The factual matrix of the complainant’s case, in brief, is that on 14.4.2008 he purchased two packets of frooti (200 ml each) from the shop of O.P. No.4. As and when the complainant inserted straw inside the 1^st packet for sipping, he felt something inside the same prohibiting the normal flow of the fluid. He thereafter opened the packet and found something like insect/lizard inside the 1^st packet. Again he opened the 2^nd packet and mass of fungus and/or algae was also observed therein. The said incident was seen by his friends and also by other customers present during that time. It was also covered by media and video recording. On the same day the complainant lodged diary with E.B.P.S. According to the complainant after consuming that Frooti he felt unwell and his physical condition deteriorated. He consulted doctor and took medicine. The complainant further stated that he lost his normal capacity of work after the incident and was under treatment. With the above, the complainant has knocked before the door of the Forum with the prayer for damages for Rs.65,000/- and consequential relief.

 

          The O.Ps. contested the case by filing separate written versions wherein they denied all material allegations contained in the petition. According to them, the complainant could have taken resort of Food Adulteration Act. The complainant himself ought not to have opened and tilted the pack though he found something inside prohibiting the normal flow of the fluid. The complainant also should have taken step for getting the packets tested by appropriate laboratory after preserving the liquid after observing all necessary formalities. It is a pre-planned matter. The complainant wanted to cause harm to the opposite parties by lowering their good will in the estimation of public eye. With this the O.Ps. have prayed for dismissal of the case with cost.

 

          From the above facts and circumstances the following points emerge for effective disposal of the case.

 

1.     Is there any deficiency in service on the part of O.Ps.?

2.     Is the complainant entitled to get any damages as prayed for or not?

3.     Whether the petition is entertainable in its present form and in law?

 

 

          All the points being interlinked character are taken up together for the sake of brevity and for convenience of consideration.

         

 

           The complainant, Prasenjit Pal has examined himself as P.W. – 1. He has submitted certain documents like money receipts showing purchase of two packets of Frooti (Ext.2), Doctor’s prescription (Ext.3), voucher showing purchase of medicine (Ext.4) and copy of the information given to I/C E.B.P.S. stating the facts (Ext.5). The complainant also brought the disputed packets contained in a polycover which has been marked Mat Ext.1. At the very outset we should not be oblivious of the situation that in such type of case it was the paramount duty of the complainant to pray before the Forum for the purpose of getting the liquids (Frooti) tested by appropriate laboratory u/s 13(1)(c) of Consumer Protection Act. Merely because the disputed packs have been produced before the Forum that it- self cannot help the complainant to get remedy because the Forum is still in dark actually whether there was any offensive substance in the liquid or not which can only be deciphered had the same been tested by the appropriate laboratory. In our view such non action on the part of the complainant simpliciter gives a fatal blow upon the entire episode which has been tried to be substantiated by the complainant. It is true that the complainant was undergone treatment on 14.04.2008 for loose motion but whether such disease was the proximate cause of consuming the disputed Frooti that cannot be established. Needless to say that the doctor has also not been examined.

 

          It has also come out from evidence of the complainant that on the very same day he was also accompanied by his friend but without any cogent reason he has been withheld from being examined before the Forum.

 

          Now let us decide the dispute from other angle. It is seen from Exbt.- 5 that an F.I.R. was lodged with the I.C. English Bazar Police Station, Malda on 14.04.2008 wherefrom it is seen that the petitioner Prasenjit Pal on the very relevant date and time purchased two packets of Frooti from the shop of O.P. No. 4 ( Uttam Jha ) ( 200 ml. each ) and at the time of consuming those he discovered warm like object inside the packets and that he felt unwell and also he vomited. It is also seen from the copy of the F.I.R. that the matter was telecast by local media, ‘Chobbis Ghanta’ and the said matter was also informed to the reporters. It is also seen therefrom that Anjan Pal the superstockist was also informed but he did not give any remarks over the issue. No action appears to have been taken by the police authority. It is very surprising to note that there was no attempt on the part of the police authority to seize the disputed two packets of Frooti. There is no iota of evidence before us if the incident was telecast by any local media or not.

 

          From cross-examination of Prasenjit Pal (PW-1) it is seen that batch numbers of those disputed packets could not be shown. It may be true that on the very alleged date of occurrence the petitioner Prasenjit Pal might have purchased those two packets, but we are still in dark if those two packets of Frootis were sold by O.P. No.4 after the expiry of the date or not. At the cost of our repetition we must say that doctor has not been examined and there is nothing to show in the prescription ( Exbt.-3) that on the very relevant date the complainant suffered loose motion which was the proximate cause of consuming the Frootis in question. It has also come out from his cross-examination that O.P. did not behave badly with him. He has further admitted in his cross-examination that he did not have any mental agony, nor any herm due to the behaviour of O.P. No.1. In view of our above discussions we are of considered view that the petitioner for all intents and purposes has not been able to substantiate his case and for that reason the petitioner is not entitled to get any relief whatsoever as prayed for.

 

          All these points are thus disposed of.

 

          In the result case fails.

         

 

 

 

 

 

Hence,                                     ordered,

that Malda D.F. Case No.29/2008 be and the same is hereby dismissed on contest without any order as to cost.  The material Exhibit No.1 be destroyed under the law after the appeal period is over.

 

          Copies be supplied to the parties free of cost.

Sd/-                               Sd/-                               Sd/- 

DR. SOUMEN SIKDER   SMT. SUMANA DAS        SIBSANKAR PAL

Member                                Member                          President