Before the District Consumer Dispute Redressal Commission [Central District] - VIII, 5th Floor Maharana Pratap ISBT Building, Kashmere Gate, Delhi
Complaint Case No.-342/03.12.2015
s/o Sh. Hakim Abdur Rehman,
r/o 521-24, Patudi House,
Daryaganj, New Delhi-110002 …Complainant
Hamdard Wakf Laboratories,
Asaf Ali Road, New Delhi-110002 ...Opposite Party
Date of filing: 03.12.2015
Date of Order: 17.11.2023
Coram: Shri Inder Jeet Singh, President
Ms. Shahina, Member -Female
Inder Jeet Singh , President
1.1. (Introduction to case of parties) – The complainant had purchased against tax invoice receipt a bottle containing sharbhat Roof Afza of OP on 11.05.2015 but when he was about to open the bottle, he found an unusual element/ insect similar to a fly, which was visible in glass bottle. Had he and/or others consumed the sharbhat after its opening, it would have been injurious to his life or to others. He has grievances of defect in the product, to be product of sub-standard as well as for want of maintaining the appropriate quality of the product. He seeks compensation of Rs. 10,00,000/- as damages besides other relief.
1.2. The OP denies the allegations of complaint that there is no substance since the OP maintains high standard of hygiene with sophisticated machine, there was appropriate quality maintained and no question of sub-standard of the product, especially there is a quality control for each batch of the product of OP. The complaint without is without cause of action, it is liable to be dismissed.
2.1. (Case of complainant) –On 11.05.2015 the complainant purchased a bottle containing sharbhat Roof Afza from the counter of OP at Asaf Ali Road, New Delhi against invoice no. 4483 for Rs. 120/-. The complainant shaken the bottle before its opening and when he was just about to open the bottle, he noticed unusual element/inspect similar to fly in the bottle, which was visible from the outside of the bottle. It was a non-consumable product, which could be injurious to the life to the complainant or to other persons, if consumed. There is sheer negligence on the part of OP, while preparing the product in its laboratory. The OP failed to take appropriate precaution/ steps/ norms/ standard while preparing and packing the product. The complainant also sent legal notice of 22.05.2015 to pay compensation of Rs. 10,00,000/- within two months but the OP had given false and vague reply, the OP failed to comply the notice. That is why the complaint.
2.2. The complaint is accompanied with copy of legal notice, its reply, copy of invoice no. 4483 dated 11.05.2015, three digital photographs of the product.
2.3. It is relevant to mention the proceedings of case, that when the complaint was presented, the complainant had produced the product bottle on 04.12.2015 and it was directed to be sealed with the seal of Consumer Forum and to comply further directions.
3.1 (Case of OP)- The OP filed its written statement by making preliminary submissions, preliminary objection and reply on merits coupled with arguments by driving reasons from the case law [however, the case law is not the pleading, it will be referred at appropriate stage]. Moreover, the preliminary submissions are reproduction of OP's reply dated 30.05.2015 to the legal notice dated 22.05.2015.
3.2. The OP is a duly licensed organization, it is being inspected at regular intervals by the Government officials to ensure compliance of statutory requirements. It is charitable organization to cater services of masses to their better health and not to cause injury to any of them. The OP keeps a batch of every product with their quality control lab., for the quality of sharbhat Roof Afza, the standard and modern goods manufacturing practices are adopted. Every product including sharbhat Roof Afza is manufactured with sophisticated automatic plant having the most modern mechanism. The manufacturing premises is closed, which are regularly cleaned, disinfected and fumigated to prevent contamination in any respect. The sealed product are checked again and again, then only final pack is done.
The bottles of sharbhat Roof Afza are filtered through six thin filters before its filling in fresh a new bottle, which are pre-washed and steam sterilized. This whole process is carried out scientifically, as such there is no possibility of any contamination or foreign material getting into the sealed bottle. Moreover, the Quality Control and Quality Assurance departments of OP ensures the right quality of material and strictly control the whole process with modern technology in order to manufacture the efficacious product. The OP is certified for GMP, HACCP and ICO quality standard. The products meet all prescribed standards and parameters. The entire process of manufacturing, bottling and sealing the product at bottle plant of the OP is automatic and computerized, the products go through several checks and controls before leaving the plant.
3.3. The OP has responded the legal notice, inclusive of the fact that there was no batch number and manufacturing date was provided for testing/checking purposes and to ascertain the contains of bottle in question as well as to replace the product as a gesture of goodwill.
3.4. The OP denies all other allegations of the complaint that he had noticed some unusual element in the bottle or it was visible from outside or it was similar to a fly vis-à-vis there was quality control, checks etc. before bottling and packing the product duly controlled by tools and sophisticated machines, already mentioned. The complaint is without merit and it has been filed just to claim the amount without any cause. The complaint is liable to be dismissed. The reply is supplemented with copy of legal notice of complainant and also its reply dated 30.05.2015 of OP.
4.1 (Replication of complainant) – The complainant filed his detailed replication by opposing all the allegations in the written statement. The OP is not a charitable organization as far as income from product sharbhat Roof Afza is concerned. Since the entire income is shared by Mutawllis of OP, for whom sharbhat Roof Afza is personal product. The OP failed to maintain quality control and quality check, that is why the said bottle was containing foreign element. The complainant also denies other allegations of written statement of following a standard practice of maintaining quality control and quality check.
The invoice issued bears the batch number, there was no reason for the OP to ask such detail from the complainant. There was also no reason to hand over the product to the OP to spoil the seal intact on the bottle, however, the product containing foreign element visible was shown to the officials of the OP. The product was also brought and shown to the Forum at the time of filing of the complaint. The complaint is reiterated correct.
5.1. (Evidence)-The complainant led his evidence by filing detailed affidavit, with the support of documents filed with the complaint.
5.2. OP's Sh. Javed Akhtar, who authored the written statement, also filed affidavit of his evidence, it is also replica of the written statement.
6.1 (Final hearing)- The complainant and the OP filed their respective written argument, followed by oral submissions by Sh. Anis Ahmed, Advocate and Sh. Mohd. Asla Khan Advocate for OP.
6.2. During the course of argument, which are on the pattern of the complaint, the complainant in order to counter the submission of OP about laboratory test of sample relies upon Vindhya Pipes & Plastic Limited vs Angrej Singh & Others 1 (2015) CPJ 359 (NC) that testing of sample of goods in question is not required to be done in each and every case but it requires to be done in the case, where the complaint alleges a defect in the good which cannot be determined without proper analysis or test of the goods. Whereas in the present complaint the defect is visible from the bare eyes.
6.3. Similarly the OP derives reason and fortifies its contentions while rely upon:-
(i) M.R.F. Ltd. vs. Jagdish Lal & Anr. (1999) 4 SCC 315, held that “a bare reading of Clause (c) of sec.13(1) would show that the District Forum, with a view to get proper analysis or test done, should obtain the sample of goods from the complainant and then followed the procedure prescribed in the said clause.”
(ii) Vindhya Pipes & Plastic Limited vs Angrej Singh & Others 1 (2015) CPJ 359 (NC) held that “6. So far as the requirement of Section 13(1)(c) is concerned, we may note that the testing of the sample of the goods in question is not required to be done in each and every case and is required to be done only in cases “where the complaint alleges a defect in the goods which cannot be determined without proper analysis or test of the goods.”
(iii) Hindustan Coca Cola Beverage Pvt. Vs Manveer Singh Negi & Others, First Appeal no. 335 2010, held that “13. As a matter of fact, it was not possible for the District Forum to ascertain, whether the seal/ crown of the bottle was tampered or not and, therefore, to ascertain this fact, the District Forum should have followed the procedure as laid down under Section 13(1)(c) of the Consumer Protection Act, 1986.”
(iv) National Seeds Corporation Ltd. vs M. Madhusudhan Reddy and Another, (2012) 2 SCC 506 held that “34. We shall now deal with the question whether the District Forum committed a jurisdictional error by awarding compensation to the Respondents without complying with the procedure prescribed under Section 13. A reading of the plain language of that section shows that the District Forum can call upon the complainant to provide a sample of goods if it is satisfied that the defect in the goods cannot be determined without proper analysis or test. After the sample is obtained, the same is required to be sent to an appropriate laboratory for analysis or test for the purpose of finding out whether the goods suffer from any defect as alleged in the complaint or from any other defect.”
(v) Hindustan Insecticides Ltd. vs. Kopolu Sambasiva Rao and Ors., IV (2005) CPJ 47 (NC) held that “ it was for the complainants or their Advocates or for the District Form to take appropriate steps as per the provisions of Section 13(1)(c) of the Act.”
7.1 (Findings)-The contentions of both the sides are considered keeping in view the material available, either in the form of pleadings or evidence of the parties in narration or documentary record besides legal proceedings and the case law presented.
7.2.1. There are juxtaposition stand about the examination of the product from the laboratory, the complainant contends that there was no necessity from the laboratory, the product as produced before the Forum/Commission can be considered for the purposes of determining the controversy. But on the other side, the OP has strong reservation firstly, the product ought to have been examined from the laboratory that too at appropriate time, which complainant failed. Secondly, the bottle still lying with the complainant cannot be treated as a conclusive evidence.
7.2.2. In order to resolve this issue, it needs to look at the record. It is matter of judicial proceedings dated 04.12.2015 that complainant had produced the bottle, it was sealed with the seal of Forum/Commission but there were directions to comply the further procedure.
Moreover, then complainant filed an application dated 24.03.2017 to send the bottle containing Sharbhat Roof Afza for analysis/ test, examination and report by the laboratory, this application was allowed by order dated 01.06.2017, however, the bottle was not deposited by the complainant to the laboratory, therefore, directions were repeated on 29.08.2017 and 07.11.2017 for compliances. Later on, after long gap the complainant came with another application, to send the bottle to the laboratory, however, a question had arisen before Ld. Predecessors whether a perishable material could be got examined from the laboratory at belated stage vis-à-vis complainant has reservation that it could be examined at any point of time and adjournment was taken to support this plea by case law, however, it did not see the light of the day. Consequently, there was no analysis/ test and report by the laboratory and bottle remained with the complainant throughout.
7.2.3. The complainant is taking inconsistent stand since initially he was of the view that laboratory analysis/ test of product is required that is why application was filed, which was allowed but at the stage of final argument, a contrary plea is taken that the present product needs no analysis/ test from the laboratory. The product containing in the bottle can be considered as it is.
7.3.1. The other limb of submission of the parties is related with the previous limb discussed in the sub-paragraphs 7.2 above. According to complainant the foreign element is visible with the naked eyes and it was because of negligence or omission on the part of OP that there was manufacturing, bottling and packing of the product with check on quality, which result into the present product showing some insect like a fly. On the other side, OP contends that there was no laboratory report about the contents of the bottle as well as no prudent opinion can be formed on the basis of looking at the bottle with naked eyes.
7.3.2. This is strong rival plea and both the parties are maintaining their own stand. It may be formulated by a simple question "what is the element or foreign element in the bottle containing sharbhat Roof Afza"?
By taking the plea of complainant, the complainant is not sure what exactly is the element or foreign element, the complainant roughly estimate that it is an insect like a fly but he is not sure. Simultaneously, there is no expert opinion in the form of laboratory report for want of getting it examined from the laboratory. The OP also forms the opinion that since there is no laboratory report, and in the absence of such report, no adverse finding can be given against the OP especially the OP is maintaining quality check and control and there are deployment of sophisticated tools and machines to take care of the quality besides other standard procedure.
During the phase of oral submission, the complainant purposed to send the product for analysis to the laboratory which was opposed by the OP that stage is already over as well as the complainant failed to show the case law that a product which was perishable and had a expiry date, it cannot be sent for laboratory test at belated stage. This submission of OP has support from the proceedings as well as the case law relied upon.
7.3.3. This analysis infers and proves that there is no proved fact or evidence of an unusual element, or of insect like a fly, in the said bottle to construe defect in the product.
7.4. By taking into account the totality of the circumstances, inclusive of analysis, discussion and assessment done in the aforementioned paragraph, it is held that circumstances and facts could not have been proved by the complainant to establish his grievances of negligence or of deficiency of services or of defect or sub-standard in the product against the OP. The complaint fails. The complaint is dismissed. No order as to costs.
8. Announced on this 17th November 2023 1 [कार्तिक 26, साका 1945].
9. Copy of this Order be sent/provided forthwith to the parties free of cost as per rules for compliances.
[Shahina] [Inder Jeet Singh]
Member (Female) President