DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, PATIALA.

Consumer Complaint No.424 of 10/11/2017

Decided on: 21/08/2019

Babar Ali Khan, aged about 29 years son of Sanjid Ali Khan, Resident of Delhi Gate, Malerkotla, Presently residing in Punjabi University Campus, Patiala being student of Punjabi University Patiala.

….Complainant

Versus

Aneja Sweets, Urban Estate, Phase -II, Patiala through its Proprietor. ….Opposite party

Complaint U/S 11 to 14 of the Consumer Protection Act.

QUORUM

Smt. Inderjeet Kaur, Member

Sh. B. S. Dhaliwal, Member

ARGUED BY:

None for the complainant.

Sh. Dinesh Kumar Batish Adv. counsel for OP.

ORDER

B. S. DHALIWAL, MEMBER

1. This complaint is filed by Babar Ali Khan (here-in-after referred as complainant) u/s 12 of the Consumer Protection Act 1986 (here-in-after referred as Act) against Aneja Sweets (here-in-after referred as opposite party).

2. Briefly the case of the complainant is that on 05/09/2017 with an intent to take dinner in Aneja Sweets, the complainant alongwith one of his friend went to the respondent shop and placed order for dinner for which Rs.370/- were paid for which issued bill has been lost. When dinner was placed before complainant and his friend, the complainant after its use found some smelling in dinner which was not allowing him to use the same as it was not proper dinner for human being. As such he did not touch the dinner. The complainant and his friend approached the Manager of Aneja Sweets and complained that the Dinner which has been served is not proper for use as it is giving very bad smell, but the Manager instead of considering the complaint for checking the dinner asked the complainant that there is no smell in the dinner and asked the complainant that many other persons have also been using the Dinner and no body has complained about this and he uttered “Toon Bewaqoof, non-sense, Patta Nahin Kithon Aa Gaya Hain, Aaj Tak Kadi Hotel Te Break Fast, Lunch Jaa Dinner Kita Hai”. The Manager of Aneja Sweets misbehaved and insulted complainant where large number of customers were available as such complainant suffered mentally as well as physically. Complainant and his friend did not take dinner and left the same on the table. However the cost of the dinner was charged and not refunded and the complainant and his friend to avoid the dispute being from good reputable family decided to take sweets.

3. It is contended that the complainant and his friend purchased sweets for Rs.30/- against bill & in sweets complainant found some hair and complained about this also and showed hair to Manager of Aneja Sweets, but he inspite of his seeing hair did not consider the complaint rather used very rude language and misbehaved.

4. That on 06/10/2017 the complainant complained about this practice of Aneja Sweets to the Civil Surgeon, Patiala and showed the sweets material which was carrying hair and it was also brought to the knowledge of Civil Surgeon, Patiala and requested to investigate the matter. The packed material of sweets was checked and the officials of Civil Surgeon, Patiala found 4.2CM long hair in the sweets.

5. That thereafter the complainant went to his home town at Malerkotla, where the complainant fell ill due to his taking of some dinner in Aneja Sweets. As such the complainant was got checked from RAWAT Clinic, I/S Delhi Gate, Malerkotla who after checking the complainant disclosed that the complainant is suffering from food poisoning and admitted in his clinic where he was treated and discharged in the evening with the advise to take complete rest from 06/09/2017 to 09/09/2017.

6. That the complainant has suffered great humiliation and has suffered loss in his education due to the service of the OP.

7. On these background of the facts, the complainant has filed this complaint with the prayer for direction to the OP to pay damages to the tune of Rs.80,000/- alongwith the litigation expenses to the tune of Rs.10,000/-.

8. Notice of the complaint was issued to the OP. The OP appeared through his counsel and contested the complaint by filing written version.

9. In reply, the Opposite party raised preliminary objections that the complainant is not a consumer as defined under the Consumer Protection Act. The complainant has failed to produce any bill or receipt for the alleged Dinner, as such has failed to prove that he has availed the services of the respondent for consideration. The complainant has not come to this Hon'ble Forum with clean hands and has concealed the true and material facts. The complainant has no concern with the respondent and has no locus standi to file the present complaint. He is just trying to harass and blackmail the OP by filing this false and frivolous complaint for unlawful gains. It is also stated that the OP has high status and reputation in society and the complainant has tried to damage the same. The complainant has failed to disclose the name of his alleged friend and also details of items allegedly ordered by the complainant. Neither any detail of sweet is given nor name of shop keeper from where any such sample has been taken nor the name of the complainant from whom sample has been received. Food Analyst Report is not in prescribed Form B.

10. On merits, Opposite party has controverted all the material averments of the complaint and reiterated his stand as taken in the preliminary objections as detailed above. However it is mentioned that the complainant has failed to disclose the name of his friend and infact he neither visited the OP shop nor placed any order for dinner as alleged. The complainant has concocted a false story. It is also mentioned that as per the version of the complainant that he has a bad experience after having hot exchange of words, with Manager of OP, how a person will buy sweets from the same shop? The complainant has not purchased any sweet from OP. No picture of packed or open sweet has been produced. It is further mentioned that the complainant made a complaint with regard to the alleged sweet after a lapse of a month period. Sweets are always perishable item. Food analyst report is not in the prescribed Form” which usually contained the names of sweets, name of the complainant and name of the shop keeper etc. The treatment taken for food poisoning is also a false and the documents produced in this regard are fabricated. In the end, OP has prayed for the dismissal of the complaint.

11. Both the parties were afforded opportunities to produce their evidence.

12. In support of the case of the complainant, Complainant tendered in to evidence Ex.CA his sworn affidavit along with documents Ex.C-1 copy of report of Food Analyst, Punjab, Ex.C-2 copy of receipt of food item, Ex.C-3 copy of prescription slip of Doctor, Ex.C-4 copy of Medical certificate of Rawat Clinic and closed his evidence.

13. In order to rebut the evidence, Ld. Counsel for the OP has tendered Ex.OP-1 affidavit of Sushil Aneja and closed the evidence.

14. Ld. Counsel for the opposite party submitted written arguments.

15. During the last three dates of hearing, the complainant did not join the proceedings. However, in order to come to the logical and fair conclusion, we are taking into consideration all the pleadings and documents of complaint while deciding the case.

16. We have carefully perused the complaint, gone through the evidence produced on file and heard the arguments addressed by the ld. Counsel for the OP.

17. Ld. Counsel for the OP has reiterated his stand as taken in the written version. It is further submitted that no receipt of OP shop has been produced on record for the purchase of food. The alleged receipt of purchase of sweet does not pertain to OP shop, in fact no sweet was purchased. Medical certificate is also not genuine. From all angles this complaint is liable to be dismissed.

18. Onus was upon the complainant to adduce affirmative evidence to prove his contentions. The complainant has alleged that he along with his friend went to the shop of OP for dinner. The order was placed and food items were served for the consideration of Rs.370/- which was paid against receipt. Served food had bad smelling and the complainant advised his friend not to eat the food. They complained the matter to the Manager of OP who misbehaved and hot arguments were exchanged between them. Then they purchased sweets from the same shop of OP immediately after the above event occurred. The complainant has kept safe the receipt of purchased sweets but lost the receipt for dinner. There was very little space between the two alleged occurrence. If the complainant can keep intact one receipt, it is safely presumed that the another alleged receipt should have been in his custody.

It is normal practice in all the restaurants/ shop that when the foods are served for breakfast, lunch or dinner other than packed one, the bill is raised after the meal is over and the payment was always taken thereafter. It is a strange case where the payment of ordered food was made before eating. The complainant has even failed to disclose the name of his friend who accompanied him during the alleged dinner. Rather to substantiate his contention on the issue in question, the complainant ought to have spelled out not only the name of his friend but also produced his statement in any form during his evidence.

Next issue is the purchase of sweets. It is admitted fact as per the version of complainant that there was hot arguments exchanged between him and the Manager of OP shop and thereafter he purchased sweet from the same shop. After purchase of sweet complainant spotted long hair on the sweet. In the present era every educated person holds a high quality Mobile phone having a facility of camera. The complainant or his alleged friend must have a phone with them. They should have clicked the picture of the sweet with alleged hair there and then. The bill Ex.C-2 has been denied by the OP. OP has specifically alleged that it was not issued from the shop of OP. It is computer generated bill and can be prepared from out side. The assertion of complainant of purchase of sweet lacks cogent evidence.

Next issue is illness of the complainant due to dinner taken at the shop of OP. The complainant himself stated in his complaint that he felt some smell in the dinner served at the shop of OP. It is a simple proposition that if there is wrong smell in any type of food, can any one will eat. Before one puts one bite of food having foul smell in the mouth, one's nose will not allow to go in the mouth. If the food is bad in taste, one can only realize only after eating. The complainant has alleged that he had taken treatment from a doctor at Malerkotla. Every doctor have their own letter pads on which they prescribed the medicine. Rest is also advised after prescribing medicine on the same slip at the bottom. The perusal of Ex.C-3 reveals that alleged prescribed medicines are not on the letter head of the alleged doctor. The rest has also not been advised on the slip Ex.C-3. Therefore, this slip can not be relied upon to arrive at a conclusion that the complainant has taken treatment and advised rest. In view of the facts Medical Certificate Ex.C-4 became redundant.

Lastly the issue is analysis of sweet in question by Food Analyst, Punjab. The perusal of report Ex.C-1 reveals that the sample of sweet was taken on 07/09/2017. In para 6 of the complaint, The complainant has alleged that the complainant has approached the office of Civil Surgeon on 6/10/2017. If the Medical certificate Ex.C-4 is taken into consideration, then the complainant was on bed rest on 07/09/2017. One one hand the complainant is contending that on 07/09/2017, he was on bed rest on the advice of a doctor, on the other hand report Ex.C-1 establish that the report belongs to the sample taken on 07/09/2017, where as the complainant is alleging that he approached the Civil Surgeon on 07/10/2018. There are proved contradictions and discrepancies and as such the analyst report can not be relied upon that it pertains to the instant case.

19. Even otherwise complainant was to prove his case by affirmative evidence. The complainant has pleaded that he had taken dinner from OP shop but failed to produce the receipt, further pleaded that he buy sweet from OP but no conclusive evidence has been brought to prove the receipt being issued by OP. Medical treatment taken by the complainant is also not established. Food analyst report pertains to the sample taken on 7/9/2017 on which date the complainant has claimed to be on bed rest. In the pleadings the complainant has contended that he approached the Civil Surgeon on 06/10/2010 whereas the same test report belongs to sweet taken for analysts on 07/09/2017. The complainant has not been able to prove his pleadings.

24. For the aforesaid reasons, the complaint is dismissed.

25. The complaint could not be decided in the stipulated period due to heavy pendency of cases.

26. Certified copy of this order be sent to the parties free of costs under the rules. Thereafter file be indexed and consigned.

PRONOUNCED

DATED: 21/08/2019

B. S. DHALIWAL                INDERJEET KAUR

MEMBER                                  MEMBER