DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,

PATIALA.

                                      Consumer Complaint No. 356 of 6.9.2018

                                      Decided on:   28.11.2019

Deepak Banga son of Chander Banga resident of Thatheran Wala Mohalla, Nabha, District Patiala.

                                                                   …………...Complainant

                                      Versus

Big Bazar (Future Retail Ltd.)Omax Mall, Patiala, through its Manager.

                                                                   …………Opposite Party

                                      Complaint under Section 12 of the

                                      Consumer Protection Act, 1986.

QUORUM

                                      Smt.Inderjeet Kaur, Member

                                      Sh.B.S.Dhaliwal, Member                                   

ARGUED BY:

                                       Sh.Yogesh Khatri,Advocate, counsel for complainant.

                                       Sh.M.P.S.Sahi,Advocate, counsel for the OP.

 ORDER

                                      INDERJEET KAUR, MEMBER

1. This is the complaint filed by  Deepak Banga  (hereinafter referred to as the complainant) against  Big Bazar (Future Retail Ltd.)  (hereinafter referred to as OP) under Sections 11 to 14 of the Consumer Protection Act,1986(hereinafter referred to as the Act).
2. In brief, the case of the complainant is that on 9.6.2017, he purchased certain products for Rs.938.97. Out of these products three bottles were of TTRT Juice (Apple) of 2Ltr for Rs.130/-each.The payment was made through credit card.
3. It is alleged that on reaching home, the complainant and his family members consumed one of the bottle of Apple Juice and after some time the minor child of the complainant started vomiting and his colour got pale.The complainant immediately took the minor to doctor,where after check up the doctor diagnosed food poisoning.
4. It is further alleged that after coming home the complainant examined the bottles and found that one of the apple juice contained some particles inside the bottle. On the next day the complainant approached the OP alongwith bottles and narrated about the health of his child and requested to redress the genuine complaint by replacing the bottles with new one or to return the price equal to the price of bottles but the OP refused to entertain the complainant and abused filthy languages. Due to said act of the OP the complainant suffered from mental agony, pain and harassment. It also amounts to deficiency in service and unfair trade practice on the part of the OP.
5. It is also alleged that the complainant also got issued legal notice upon the OP but the OP did not pay any heed to his request or to give reply to the notice.
6. On this back ground of the facts, the complainant has claimed compensation to the tune of Rs.50,000/-on account of deficiency in service and unfair trade practice, Rs.10,000/-as costs of litigation and Rs.25000/- on account of mental harassment, agony and tension.
7. Upon notice, OP appeared through counsel and filed written reply. In reply the OP by raising preliminary objections denied all the allegations, facts and averments stated in the complaint except to the extent it is expressly  admitted therein.That no cause of action has arisen to the complainant to file the present complaint; that the complaint is not maintainable and is liable to be dismissed as the complainant attemted to misguide and mislead the Forum;that the complainant has created a false story by concocting and distorting the facts and circumstances; that the complaint has been filed to harass the OP and to extort money from it. It is stated that the OP is incorporated under Companies Act,1956 and is engaged in the business of marketing and selling of readymade garments, accessories, groceries, electronics etc.(“Goods”) through an efficient network, operating throughout India and due to excellent quality of its Goods, the company has became a trusted name amongst the customers.Company has various stores under brand name Big Bazar across India.That the present complaint is false, frivolous and vexatious besides being devoid of any merits and has been filed with a view to malign the credential & reputation of the OP with dishonest intentions to detriment the OP and to the illegal advantage to the complainant. That the complaint is bad for non joinder of necessary party as the manufacturer has not been arrayed party to the present complaint. That the complaint is liable to be dismissed with exemplary costs.
8. On merits, the OP stated that the complainant has filed the present complaint after passing of more than one year and on the packing of juice it is clearly mentioned that “Best before six months from Manufacture”. The apple juice is perishable goods and has its best use before date of expiry and the consumer has to follow the guidelines mentioned on the product. The complainant has not explained reason for delay in filing of the complaint.
9. It is alleged that the OP is a big brand and is always serving and ready to serve its customers to their best. The OP denied all other averments made in the complaint. At the end the OP prayed for the dismissal of the complaint with heavy costs.
10. In support of the case, the ld. counsel for the complainant has tendered into evidence affidavit of the complainant, Ex.CA invoice, Ex.C1,copy of statement of account, Ex.C2, original bottles in cardbard box,Ex.C3, photographs,Exs.C4,C5, copy of legal notice, Ex.C6, postal receipt Ex.C7 and closed the evidence.
11. On the other hand, the ld. counsel for the OP tendered into evidence affidavit of Amit Kumar Jha and closed the evidence.
12. We have heard the ld. counsel for the parties and have also gone through the record of the case, carefully.  
13. The ld. counsel for the complainant has reiterated the contentions as pleaded in the complaint. It is also contended that the family of complainant consumed one of these juice bottles and when the kid of the family fell sick, they noticed particles/fungus growth in the other two bottles and approached the OP for replacement or refund of the amount of the price. When the OP did not heard to the genuine grievances of the complainant, he got issued legal notice through an advocate on 22.8.2017 under registered cover i.e. within two months of the purchase of items in question. Neither the OP replied to the notice nor responded in any manner. The ld. counsel brought our attention to the “Fungus growth” available and visible in the bottles upon shacking them. It is also contended that the complaint has been filed within statutory period of limitation prescribed under the Act.
14. Ld. counsel for the OP has also reiterated the contentions as pleaded in the written statement. It is contended that apple juice is perishable goods and it’s best use is before expiry date and the consumer has to follow the guidelines. The complaint has been filed after passing of more than one year of the purchase and on the juice bottles it is clearly mentioned “Best before six months from manufacture”. It is contended that the alleged particles/fungus growth has developed after  expiry period.
15. We have considered the rival contentions of the ld. counsel for the parties and given thoughtful consideration to the evidence adduced on the record. The products were taken out of the card board and examined  and seen the contents minutely.
16. OP has admitted the fact that the complainant has purchased the products in question. The only plea taken by the OP is that the present complaint was filed after a period of one year from the date of purchase and juice being perishable goods would have been used before the “Best time” printed thereon and denied the receipt of legal notice.
17. We examined the original juice bottles (Ex.C3) one by one, in the presence of the ld. counsel for the parties. Date of manufacturing is printed as 21.4.2017 and “Best Use” period printed thereon is six months. Thus expiry date comes to 20.10.2017. The products in question were purchased on 9.6.2017 and the complainant noticed particles/fungus growth in the bottles and that is why he got served legal notice before the expiry of best period of their use. It is a settled proposition of law that a notice sent under registered cover shall be presumed /deemed to have been delivered. As the OP has denied the receipt of legal notice got sent by the complainant through an advocate, the onus lies upon the OP to prove his contention by way of reliable evidence. OP can prove it through the record of the concerned postal department or other available modes. Therefore, mere denial of receipt of notice by the OP has no legal footing and inference is drawn against the OP in the absence of any evidence. The complainant has produced the receipt Ex.C7 of the postal department to prove his version that legal notice was sent under registered cover.
18. Further it is in the knowledge of the OP that such products are to be used before the expiry period, therefore, OP should have promptly reacted upon the receipt of notice and collected the products from the complainant and got examined from appropriate laboratory and proved the contention of the complainant wrong. OP even did not try to inspect the products before or after filing the written version or get them examined from the appropriate laboratory.
19. As far as the contention of OP that the complaint has been filed after more than one year of purchase of product is not tenable, as the Act provides two years period of limitation to a consumer to file a complaint, therefore, the present complaint is filed within the prescribed limitation.
20. In view of the above discussion, net conclusion is that the complainant has proved his versions and the OP could not controvert it. It is proved that particles/fungus growth is available and visible in the juice bottles. It all proves not only that the OP adopted unfair trade practice, even it has not realized its committed mistake before this “Forum” in any manner.
21. A mango tree was planted. It was nursed and cared immensely. It bore sweet mangoes. Consumers enjoyed the fruit. However, with the passage of time, termites ate the root of the tree. As a consequence, the tree dried and stopped bearing fruit……
22.  The Big Bazar was set up with the ibid concept. Now a days Big Bazar stores have become very popular within the people and large number of people go there on daily basis or even more on week end days. Mal practices are being committed frequently by OP like stores.Days are not far away that OP like stores are to face the same fate as happened in the case of tree if serious steps are not taken by them to stop the mal-practices trade practice. It has to be curbed by taking stringed measures. One can otherwise also understand enormity of unfair trade practice adopted by OP. Unfair trade practice is a grave and serious matter affecting the large number of consumers. Therefore, compensation has to be awarded in proportionate so as to make OP realize that they are bound to pay for the mal practice adopted by it.
23. Thus allowing the complaint, we direct the OP as under:

1. To pay Rs.390/- as refund ;
2. To pay another sum of Rs.5000/- as compensation inclusive of costs for causing harassment, inconvenience and mental agony to the complainant which also includes litigation expenses

iii.   The OP is also burdened with Rs.10,000/- as a punitive measure which shall      be deposited by them in the Army Welfare Fund Battle Causalities as per the details of bank account given below:

Fund Name: Army Welfare Fund Battle Causalities

Branch Name:Syndicate Bank

Branch Code:9055

IFSC Code:SYNB0009055

Account No.:90552010165915

24. Order be complied by the OP  within a period of 45 days from the date of the receipt of the certified copy of this order. Certified copies of this order be sent to the parties free of cost under the Rules. Thereafter, file be indexed and consigned to the Record Room.

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

ANNOUNCED

DATED:28.11.2019.

                                           B.S.DHALIWAL                  INDERJEET KAUR

                                           MEMBER                              MEMBER