BEFORE THE DISTT.CONSUMER DISPUTES REDRESSAL FORUM; BHIWANI.
C.C.No. 113 of 2015.
Date of Instt.: 15.04.2015.
Date of Decision: 12.12.2019.
Sandeep Kumar son of Shri Bhale Ram resident of village Bamla Tehsil & District Bhiwani.
..Complainant
Versus
- Schreibar Dynamix Diaries Limited, E-94, MIDC, Bhigwan Road, Baramati-413133, District Pune (Maharasthra).
- Easy Day, Bharti Retail Limited, Khasra No.680/2, Hansi Road, Bhiwani-127021 (Haryana).
..Opposite parties.
Complaint under Section 12 of CP Act
Before: Sh. Nagender Singh, President.
Sh. Shriniwas Khundia, Member.
Present: Sh.Sanjay Aggarwal, Advocate for complainant.
OP No.1 exparte.
Sh.Mandeep Godara, Advocate for OP No.2.
ORDER
NAGENDER SINGH, PRESIDENT
Brief facts of the present complaint are that on 31.03.2015 the complainant had purchased Tropicana Fruit Juice six gift pack from opposite party No.2 after paying Rs.105/-. Since the opposite party No.2 had not given any change of Rs.5, therefore, a chocolate of nestle Maha Munch for Rs.5/- was provided to the complainant. The opposite party No.2 had given the expired fruit juice. The manufacturing dates of the products are as follows:
Mixed Fruit juice 2 Pcs Date of Manufacturing 03.10.2014 Lichi 2 Pcs -do- 09.09.2014 Apple 2 Pcs -do- 15.09.2014
The complainant requested the opposite party No.2 to take back the expired fruit juice but it flatly refused to do so. The act and conduct of the opposite parties amounts to great deficiency in service as they have ignored the sense and spirit of the ethic of the business. Hence, this complaint.
2. Notices were issued to the opposite parties. None had turned up on behalf of opposite party No.1 after lapsing of mandatory period of 30 days as summons were sent through registered post, therefore, it was proceeded against exparte vide order dated 27.08.2015. Opposite Party No.2 in its reply has taken preliminary objections such as jurisdiction, cause of action, and locus standi etc. It has been submitted that the present complaint is misuse of machinery provided for Redressal of genuine grievance as the complainant has failed to show that alleged purchase was made on 31.03.2015 after the payment of Rs.105. The complainant has not even mentioned the bill number or even the batch or the item code of the product and unspecific description is clear indication of active concealment. There is no practice of giving chocolates or products in lieu of change. It has been further submitted that the gift pack as alleged to have been sold to the complainant are not packed into a gift pack by the replying opposite parties rather come from the manufacturer. Even otherwise, the juice as referred by the complainant are apparently ones which carry “best before” dates and cannot be said to be ones which expire which has been pleaded by the complainant and even otherwise, the replying opposite party is neither related to the manufacturing of the same and as such same being beyond the control of the answering opposite party. There is no deficiency in service on its part. Other contentions have been controverted and prayer for dismissal of the complaint has been made.
3. The parties have led their evidence in the form of affidavits and documents. The complainant has tendered in evidence affidavit and documents Annexure C1 to Annexure C5 and closed the evidence on 31.08.2017 whereas the appearing opposite party has tendered affidavit Ex.R1 on the case file and closed the evidence on 18.04.2019.
4. Heard. The counsel for the complainant reiterated the averments made in the complaint and prayed for its acceptance whereas the counsels for appearing opposite party reiterated the averments made in the reply and prayed for dismissal of the complaint.
5. Undisputedly, the complainant had purchased Tropicana Gift Pack and Nestle Maha Munch chocolate on 31.03.2015 from opposite party No.2 after paying Rs.110/- as is evident through Annexure C2. The complainant has come with the plea that the juice of Tropicana Gift Pack were expired on the date of purchase and in support of this plea he drew the attention of this Forum towards Annexure C2 to Annexure C5. Perusal of these documents reveals that the products were best before six months from the manufacturing and the date of manufacturing of the same was 03.10.2014, 09.09.2014 and 15.09.2014. The contentions put-forth on behalf of the complainant, which has been supported by duly sworn affidavit of the complainant and evidence have more weight than the pleas raised by the opposite party No.2 in its reply. On one hand the opposite party No.2 is claiming that it is providing best of the trade practice but on the other it had sold the expired product to the complainant and even failed to redress his grievance forcing him to approach this Forum. It was the opposite party No.2 not to display the expired product on the self and also put a warning sign on the product which are near to expire but there is no evidence on the case file that such like practice has been done on behalf of the opposite party No.2. Moreover, as per Section 27 (3) of the Food, Safety and Standard Act, 2006, the seller is liable for any article of sale, which is sold after the date of its expiry. In the present case, the opposite party No.2 is a seller of the product to the complainant, therefore, in view of the specific provisions of Section 27 (3) of the Food, Safety and Standard Act, 2006, liability remains with the opposite party No.2 as being seller it had sold the product to the complainant which had already been expired which could have been hazardous to life and safety of complainant, if he had consumed the same. In the present complaint no issue regarding the standard/quality of the product in question was involved therefore, no directions were given to send the product in question to any laborarty. However, as per the directions of this Forum, the Assistant of this Forum had matched the description of the articles allegedly purchased by the complainant from the opposite party No.2 with the bill Annexure C2 and also produced his report dated 01.10.2019. In the present case, there was particular manufacturing date of and specific cut off period of expiry, therefore, the opposite party No.2 being seller has violated the Section 2 (1) (c) of CP Act. The complainant has been able to prove his case by leading cogent and reliable evidence against opposite party No.2, therefore, the complaint against opposite party No.1 stands dismissed.
6. Keeping in view the above discussion, we hereby allow the present complaint against opposite party No.2 and direct it to refund Rs.105/- to the complainant alongwith interest @ 9% p.a. from the date of passing of order till its realization of the amount. The opposite party No.2 is further directed to pay a sum of Rs.7,000/- as compensation in on account of mental agony, physical harassment & hardship due to deficiency in service and unfair trade practice besides Rs.3,000/- as litigation charges. Certified copies of the order be sent to parties free of costs. Compliance of this order be made within a period of 30 days. File be consigned to the record room, after due compliance.
Announced in open Forum.
Dated: - 12.12.2019
(Shriniwas Khundia) (Nagender Singh)
Member President,
District Consumer Disputes
Redressal Forum, Bhiwani.
Present: Sh.N.K.Sachdeva, Advocate for complainant.
Sh.S.K.Dharnia, Advocate for OP.
Arguments heard. To come up on 19.12.2013 for orders.
(Dharampal)
President,
(Ranbir Singh Panghal) DCDRF,Fatehabad/05.12.2013
Member,
(Pushpa Mehta)
(Member)
Present: Sh.N.K.Sachdeva, Advocate for complainant.
Sh.S.K.Dharnia, Advocate for OP.
Order announced, vide separate order of even date, complaint is dismissed. File be consigned to record room.
Announced in open Forum.
Dated:19.12.2013.
(Dharampal)
President,
(Ranbir Singh Panghal) Distt.Consumer Disputes
Member, Redressal Forum, Fatehabad.
(Pushpa Mehta)
(Member)
