DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION ERNAKULAM
Dated this this 30th day of March 2023 .
Filed on: 31/08/2016
PRESENT
Shri.D.B.Binu President
Shri.V.Ramachandran Member Smt.Sreevidhia.T.N Member
C.C No. 508 /2016
COMPLAINANT
Prishi PS S/o. Sivaprasad, Laksmi Bhavan,Murinthal, Perinadu P.O, Kollam, Pin-691 601
(By Adv.Tom Joseph, Court Road, Muvattupuzha, Pin-686 661)
Vs.
OPPOSITE PARTIES
1. M/s Lion Dates Impex Pvt. Ltd.27/3, Cauvery Road, Trichy-620 002 Represented by its Managing Director.
(O.p1 rep. by Adv.Santhosh Subramanian, Adv.E.A Thankappan, Room No.7, Asian Business Centre Complex, St.Albert’s School lane, Behind Saritha Theatre, Market Road, Kochi-682 031)
2. M/s Big Bazar Future Retail Ltd., Centre square Mall, MG Road, Ernakulam, Kochi-35, Represented by its Managing Director
(o.p2 rep. by Adv.K.K.Muralidharan, T-19, third Floor, Empire Building, Old Railway Station Road, Kochi-18)
F I N A L O R D E R
D.B. Binu, President.
1) A brief statement of facts of this complaint is as stated below:
The complaint was filed under Section 12 (1) of the Consumer Protection Act,1986. The brief facts, as averred in the complaint, are that the complainant had purchased two packets of lion dates weighing 250g from the 2nd opposite party on 20.03.2016 for Rs.83/- under the buy one gets one free scheme believing the words mentioned in the packet "Resealable bag for ultimate freshness". It was also mentioned in the packet that their product is 100% healthy & natural. While so, after reaching his home the complainant ate some dates purchased by him from the 2nd opposite party. After some time, the complainant started vomiting. The vomiting was followed by severe abdominal pain and bowel problems. Hence, he was compelled to consult a doctor at Thrikkakara Cooperative hospital. The reason for vomiting was diagnosed as food poisoning. He underwent treatment for two days. He was compelled to avail two days leave from his office M/s Equyfax due to the food poisoning incident. Thereby suffered salary loss of Rs. 4000/- for two days. In order to ascertain the reason for food poisoning, the complainant submitted the samples of the dates with the regional analytical laboratory, Kakkanadu for quality test. Presence of dead insect and insect larva was reported by the laboratory. They found the sample as unsafe for consumption. The complainant purchased two more packets of the very same dates on 22.03.2016 so as to verify the quality of the dates. On an examination by the naked eye, he found live worms in the packet. The matter was brought to the notice of the customer care wing of the 1st opposite party. But nothing was done by them to redress the grievance of the complainant. The 1st opposite party was duty bound to take adequate precautions to preserve and to supply the dates imported by them so as to avoid health hazards to the consumers. The particular batch of the dates supplied by the 1st opposite party by without observing the necessary safety precautions prescribed by the Government of India food safety rules. They have violated the provisions in section 26 of the FSSAI ACT-2006, Further the opposite parties had not conducted any quality check of the dates before placing it for sale. The 2nd opposite party was also bound to ascertain the quality of the items purchased by them for sale. Hence both the opposite parties are guilty of unfair trade practice. The sale of food items unsafe to the health of the consumer amount to deficiency in service and unfair trade practice on the part of the opposite parties. The complainant suffered financial loss, hardships and severe mental agony due to the purchase of the dates contaminated with insects and other substances harmful to health. The complainant had approached the Commission seeking an order directing the opposite parties to pay Rs.5,00000/- (Five Lakhs only) as compensation to the complainant for the financial loss, hardships and mental agony suffered them due to the supply of the contaminated dates hazardous to the safety of the health of the consumers and the cost of this proceedings.
2. Notices
Notices were issued from the Commission to the opposite parties. The opposite parties received the notice and file their versions.
3. VERSION OF THE 1st OPPOSITE PARTY
The allegation that on 20-3-2016 the complainant purchased 2 packets of lion date from the 2 opposite party is without any actual basis and no receipt number or batch number of the packet or date of manufacture and the nature of the 'dates' as to whether it is seedless or not is not mentioned in the complaint. Some manipulations or illegalities are done by the complainant. Dates packed by the 1st opposite party are done most hygienically and in a scientific manner in sealed containers which are air- tight and inert gases are also filled in the packets. So that bacteria, insects or fungal growth are never happened while sealed, packed condition in the company on label Declaration. The complaint does not disclose the time of opening of the packets and how the packet was kept in the custody are not revealed in the complaint. Eating or consumption of Lion dates never cause vomiting bowel problem as alleged in the complaint. It is understood that the complainant had consumed many other articles from hotels and restaurants which can cause alleged vomiting and other problems.
4. VERSION OF THE 2nd OPPOSITE PARTY
The allegation in the complaint is that the complainant suffered food poisoning upon consuming dates marketed by the 1st opposite party which was purchased by him from the outlet of the 2nd opposite party on 20.03.2016. He had caused to test samples of the dates at Regional Analytical Laboratory, Kakkanad and the laboratory reported presence of dead insect and insect larva in the dates packets. The complainant purchased two more packets of dates marketed by the 1st opposite party from the outlet of the 2nd opposite party on 22.03.206 and there also he could find live worms. The complainant does not have a case that the dates packets purchased by him were put to sale after the date of their expiry by the 2nd opposite party. In the circumstances the complainant cannot make any claim against the 2nd opposite party. The allegation that the complainant brought the issue to the notice of the 2nd opposite party is not true and hence denied. He also does not have a case that there is any deficiency of service on the part of the 2nd opposite party. The 2nd opposite party is not liable to pay any amount to the complainant as claimed in the complaint.
5) . Evidence
The complainant had produced 6 documents that were marked as Exhibits-A-1 and A-6.
Exhibit A-1. Copy of the retail invoice dated 20.03.2016.
Exhibit A-2. Copy of the retail invoice dated 22.03.2016.
Exhibit A-3. Copy of the resealable bag.
Exhibit A-4. Copy of the medical certificate
Exhibit A-5. Copies of the medical bills
Exhibit A-6. Copy of the certificate of examination issued by the Regional analytical laboratory.
6) The main points to be analysed in this case are as follows:
i) Whether the complaint is maintainable or not?
ii) Whether there is any deficiency in service or unfair trade practice from the side of the opposite parties to the complainant?
iii) If so, whether the complainant is entitled to get any relief from the side of the opposite parties?
iv) Costs of the proceedings if any?
7) The issues mentioned above are considered together and are answered as follows:
As per Section 2 (1) (d) of the Consumer Protection Act,1986, a consumer is a person who buys any goods or hires or avails of any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment. The complainant had produced copies of the retail invoices dated 20.03.2016 and 22.03.2016 issued by the 2nd opposite to the complainant (Exhibit A-1 and A-2). Hence, the complainant is a consumer as defined under the Consumer Protection Act, 1986 (Point No. i) goes against the opposite parties.
The complaint is regarding the supply of contaminated dates by the opposite parties.
The learned counsel for the complainant submitted that after consuming the dates, the complainant suffered vomiting followed by severe abdominal pain bowel problems. Hence, he was compelled to consult a doctor at Thrikkakara Cooperative hospital. The reason for vomiting was diagnosed as food poisoning. The complainant underwent treatment for two days. The Copy of the medical certificate(Exhibit A-4) and Copies of the medical bills (Exhibit A-5). He was compelled to avail two days leave from his office M/s Equyfax due to the food poisoning incident. Thereby suffered salary loss of Rs. 4000/- for two days. In order to ascertain the reason for food poisoning, The Copy of the report of examination issued by the Regional analytical laboratory. (Exhibit A-6) would show that the dates dead insect and insect larva. They have observed that the sample was unsafe as per FSSI Act 2006. Exhibits A-1 to A-6 were marked from the side of the complainant.
The learned counsel for the 1st opposite party submitted that the name and address of the doctor and time of visiting the doctor for examination is not mentioned in the complaint and the nature of treatment also is not stated in the complaint and complainant takes hotel food and the discomfort alleged is due to these reasons alone and the complaint is filed on an experimental basis just to make illegal money from the opposite parties and to gain illegally which amounts to cheating and deceit and the so called testing of the date in the analytical laboratory, Kakkanad is a lie and the nature of the dates, the time and date of analysis in laboratory are not stated in the complaint and the batch number, date of manufacture and label declarations are not stated in the complaint and the allegation that live worms are seen by naked eye is a black and white lie and if live worms were there it would have been seen at the time of consumptions of the dates by the complainant. So this is aimed at making illegal allegations just to tarnish the Good-name and good-will of the company and it is doubted that the complainant is a tool in the hands of company's rivals and company's' dates packets are packed following government of India Food Safety Rules and this is the 1st complaint against the company and it is an unfair tactics of the complainant and for which illegal acts the complainant suffered any financial loss or mental agony and complaint is only a trick to get a lumpsum money of 5 lakhs and this kind of tactics never to be entertained by this commission and the complaint is liable to be dismissed in limine.
The learned counsel for the 2nd opposite part submitted that as far as the 2nd opposite party is concerned, it acts only as a retailer of the products of the 1st opposite party. It has no role in the production and packaging of the products of the 1st opposite party. The products of the 1st opposite party, come in sealed packets and the 2nd opposite party cannot in anyway tamper with the same. The complainant does not have a case that the 2nd opposite party is in any manner associated with the production and packaging of the product purchased by him.
III (2016) CPJ 673 (NC) THE HONOURABLE NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION, (SABMILLER INDIA LTD.v. ASHOK KUMAR SHARMA & ANR.)
“7. I have examined the material on record and given a thoughtful consideration to the arguments advanced before me. A perusal of the order made by the District Forum reveals that the bottle in question was brought by the complainant before it, and also, he moved an application dated 2.7.2012 for getting the contents of the bottle analyzed and tested from the laboratory. A notice of the said application was given to the respondents who chose not to file reply in the matter. The District Forum passed an interim order on 27.8.2012, in which it was clearly mentioned that a sealed bottle of which some foreign metal was visible. ….”
The Honourable National Consumer Disputes Redressal Commission (NCDRC) while dealing with a complaint in regard to unhygienic food that emitted foul smell causing food poisoning to the complainant, held that:
“If a consumer files an affidavit in the consumer complaint instituted by him stating therein that the food served to him was rotten/stale/inferior in quality, such an affidavit will be sufficient to discharge the initial onus placed upon the customer.”
It further added that, the restaurant where such a complaint is made by the customer in respect of the food, will not allow them to carry food with them. On being aggrieved with such food, a customer cannot be expected to take the food and get laboratory analysis for the same as that would leave him in frustration. Thus, in the present set of facts and circumstances, the onus which was placed upon the complainant, had been duly discharged by the affidavit filed by him coupled with a medical certificate from the doctor who certified that the complainant suffered from food poisoning and was under treatment. In view of the above-stated observations, petitioners’ counsel did not press for revision petition and stands disposed of. [Yum Restaurants (India) (P) Ltd. v. Kishan Hegde, 2020 SCC OnLine NCDRC 8, decided on 05-02-2020] -consumer-alleging-of-defect-in-food-served-in-a-restaurant-will-have-initial-onus-to-prove-that-food-quality-was-inferior/
The Opposite Parties had inadequately performed the service as contracted with the complainant and hence there is a deficiency in service, negligence, and failure on the part of the Opposite Parties in failing to provide the complainant’s desired service which in turn has caused mental agony and hardship, and financial loss, to the Complainant.
We found the issue Nos. (II), (III) and (IV) are in favour of the complainant for the serious deficiency in service that happened on the side of the opposite parties. Naturally, the complainant had suffered a lot of inconvenience, mental agony, hardships, financial loss, etc. due to the negligence on the part of the opposite parties.
In view of the above facts and circumstances of the case, we are of the opinion that the opposite parties are liable to compensate the complainant.
Hence the prayer is partly allowed as follows:
(i) The opposite parties shall pay Rs.50,000/- as compensation to the complainant for the financial loss, hardships and mental agony suffered them due to the supply of the contaminated dates hazardous to the safety of the health of the complainant.
(ii) The opposite parties shall also pay the complainant Rs.10,000/- (Rupees ten thousand only) towards the cost of the proceedings.
The above-mentioned directions shall be complied with by the Opposite Parties within 30 days from the date of the receipt of a copy of this order failing which the amount ordered vide (ii) above also shall attract interest @7.5% from the date of receipt of a copy of this order till the date of realization.
Dictated to the Confidential Assistant Smt.Ambily transcribed and typed by her corrected by me and pronounced in the Open Commission this 30th day of March, 2023.
D.B.Binu, President
Sd/-
V.Ramachandran, Member
Sd/-
Sreevidhia.T.N, Member
Forwarded by Order
Assistant Registrar
APPENDIX
Exhibit A-1. Copy of the retail invoice dated 20.03.2016.
Exhibit A-2. Copy of the retail invoice dated 22.03.2016.
Exhibit A-3. Copy of the resealable bag.
Exhibit A-4. Copy of the medical certificate
Exhibit A-5. Copies of the medical bills
Exhibit A-6. Copy of the certificate of examination issued by the Regional analytical laboratory.
C.C No.508 /2016
order dated 30.03.2023
