Consumer Education and Research Vs. Nestle India Limited - Court Judgment

Excerpt:
1. the complainant is a society registered under the societies registration act (xxi) of 1860. it is stated to be a public charitable trust under the bombay public trust act. it is further contended that it is devoted to the promotion and protection of consumer interest through complaint handling, publication, legal research, media and effective uses of legal processes. in this context they have initiated public interest litigation before the supreme court of india, high courts, monopolies and restrictive trade practices commission, national consumer disputes redressal commission and other judicial and quasi-judicial authorities. the complainant has next submitted that it conducted a series of tests for comparative evaluation of the packed instant coffee manufactured by leading companies of india for consumer education and to enable them to make an informed choice from available alternatives in the market and also to promote and protect consumer interest on the basis of various complaints received from consumers all over the country. the brands of nescafe packed instant coffee manufactured by nestle india limited were also tested in accordance with the procedure as prescribed under indian standard (is) no. 2791 (1992) and is : 3309 (1992) and prevention of food adulteration act, 1954 and the standards of weights and measures (packaged commodities) rules, 1977. the short question which has been raised in this complaint is that the respondent has not packed net weight of the product as mentioned on the packet and sub-paragraph (c)of paragraph 2 of the complaint may be referred to as below : "that the test results were startling. cerc's results revealed glaring non-compliance on the part of nestle india limited in the matter of weight. the average net weight of 10 packets of nescafe was only 47.7 gms. against the label claim of 50 gms. further individual measurement of 10 packets revealed that nine out of the said 10 packets were consistently underweight. the difference in the levelled and actual weight was even greater than the permissible difference of three percent, i.e. a minimum weight requirement of 48.5 gms. in 50 gms. pack. the details of nestle brands tested are as under : "the standards of weights and measures (packaged commodities) rules, 1977 described in the first schedule maximum permissible errors for coffee, power in relation to the quantity contained in the individual package upto and equal to 100 gms. packets with 3.0%." 2. we have heard learned counsel for the parties. the learned counsel for the complainant has contended that the purported underweight of nescafe coffee constitutes unfair trade practice arid an enquiry is required to be held under section 36a of the monopolies and restrictive trade practices act, 1969. the learned counsel for the respondent has contended that the standard weight requirement is covered by the provisions of standards of weights and measures act, 1976 and reference is made to second schedule at page 67 where table i, prescribes maximum permissible errors on net quantities declared by weight or by volume - similarly reference is made to ninth schedule and specific reliance is placed on paragraphs 1, 2 and 3 which may also be reproduced below : "1. for determination of the net quantity for any commodity contained in a package, the sample size shall be such as is specified in the corresponding entry in column 2 of the table below against the batch size specified in column 1 of the said table. 2. the sample shall be selected at random in accordance with the manner specified in paragraphs 3 and 4. 3. where, for the determination of the net quantity of any commodity contained in a package it is necessary to take samples of packages stored by the manufacturer or packet in a warehouse, godown or at any other place, the sample shall be selected at random, from every batch of packages and shall be picked out from the top, bottom, centre, right, left, front and rear of the stocks so that the samples may adequately represent the packages in the batch." 3. we need not go into the proof and methodology prescribed under the standards of weights and measures act, 1976 in the present case.however, when a specific remedy is available for appropriate action against the respondent in pursuance to the provision of the standards of weights and measures act, 1976, it will not be necessary for this forum to examine and decide the question of unfair trade practice as it will require adjudication under a separate enactment. this being so, the present complaint cannot be taken cognizance of under the provisions of monopolies and restrictive trade practices act, 1969 (hereinafter referred to as the act) when a specific remedy is available. section 36d(3) of the act reads as below : "no order shall be made under sub-section (1) in respect of any trade practice which is expressly authorised by any law for the time being in force." 4. on the above basis the learned counsel for the respondent states that any weight which is less than the weight which may be permissible under the provisions of standards of weights and measures act, 1976 is not an unfair trade practice. therefore, any enquiry which will be relevant to determine the plea of the complainant will be more relevant to proceed under the provisions of the standards of weights and measures act, 1976 as it is contended that no violation is committed by the respondent.we do not find any ground to entertain this complaint, though it is left open to the complainant to take recourse to any other remedy in an appropriate forum in accordance with law. the complaint is, therefore, dismissed.

Judgment:
1. The complainant is a Society registered under the Societies Registration Act (XXI) of 1860. It is stated to be a public charitable trust under the Bombay Public Trust Act. It is further contended that it is devoted to the promotion and protection of consumer interest through complaint handling, publication, legal research, media and effective uses of legal processes. In this context they have initiated public interest litigation before the Supreme Court of India, High Courts, Monopolies and Restrictive Trade Practices Commission, National Consumer Disputes Redressal Commission and other Judicial and Quasi-Judicial Authorities. The complainant has next submitted that it conducted a series of tests for comparative evaluation of the Packed Instant Coffee manufactured by leading companies of India for consumer education and to enable them to make an informed choice from available alternatives in the market and also to promote and protect consumer interest on the basis of various complaints received from consumers all over the country. The brands of Nescafe Packed Instant Coffee manufactured by Nestle India Limited were also tested in accordance with the procedure as prescribed under Indian Standard (IS) No. 2791 (1992) and IS : 3309 (1992) and Prevention of Food Adulteration Act, 1954 and the Standards of Weights and Measures (Packaged Commodities) Rules, 1977. The short question which has been raised in this complaint is that the respondent has not packed net weight of the product as mentioned on the packet And sub-paragraph (c)of paragraph 2 of the complaint may be referred to as below : "That the test results were startling. CERC's results revealed glaring non-compliance on the part of Nestle India Limited in the matter of weight. The average net weight of 10 packets of Nescafe was only 47.7 gms. against the label claim of 50 gms. Further individual measurement of 10 packets revealed that nine out of the said 10 packets were consistently underweight. The difference in the levelled and actual weight was even greater than the permissible difference of three percent, i.e. a minimum weight requirement of 48.5 gms. in 50 gms. pack. The details of Nestle brands tested are as under : "The Standards of Weights and Measures (Packaged Commodities) Rules, 1977 described in the First Schedule maximum permissible errors for coffee, power in relation to the quantity contained in the individual package upto and equal to 100 gms. packets with 3.0%." 2. We have heard learned Counsel for the parties. The learned Counsel for the complainant has contended that the purported underweight of Nescafe coffee constitutes unfair trade practice arid an enquiry is required to be held under Section 36A of the Monopolies and Restrictive Trade Practices Act, 1969. The learned Counsel for the respondent has contended that the standard weight requirement is covered by the provisions of Standards of Weights and Measures Act, 1976 and reference is made to Second Schedule at page 67 where Table I, prescribes maximum permissible errors on net quantities declared by weight or by volume - Similarly reference is made to Ninth Schedule and specific reliance is placed on paragraphs 1, 2 and 3 which may also be reproduced below : "1. For determination of the net quantity for any commodity contained in a package, the sample size shall be such as is specified in the corresponding entry in Column 2 of the Table below against the batch size specified in Column 1 of the said Table.

2. The sample shall be selected at random in accordance with the manner specified in paragraphs 3 and 4.

3. Where, for the determination of the net quantity of any commodity contained in a package it is necessary to take samples of packages stored by the manufacturer or packet in a warehouse, godown or at any other place, the sample shall be selected at random, from every batch of packages and shall be picked out from the top, bottom, centre, right, left, front and rear of the stocks so that the samples may adequately represent the packages in the batch." 3. We need not go into the proof and methodology prescribed under the Standards of Weights and Measures Act, 1976 in the present case.

However, when a specific remedy is available for appropriate action against the respondent in pursuance to the provision of the Standards of Weights and Measures Act, 1976, it will not be necessary for this Forum to examine and decide the question of unfair trade practice as it will require adjudication under a separate enactment. This being so, the present complaint cannot be taken cognizance of under the provisions of Monopolies and Restrictive Trade Practices Act, 1969 (hereinafter referred to as the Act) when a specific remedy is available. Section 36D(3) of the Act reads as below : "No order shall be made under Sub-section (1) in respect of any trade practice which is expressly authorised by any law for the time being in force." 4. On the above basis the learned Counsel for the respondent states that any weight which is less than the weight which may be permissible under the provisions of Standards of Weights and Measures Act, 1976 is not an unfair trade practice. Therefore, any enquiry which will be relevant to determine the plea of the complainant will be more relevant to proceed under the provisions of the Standards of Weights and Measures Act, 1976 as it is contended that no violation is committed by the respondent.

We do not find any ground to entertain this complaint, though it is left open to the complainant to take recourse to any other remedy in an appropriate Forum in accordance with law. The complaint is, therefore, dismissed.