Remanded Complaint Filed: 25.08.2009
Disposed On: 28.04.2011
BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT BANGALORE (URBAN)
DATED 28TH APRIL 2011
PRESENT:- SRI. B.S. REDDY PRESIDENT
SMT. M. YASHODHAMMA MEMBER
SRI. A. MUNIYAPPA MEMBER
COMPLAINT NO.2134/2008
Complainant | Mr. Lalit Sharma, S/o. Radha Kishan Sharma, Aged about 35 years, R/at No.70/2-1, 8th Cross, Ashok Nagar, BSK I Stage, II Block, Bangalore – 560 050. Advocate: Sri. Gopal Singh & Others V/s. |
OPPOSITE PARTIES | 1. M/s. Gujarat Tea Processors and Packers Ltd., Registered Office at Waghbakri House, Ambawadi, Ahamedabad – 6. 2. Lakshmi Tea Center, No.156/2, RT Street, Balepet Cross, Opp: Digambar Jain Centre, Bangalore – 560 053. OPs Advocate: Sri. S.Sriranga & Others. |
O R D E R
SMT. M. YASHODHAMMA, MEMBER
Hon’ble Karnataka State Consumer Disputes Redressal Commission allowed in Appeal No.85/2009 by setting aside the order dated 05.12.2008 allowing this complaint, remanded this matter for fresh disposal.
The complainant filed complaint U/s. 12 of the Consumer Protection Act of 1986, seeking direction against the Opposite Parties (herein after called as O.P) to refund the amount of Rs.166/- paid towards purchase of the tea powder and for compensation on the allegations of deficiency in service on the part of the OPs.
2. The case of the complainant to be stated in brief is that:
On 09.09.2008 the complainant purchased a packet tea bag of 1 kg ‘Wagh Bakri’ brand from OP-2 and paid Rs.166/- towards cost of the same. The tea packet is sealed in a plastic packet. On reaching home opening the packet, the complainant was shocked to see that the packet contained the worms and worm webs inside with the larvas of the insects and the worms writ large and sticked to the bags. With just a glimpse of it, the complainant’s mother just could not control her vomiting feeling. The whole bag has packet with stuff which is not fit for human consumption. That the whole of the complainant’s family consisting his mother, father and his wife witnessed the opening of the packet and the contents thereof. On the very next day on 10.09.2008 the tea packet was taken to the OP-2, who regretted the content and blamed the manufacturer OP-1. OP-2 inspected the cover and packing thereof, the packet contained the date of packing on August – 2008 and that the formation of the worm webs could not form so fast. That the packets are very old ones and that the packing date is falsely sealed. Though this stuff was not consumed by the complainant, but the feeling of the result of the possible consequences of its consumption sends a shiver in the spine of the complainant and his family. They share a feeling not to consume the tea hereafter and recalls that, the earlier consumption made of the same brand could be, cause of future medical problems. The complainant has lost Rs.166/- in purchasing this unfit stuff. Thus this complaint for refund of the amount with compensation.
3. On appearance, OP-1 filed version contending that the averments and allegations made by the complainant in the complaint are false, the complaint is filed with some ulterior and malafide motive with clear intention to harass the OP. It is stated that the brand ‘Wagh Bakri’ being more than one hundred years old, carries the strength of consistency in quality, the prime objective of the company to ensure providing safe and good quality tea. Each and every bag of raw material tea received at factory is checked for its package condition. The blending of tea is 100% done as specially designed machines for tea in which tea passes through graded sieves, magnets and fully inspected for foreign particles if any. The blended tea samples are tasted by professional tea tasters before issue for packing. They also send on a regular basis. There were different varieties of tea blend samples to National Accreditation Board for Testing and Calibration of Laboratory (NABL), approved laboratory for testing as per legal norms prescribed under the prevention of Food Adulteration Act and Rules. Blended tea is fed to automatic packing machines through hoppers which collect blended tea directly from the blending machines. Even packing machines contain sieves and magnets through which tea passes before getting packed in pouch or carton or jar packing, from blending to packing operation, the production is untouched by hand. Throughout the production process, supervisors constantly monitor the workshop. Individual packs coming out of the packing machines are 100% checked for weight and packet quality. The packing material used is food grade and has good barrier properties. These individual packets are packaged into intermediate packing consisting of poly bags / corrugated cartons which are sealed and placed in the outer package like HDPE bag and corrugated cartons which are properly closed for transport worthiness. Tea is stored in go-downs having 3 ft plinth and are always kept in a clean condition. In the production area, air curtains and special insect repellant orange – yellow curtains are installed. The entire flooring in the factory kept clean and no food particles are allowed inside not even drinking of tea. They ensure that our packing set-up is kept in hygienic condition at all time. Since more than 100 years they are selling tea, but till today they have not received any complaint in respect of product or any complaint about the quality. The complainant has not produced any documentary or expert evidence to prove his case; Hence the complaint is not tenable. It is denied that the tea packet contained the worms and worm webs inside with larvas of the insects and the worms writ large and sticked to the bags. It is also possible that after opening said tea packet, the complainant might have tampered and manipulated by inserting worms and worm webs inside with larvas of the insects and the worms writ large by sticking the same inside the tea packet. It is denied that the whole bag was packed with stuff, which is not fit for human consumption. It is denied that on the next day i.e. 10.09.2008 the tea packet was taken to the OP-2, who regretted to content and blamed the manufacturer i.e. OP-1, the complainant has never visited OP-2 after purchasing the tea. The complainant has mentioned such allegations with ulterior and malafide motive to prove his false case without any base and without producing any evidence. It is denied that the packets are very old one and that the packing date is falsely sealed. The product of OP-1 is fit for human consumption and is of the quality as prescribed by the law. There is no deficiency in service on the part of the OPs. The complainant has filed this complaint after a period of one and half months from the date of purchase of the tea packet from the OP-2 which amounts to substantial delay during which time, the complainant might have got the sufficient time to tamper the said tea packet purchased. The complainant is not entitled to get any compensation and is also not entitled for refund of the amount. Hence it is prayed to dismiss the complaint with exemplary costs.
4. The Proprietor of OP-2 filed affidavit, adopting version filed by OP-1.
5. In order to substantiate the complaint averments the complainant filed affidavit evidence and also filed witness affidavit of his wife Smt. Kanchan Sharma in support of the complaint averments. On behalf of OP-1 Mr. Tushar, Vice President (Operation) filed affidavit evidence. Complainant filed IA U/s. 151 of C.P.C to refer the subject tea powder bag for quality examination from the qualified person to get the report. Application allowed on 16.04.2010. Tea Packet was sent for quality examination. The chief Chemist, Office of the Joint Director, Public Health Department, Near Maharani College, Sheshadipuram road, Bangalore-01 submitted its report dated 06.05.2010. OP-1 filed its objection to the commission report. Complainant submitted written argument. Heard oral arguments from both the sides.
6. In view of the above said facts the points now that arise for our consideration in this complaint are as under:
Point No. 1 :- Whether the complainant has Proved
the deficiency in service on the part of
the OPs?
Point No. 2 :- If so, whether the complainant is
entitled for the relief’s now claimed?
Point No. 3 :- To what Order?
7. We have gone through the pleadings of the parties both affidavit and documentary evidence and the arguments advanced. In view of the reasons given by us in the following paragraphs our findings on the above points are:
Point No.1:- In Affirmative
Point No.2:- Affirmative in part
Point No.3:- As per final Order.
R E A S O N S
8. At the out set it is not in dispute that complainant on 09.09.2008 purchased one pocket of one Kg. ‘Wagh Bakri’ brand tea powder from OP-2 and paid Rs.166/- towards the cost. The complainant claims that on reaching home he was shocked to see that the pocket contained the worms and worm webs inside with larvas of the insects and the worms writ large and sticked to the bags. With just a glimpse of it complainant’s mother could not control her vomiting feeling. The whole packet with stuff was not fit for human consumption. The date of packing was shown as August 2008, the packing date is falsely sealed. Though the stuff was not consumed by the complainant but the feeling of the result of the possible consequences of its consumption itself sends a shiver in the spine of the complainant and his family member. They decided not to consume the said brand tea here after. Thus this complaint is for refund its cost of Rs.166/- with compensation.
9. This complaint was allowed by this forum vide its order dated 05.12.2008 directing OP-2 to refund Rs.166/- along with compensation of Rs.1,000/- and litigation cost of Rs.500/- to the complainant within four weeks. OP-1 & 2 preferred Appeal No.85/09 before the Hon’ble Karnataka State Consumer Disputes Redressal Commission on the ground that the forum has failed to send tea packet to the appropriate laboratory and obtain the report; accepted the statement of the complainant without any proof and allowed the complaint. The Hon’ble Commission allowed the appeal and set aside the order of the forum, remanded the matter for fresh disposal after affording an opportunity to adduce further evidence if any. After remand complainant filed his affidavit evidence and witness affidavit of his wife OP-1 filed its affidavit evidence. On the application filed by the complainant tea packet was sent for quality examination to Chief Chemist, office of the Joint Director, Public Health Department, Near Maharani College, Sheshadri Road, Bangalore-01. The Analyst has submitted its report on 22.04.2010. According to the opinion of the Analyst the sample sent for analysis is having webs and dead worms and it is unfit for human consumption.
10. OPs filed objection to the commissioner report stating that the product was sent for testing after the expiry of its shelf life. The tea packet has a shelf life of one year from the date of manufacture. The complainant did not produce the tea packet along with the complaint at the first instance but same was produced for examination after more than 1 ½ year after purchase of the tea packet. The tea pocket was produced on 01.02.2010 and examined on 06.05.2010. The report after expiry date is not valid.
11. In our view the report of analyst cannot be taken in to consideration as the product was sent for analysis after the expiry of it’s shelf life.
12. The contention of the OPs that tea packet was produced only on 01.02.2010 is not correct. I myself being Lady Member of the Forum with the then president of Forum observed the said tea pocket when it was produced. The said pocket was produced before the forum at the time of evidence on 21.11.2008 itself. On that day advocate for OP was not present. This forum after noticing its contents only passed the order. Forum in its order dated 05.12.2008 after perusing the tea packet produced before it made the observation at para-7 of its order that “it was seen that its contents is unfit for human consumption and is of a highly bad quality because of the presence of the worms, insects and worm webs”. Further last line of para-8 of the order reads as “on the other hand the tea powder that is sold to the complainant, on the face of it appears to be unfit stuff of a high bad quality”. Without perusing the tea powder these observations could not have been made. Hence there is no force in the contention of the OP, that for the first time tea packet was produced after 1 ½ years of purchase of the same before the Forum. The product is produced before the forum within two and half months of its purchase and when worms could be seen there was no need to send for any laboratory test.
13. In similar circumstances as per the observation made by the Hon’ble National Consumer Disputes Redressal Commission in Revision petition No. 4323/2009 in MTR foods Pvt. Ltd., V/s. K.A.Padmanabha reported in 2010 CTJ 764 (CP) (NCDRC) it was held that when worms could be seen by the naked eyes there was no need for any laboratory test. No interference warranted-Revision dismissed. Under these circumstances the other objections raised by the OPs has no basis. OPs have not disputed the fact of selling of the said tea packet. We are satisfied that complainant is able to prove deficiency in service on the part of the OPs. Under these circumstances complainant is entitled for refund of the cost of Rs.166/- along with compensation and litigation cost. Accordingly we proceed to pass the following:
ORDER
The complaint is allowed in part. OP-2 is directed to refund Rs.166/- OP-1 directed to pay compensation of Rs.1,000/- and litigation cost of Rs.500/- to the complainant.
This order is to be complied within four weeks from the date of its communication.
(Dictated to the Stenographer and typed in the computer and transcribed by him verified and corrected, and then pronounced in the Open Court by us on this the 28TH day of April 2011.)
PRESIDENT
MEMBER MEMBER
gm.
