provided by the person by whom, or on whose behalf the representation is made;
(x) gives false or misleading facts disparaging the goods, services or trade of another
The bathing bar like Ex.A1 there was not mentioned about the TFM percentage. The 2nd opposite party is a manufacturer and supplying the products all over Tamil Nadu, as per the direction of the 1st opposite party. Hence opposite parties 1 and 2 doing the unfair trade practice. Hence they are committed act of unfair trade practice. Hence Point no. 3 is in favour of complainant
POINT NO. 4
Opposite parties 3 and 4 are the Secretary, Ministry of Health, Government of India and Government of Tamil Nadu respectively failed to frame Acts and Rules to avoid the above unfair trade practice by unlawfully Acts of toilet soaps, manufacturer who are misleading and cheating the public. Hence their service is not proper and not cheated the above manufacturer comes under deficiency in service. 5th opposite party is the Director of Drugs Control. He is also the proper person to take action against soap manufacturer who did not sell as per the patterning and marketing Rules. He should not allow any manufacturer to change the toilet soap into the bathing bar in the same reputed trade mark. He failed to take action Hamam, Rexona toilet soap manufacturer who were change the toilet soap to bathing bar and supplied in the same trade mark which is an unfair trade practice. Hence he is also comes under the category of deficiency in service. Hence Point No. 4 is also in favour of the complainant.
POINT NO.5and 6
As per the issues 1 to 4 are in favour of the complainant, the complainant is entailed as prayed in the complaint. Hence complaint is allowed with cost of Rs.1000/-
1. In the result 1st opposite party is directed not to sell the bathing bar and other products in the trade name of Hamam, Rexona etc., which is very popular as Bathing soaps.
2. 1st opposite party is directed to supply the details as per the Indian Standard Institutions Act and Rules.
3. 1st opposite party is directed to print total fatting matters content (TFM)
4. Opposite parties 3 – 5 are directed in future to take action against the 1st opposite party and other soap manufacturer who had done the above unfair trade practice.
5. 1st opposite party is directed to par Rs.2 lakhs to Consumer Welfare Fund, Nagapattinam District, under Namakku Namme Thittam for Mayilduthurai.
6. Hence the complaint is allowed with cost of Rs.1000/-.
Dated this on the 06th day of January 2010.
MEMBER -1 MEMBER-II PRESIDENT
LIST OF DOCUMENTS FILED BY THE COMPLAINANT
Ex.-A1 Hamam Soap Wrapper Copy Original
Ex.A2 Rexona Soap Wrapper Copy (2) Original
Ex.A3 Rexona Bathing Bar Wrapper Copy Original
Ex.A4 Toilet Soap ISI Specification Copy. Xerox
Ex.A5 Bathing Bar ISI Specification Copy. Xerox
Ex.A7 Drugs and Cosmetics Act Sec 17© and Sec 17(d) Xerox
Ex.A11 Hamam Soap Wrapper. Original
LIST OF DOCUMENTS FILED BY THE OPPOSITE PARTIES
Ex.-B1 JANUARY 1997 Bureau of Indian Standard Bathing Bar
Ex.-B2 15.09.1999 Letter from Government of
of Food and Consumer Affairs to 1st Opp.party Xerox
Ex.-B3 AUGUST 1983 Indian Standard Specification for Toilet Soap Xerox
Dte. General of Health Services,
MEMBER -1 MEMBER-II PRESIDENT