BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION AT BANGALORE (URBAN)

DATED 30^TH DAY OF JANUARY 2023

ORDER

SMT.JYOTHI N., MEMBER

1. The complaint has been filed under Section 35 of C.P. Act (hereinafter referred as an “Act”) against the OPs for the following reliefs against the OPs:-

1. To Direct the OPs to refund product price of Rs.805.5P.
2. To Direct the OPs to pay Health expenses of Rs.10,000/-, Rs.2,00,000/- towards mental agony and Rs.50,000/- towards legal expenses and
3. Grant such other relief deems fit and proper under the circumstances of the case in the interest of justice and equity.

2. The case set up by the complainant in brief is as under:-

The  complainant purchased Ferrero Rocher 24 pieces unit Hazelnut chocolate box on 02.10.2021 form Star Bazaar (Trent Hyper Market Pvt. Ltd.), Bengaluru at the price of Rs.805.50p (Rs. Eight hundred five rupees and fifty paisa) for MRP Rs.895/-(Rs. Eight hundred and Ninety Five Rupees) and came with a best before 05.06.2022 as per the product description on the backside of the purchase box.

The complainant states that he had opened the box on 11.11.2021 for its consumption with his wife and 07 months old son. After consuming half of the box the complainant has realized that something crawling on face on his son. After carefully observing the complainant’s wife realized that it is worms. Complainant and his wife checked the remaining chocolate in the box then they found out that these worms are there in the chocolates this they have consumed.

   The complainant states the concern under product quality section sharing all the details with photos of the product with worms coming from the chocolate along with the product description having lot, MFD and best before date mentioned and the invoice from Star Bazaar. The OPs company Ferrero Rocher India Pvt. Ltd.,  are serving the sub-standard and worst quality food products of India and creating the health indication which is very dangerous. All these activities are happening in the presence of Food Safety and Standard Authority of India.  The complainant  issued legal notice to OP on 19.11.2021. Further OPs have already received, but they did not did any efforts towards redressing complaint.  Therefore, the complainant filed this complaint seeking reliefs.

3.        After receipt of notice OP-1 & 2 appeared through their respective counsels and filed their version.

OP-1 in their written version states that unless specifically so admitted, all general and specific averments, contains and allegations made in the complaint are denied. The complainant is not entitled to any claim made either on the basis of allegation/averments made in the complaint.

OP-1 is the company incorporated under provisions of company act 1956 having its registered office and manufacturing plant at Plot No.F-13, MIDC, Baramati, Pune-413133, Maharastra and it is engaged in the business of manufacturing, sales and import of packaged food products under various brands including Ferrero Rocher. OP-1 it is globally renowned company with operations in India for the past 18 years and has earned an unblemished reputation and goodwill in the field of business and  also always ensured high business standards and  strict compliance. The complainant raised his concern about the alleged infestation in the Ferrero Rocher product has purchased by the complainant, vide email dt.15.11.2021.

OP-1 requested the complainant the copy of the purchase receipt and the full sample along with package of the project. The complainant sent a copy of purchase receipt by email dt.16.11.2021. The complainant outrightly refused  to provide the packaging of the product to OP-1. It is also stated that the packaging of the product is necessary to carry out requisite verification adjectively against the allegated complaint. The complainant to provide the product with original packing after repeated requests to OP-1 to inspect the purported infestation. The complainant provided OP-1 with only 02 pieces of the product in an open condition out of the 24 pieces present in the product package. After the batch numbers of the product was provided by the complainant the central quality department of OP-1 contended a targeted examination, over and above its regular quality control  examination involved inspection of several sample product on the same day as the product and stored in the central arthive of OP-1 that  review did not show any sign of infestation  in any of the other samples. OP-1 also got the sample of the product taken from the complainant tested by Pest Control M. Walshe LLP Lab. As per the report lab dt.26.11.2021 lab report sample to be appeared infested with flour beetal eggs which are found flour, cereals, bean dried flowers, nuts and seeds etc.. The lab report also states that the flour beetal eggs hatched within 5 to 12 days and larval period  of the eggs is around 22 to 30 days. The report further states that the product would have been kept or stored in temperature of 30-35 °C as opposed to 18°C -22°C which is optimum temperature to store the product. As per the images shared by the complainant, the eggs appears to be in the larva period. The hatching of larva period is close to 40 days and this would be possible only at the complainant’s or the retailers end.

Complainant has admitted that he consumed the product forty days after he purchased. The complainant has not provided any evidence with regard to storage of product during the intervening period of this 40 days. The product being a packed food product kept under specific storage condition as indicated on the package due to its perishable nature. The product required to be stored safely in the cool hygienic and dry place perfectly between 18°C to 22°C  The package of the is product damage or unsealed or kept open in unhygienic  condition or at the room temperature it may deteriorate. The complainant has stored the product safely in a cool, hygienic and dry place as detailed in the product. The product package also mentioned that “once the package is opened, to maintain the best quality, it is advisable to eat within 15 days”.

The complainant purchased the product on 02.10.2021. The OP-1 states in case the packaging of the products gets damage during its storage or transportation by the retailer or the consumer, the contamination caused to the product during the said phase is completely beyond the control of OP-1. As per the section 27(3)(b) of the Food Safety and Standards Act, 2006(“FSS Act”) The seller shall be liable for any article of the food which is handled or kept in unhygienic condition. It is also stated that one the goods manufactured by OP-1 leave its facilities, very strict guidance are provided to ensure that freshness and quality of the goods are retained during entire delivery chain. The raw material finished products are subjected to preventing control according to the most stringent manufacturing and packaging practice. The complainant has failed to produce any evidence or any medical report to support the allegation. More over OP-1 has send it detailed response to the complainant by email dt.01.12.2021 informing and explaining the report infestation is not associated with the production, packaging, and distribution of the OP in any manner. Hence, there is no deficiency of service on the part of OP-1 and hence the complainant is not entitled for any compensation.

4. OP-2 contended that the complainant is not maintainable either in law or fact and above complaint is failed with malafide intention for causing unlawful cause to the OP-2 and making unlawful gain.

OP-2 states that they are reputed operators in the Hyper market business and a market leader. OP-2 contends that the complainant has purchased the product as mentioned on the date as averred. OP-2 states that hyper market offering to the consumers various food and consumer durable products for purchase along with warranty as supplied by the respective manufacture. It is also stated that the obtaining as claim by the complainant has not been manufactured by OP-2. OP-2 offers merely 10,000 products and the warranty for the product is always with the manufacturer. 

The OP-2 states that a plain reading of the complainant itself clearly shows that there are latches of the part of the complainant and he has not explained the same. The said product was purchased by the complainant on 2^nd October 2021.The complainant has clearly stated that he opened the said product only on 11.11.2021. The OP-2 stored all the product in the manner as specified under FSSAI regulation and direction of the manufacturers. The complainant had not clearly stated that the said product was stored for over 40 days before complainant opened the product. OP-2 further states the complaint has not made immediately on purchase but after lapse of 40 days. It is also further stated that the documents and other material product by the complainant are unreliable, unverified, not trust worthy and cannot be relied upon in the absence of 3^rd party validation. The present complaint is misplaced, mis-convinced as totally unnecessary.  OP-2 claims the present complaint be dismissed with exemplary costs in the interest of justice and equity.

5. The complainant filed his affidavit evidence  and filed documents Ex.P1  to P7  in support of his case.  The Authorized Signatory of OP-1, Dilip Kumar filed his affidavit evidence and  filed Ex. R1 to R10.  The Manager-Legal Sri Girish Babu.M. of OP-2 has filed his affidavit evidence and filed  and filed Ex.R11.

6. Heard the arguments of both sides. Perused the written documents.

7.     The following points arise for our consideration as are:-

1. Whether the complainant proves deficiency of service on the part of OP?
2. Whether the complainant is entitled to relief mentioned in the complaint?
3. What order?

8.     Our answers to the above points are as under:

       Point No.1:  Affirmative

      Point No.2: Affirmative in part

      Point No.3: As per final orders

REASONS

9.     Point No.1 & 2: Both the points inter related and hence both points are taken for common discussion.

10.   On perusal of pleadings and version of both the parties it is admitted by both the parties, the complainant has purchased Ferrero Rocher chocolate from OP-2 which was supplied by OP-1. The complainant has purchased the said chocolate and after the said purchase the complainant and complainant’s wife and his child consumed the said chocolates, but when said chocolates while consuming it came to the knowledge of complainant’s wife and his child and said chocolate was having worm in the product. By that time complainant’s wife and child consumed and due to which the complainant’s wife and child suffered stomach upset and developed fever which incurred medical expenses and due to which complainant’s wife suffered and undergone mental agony and sufferings.

11.   Now the crux of the matter is that whether OP-1 or OP-2 are in deficiency of service or not.  OP-1 cannot be held liable for infestation. If the complaint has acted in accordance with the specific instruction has provide by OP-1 on the product package. In the present case the packaging get damage during the storage or transportation by the retailer or consumer, the contamination caused due to the product during the said phase is completely beyond the control of OP-1 and it cannot be blamed for such incident caused due to mis-handling of the product. That the responsibility of both the retailer/seller and the complainant that goods being sold its premises and purchased or kept in optimum and prescribed condition. As a matter of fact that there is no legal or contractual obligation with multiple retail store wherein its product are supplied across the country. It is inconvincible for OP-1 to check whether or not the retailer/seller is keeping the product goods as per condition of the manufacturer. It also mentioned the strict procedures are adopted and imposed to ensure the freshness and quantity of the goods of OP-1 its retailed till reached the distributor but retailer.

12. It is trade  law that if a retailer is selling the product which he has suffered from worm infestation as a result of poor storage, the resultant liability could not be fastened on the manufacturer. Further more OP-1 cannot be blamed if the retailer/seller has not acted in accordance with the specific instruction has provided by OP-1 on the product package. Accordingly no liability can be fastened upon OP-1 for the alleged infestation.

13. That in the case Cadbury India Ltd. V/s Rajanesh.R.Swamy and others, First Appeal No.510/2005, the learned NCDRC  held that

“Finally we are unable to see why the impugned order does not deal at all with the role and liabilities of the retail dealer of the chocolate in question(OP-2 before the State Commission and respondent No.3 here for its negligence in service, which is palpable in the fact of the case” 

14. That in the case Cadbury India Ltd. V/s L.Niranjan, Revision Petition.3566/2006  the  learned NCDRC  held that

 “Judicial notice can be taken of the fact that perishable item like chocolate have to be kept at the certain temperature so that they remain fit for consumption. The allegation in complaint is that one of the chocolate was found to be infected with fungus and a worm was embedded in the chocolate. This is not a manufacturing defect. Chocolate can be infected by fungus only if it is not kept at controlled temperature. Similarly, worm in the chocolate come if the chocolate is not kept at the controlled temperature. It was not manufacturing defect for which the petitioner should be made liable. It was at the most of a case of defect in service for which the shop keeper who sold the chocolate could be held liable, but unfortunately the shop keeper was not made a party”.

15.   That in the light of aforesaid judgment it become clear that the product purportedly found to be infested with worms after more than 40 days  of its purchase cannot said to be defective product and/ or having manufacturing defect. The product can be infected with worm only if it is not kept at controlled temperature as directed by the manufacturer. Therefore, the purported infestation cannot be a manufacturing defect and the OP-1 cannot be made liable for the same. The present complaint is the inappropriate and /or negligence storage by the complainant or retailer and no liability can be fastened on OP-1.  

16.  That the said chocolate is manufactured by OP-1 and it has been transported/transmitted to OP2 to retail purpose to the consumer to the said product has been sold by OP-2 to the complainant. The contract between OP-1 & OP-2 is that once the product transferred from OP-1 to OP-2 than the entire liability shifts on OP-2 and contract of OP-1 ends there. When the OP-2 has sold the chocolate to the complainant that the OP-2 has to be maintain a minimum standard temperature  to maintain those chocolates i.e. shown in Ex.R7. But in the instant case they have not shown whether the OP-2 has maintained those standards or not due to which the chocolates has been spoiled and worms are found on the said product. But without knowing this the complainant has given this chocolates to the child of the complainant and inadvertently  the said chocolate was eaten by the child and during that course the complainant has observed that those worm were in the said product.  After the duration of supply of said chocolate OP-2 has to substantiate that he has maintained minimum standard before sale of the said product.

17. The complainant wife and child had stomach upset and developed fever which incurred the medical expenses. After which the complainant approached OP-2 and informed that he has not maintained minimum standard and precautions before buying the product. However, OP-1 contends that the contract of OP-1 is concluded if one the product is being delivered to the OP-2 then the liability shifts on OP-2 to maintain the standard till the said chocolate in retail outlet. The entire liability shifts on OP2 to shows that the product is delivered OP2 from OP-1 that the OP-2 has not maintained the standards better fixed.

18.  However  OP-2 have not produced any cogent evidence to show the same. Hence, there is pleading and documentary proof to show deficiency of the part of OP-2.  OP-1 contents that the contract is concluded after transmitted the entire liability shifts on OP-2 and the report also specifically states that the said product has been spoiled not maintaining minimum standard requested and due to which the complainant and complainant’s family who have eaten the said chocolate,  has under gone physical and mental agony. All these facts reveals that the deficiency of service on the OP-2.  As such the complainant is also entitled for compensation of Rs.10,000/- towards mental agony and the complainant has contested the case on merits and hence complainant is entitled for Rs.5,000/- towards the cost of litigation.   Hence we answer point No.1 & Point No.2 in the affirmative in part.

19.   Point No.3:-  In view the discussion referred above we proceed to pass the following;

O R D E R

1. The complaint is allowed in part.
2. Complaint against OP-1 is dismissed.
3. OP-2 is directed to repay the cost of chocolate box i.e. the sum of Rs.805/- to the complainant from the date of receipt of this order till realization.
4. OP-2 is directed to pay Rs.10,000/- towards mental agony and harassment.
5. OP-2 is directed to pay Rs.5,000/- towards cost of litigation. 
6. The OP-2 shall comply this order within 30 days from this date, failing which the OP-2 shall pay interest at 10% p.a. after expiry of 30 days on Rs.805/- till final payment.
7. Furnish the copy of this order and return the extra pleadings and documents to the parties.

(Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Open Commission on this 30^TH day of JANUARY, 2023)

Documents produced by the Complainant-P.W.1 are as follows:

Documents produced by the representative of opposite party – R.W.1 & R.W.2: