Haryana

Panchkula

CC/362/2019

RAJBIR SINGH. - Complainant(s)

Versus

RAMA FLOUR MILLS. - Opp.Party(s)

COMPLAINANT IN PERSON

14 Feb 2022

ORDER

         BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, PANCHKULA

 

                                                       

Consumer Complaint No	:	362 of 2019
Date of Institution	:	20.06.2019
Date of Decision	:	14.02.2022

 

 

Rajbir Singh son of Shri Srichand, resident of House No. 546, Amrawati Enclave, Tehsil Kalka, District Panchkula (Haryana).

 

                                                                           ….Complainant

Versus

Rama Flour Mills, SCO No. 5, Sector 15, Panchkula through its authorized signatory.                                            

….Opposite Party

COMPLAINT UNDER SECTION 12 OF THE CONSUMER PROTECTION ACT, 1986 (AS AMENDED UPTO DATE).

 

Before:              Sh. Satpal, President.

Dr. Pawan Kumar Saini, Member.

Dr. Sushma Garg, Member.

 

 

For the Parties:   Complainant in person.

                        Shri Robin Sathi, Advocate, Counsel for the OP.

 

ORDER

(Sh. Satpal, President)

1.             The brief facts of the present complaint are that the Complainant used to purchase wheat flour from the OP for the last many years for domestic use, and as per routine, on 21.05.2019, the Complainant had purchased 30 kg. wheat flour from the OP for Rs. 28/- per kg. and 1 kg. Dalia vide Bill No. 000052 dated 21.05.2019 for Rs. 880/- i.e. Rs. 840/- for flour and Rs. 40/- for Dalia. The Complainant’s wife, having weak eyesight due to old age, kept consuming the said wheat flour but on 15.06.2019, the daughter of the Complainant while preparing chapatti found that there were live insects in the said flour. The Complainant visited the OP on the same day and after weighing the said flour, the OP replaced the same and handed over wheat flour weighing near about 19 Kg. with the assurance of good quality, and believing the version of the OP, the Complainant received the same and handed over the original bill dated 21.05.2019 to the OP. The Complainant’s wife kept consuming the said wheat flour but on 18.06.2019, the daughter of the Complainant again found that there were live insects in the said flour and in this regard, the Complainant contacted the OP but the OP totally refused to recognize the Complainant and told him that the said flour was never sold to him by the OP. Due to deficiency in service and unfair trade practices on the part of the OP, the Complainant has suffered mental agony, harassment and financial loss; hence, the OP is liable to pay compensation to the Complainant. Hence, the present complaint.

2.             Upon notice, OP appeared through his counsel and filed written statement raising preliminary objections qua complaint is not maintainable due to no locus standi and no cause of action and stated that the Complainant has suppressed true and material facts. On merits, it is stated by OP that the original bill has not been submitted by the Complainant alongwith the present complaint. The wheat flour in question was not defected or expired in any way. The ways the Complainant has kept the flour has not been expressed and there is a probability that the Complainant may have mixed the said flour with the flour already kept in his house or the container may not have been properly washed or kept in hygienic condition. The Complainant had replaced 19 kg. of flour as a goodwill gesture only to keep the faith of the Complainant. The Complainant has also failed to comply with the provisions of Section 13(1)(c) of CP Act, 1986. It is submitted that there is no deficiency on the part of the OP; hence, the complaint is liable to be dismissed against the OP.

3.             The Complainant has tendered his affidavit as Annexure C-A along with documents as Annexures C-1 to C-3 in evidence and closed the evidence, by making a separate statement. On the other hand, Shri Rajesh Gupta, Proprietor/OP, by making a separate statement, has tendered his affidavit as Annexure R-A in his defence and closed the evidence.

                During the course of arguments, the Complainant also submitted the Affidavit of his daughter namely Babli as Mark A.

4.             We have heard both the parties and gone through the entire record available on the file, minutely and carefully.

                Admittedly, the Complainant had purchased 30 Kg. wheat flour and 1 Kg. Dalia from the OP on 21.05.2019 vide Bill No. 000052 dated 21.05.2019 amounting to Rs. 880/-(Annexure C-1). There is no dispute with regard to the quantity as well as price of the purchased item vide said bill. The grievances of the Complainant are only with regard to the quality of the wheat flour. Even, the quality of Dalia has not been disputed.

                Regarding the quality of wheat flour, it is contended that the same was of sub-standard and inferior quality and thus, it was unfit for human consumption. It is contended that the OP had sold the unusable wheat flour as the live insects were found in the wheat flour by the daughter namely Babli of the Complainant. In support of his contentions, the Complainant has placed on record the Photos i.e. Annexures C-2 and  C-3, which allegedly shows the presence of insects in the wheat flour. Apart from this, the affidavit of the Complainant as well as his daughter namely  Babli i.e. Annexure C-A and Mark A respectively, have been placed on record in support of contentions of the Complainant.

                The OP has denied the contentions of the Complainant regarding the sub-standard, and expiry date of the wheat flour. It is contended that the wheat flour was sold to several consumers of the OP but none had questioned about the sub-standard quality of the wheat flour. It is vehemently contended that had there been any issue with regard to the quality of the wheat flour, then there would have been several complaints from the other consumers. It is further vehemently argued that the quality of an eatable item cannot be ascertained or disputed in the absence of any report from any chemical laboratory. The Ld. Counsel argued that as per section 13(1)(c) of CP Act, 1986 (now section 38(2)(c) of the new CP Act, 2019), it is mandatory to seek the report of an appropriate laboratory upon a sample of the disputed item. The Ld. Counsel has paid reliance upon the following case laws:-

1. FA No. 1253 of 2015 decided on 27.12.2016, titled as “Mithan Lal and another Vs. M/s Ramditta Mal Des Raj and others”, by Punjab State Consumer Disputes Redressal Commission.
2. FA No. 3339 of 2004 decided on 01.06.2007, titled as “Narender Kumar Vs. Arora Trading Company and others”, by Haryana State Consumer Disputes Redressal Commission, Panchkula.
3. FA No. 2 of 1994 decided on 29.03.1994, titled as “Rajinder Singh Vs. Varinder”, by Haryana State Consumer Disputes Redressal Commission.
4. FA No. 208 of 1993 decided on 15.06.1993, titled as “Jasdev Singh Vs. The Deputy Director, Agriculture, Ambala and another”, by Haryana State Consumer Disputes Redressal Commission.

 

5.             Admittedly, as mentioned above, the dispute relates to the quality of wheat flour. In this regard, section 13(1)(c) of CP Act, 1986 (now section 38(2)(c) of the new CP Act, 2019) provides for testing of the sample so as to determine the quality of the disputed item. The provision as contained in Section 38(2)(c) of CP Act, 2019  (New act) which is similar to section 13(1)(c) of CP Act, 1986 (old act), for the sake of clarity and convenience is reproduced as under:-

“ if the complaint alleges a defect in the goods which cannot be determined without proper analysis or test of the goods, obtain a sample of the goods from the complainant, seal it and authenticate it in the manner as may be prescribed and refer the sample so sealed to the appropriate laboratory along with a direction that such laboratory to make an analysis or test, whichever may be necessary, with a view to finding out whether such goods suffer from any defect alleged in the complaint or from any other defect and to report its findings thereon to the District Commission within a period of forty-five days of the receipt of the reference or within such extended period as may be granted by it;”

                A bare perusal of above would indicate that testing of the sample of the disputed item from any chemical lab for its proper chemical analysis is necessary. In the present case, neither the sample was submitted before the Commission nor any application praying for the testing of the sample from any chemical lab was submitted by the Complainant. In our considered opinion, defect in the quality of eatable item i.e. wheat flour in the present case cannot be ascertained or established in the absence of any chemical report from any authorized lab. Apart from above discussion, it may be mentioned here that the alleged wheat flour containing live insects was replaced by the OP on 15.06.2019 but the quality of the same was not got tested from the bare eye of the daughter of the Complainant on 16.06.2019 and 17.06.2019, which, in our opinion, weakens his version. Moreover, no evidence has been adduced by the Complainant in support of his contentions that the eye-sight of his wife so weak so as to make her incapable to watch the live insects.

6.             Having stated so, the claim of the Complainant cannot be rejected in toto as the same is corroborated and substantiated by the affidavit of the Complainant as well as his daughter, namely, Babli alongwith Photos i.e. Annexures C-2 and C-3. The Complainant is also an old customer of the OP. The Complainant has claimed a sum of Rs. 840/- alongwith interest qua the bill amount (Annexure C-1), and also Rs. 1,00,000/- and 11,000/- have been claimed on account of mental agony, harassment and litigation charges respectively. The sum claimed of Rs. 1,00,000/- on account of putting the life of Complainant and his family member at stake, mental agony etc. is undoubtedly exorbitant and on higher side as there is nothing on record which shows that the Complainant or any member of his family was hospitalized due to the consumption of the disputed flour.

                        As per well settled legal proposition, undue enrichment is not permissible and the principle of restituio in integrum postulates that the aggrieved person should get that sum of money which would put him in the same position if he had not sustained the wrong.

7.             As a result of the above discussion, we partly allow the present complaint and dispose of with the following directions to the OP:-

(i)      To refund a sum of Rs. 840/- i.e. the price of the product alongwith interest at the rate of 9% per annum from the date of filing of present complaint till its realization, to the Complainant.

(ii)     To pay a lump-sum amount of Rs. 2,500/- to the Complainant,  on account of mental agony, harassment and litigation expenses.

 

8.             The OP shall comply with the order within a period of 45 days from the date of communication of copy of this order failing which the Complainant shall be at liberty to approach this Commission for initiation of proceedings under Section 71/72 of CP Act, 2019 against the OP. A copy of this order shall be forwarded, free of cost, to the parties to the complaint and file be consigned to record room after due compliance.

Announced: 14.02.2022

 

 

                    (Dr.Sushma Garg)       (Dr.Pawan Kumar Saini)     (Satpal)

                        Member                     Member                     President

 

Note: Each and every page of this order has been duly signed by me.

 

 

Satpal

President