BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MANGALORE
Dated this the 24th May 2017
PRESENT
SRI VISHWESHWARA BHAT D : HON’BLE PRESIDENT
SMT. LAVANYA M. RAI : HON’BLE MEMBER
ORDERS IN
C.C.No.254/2015
(Admitted on 29.07.2015)
Mr. Khalander Rafeeq,
S/o Late Hajee K. Ahmed Bava,
Kote House, P.O. Palimar 574 112,
Udupi Taluk and District,
Karnataka State.
….. COMPLAINANT
(Advocate for the Complainant: Sri VKR)
VERSUS
1. M/s Nutricia International Pvt Ltd,
Regd. Office: 11th Floor, Building 8C,
Cyber City, DLF Phase 2,
Gurgaon 122 002, Haryana State,
Rep. by its Managing Director.
2. M/s Spar Max Hyper Market India Pvt. Ltd.,
City Centre Mall,
5th Floor, K.S. Rao Road,
Mangalore 575 001, D.K. District,
Rep. by its Manager.
…...OPPOSITE PARTIES
(Advocate for the Opposite Party No.1: Sri TP)
(Advocate for the Opposite Party No.2: In person)
ORDER DELIVERED BY HON’BLE PRESIDENT
SRI VISHWESHWARA BHAT D:
The above complaint filed under Section 12 of the Consumer Protection Act by the complainant against opposite parties alleging deficiency in service claiming certain reliefs.
The brief facts of the case are as under
The complainant claims on 22.6.2015 he purchased from opposite party No.2 an authorised dealer/agent of opposite party No.1, opposite party No.1 being manufacturer of Nutricia Farex in one sealed tin containing with Farex under a bill No.1071 and transaction No.6456 for Rs.351 inclusive of carry bag billed for Rs.2 on reaching home on the same day i.e. Palimar noticed that the Nutricia Farex Tin in question purchased from opposite party No.2 sold to him after expiry period mentioned therein as April 2015 on the bottom of the tin and claims sold with malafiad intention. As such he also claimed he issued a legal notice seeking refund of the money the notice was accepted by opposite party No.2 and returned with endorsement of refused returned to sender. Allegation that it is the sale of after expiry of the products amounts to unfair trade practice hence seeks the relief mentioned in the complaint.
2. Opposite party No.1 the manufacturer of the product in question in the version on appearance claims he is not aware of any transaction alleged in the complaint and contends he is not responsible for the sale of any product as his responsibility is over once he sells the product to the whole sale distributer. He also refers to section 27 of Legal Metrology Act of 2009 and rules thereunder in 2011 as per which the manufacturer’s liability is restricted as to the requirement of the food adulteration. He does not made require to answer to the acts and rules there under and the distributor and seller are responsible if there is distributes/sells of expiry product hence seeks dismissal against him and also claims he is an unnecessary party in this case.
3. Opposite party No.2 in their version contends complainant is not at all a consumer and alleged the product sold to complainant under the receipt mentioned is a product received from the distributor Kamakshi Traders, Mangalore manufactured under bill No. OKE06676 in Farex Tin 500 gm on 12.2.2015. The product under the number of 22.6.15 is a product of that bill. The allegation of complainant is false. There is neither unfair trade practice nor deficiency in service on the part of the opposite party hence seeks dismissal.
4. In support of the above complaint Mr. Khalander Rafeeq filed affidavit evidence as CW1 and answered to the interrogatories served on him and produced documents got marked at Ex.C1 to C7 and Farex Tin marked at M O No.1 as detailed in the annexure here below. On behalf of the opposite parties Mr. Kiran Annambhotla (RW1) Director of M/s Nutricia International Pvt Ltd, Mumbai and Mr. Guruprasad Kadambar (RW2) Store Manager for Max Hypermarket India Private Limited, Mangalore also filed affidavit evidence and answered to the interrogatories served on them and produced documents got marked at Ex.R1 to R2 as detailed in the annexure here below.
5. In view of the above said facts, the points for consideration in the case are:
- Whether the Complainant is a consumer and the dispute between the parties?
- If so, whether the Complainant is entitled for any of the reliefs claimed?
- What order?
The learned counsels for both sides filed notes of arguments. We have considered entire case filed on record including evidence tendered by parties. Our findings on the points are as under follows:
Point No. (i) : Affirmative
Point No. (ii) : Negative
Point No. (iii) : As per the final order.
REASONS
6. POINTS No. (i): complainant admittedly purchased a product manufactured by opposite party No.1 from retailer opposite party No.2. Hence there is a relationship of consumer and service provider between the parties. The claim of complainant that the product sold by opposite party No.2 for complainant was beyond the expiry date of April 2015 when he purchased it on 22nd June 2015 and cash bill issued by opposite party No.2 is seriously disputed by opposite party No.2. Hence there is a live dispute between the parties as contemplated under section 2 (1) (e) of the C P Act. Hence we answer point No.1 in the affirmative.
7. Points No. (ii): As rightly pointed out for opposite party No.1 the liability of opposite party No.1 is restricted under section 27 of Food Safety and Standards Act 2006. Section 27 reads thus:
27. Liability of the manufacturers, packers, wholesalers, distributors and sellers
- The manufacturer or packer of an article of food shall be liable for such article of food if it does not meet the requirements of this Act and the rules and regulations made thereunder.
- The wholesaler or distributor shall be liable under the Act for any article of food which is
- Supplied after the date of its expiry: or
- Stored or supplied in violation of the safety instructions of the manufacture; or
- Unsafe or misbranded; or
(d) Unidentifiable of manufacturer from whom the article of food have been received; or
(e) Stored or handled or kept in violation of the provisions of this Act, the rules and regulations made thereunder; or
(f) Received by him with knowledge of being unsafe.
- The seller shall be liable under this Act for any article of food which is
- Sold after the date of its expiry; or
- Handled or kept in unhygienic conditions; oy
- Misbranded; or
- Unidentifiable of the manufacturer or the distributors from whom such articles of food were received; or
(e) Received by him with knowledge of being unsafe.
8. Thus on going through this provision as the purchase is not made by complainant from opposite party No.1 directly and that the allegation made by the complainant against opposite party No.1 does not come with in the purview of Food Safety and Standards Act 2006. Hence the complaint is not at all maintainable against opposite party No.1.
9. In respect of opposite party No.2 the claim of complainant is of retail seller under original bill No.1071 and transaction No.6456 to complainant for Rs.351 inclusive of carry bag bill for Rs.2 under Ex.C1 the receipt the distributor from whom the opposite party No.2 seller is not a party to the proceedings. Hence we are not consider with section 27 of the Food Safety and Standards Act 2006.
10. Now allegation is against opposite party No.2 only. Ex.C1 the receipt Xerox copy of the bill is produced copy the batch number mentioned in the receipt pertaining to the product is item 100584066 Farex 1 infant formula tin 6006 amount Rs.349. But at Mo No.1 in the bottom date of manufacture and batch number mentioned as Jan 14/ZP 10020 April 15 13:00 Rs.349.
11. Learned counsel for complainant produced Ex.C7 the information obtained under RTI Act from the office of the Commercial Tax Commissioner, Bangalore it mentions the sale transaction pertaining to sale at City Centre Mall, Mangalore with business date 22.6.2015 and in the Tran SEQ No as 2319197003 and till no as 107 and tran_No. 6456 and item no 100584066 and Qty 1 and amount 349. This mention at Ex.C7 tally with the entry in the copy of the bill Ex.C1 produced by complainant. But M O No.1 which the complainant claims as the item sold to him as per Ex.C1 by opposite party No.2. However the batch no. mentioned at Ex.C7 and also at Ex.C1 does not tally with the batch number of the product number M O No.1 mentioned at the bottom of this tin as mentioned earlier. When the complainant having failed to prove that the M O No.1 as the product sold by opposite party No.2 under Ex.C1 it is mentioned at Ex.C7 as well as the claim of the complainant that opposite party No.2 made unfair trade practice in selling product of which the date of expiry already expired is not proved by the complainant. Hence we are of the view that complainant failed to prove the deficiency in service on the part of the opposite party No.2 against him. Hence we answer point No.2 in the negative.
13. POINTS No. (iii): Wherefore the following
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 8 directly typed by steno on computer system to the dictation of President revised and pronounced in the open court on this the 24th May 2017)
MEMBER PRESIDENT
(LAVANYA M. RAI) (VISHWESHWARA BHAT D)
D.K. District Consumer Forum D.K. District Consumer Forum
Mangalore. Mangalore.
ANNEXURE
Witnesses examined on behalf of the Complainant:
CW1 Mr. Khalander Rafeeq
Documents marked on behalf of the Complainant:
Ex.C1: Original Bill
Ex.C2: Office copy of the legal notice dated 29.06.2015
Ex.C3: Original postal receipts No. ARK 568747470 IN Dated 29.06.2015
Ex.C4: Original postal receipts No. ARK 568747483 IN Dated 29.06.2015
Ex.C5: Original unserved envelope
Ex.C6: Original reply notice dated 3.9.2015
Ex.C7: RTI reply dated 25.04.2017
M.O : Sealed tin containing Nutricia Farex
Witnesses examined on behalf of the Opposite Parties:
RW1 Mr. Kiran Annambhotla, Director of M/s Nutricia International Pvt Ltd, Mumbai
RW2 Mr. Guruprasad Kadambar Store Manager for Max Hypermarket India Private Limited, Mangalore
Documents marked on behalf of the Opposite Parties:
Ex.R1: Office copy of the reply notice issued to the legal notice of the complainant
Ex.R2: Office copy of the Intimation issued by the postal Authority for having served the reply notice.
Dated: 24.05.2017 PRESIDENT
