BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, ADDITIONAL BENCH, MANGALORE

Dated this the 15^th December 2016

PRESENT

SRI. VISHWESHWARA BHAT D         : HON’BLE PRESIDENT

SRI. T.C. RAJASHEKAR                      : HON’BLE MEMBER

ORDER IN

C.C.No.81/2013

(Admitted on 16.03.2013)

Miss. Lolita D Souza,

Aged about   years,

D/o Valerian D Souza,

Residing at Flat No. 903,

Dynasty Apartment, Valencia

Mangalore.

                                                            ….. COMPLAINANT

(Advocate for the Complainant: Smt. MNA)

VERSUS

1. M/s Ideal Ice Cream,

    NA. 17, Kottara Chowki,

    Managalore  575 006

    Represented by its Signatory.

2. Snack Bar,

    Near Move and Pick Departmental Store

    Valencia, Mangalore.

    Represented by its Manager.

                                                                   ......OPPOSITE PARTIES

 (Advocate for the Opposite Part No.1: Sri. OTB)

  (Advocate for the Opposite Part No.2: Sri. KSR)

ORDER DELIVERED BY HON’BLE PRESIDENT

SRI. VISHWESHWARA BHAT D:

I.       1. The above complaint filed under Section 12 of the Consumer Protection Act alleging deficiency in service against claiming certain reliefs. 

The brief facts of the case are as under:

     The complainant contends opposite party No.1 is manufacturing of Ideal Ice-cream which is manufactured and packed by opposite parties and sold by them at various outlets including by opposite party No.2.  On 7.2.2013 the complainant purchased One dozen of Kulfi Candy manufactured by opposite party No.1 from opposite party No.2 by paying Rs.192/ as parcel.  On getting to her house the complainant opened one pack of Kulfi Candy and put it in her mouth and found it tasted very bitter, even her uncle who tasted one more Kulfi Candy and spit it out since it tasted very bad.  To test other Kulfi Candy the first one took another Kulfi Candy having same bitter taste and foul smell.  It was totally inedible.  By just tasting two Kulfi Candy complainant started feeling giddy and continuously vomiting.   The family Doctor was called who diagnosed complainant as suffering from stomach upset due to consumption of inedible food that resulting in vomiting and nausea.  She was adviced to consume liquid only for some time till her stomach condition become normal.  The other family member who checked the contents of Kulfi Candys in the box all were having bad odour and that they were Kulfi Candys were prepared without following  regular norms of hygiene. 

     When complainant brought this notice of opposite party No.2 seeking  to reimburse they failed to comply with the demand and on contacting customer care cell and legal notice dated 12.2.2013 was issued regarding unhygienic poisonous adulterated kulfi candies supplied by opposite parties to the complainant as there was no response from opposite party No.1.       

     2. Contending the circumstance under unhygienic food article prepared in unhygienic condition seek the reimburse and relief as claimed by the complainant.

II.     Opposite party No.1 filed written version disputing the allegations made in the complaint and alleging that complainant filed to blackmail for unlawful gain.  It is alleged opposite party No.1 is manufacturer of popular brand Ice Cream under the trade name of Ideal ice Cream and that various types of Ice Cream and other products are manufactured by opposite party No.1  and packed at their factory limit at Kottara Chowki, Mangalore and distributed and sold in retail/wholesale  at various outlets. Opposite party No.1 is not aware about the complainant s purchase as alleged and denied the alleged taste and smell and alleged ill health of complainant of vomiting nausea.  The allegation of other candies purchased also have bad smell and manufactured in unhygienic condition were disputed.  The allegation of kulfi candy manufactured and marketed all were denied.  Alleged misleading of customer by way of adversity by opposite party No.1 is denied.  All required norms were followed by opposite party No.1 while manufacturing of Ice-Cream and other products.  There is no deficiency in service rendered by opposite party No.1 either the manufacturer or sell the products.  No products which are hazardous for health to life sold by opposite party No.1.  Complainant is not entitled for any other relief claimed.  The opposite party No.2 in the statement has taken almost identical stand as of opposite party No.1 which is contends that opposite party No.2 supermarket who sells packed products including  manufactured by opposite party No.1.  He alleged purchase of Kulfi Candy on dated 7.2.2012 Rs.192/ is denied and alleged  quality of said Kulfy candies and refusal to refund the amount of Rs.192/ were all denied.

     2.     In support of the above complainant Miss Lolita DSouza filed affidavit evidence as CW1 and answered the interrogatories served on her and produced documents marked Ex.C1 to C8.  On behalf of the opposite party Mr. Mukund Kamath. S (RW1) Proprietor, M/s Ideal Ice cream also filed affidavit evidence and answered the interrogatories served on him and produced documents got marked Ex.R1 to R17 detailed in the annexure. 

III.     In view of the above said facts, the points for consideration in the case are:

1. Whether the Complainant is a consumer and the dispute between the parties?
2. If so, whether the Complainant is entitled for any of the other reliefs claimed?
3. What order?

      We have considered the notes/oral arguments submitted by the learned counsels and also considered the materials that was placed before this Forum and answer the points are as follows:         

               Point No. (i): Affirmative

              Point No. (ii): Negative

              Point No.(iii): As per the final order.                  

REASONS

1. IV.   POINTS No. (i): In this case the allegation of complainant has purchased the products manufactured by opposite party No.1 sold by opposite party No.2 a retailer to complainant claimed in the complaint is also disputed by opposite parties.  Infact opposite party No.1 has taken a stand that opposite party No.1 is a proprietorship concern and the proprietor has not been made as party to the complaint.  However opposite party No.1 did not mention who is the proprietor of opposite party No.1. The wrapper of the Kulfi candy produced by the complainant is marked at Ex.C8.  it does not make mention whether Ideal Ice Cream is company or a proprietorship concern or who represents the firm the details of the manufacturing is mentioned at Ex.C8  as follows :

Mfd., Pkd, & Mktd By:

IDEAL ICE CREAM

NH . 17, Kottara Chowki,

Mangalore 575 006.

     Opposite party produced Ex.R16 (a) to(c) 4 certificates said to have been given by opposite party No.1.  But even in this certificate the receipt is shown as just Ideal Ice Cream and nothing beyond that. Thus opposite party No. 1 in our view cannot raise his little finger to complain that opposite party No.1 is not properly described in complain.  Even in Ex.C3 the reply sent on behalf of opposite party No.1 to the legal notice Ex.C2 issued on behalf of complainant does not make any mention as to either the  name of the proprietor or if it is a partnership firm or a company the details of the persons who are managing opposite party No.1.  Hence the objection raised on behalf of opposite party No.1 on this ground is rejected. In view of the rival contentions that there is a dispute between the complainants the consumer opposite party No.1 the manufacturer and the opposite party No.2 is the seller who are the service providers between the parties.  Hence we answer point No.1 in the affirmative.

POINTS No.(ii):    It was pointed out by learned counsel for opposite party that the complainant had taken inconsistent stands as to the quality of the product purchased from opposite party No.2 manufactured by opposite party No.1.  In the complaint the complainant mentions after reaching her house with purchase of kulfi candy first Kulfi Candy tasted bitter and she spit the contents.  And then her uncle tasted one more kuli candy and it tasted very bad.  Then complainant tasted other kulfi candy though the first one took another Kulfi Candy which had same bitter taste and had foul smell and it was totally inedible.  Referring to these allegations it was argued by the learned counsel for opposite party No.1 when it is not even the case of complaint of swallowing or eating any of the kulfies how she vomited and had the nausea is not explained.  Infact the complainant produced to show about her illness Ex.C6 a prescription purported to have been issued by hospital Fulnir Mangalore.  It does not mention the nature of the disease.  However there is mention  ACGE acute gastrotrich which may probably gastrotriches but however the details are not mentioned and the evidence of the doctor is not also tendered.  Ex.C5 also does not mention of food poisoning or suffering from stomach upset because of consumption of inedible food.  Hence on this count argument of learned counsel for complainant suffering from food poison cannot be accepted as proved.

2. In fact the complainant after legal notice issued to the opponent on filing the complaint before the Consumer Redressal Forum filed request for sending the remaining kulfi candy with her for chemical analysis by expert.  As seen from the order sheet on 8.4.2013 the application came into filed for referring the alleged samples.  On 8.4.2013 itself the kulfi candy were referred to the laboratory as, but as per the order sheet on 20.5.2013  the report the laboratory had intimated as the fees is not fixed then the fee was fixed and in the presence of food officer/Designated officer the packing of the item a freezer was ordered.  But on 12.7.2013 the case was advanced from 16.11.13 mentioning urgency in the case and as the kulfi ice cream is to expire on 26.7.2013.  And then sought for sending it under sect 13 (1) (c) to Divisional Public Analyst cum Regional Assistant Chemical Examiner Mysore. Accordingly direction was issued for analysis to the Commissioner.  On 21.8.2013 the product in question was sent to chemical analysis.  The letter issued from the designated officer order  Food Safety and Standards Act, Mangalore in his letter dated period mentioned the Kulfi Candy was forwarded to Divisional Public Analyst Cum Regional Assistant Chemical Examiner Mysore for further appropriate action.  By his report dated 29.8.2013 the divisional food laboratory MPC Hospital Mysore has sent the report to the designated officer FSSA at Mangalore.  In this report marked as court document (herein referred as Ex.CD1) the sample received by him is mentioned.  The Scanned document is as follows:

3. Referring to Ex. CD No.1 the learned counsel for opposite party No.1 argued that in  respect of quality  mentioned in Sl. No. 1 to 4 within the permitted limits and even in respect of item No.5 the milk fat as DGHS 2.9% infact not less that 10% and the result mentions finding  2.9%. 

     4.  The learned counsel for opposite party argued that for standard Ice-Cream the requirement of fat contents is not less than 10% but for non standard it is 2.5%.  The learned counsel for opposite party referred to the notification dated 1^stAugust 2011 under Food Safety and Standards (Food Products Standards and Food Additives) Regulations, 2011 where inrespect of Diary Based Desserts/Confections 2.1.7 the standard is as follows:

2.1.7: DAIRY BASED DESSERTS/CONFECTIONS:

1. Ice Cream, Kulfi, Chocolate Ice Cream or Softy Ice Cream (hereafter referred to as the said product) means the product obtained by freezing a pasteurized mix prepared from milk and/or other products derived from milk with or without the addition of nutritive sweetening agents, fruit and fruit products, eggs and egg products, coffee, cocoa, chocolate, condiments, spices, ginger and nuts and it may also contain bakery products such as cake or cookies as a separate layer and/or coating.  The said product may be frozen hard or frozen to a softy consistency the said product shall have pleasant taste and smell free from off flavour and rancidity the said product may contain food additives permitted in these regulation including Appendix A the said product shall conform to the microbiological requirements specified in Appendix B  the said product shall conform to the following requirements, namely:

Note: In case where Chocolate, Cake or similar food coating, base or layer forms a separate part of the product only the Ice Cream portion shall conform to the requirements given above.  The type of ice crean shall be clearly indicated on the label otherwise standard for ice-cream shall apply.

5.  Referring to the above it was argued that in milk fact ice cream the minimum fat content should be not more than 2.5% and in respect for milk fat ice cream it should be between 2.5% and less than 10.05% and their total solid content in respect of minimum fat ice cream shall be not less than 30.0%.  As such it was argued violation of the notification is not established.  The argument of the learned counsel is correct as it is not the case of complainant that the product in question is miss branded. 

    6.   Another aspect pointed out by learned counsel for opposite party is that even as seen from Ex.CD1 the sample kulfi candy was received in open condition sample said to be ideal kulfi candy.  Hence as ice cream is required to be kept as per Ex.CD1 in a -18 degree Celsius there is no evidence that the primary requirement were met while sending the samples. And if met there is no evidence on this count. It was also pointed out by referring to the correspondence of designated officer for sending the sample from the personal Freezer of a Doctor at the designated officer’s office.  There is no evidence to how and from where the sample was left and collected and how it was sent to Mysore when and in what condition it was sent to Mysore are all not brought in evidence. This argument of the learned counsel for opposite party No.1 is correct and it is liable to accepted.

     7.   In fact as mentioned earlier the quality of Kulfi Candy purchased by complainant reaching home she found it had bitter taste, as poisonous, foul smelling are not established as there is no such mention in chemical analysis report.

 8.   Thus considering the entire material evidence available on record we are of the view that the complainant failed to establish the quality of the kulfi candy purchased from opposite party No.2 manufactured by opposite party No.1 as of inferior quality and as of adulterated. 

9.  Before parting with this case it is necessary to note we are surprised even though opposite party No.1 took a stand as to description of opposite party No.1 is not correct as it is a proprietary concern, neither reply to the legal notice nor written version or evidence make mention of details of the proprietor s name. If that is not sufficient, even opposite party No.1 s vakalath also does not mention name of the signatory of the party  as opposite party No.1.  What further amazes us is opposite party No.1 never signed written version and it is signed by the learned advocate for opposite party No.1.  

10.   Hence we answer point No. 2 in the negative.

POINTS No. (iii): Wherefore the following order

                                                                                                ORDER

     The Complaint is dismissed.

Copy of this order as per statutory requirements, be forwarded to the parties free of cost and file shall be consigned to record room.

(Page No.1 to 13 directly dictated by President to computer system to the Stenographer typed by her, revised and pronounced in the open court on this the 15^th December 2016)

             MEMBER                                              PRESIDENT

(SRI. T.C. RAJASHEKAR)              (SRI. VISHWESHWARA BHAT D)

D.K. District Consumer Forum                D.K. District Consumer Forum

 Additional Bench, Mangalore                  Additional Bench, Mangalore

ANNEXURE

Witnesses examined on behalf of the Complainant:

CW1  Miss Lolita D Souza

Documents marked on behalf of the Complainant:

Ex.C1: 07.02.2013    : Cash Memo issued by opposite party No.1

Ex.C2: 12.02.2013    : Legal Notice issued to opposite parties

Ex.C3: 05.03.2013    : Reply Notice

Ex.C4                       : Postal acknowledgement

Ex.C5:                      : Postal acknowledgement

Ex.C6:                      : Medical Prescription

Ex.C7:                      : Medical bills

Ex.C8:                      : Kulfy candys wraper

COURT DOCUMENT:

Expert Report

Witnesses examined on behalf of the Opposite Parties:

RW1  Mr. Mukund Kamath. S, Proprietor, M/s Ideal Ice cream

Documents marked on behalf of the Opposite Parties:

Ex.R1: 26.01.2013    : Ideal Ice Cream Stock  Status Report (Computer generated copy)

Ex.R2:                     : Page 4. Item No.1862 of the Ideal Ice Cream Stock Status Report

Ex.R3:26.01.2013     : Log sheet of Ideal Ice Cream

Ex.R4:15.09.2013     : Outlook Business Magazine

Ex.R5:                     : Regional Brand Section in the outlook Business Magazines

Ex.R6:10.12.2013     : Paper publications in Time of India showing the news items relating to the Awards bagged by Ideal Ice Cream

Ex.R7:                     : Relevant portion in the newspapers

Ex.R8:11.12.2013     : paper publications in Vijayavani showing the News items relating to the awards bagged by Ideal Ice Cream

Ex.R9:                      : Relevant portion in the newspapers

Ex.R10: 11.12.2013    : Paper publications in the Hindu showing the News items relating to the awards bagged by Ideal Ice Cream

Ex.R11:                     : Relevant portion in the newspaper

Ex.R12: 11.12.2013    : paper publications in Prajavani showing the News items relating to the awards bagged by Ideal Ice Cream

Ex.R13:                     : Relevant portion in the newspapers

Ex.R14: 11.12.2013    : Paper Publications in Deccan Herald showing the News items relating to awards bagged by Ideal Ice Cream

Ex.R15:                     : Relevant portion in the newspapaer

Ex.R16:                     : Certificate issued by the Indian Diary Association In favour of M/s Ideal Ice Cream in the Great Indian Ice Cream                                     contest organized by Dupont Nutrition and Health, a leading supplier of food Ingredient solutions to global dairy                                         industry, in Participation with Indian Diary Association (IDA) (5 in Nos)

Ex.R17:05.03.2013     : Office copy of reply notice sent to Complainant s Advocate with postal Acknowledgement.

Dated: 15.12.2016                                          PRESIDENT