D.O.F:05/12/2018
D.O.O:12/09/2022
IN THE CONSUMER DISPUTES REDRESSAL FORUM, KASARAGOD
CC.No.198/2018
Dated this, the 12th day of September 2022
PRESENT:
SRI.KRISHNAN.K :PRESIDENT
SRI.RADHAKRISHNAN NAIR.M : MEMBER
SMT.BEENA.K.G : MEMBER
Muhammed Sajid M,
S/o Abbas
Jama ath Quarters, Kizhur : Complainant
Post: Chandragiri
Kasaragod
(Adv: K. Abdul Nasir)
And
Al Madeena Hyper Market
S K Complex
Melparamba, Kasaragod: Opposite Party
(Adv: K.Kumaran Nair & Sabari.L.S)
ORDER
SRI.RADHAKRISHNAN NAIR.M : MEMBER
The complaint is filed on the ground of negligence and service deficiency on the part of the opposite party by selling a worm infected chocolate to him.
The facts of the case in brief is that the complainant purchased a chocolate named Fuse 35, of Cadbury company, among some other items, as per Bill No.MS 5813 on 03.12.2018, from the opposite party . But when he took the same to consume from his house, he found worm in the chocolate and due to that he could not eat it. The selling worm infected chocolate is service deficiency and unfair trade practice on the part of opposite party, due to which the complainant suffered loss and mental agony. Hence this complaint is filed for a direction to the opposite party to pay Rs. 3 lakh towards compensation for mental agony and Rs.5,000/-as costs.
The notice issued to the Opposite Party duly served and they entered appearance through their counsel, who filed written version. As per the version of the opposite party , the complaint is false frivolous, vexatious and not maintainable in law or on facts. The opposite party admit that the complainant had purchased a
chocolate named Fuse 35, of Cadbury company. But the contention that he found worm in that chocolate and it caused mental agony and damages etc. are incorrect and hence denied. The manufacturer is not made party in this complaint and hence the case is bad for non joinder of necessary parties. There is no service deficiency or unfair trade practice on the part of the opposite party and the complainant is not entitled for any relief as prayed for in this complaint. The complaint is to be dismissed.
The Complainant filed proof affidavit in lieu of chief examination and documents
Ext. A 1 to Ext A3 are marked .The Ext - A1 is the copy of the bill dated 03.12.2018 issued by the opposite party. The Ext. A2 is the photograph of the worm infected chocolate. The Ext. A3 is the CD containing photos and videos of the worm infected chocolate . From the side of the opposite party, Mr. Raheem, the Proprietor and Mr. Ameen the Manager of the shop are examined as DW1 and DW2.
Based on the pleadings and evidence of the rival parties in this case the following issues are framed for consideration.
1. Whether there is any negligence, service deficiency or unfair trade practice on the part of the opposite party?
2. If so, what is the relief?
For convenience, both these issues are considered together.
Here the specific case of the complainant is that he purchased a chocolate named Fuse 35, of Cadbury company, among some other items, as per Bill No.MS 5813 on 03.12.2018, from the opposite party. But when he took the same to consume from his house, he found worm in the chocolate and due to that he could not eat it. The selling worm infected chocolate is service deficiency and unfair trade practice on the part of the opposite party, due to which the complainant suffered loss and mental agony. The opposite party admit that the complainant had purchased a chocolate named Fuse 35, of Cadbury company. But the contention that he found worm in that chocolate and it caused mental agony and damages etc. are incorrect and hence denied. The manufacturer is not made party in this complaint and hence the case is bad for non joinder of necessary parties.
The complainant produced the Ext. A3 , the CD containing photos and videos , which show that the chocolate is worm infected. Even though the opposite party disputed the genuineness of the CD, no steps is taken to show that it is fabricated .The opposite party argue that the complaint is filed out of enmity, but no evidence is adduced to establish such an enmity. The DW1, the proprietor of the shop , would depose that the intention of the complainant is to defame them among the public
and cause harm to their business. But no evidence is to show any business rivalry in between complainant and the opposite party, so as to raise this kind of allegation and legal proceedings.
Another contention of the opposite party is that the manufacturer is not made party in this complaint and hence the case is bad for non joinder of necessary parties. It is true that neither complainant nor the opposite party took steps to implead the manufacturer in this case. The subject matter of this case is a chocolate. It is need less to state that nobody would expect a sweet manufacturing company to produce and package a chocolate with a living worm. So it can not be a manufactural defect. The worm found in the chocolate must have been developed during its voyage through dealers . It must be due to the defective storage. So non joinder argument is not acceptable. The opposite party, the seller alone is answerable for the worm found in the chocolate.
Therefore considering circumstances and available evidence in this case this commission is of the view that there is negligence on the part of the opposite party in storing the chocolate and selling a worm infected chocolate to the complainant, due to which the complainant suffered mental agony, loss and hardships.
Here the complainant’s case is that the Opposite Parties are to be directed to pay Rs.3 lakh as compensation and Rs.5,000/- There is no evidence for such a huge damage. The document Ext A1 would show that the price of the chocolate paid by the complainant is Rs.38/-only. This commission is of the view that a total of Rs. 3,000/- will be a reasonable compensation.
ln the result , the complaint is allowed in part and the Opposite Party is directed to pay an amount of Rs.3,000/- (Rupees Three Thousand only) to the complainant towards compensation and Rs.2,000/- (Rupees Two thousand only), towards the costs.
Time for compliance is 30 days from receipt of the copy of the Judgement.
Sd/- Sd/- Sd/-
MEMBER MEMBER PRESIDENT
Exhibits
A1- Bill dt: 03/12/2018
A2- Photograph
A3- CD
Witness Examined
Pw1- Muhammed Sajid
Dw1- Raheem K.A
Dw2- Ameen
Sd/- Sd/- Sd/-
MEMBER MEMBER PRESIDENT
Forwarded by Order
Assistant Registrar
Ps/
