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IN THE STATE COMMISSION : DELHI
(Constituted under Section 9 clause (b)of the Consumer Protection Act, 1986 )

Date of Decision: 12th March, 2009
Appeal No.A-2007/918
(Arising from order dated 02-11-2007 passed by District Forum(Central), I.S.B.T. Kashmere Gate, Delhi in complaint Case No.464/2005)

1. Principal Officer Appellants
Liberty Cinema Hall, Through
Rohtak Road, Mr.Jeevesh Nagrath
New Delhi. Ms. Chetna L. Gulati
Advocate.

2. Manager,
Ziska Refreshments,
Rohtak Road,
New Delhi.
Versus

Mr. Virender Singh, Respondent
C-2/113, Sector 20,
Rohini,
New Delhi-110041.

CORAM :
Justice J.D. Kapoor- President
Ms. Rumnita Mittal - Member

1. Whether reporters of local newspapers be allowed to see the judgment?
2. To be referred to the Reporter or not?

JUSTICE J.D. KAPOOR, PRESIDENT (ORAL)

On account of charging rupees twenty for a sealed bottle of mineral water of ‘Himalaya’ brand which was the maximum retail price i.e. M.R.P. printed on the bottle, the appellants have been vide impugned order dated 02-11-2007, passed by the District Forum held jointly and severally liable for exploiting the consumers and directed to pay Rs. 3,000/- as compensation and Rs. 1,000/- as cost of litigation.
2. Feeling aggrieved, the appellants have preferred this appeal.
3. Short question arising for determination is whether it is an unfair trade practice if any manufacturer or supplier of mineral water sells the same quantity in sealed bottle at more price by prescribing M.R.P. i.e. Maximum Retail Price thereon than the price at which mineral water of other brands are being ordinarily and generally sold in the relevant market in spite of approval of the concerned authority say Weights and Measures Department
4. Ordinarily mineral water of one litre quantity of original brand “Bisleri” and brands like ‘Acquafina’ is being sold for rupees Twelve or little more and not at rupees twenty which is almost double the price at which such a water is ordinarily and generally sold in the relevant market.
5. Though appellants are not the manufactures but learned counsel for the manufacturers raised the plea that the consumer is not the person to decide whether the manufacturer has overpriced the bottled or packaged product or not as he is only concerned with the M.R.P. printed on the bottle and approved by the authorities of Weights and Measures. On it there was a specific reference that this water is mineral water taken from a source i.e. ‘springs’ from Himalayas whereas other waters are from the borewell. It is because of this peculiar feature that its price is higher than other brands. Further that the District Forum did not take into account the affidavit filed by the appellant that he had only charged the M.R.P. printed on it and this fact has also not been dealt with and discussed.
6. The appellant is the Principal Officer of a cinema hall where a small portion has been given on monthly licence basis for selling eatables, beverages, mineral water etc. The respondent purchased a ticket of Rs. 40/- from the appellant for the movie show from 3 pm to 6 pm. During interval he purchased a packet of potato chips “Mast Masala Chips” (Haldiram) and one sealed bottle of mineral water of Himalayan brand. He noticed that appellants charged the prices of both the packed items over and above maximum retail price either printed on the packet and the bottle of mineral water more than the price other bottles were being sold at. He demanded receipt but appellants refused to issue receipt.
7. The main contention of the counsel for the appellant is that appellants had sold the product at the price which was mentioned as M.R.P. on the bottle. M.R.P. printed on the mineral water bottle was Rs. 20/- as prescribed by the manufacturers of the bottles under the law i.e. under the Weights and Measures Act and therefore the appellants have not committed any deficiency in service or unfair trade practice in charging Rs. 20/- which was prescribed as M.R.P for one litre bottle of mineral water.
8. So far as appellant who is a Principal Officer of Cinema Hall is concerned, he is not the manufacturer of mineral water of Himalaya Brand; he sold the same across the counter. He sold the packed/sealed bottle at the price prescribed as M.R.P. There is no documentary evidence controverting the said plea.
9. Thus appellant-Principal Officer of Liberty Cinema cannot be held guilty for unfair trade practice as they sold the bottled “mineral water” at the M.R.P. rate as prescribed on the bottle. So far manufacturer who has prescribed the M.R.P. is concerned, they stand on different footing so far as unfair trade practice is concerned.
10. As a matter of fact we are mainly concerned with the proposition whether the mineral water is such a product or commodity which can be sold by the manufacturer by fixing price at their whim or does any manufacturer of mineral water have a choice to price it more than the price at which such a product is ordinarily and generally sold in the relevant market and if it is so whether such a practice comes within the mischief of ‘unfair trade practice’.
11. Section 2 (1)(r) (ix) defines ‘unfair trade practice’ as under:-
2(1) (r ) – ‘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:-
(i) …………………………..
(ii) ……………………………
(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 sellers or provided by suppliers generally in the relevant market unless it is clearly specified to be the price at which the product has been sold or services have been provided by the person by whom or on whose behalf the representation is made.”

12. Merely because authority under the Weights and Measures Act has allowed the manufacturers to prescribe M.R.P. on sealed bottle of mineral water of one litre quantity more than the price of other brands does not mean that the manufacturer is free to sell the same at the price at which like product or goods have been or are ordinarily sold generally in the relevant market.
13. Role of authority under Weights & Measure Act is limited to ensure quantity, weight and measure of the product as prescribed thereon and not to test the quality of contents and price thereof. Question of pricing amounting to unfair trade practice is independent of such a function and is to be determined independently under the provision of Consumer Protection Act, 1986.
14. There are two aspects of this proposition. As to the liability of wholesaler and retailer who sell across the counter and second is whether such a practice is unfair trade practice so far as manufacturer is concerned. Sellers, be it wholesale or retail and those who sell sealed or packaged goods at the price prescribed as M.R.P. cannot be held liable either for defining in service of unfair trade practice as envisaged by section 2(1) (g) and 2(1)(r) (ix).
15. Connotation ‘mineral water’ means ‘water found in nature with some dissolved salts present’. Thus every such bottled water which is sold as a mineral water is such a product which has no distinct features and cannot be distinguished from each other. Water is not like other drinks or eatables meant for human consumption having distinguishable features or contents.
16. So far manufacturer is concerned, its explanation is that water under its brand i.e. Himalayan brand is direct from springs of Himalayas while other waters are from the borewell and after treatment are sold as ‘mineral water’. If it is so then it should not call it‘mineral’ water. It may sell it by another name say ‘spring water’. Otherwise it gives an impression that the water being sold is a mineral water and an ordinary customer would get misled when it is priced at much higher price than the price at which mineral water is being sold ordinarily and generally in the relevant market.
17. Thus word “mineral” is of great significance and the sole determining criteria to find out whether any product known as “ mineral water” is being sold at a price higher than the price at which like product is ordinarily or generally sold in the relevant market. If its prescribed price on M.R.P. is higher then it amounts to misleading the public concerning the price and therefore an ‘unfair trade practice’.
18. Water is such a commodity which if it is not sold in sealed bottles like mineral water is given free of charge even at Five Star Hotels. It is only when it is represented as a mineral water and bottled with a seal prescribing a quantity, quality, standard, purity, potency etc that M.R.P. has to be prescribed.
19. Water is such a commodity which is altogether distinguishable from other eatables or articles meant for human consumption and therefore, product like the mineral water cannot be sold more than the price at which it is ordinarily sold in the relevant market or by the relevant manufacturer of such product.
20. Whenever anybody wants to purchase a bottle of mineral water he will only ask for mineral water. To say that if there are 50 brands of mineral water and each brand will be of different kind, nature, quality, potency and purity and, therefore, can be priced differently would be entirely misleading representation to the public at large. It is immaterial whether mineral water is obtained directly from springs or through any other source. Process of converting ordinary water into mineral water is same and quality or purity is also the same.

21. Merely because M.R.P. prescribed by the manufacturers was approved by Weights and Measures Deptt. is of no relevance for determining whether pricing of ‘mineral water’ at Rs. 20/- was an unfair trade practice. Rather Weights and Measures Deptt. should have asked the manufacturer not to brand its water as ‘mineral water’ and may call it by any other name if its MRP is much more than the price at which water of other brands if ordinarily being sold in the relevant market.

22. In view of the foregoing reasons we direct the manufacturer and concerned authority i.e. Weights and Measures Department to reconsider the price of water being sold as ‘mineral water’ under ‘Himalayan’ brand or any other brand if its price is more than say rupees twelve, the price at which ‘mineral water’ is ordinarily or generally sold in the relevant market as such a practice is unfair trade practice as it materially misleads the public concerning the price at which like product is ordinarily sold in the relevant market. Manufacturer and Authorities will take decision within one month from the date of receipt of this order.
23. Appeal is allowed in the aforesaid terms.
24. F.D.R./Bank Guarantee, if any, furnished by the appellant be returned forthwith after completion of due formalities.
25. A copy of the order as per the statutory requirements be forwarded to the parties free of charge and also to the concerned District Forum and thereafter the file be consigned to Record Room.
26. Announced on the 12th March, 2009.

(Justice J.D. Kapoor)
President

(Rumnita Mittal)
Member