1. This is an application on behalf of the respondent in Unfair Trade Practices Enquiry No. 31 of 1988, praying for discharging the notice of enquiry dated February 7, 1989, issued by this Commission. The circumstances under which the said notice of enquiry was issued ought to be stated. A consumer purchased some time in the month of October, 1986, a sachet of Nescafe which purportedly contained 50 gms. However, the consumer found that the contents of the sachet were deficient by about 10 gms. He, therefore, made a complaint to the Commission.
2. An investigation was ordered into the complaint. After obtaining the explanation of the respondent-company which is the manufacturer of the product, Nescafe, a notice of enquiry was issued on February 7, 1989.
3. It was mentioned in the notice of enquiry that the provisions of the Standards of Weights and Measures (Packaged Commodities) Rules, 1977, permit certain deficiency in the contents of packages. In the case of the product in question which is mentioned in the Second Schedule to the said Rules, the maximum permissible error in excess or deficiency was up to 9%. The consumer's complaint disclosed deficiency to the extent of 20%. Hence, the notice of enquiry alleged that the respondent had indulged in unfair trade practice within the meaning of Section 36A(4) of the Monopolies and Restrictive trade Practices Act, 1969, "causing loss or injury to the consumer" 4. Reply to the notice of enquiry has not been filed, but the present application has been submitted for discharging the notice of enquiry on the ground that even if the fact alleged against the respondent is held to be true, no unfair trade practice under Section 36A(4) can be said to have been committed. It is mentioned that deficiency in the contents of a material sold in packages does not cause any injury to the consumers. If this is so, then the provisions of Section 36A(4) are not attracted.
5. Normally, we would have insisted on a reply to the notice of enquiry and tried the case after such reply is submitted. However, by this application, a pure question of law has been raised and the notice of enquiry can be disposed of on a proper interpretation of the relevant provisions of the Monopolies and Restrictive Trade Practices Act.
Moreover, the application itself can be treated as a reply to the notice of enquiry. For the purpose of disposal of this notice of enquiry, we proceed on the assumption that there was deficiency to the extent of 20% in the weight of the contents of a sachet of Nescafe purchased by the consumer. The question is whether sale of such a sachet by the respondent or someone on its behalf constitutes an unfair trade practice within the meaning of Section 36A(4) of the Monopolies and Restrictive Trade Practices Act.
6. The provision which we have to consider to the extent it is relevant for the disposal of this notice of enquiry is as follows : "36A. In this Part, unless the context otherwise requires, '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 services, adopts one or more of the following practices and thereby causes loss or injury to the consumers of such goods or services, whether by eliminating or restricting competition or otherwise, namely : ....
(4) permits the sale or supply of goods intended to be used, or are of a kind likely to be used, by consumers, knowing or having reason to believe that the goods do not comply with the standards prescribed by the competent authority relating to performance, composition, contents, design, construction, finishing or packaging as are necessary to prevent or reduce the risk of injury to the person using the goods ." 7. A proper reading of the above provision shows that non-compliance with the standards prescribed in respect of matters mentioned therein must have the risk of injury to the consumer of the goods before it can be stated that such non-compliance constitutes the stated unfair trade practice. If it causes only loss and does not involve the risk of injury, then, in our opinion, it does not amount to an unfair trade practice within the meaning of Section 36 A (4) of the Monopolies and Restrictive Trade Practices Act. A careful perusal of the matters in respect of which standards have been prescribed which ought to be complied with shows that the Legislature intended that non-compliance with the standards must involve the risk of injury to the consumer before it can be said to constitute an unfair trade practice. Matters such as composition, contents, design, construction, finishing or packaging are required to comply with the standards prescribed by the competent authority. Though these matters may also involve risk or loss to the consumer, yet the Legislature, in its wisdom, has chosen to make Clause (4) of this section applicable only when the risk of injury is involved.
8. On behalf of the Director-General of Investigation and Registration, it was mentioned that injury referred to in Section 36A(4) should be interpreted in such a manner that it includes loss also. It has not been possible for us to accept this submission because the section which we are interpreting makes a distinction between loss and injury.
The opening part of the section speaks of loss or injury to the consumer. The Legislature used the words "risk of injury" in Section 36A(4) and not the word "loss". We, therefore, cannot substitute the word "loss" for "injury" in the said provision. Moreover, as we have already noted above, the language of Section 36(A) (4) shows that, the Legislature wanted to prevent a practice which involved the risk of injury to the person using the goods and not the possibility of loss to the consumer.
9. This view of ours is supported by an order passed by another Division Bench of the Commission consisting of Mr. D.C. Aggarwal and Mr. M. Satyapal. That order dated October 6, 1986, was passed on an application presented by the respondent in UTPE No. 16 of 1986 (see Director-General of Investigation and Registration v. Food Specialities Ltd. [1987] 62 Comp Cas 122 (MRTPC)). The facts of the case are slightly different from the facts of the case before as, but the law laid down is the same. The respondent in that case was a manufacturer of tomato ketchup and it was marketing the same in bottles of 400 grams. Under the provisions of the Standards of Weights and Measures (Packaged Commodities) Rules, 1977, it was not permissible to sell tomato ketchup in bottles of 400 grams. It could be sold only in bottles of 500 grams.
10. The notice of enquiry alleged an unfair trade practice under Section 36A(4) of the Monopolies Restrictive Trade Practices Act. It was contended on behalf of the respondent that contravention of the provisions of the Standards of Weights and Measures (Packaged Commodities) Rules, 1977, in so far as they related to the quantity of the packages did not attract the provisions of Section 36A(4) of the Monopolies and Restrictive Trade Practices Act. This contention was accepted. It could hardly be said, it was observed, that packaging of tomato ketchup in quantities other than 400 grams was necessitated to prevent or reduce the risk of injury to the person using that product and that a package of 400 grams would involve any risk of injury to the person using that product. The argument on behalf of the Director-General that the object in rationalising the packaging was not to prevent just a physical injury but also to prevent any possibility of financial injury or loss was rejected by the Division Bench. A shortfall in the quantity of the contents of a packaged product did not involve the risk of injury to the consumer. The Division Bench observed as follows (at page 127) : "This reasoning may come handy where a particular packaging quantity has been prescribed from the standpoint of a requirable dose to be administered to a person of particular age or in any particular condition of health, as a lesser or greater quantity may either be inefficacious or injurious".
11. While interpreting the relevant provision, the Division Bench also noticed that the object of Section 36A(4) was that a consumer using particular goods should not suffer injury or risk of injury by reason of being supplied any product or commodity in a quantity not allowed.
12. It may be that sale of a package containing contents of quantity lesser than what is mentioned on the container may amount to a contravention of the Standards of Weights and Measures (Packaged Commodities) Act or the rules framed thereunder, but the implementation of the said Act or the Rules is not within the jurisdiction of this Commission unless there is an unfair trade practice within the meaning of Section 36A of the Monopolies and Restrictive Trade Practices Act.
13. We are, therefore, inclined to allow this application which is accordingly done. The notice of enquiry is discharged.