MRS. NEENA SANDHU, MEMBER
1. This is an appeal filed by the complainant against order dated 18.9.2009 passed by District Consumer Disputes Redressal Forum-I, UT, Chandigarh (for short hereinafter to be referred as District Forum) passed in complaint case No. 263 of 2009.
2. Brief facts of the case are that on 18.2.2009 the complainant had purchased various items from Harri Hyperstore, SCO No.38, Madhya Marg, Sector 26, Chandigarh vide receipt No.CS-30042, of which one of the item was Tiffany Orange Cream Wafer. On 22.2.2009 the complainant opened Tiffany Orange Cream Wafer to have it as a light snack with tea. She consumed one wafer and while consuming the second wafer, she found some peculiar rubbery semi sold substance in her mouth along with the wafer. When she checked the wafer, which she was holding in her hand, she was shocked to have found that it contained a rubber band of which she had consumed a considerable part in her earlier bite. After sometime the complainant started feeling dizzy and vomited thrice. She felt uncomfortable with persistent diarrhea and started to panic. She was rushed to Sector 16 General Hospital Emergency Ward, where after thorough check up she was given medical treatment for vomiting, diarrhea and allergy. It was submitted by the complainant that the said wafer is adulterated and contains a rubber band which was contaminated and severely injurious to health thus making it utmost unfit for human consumption. The Tiffany, Orange Cream Wafer is a imported product manufactured by Serville Products Limited, an IFFCO Group Company, Dubai. It was further submitted that neither the name nor the complete address of the importer of the said product was mentioned on the label, which was mandatory as per Section 32 of the Prevention of Food Adulteration Act, 1954. The above said act of OPs amounts to deficiency in service and unfair trade practice. Hence, the complaint was filed.
3. Reply was filed by OP No.1 and admitted that the bill Annexure C-1 was issued by it and the various products were also sold to the complainant but it was denied that these products were purchased by the complainant herself. It was also denied that the wafer purchased by the complainant from the shop of OP No.1 contained any rubbery semi solid substance and also denied that the alleged feeling of dizziness and vomiting was due to the consumption of wafer. It was pleaded by the OP No.1 that the complainant did not opt for any chemical examination of the wafer from the laboratory. Without analysis of the wafers, the complainant had come to the conclusion that it contained rubber band and its consumption was dangerous. All other allegations leveled by the complainant in the complaint were controverted and pleaded that there was no deficiency in service on the part of answering OP and prayed for dismissal of the complaint.
4. OP No.2 was duly served through publication but none had appeared on its behalf. Hence, OP No.2 was proceeded against exparte.
5. Reply was also filed by OP No.3 and pleaded that they received the last consignment of water from Tiffany Foods Limited on 3.11.2007 for the last time and they never imported the wafers in the year 2008 & 2009. It was pleaded that after 3.11.2007 the answering OP started importing the biscuits manufactured by Unipex Diary Products Co. Ltd. It was further pleaded that during the period when OP No.3 was importing the wafer, at that time answering OP was getting laboratory test of each consignment at Mumbai and their name was implicated by the complainant/OP No.1 only on assumption that they will still importing the wafers from the same company and on this assumption, some people tried to put the stickers of OP No.3 on the wafers. It was further submitted that the stickers of OP No.3 affixed on the packet of biscuits differs from the stickers affixed on wafers submitted before the learned District Forum and pleaded that they never supplied any material to the intermediary trader at wholesale market in Delhi. All other averments made by the complainant in the complaint were denied and pleaded that there was no deficiency in service on the part of answering OP and prayed for dismissal of the complaint.
6. The parties led their evidence in support of their contentions.
7. The learned District Forum allowed the complaint and directed the OP No.1 to pay to the complainant Rs.1000/- as compensation within 30 days from the date of receipt of copy of the order, failing which to pay the same with Rs.1100/- as costs of litigation, along with penal interest @ 12% p.a. w.e.f. the date of filing of the present complaint i.e. 24.2.2009 till its payment to the complainant.
8. Aggrieved by the order passed by the learned District Forum, the present appeal has been filed by the complainant. The appellant Ms.Karnica (Advocate) has appeared in person, Sh.Sandeep Bhardwaj, Advocate has appeared on behalf of respondent No.1 and Sh.Arun Kumar, Advocate has appeared on behalf of respondent No.3 as respondent No.2 was already proceeded against exparte.
9. In appeal, it is submitted that the learned District Forum has ignored the facts and circumstances of the case along with the series of events that took place during the trial and has not considered all the pleadings of the appellant in the complaint. It is submitted by the appellant that whether the compensation awarded by the learned District Forum quantified as Rs.1,000/- is sufficient compensation in view of facts and unfair trade practice adopted and indulged by respondent No.1. It is also submitted that the learned District Forum erred in awarding the cost of litigation with conditional event of non payment of compensation within 30 days from the date of receipt of copy of the order. The learned District Forum was correct in law in not mentioning and awarding the cost of publication borne by the appellant in compliance wit the order of the learned District Forum and the bill of Rs.4,000/- placed on record of the case with a proper application. It is further submitted that whether the learned District Forum was correct in law and on fact in not directing the probe about the source of eatables product especially when the source disclosed by respondent No.1 held to be non-existent and the importer vehemently denied import of the above said product, thus delivering the order in haste. The learned District Forum has erred in not awarding anything to the appellant on account of damages towards mental agony, trauma, loss of health, pain and suffering as claimed by the appellant in the complaint. The learned District Forum has erred in not awarding anything to the appellant on account of medical bill and transportation charges amounting to Rs.1,000/-. Hence, it is prayed that appeal may kindly be allowed and the order passed by the learned District Forum may kindly be set aside and appropriate compensation as has been claimed by the appellant along with damages may be awarded.
10. There is no dispute that the wafer in question were duly sold by the complainant vide retail invoice annexure C-1 on 18.2.2009 and the said packet of wafer was duly inspected by the learned District Forum and it has been observed that there is a rubber band embedded in it. As per the contention of the complainant that she has consumed one of the wafer and felt dizziness and vomited thrice. She felt uncomfortable with persistent diarrhea and she rushed to the Sector 16 General Hospital Emergency Ward where after thorough check up she was given medical treatment for the above said ailments. Hence, this act of OPs by selling the spurious goods tentamounts to deficiency in service and unfair trade practice. It was next contended by the complainant that although the complaint has been allowed by the learned District Forum but the learned District Forum has ignored this fact that the complainant had already spent a sum of Rs.4,000/- for publication in the newspaper ‘The Tribune’ to procure the service of OP No.2 i.e. Piyush Trading Company and hence the compensation awarded by the learned District Forum is very meager. Hence this appeal for enhancement of compensation against the order passed by the learned District Forum has been filed by the complainant.
11. We have perused the record and also gone through the averments made by the OPs No.1 and 3 as the OP No.2 was already proceeded against exparte as well as the impugned order passed by the learned District Forum. In our view, the learned District Forum has rightly allowed the complaint against the OP No.1 as there is a deficiency in service and unfair trade practice on the part of OP No.1 but the amount awarded to the tune of Rs.1,000/- as compensation seems to be on a lesser side. Although the packet of wafer is only for Rs.159.50 paise but due to the consumption of the spurious wafer, the complainant had undergone treatment in hospital it means the complainant had to go through a lot of physical and mental harassment. Due to this reason, the complainant was forced to file a complaint as well as appeal and for this, the complainant had to spent a lot of money out of her own pocket without any fault on her part. Therefore, we are of the view that the compensation awarded by the learned District Forum is on a lesser side and while taking into consideration the botheration from which the complaint had gone through and the amount spent on this litigation, the complainant is entitled for more compensation.
12. In view of the foregoing discussion, the order passed by the learned District Forum needs to be modified as discussed above. Therefore, the appeal filed by the complainant is partly allowed and the impugned order by the learned District Forum is modified to the extent as discussed above and we direct the OP No.1;
i) To pay a sum of Rs.5,000/- to the appellant/complainant in lumpsum.
ii) To pay litigation costs of Rs.2,000/- to the appellant/complainant.
The above said order is directed to be complied with by OP No.1 within one month from the date of receipt of copy of this order, failing which interest @ 12% will be charged.
13. Copies of this order be sent to the parties, free of charge.
Pronounced.
3rd November, 2010.
