<br /> <br /> By SRI.K. VIJAYAKUMAR, MEMBER<br /> <br /> The complaint is filed for compensation of Rs.1,00,000/- from the opp.party.<br /> <br /> The averments in the complaint can be briefly summarized as follows:<br /> <br /> The complainant was a tea shop merchant. He purchased 10 covers of Milma Milk from the outlet of Milma Diary, Kollam. Among them one packet found leaking and an orange colour florescent small paper inside the packet. Something in Gujarath Language was printed in the paper. Some one who present at the time of this incident informed a journalist and the matter was published in Kerala Rayyam news paper. The complainant complained to the 2nd and 3rd opp.parties but they were not responded. Only because of the negligence of opp.parties the florescent paper was appeased in the milk cover. Complainant could not conduct the tea sale that day and this incident leads to a loss of Rs.1200/- . He has sustained a loss of Rs.20,000/- because the consumers were showing in the news was spread. Complainant suffered financial loss and mental agony. Moreover all these if he used the milk negligently it may caused even to death because of the food adultation. Hence the complainant filed this complaint for getting compensation of Rs.1,00,000/-<br /> <br /> The opp.parlty filed a version contenting interalis that the complaint is not maintainable and liable to be dismissed.<br /> <br /> The complaint is filed after suppressing the dismissal of earlier complaint for default by the Forum in O.P.No.491/2003. Since it is only a fresh complaint upon the very same cause of action this complaint is lnot maintainable. <br /> <br /> The allegation in the that the, milk from the outlet of the opp.party is not true. The packet which found leakage will not sent for sale in outlets and the purchases has liberty to return and purchase a fresh packet. As the milk product of Milma are manufactured and packed with great care and caution there is no chance of entering such a florescent paper in the packet. No human intervention in the packing process. Knowing about the matter from the 2nd and 3rd opp.parties contacted to the Kerala Rajyam press Ltd. they were reluctant to show the milk packet and to give true information. Even though bill are issued from the Milma outlet regarding the news. Complainant has not produced the bill for the purchased milk. The disputed milk packet is not produced. In this connection one Mr. Yesdharan contacted the opp.parties as the agent of the complainant and demanded Rs.1,00,000/- for refraining from filing the complaint. The allegation that the complainant sustained losses also not true.<br /> <br /> It is suspected that the some persons or firms were engaged in milk marketing field with the intention to degrade the reputation of Milma joint hands with the complainant. Complainant is not entitled to get any relief from the opp.parties and hence the complaint is liable to be dismissed.<br /> <br /> <br /> The complainant filed affidavit. Milma cover land florescent paper market as MO.1 complainant was examined as PW.1 . <br /> <br /> The 2nd opp.party filed affidavit. He was examined as DW.1.<br /> <br /> The points that would arise for consideration are:<br /> <br /> 1. Whether there is any deficiency in service on the part of opp.party<br /> 2. Whether the complaint is maintainable.<br /> <br /> <br /> Points:<br /> <br /> The learned counsel for opp.party argued that the very allegation that the complainant has purchased 10 packet milk from Milma outlet in false hence denied. Bills are issued to the customers in the outlet. No such bill were produced.<br /> <br /> As there is no human intervention in any stage of packing there is no chance of entering a plastic paper inside the Milma packet. Complainant tried to bargain with opp.parlty for some injur enrichment instead of making effortxs to return the alleged torn Milk. The complainant has not sustained any loss or damage as allged. There is no negligence or deficiency in service on the part of the opp.party . Only an empty milk packet does not prove the incident. No other oral or documentary evidence produced by the complainant. No mahazar was prepared and produced. No independent witness examined. Complainant has not taken a photograph of Milk packet. The alleged incident was concocted story. The complainant has no case that milk purchased was defective with regard to purity, quantity and quantity.<br /> <br /> As the complainant had not used the packet. There is no consequential damage. The allegation that there is a chance of food poisoning if he had lused the milk packet also is a hypothetical one.. Actually the complainant has lnot sustained any loss or damage due to the alleged incident.<br /> <br /> The learned counsel for complainant argued that no bill were issued against the purchase of Milma packets from outlet. Even though DW.2 during cross examination deposed that there is no hum intervention in the packing process was not aware how the florescent paper appeared in the Milma packet. There is no need of preparation of a mahazar and no need for examining any witnesses other than the complainant who was examined as PW.1<br /> <br /> <br /> Point: II<br /> <br /> <br /> Admittedly the complainant had not used the alleged milk packet. The learned counsel for opp.parties argued that no loss was sustained to the complainant due to the alleged incident. There was no consequential damages. In support of his argument he has relied upon the decision of the Hon’ble Supreme Court in Jacob Mathew V/s. State of Punjab [2005 [3] KLT 965 [Sc]]. In this case the Hon’ble Supreme Court held that “negligence become actionable on account of injury resulting from the act or omission amounting to negligence attributable to the person . The essential components of negligence are there, duty, breach and resulting damage.”<br /> <br /> The learned counsel for the complainant argued that the complainant has lost the days business due to the presence of florocent paper and sustained loss of Rs.1200/- and further loss of Rs.`0,000/- as the customers were reluctant to come to his shop due to the news has been spread. Complainant entitled to get Rs.1,00,000/- for mental tension and agony sustained to the complainant.<br /> <br /> <br /> Point: III:<br /> <br /> The learned counsel for opp.parties argued that the complaint is lnot maintainable under the principle of Res-judicata as this is the II complaint on the same cause of action against the same opp.parties. The earlier complaint O.P. No.491/2003 was dismissed on faulty by the Forum, No restoration petition or no appeal was filed. Hence this 2nd complaint ought to be dismissed and in support of his arguments he has relied on the decision of the National Consumer Disputes Redressal Commission in Surjith Mazumdar V/s The Branch Manager,Kotak Mahindra and Ors. [2007 [2] CPR 230 NC] . In this case NCDRC held that where complaint was dismissed as barred by limitation, second complaint on same cause of action accompanied by application for delay condo nation could not be entertained.”<br /> <br /> The complainant could lnot prove that he has purchased 10 bags of Milma from the outlet. No bill was produced. No evidence to show that the Milk was contained. No consequential damages. The argument of learned counsel for complainant that the complaint has sustained loss of Rs.1200/- for a day and Rs.10,000/- as the customer were reluctant to come to his shop. There is no chance for reluctance of customer to come to the shop because of this incident. Even if an incident like this who happened it may affect only to the reputation of Milma and the people many reluctant to buy Milma product. No reasonable cause proved for claim of compensation of Rs.1,00,000/- to the complainant. <br /> <br /> As the complainant was filed this complaint suppressing the fact that the previous complaint was dismissed due to fault the complaint is not maintainable under the prima-facie of Res-judicata. We find that there is no deficiency in service on the part of the opp.party. Point found accordingly.<br /> <br /> <br /> In the result the complaint fails and the same is hereby dismissed. <br /> <br /> <br /> <br /> Dated this the 29th day of July, 2008.<br /> <br /> <br /> <br /> I N D E X<br /> <br /> List of witnesses for the complainant<br /> PW.1. – Siva Prasad.<br /> <br /> List of documents for the complainant:<br /> MO – Cover and florescent paper<br /> <br /> List of witnesses for the opp.parties<br /> DW.1. – Prasannakumari.K.<br /> <br /> <br /> <br />