Punjab

Faridkot

CC/13/22

D.K.Dubey - Complainant(s)

Versus

Hindustan Unilever Ltd. - Opp.Party(s)

Rajneesh Garg

27 Jan 2015

ORDER

 DISTRICT  CONSUMER  DISPUTES  REDRESSAL  FORUM,  FARIDKOT

 

Complaint No. :        22

Date of Institution :  4.03.2013

Date of Decision :    27.01.2015

 

D K Dubey s/o Sh Om Parkash Dubey c/o 624, SATA-Bty, c/o 56 APO, Now at Faridkot Cantt.

  .....Complainant

Versus

1. Hindustan Unilever Limited, A-5/II B, Focal Point, Rajpura-140401.

2. CSD Canteen, 624 SATA Bty, c/o 56 APO Now at Faridkot Cantt. Through its CommandingOfficer.

3. 173 Military Hospital, Faridkot through its Authorized Signatory /Incharge / C.O. Military Hospital, Faridkot Cantt.

                                         ....Opposite Parties(Ops)

    

   Complaint under Section 12 of the

   Consumer Protection Act, 1986.

    

   Quorum:      Sh. Ashwani Kumar Mehta, President,

   Smt Parampal Kaur, Member,

   Sh P Singla, Member.

   Present:       Sh Rajneesh Garg,  Ld Counsel for complainant,

    Sh Kuldeep Mittal, Ld Counsel for OP-1,

    Sh Harjeit Singh on behalf of OP-2,

   Sh N T Krishna, Subedar on behalf of OP-3.

    

   (A K Mehta, President)

                                                Complainant has filed the present complaint under Section 12 of the Consumer Protection Act, 1986 against Hindustan Unilever Limited etc/ Ops for supplying contaminated jam containing frog and thereby causing health problems to the son of complainant and has prayed for seeking directions to OP-1 and 2 to pay Rs 10 lac as compensation on account of mental agony and harassment and negligence on the part of Ops.

   2                                          Briefly stated, the case of the complainant is that complainant purchased one mixed fruit Jam on 16.09.2012 manufactured by OP-1 for Rs 63.99p from OP-2 for use and consumption of complainant and his family; that complainant opened the jam on 30.09.2012 and same was consumed by minor son of complainant, but after consumption of jam, son of complainant developed sensation of vomiting; that complainant gave some medicines to his son, but he did not get relief and then, on next day, complainant admitted his son in Military Hospital at Faridkot Cantt/OP-3 and doctors in Military Hospital prescribed certain medicines for the son of complainant and after consulting about complete history regarding son of complainant and food consumed by his son, they found that son of complainant is suffering from food poisoning, but it was not clear as to from which item, the problem was caused; that complainant kept using the jam for another day unaware of the fact that due to contamination of jam, son of complainant was developing problems one after the other; that complainant noticed foul smell coming from jam and then, complainant took his son alongwith jam to the military hospital, where team of doctors found that jam so purchased by complainant was having a dead frog in it and then, complainant requested the doctors to seal pack the jam and the same was immediately sealed in the presence of complainant; that condition of son of complainant did not improve and started complicating and thereafter, complainant got his son checked up from Dr Pankaj Bansal in G G S Medical College, Faridkot and his son remained admitted in Medical College at Faridkot, but condition of son of complainant did not improve and then, again he got his son checked from Military Hospital, Faridkot/OP-3, who referred his son to Military Hospital, Jallandhar; that complete treatment given by Military Hospital was obtained by complainant under RTI Act, but the Ops supplied certain information under RTI Act and  they retained majority of same for the  reason best known to them; that in connivance with each other, Ops are hiding their negligence in one way or the other; that condition of son of complainant went deteriorating day by day and  his son started developing behavioural change and loss of memory also developed in the child and he was got  checked from the Head of Department of Psychiatry and doctors prescribed EEG and MRI to his son and all these tests were got done by complainant, but condition of his son did not improve and it was all due to consumption of contaminated jam; that son of complainant is still under treatment and doctors in GGS Medical College, Faridkot have informed complainant that all this problem is due to consumption of contaminated jam and it was further informed to complainant that treatment of his son would continue for long time; that complainant has spent a sum of Rs 50,000/- on treatment of his son and Rs 10,000/- on transportation for carrying his son from  one place to another; that OP-1 is negligent in preparing and supplying the jam in a contaminated way and due to this act of Ops, complainant and his family have suffered a lot of mental tension, health problems to his son, agony and harassment and it amounts to negligence in service on the part of OP-I; that complainant is entitled to compensation of Rs 5 lac on account of negligent act on the part of OPs besides litigation expenses. Hence, the complaint.

   3                      The Counsel for complainant was heard with regard to admission of the complaint and vide order dated 5.03.2014, complaint was admitted and notice was ordered to be issued to the opposite party.

     4                           Initially, OP-1 was proceeded against exparte but on appeal, exparte order against OP-1 was set aside and then, opposite party no. 1 filed reply taking preliminary objections that all the allegations, averments made and contentions  raised by complainant in the complainant are incorrect as being false and without any basis and this complaint is a gross abuse of process of law and is liable to be dismissed as complainant has not approached this Forum with clean hands and has not disclosed and misrepresented the material facts and complaint is false, frivolous and vexatious in nature and is filed only to harass the Ops; that complaint is not maintainable as this Forum has no territorial jurisdiction to grant any relief sought by complainant; that OP-1 is a responsible world class company and has great commitment to its customers in terms of quality and due to this reason, it has enforced strict quality control checks which eliminate any kind of defective or below standard products entering the market for sale to consumers; that OP visited the complainant and requested for providing the alleged bottle so that they can ascertain the batch no and place of manufacture so as to carry out tests to confirm any alleged product deficiency etc and in this respect, representative of OP Company Mr Arvind Tandon met the complainant on 4.10.2012 and also held meeting with col. Vikram, who had custody of the sample and in meeting, the complainant alongwith Col.Vikram, shown the alleged foreign material to representative of OP-1, which was said to be taken out from the Jam bottle and during the said visit, representative of OP-1 sought for the sample of the jam for analysis, which was refused; that later on, three members of OP Company explained complainant and Col. Vikram about complete technical processing details/checks/controls to demonstrate care taken to pack hygienic food product in Company’s factory at Rajpura and other factories and the team reiterated its request for providing the sample and team gave the complainant a complete insight as to Company’s processes while manufacturing so as to remove any doubt in the mind of complainant about possible contamination and explained howthe tamper proofing pop up cap provides complete safeguard to the consumer and requested to visit the company’s manufacturing facility to gain confidence about HACCP controls and during this discussion complainant agreed to provide a part of sample for laboratory analysis and investigation, but on the next day when representative of OP visited consumer to get the sample of Jam, complainant refused to provide the same; that all bottles duly carry a label stating the usage as well as storage instructions to be followed after opening the bottle and usage instruction states: “use a clean dry spoon/ knife to scoop the jam” and storage instructions state : “Refrigerate after opening”; that complainant has not made any averment whether he followed the instructions; that bottle of jam was allegedly purchased on 16.09.2012 and it cannot be confirmed as to when the same was allegedly opened and further it is not averred that he used a dry spoon/ knife to take out contents and then duly closed the jam after use and kept the same in refrigerator; that bottle was allegedly handed over to the unit on 3.10.2012 and same was not kept in refrigerator and thus, in the absence of compliance of instructions, OP cannot be blamed for any alleged contamination, which may have resulted due to own negligence of complainant and bottle was in the possession of complainant from 16.09.2012 to 3.10.2012 and it is not known when same was opened and how it was stored and even after alleged opening on 30.09.2012, it was not immediately sealed and therefore, bottle and its contents were susceptible to tampering; that allegation of there being a frog in the bottle of jam is duly disproved by the analysis report dt 9.05.2013 of Food Analyst, Punjab at Chandigarh vide which it is not competent to test nature of foreign matter and whether same is skin of frog and further the method of testing and sampling were in total contravention of methods prescribed under the Food Safety Act; that no liability can be fixed upon answering OP as it has been denied the every opportunity to get a analysis done. However, on merits, OP-1 has denied all the allegations levelled by complainant being wrong, false, concocted and incorrect and are contrary to the record and are without any basis and asserted that there is no deficiency in service on the part of OP-1 and all the other allegations were refuted and prayed for dismissal of complaint with costs against OP-1.

     5                    OP-2 filed reply and took preliminary objections that answering OP has no role to play either in manufacture of jam or in its quality control nor in the packaging of items; that answering OP is responsible merely for undertaking collection of items from Canteen Stores Depot, Bathinda and then, selling these to authorized persons and concerned product was supplied by OP-1 to answering OP in sealed condition and OP-2 further sold the said product to complainant in sealed condition and only OP-1 is responsible for manufacture, quality control, packing etc of product; that complainant came to OP-2 and informed that his son was not feeling well and was having fever and also informed that his son was taken to Military Hospital, Faridkot, where he was diagnosed with food poisoning and on asking of doctor, complainant told doctor that his son had consumed jam and when jam was checked, it was observed that there was a dead frog in the jam bottle; that complainant filed the complaint in writing, which was forwarded to higher Headquarters and thereafter, representative of Hundustan Unilever Ltd, Mr Arvind Tandon Sr Ex Manufacturing contacted this unit on 4^th October 2013 and he tried to convince the unit that the incident could not have occurred at their company; that on 9^th October, 2013, another representative from Hindustan Unilever Ltd Mr S K Sharma Sales Manager Canteen Stores Deport again contacted the unit, but by that time, complainant had told the unit that he is in the process of filing a civil case in consumer court; that Mr S K Sharma wanted  the jam bottle with dead frog for further investigations and he was told that the  complainant has taken the same for filing the case in court and further communication on the subject be made directly with complainant as unit had no role in this case and thereafter, complainant informed the unit that his son had still not recovered and his treatment is going on in Civil Hospital and on this complainant was advised to get his child treated in Military Hospital and after that complainant took his child to Military Hospital, Faridkot, who was subsequently referred to General Hospital, Ferozepur and thereafter to Military Hospital, Jallandhar for further investigation and treatment. However, on merits, OP-2 has denied  all the allegations levelled by complainant being incorrect and asserted that Unit Run Canteens and OP-2 are only collecting and selling agencies and Canteen Stores depot supply the brands and items, which are approved by Adelphi Mumbai for their quality and authenticity; that Unit Run Canteen neither certifies nor approves the quality of any brand specific items to customers and Unit Run Canteen 624 SATA Bty is merely a collecting agency for canteen items, which are available at Canteen Store Depot, Bathinda and thereafter sells to persons entitled to canteen facility; that jam was purchased by complainant on his own desire from this Unit Run Canteen in sealed condition and hence, Unit Run Canteen cannot be asked to pay compensation or even litigation charges claimed by complainant for foreign material found inside the sealed bottle; that Unit Run Canteen procured 48 jam bottles of KISSAN JAM from Canteen Stores Depot, Bathinda and had sold 43 bottles to various customers, but after the complaint by complainant, remaining bottles are kept aside and not sold, but OP-2 has not received any complaint from any of 42 customers regarding the jam till date; complainant has no cause of action  against answering OP and prayer for dismissal of complaint with compensatory costs is made.

   6                              OP-3 also filed reply taking preliminary objections that OP-3 has been wrongly dragged in the present complaint and no cause of action arises against answering OP and it has no role in manufacture or sale of jam and therefore, complaint is liable to be dismissed. However, on merits, OP-3 asserted that on 1^st  October, 2012,  Master Satyavarth s/o Mr D K Dubey c/o 624 SATA Bty was brought to OPD, 173 Military Hospital and as per statement of Smt Seema Dubey, mother of Master Styavrath, her son consumed a spoonful of Jam and that she found some foreign matter in the jam bottle and she told the doctor that her son did not have any complaint at present but she had brought him for a medical check up; that Major Ravi Parkash examined the patient and found him to be medically fit and as the patient was medically fit and as there was no evidence of food poisoning, so, the patient did not require any active treatment and he was not admitted at 173 MH on 1^st October 2012 and he was given prophylactic medicine in case of pain in abdomen and his mother was advised to take the child at home; that treatment advised was recorded in treatment book of child held by parents of Master Satyavrath; that thereafter, patient was not brought to 173 MH for any medical problem till 12^th Ocotber, 2012 and on 12^th October 2012, patient was brought to 173 MH with history of fever for 10 days and her mother stated that she was undertaking treatment  from a doctor in Civil since the onset of fever regarding which 173MH does not have any detail; that on 12^th October, 2012, patient was attended by Major Ravi Prakash and advised admission at 173 MH, but father of patient refused admission; that child was again brought to 173 MH and admitted to Family ward 173 MH on 13^th October, 2012 and diagnosis at the time of admission was fever with temperature  of 99 F; that according to Dr (Major) Abhipsa Hota, Medical Officer, the child was completely asymptomatic & afebrile throughout the duration of stay at the ward and mother of child was advised to let the child remain admitted for 3 days under observation as she had given the history of child having fever for 10 days; that necessary investigations were carried out to know the cause of fever, but parents of child demanded discharge and child was discharged from the ward on 15^th October, 2012 against medical advice; that patient was treated in 173 MH for very short period including one OPD visit on 1^st October, 2012 and two days of admission from 13^th October, 2012 to 15^th October 2012 and 173MH has no details of treatment undertaken by Master Satyavrath from Civil, if any  before or after admission  at 173 MH; that there is no deficiency on the part of answering OP and request for dismissal of complaint with heavy costs is made.

   7                                            Parties wanted to lead evidence to prove their respective pleadings and proper opportunity was given to them.  The complainant tendered in evidence his affidavit Ex.C-1 and documents Ex C-2 to C-14 and then, closed the evidence.

   8                                               In order to rebut the evidence of the complainant, Counsel for OP-1 tendered in evidence affidavit of Ms Swati Mujumdar as Ex OP-1/A and documents Ex OP-1/B to OP-1/F and closed the evidence. Representative of OP-2 tendered in evidence affidavit of Lt Col. Kumar Vikram, Commanding Officer as Ex OP-2/1 and document Ex OP-2/2 and closed the evidence on behalf of OP-2. OP-3 tendered in evidence affidavit of Major Abhipsa Hota as Ex Op-3/1 and authority letter Ex Op-3/2 and closed the same on behalf of OP-3

   9                                                          We have heard learned counsel for parties and have very carefully perused the affidavits & documents placed on file by complainant as well as opposite party.

   10                                                    The Ld Counsel for complainant contended that complainant is serving in the Army and as such, is entitled to purchase articles from the canteen of the Army. He contended that complainant purchased several articles on 16.09.2012 from canteen of OP-2 including a bottle of mixed fruit jam manufactured by OP-1 Hindustan Unilever Ltd make KISSAN jam and proved the bill on the file as Ex C-2 and as such, complainant became the consumer of Ops for consideration. He further contended that on 30.09.2012, complainant opened the fruit jam bottle and the same was consumed by the son of complainant but immediately after taking fruit jam, son of the complainant became sick as he developed feeling of vomiting. He contended that on the next day, wife of the complainant took her son to Military Hospital where he was checked and wife of complainant disclosed that the condition deteriorated after consumption of fruit jam. He contended that bottle of fruit jam was also taken to hospital where it was checked and it was found that it was having foul smell and some foreign material was found inside the jam bottle and found a dead frog inside the bottle of fruit jam. He contended that jam was immediately sealed by Military Hospital authorities and the remains of the frog were also sealed by the Military Authorities. He contended that OP-2 and OP-3 are under the influence of OP-1 and that is why OP-2 and OP-3 are conniving with OP-1 and due to this reason, OP-2 and OP-3 have intentionally stated in the reply that jam bottle was not sealed whereas Military Authorities gave letter Ex C-4 stating therein that the jam bottle was produced before the Military Authorities and Military Hospital Authorities tested the jam and found a dead frog inside the bottle of jam and the bottle of jam and remains of frog were sealed. He further contended that jam bottle and remains of frog as sealed by Military Authorities were produced in the Forum and were sent to Food Analyst through Forum and the Food Analyst also vide his report Ex C-3 declared the fruit jam unsafe for human consumption as it was having foul smell and was containing some foreign matter. He contended that evidence brought on the file by the complainant sufficiently proved that the fruit jam bottle was not of required standard and was deficient in quality due to which reason, son of the complainant had to remain under medical treatment for number of days and complainant had to get his son examined from different hospitals at Faridkot, Ferozepur and Jallandhar and conducted different tests and as such, about Rs 50,000/- were spent on the treatment of his son and complainant also spent huge amount on transportation. He contended that son of the complainant is minor and his sickness due to contaminated jam caused lot of mental tension, harassment and agony to the complainant and as such, complainant is entitled to compensation of Rs 10 lac alongwith litigation expenses and complaint is required to be allowed accordingly.

   11                                   The ld Counsel for OP-1 contended that there is no proof that the alleged contaminated fruit jam bottle was manufactured by the OP-1 Company. He also contended that story propounded by the complainant is also false as complainant alleged that his son consumed the fruit  jam on 30.09.2012 and he noticed a dead frog in it but the son of the complainant again consumed same fruit jam, which is not believable because if complainant had found the dead frog in the fruit jam, he would not have allowed his son to consume the jam again. He further contended that complainant has not come to the Forum with clean hands and has manipulated the story of finding a dead frog in the fruit jam because even the wife of the complainant stated in the hospital on 1.10.2012 that she has brought her son only for routine medical check up though otherwise her son did not have any complication. He also contended that there is no record on the file that son of the complainant was got treated from Civil Hospital, Faridkot or Ferozepur or even in hospital at Jallandhar. He also contended that Military Authorities have stated in the reply that fruit jam bottle was not sealed whereas complainant has alleged in the complaint that fruit jam bottle and foreign material allegedly found in the bottle was sealed by the Military Authorities. He also contended that food samples are to be taken as per procedure mentioned in the Rule 2.4.1 Ex OP-1/E but said procedure has not been followed in this case and as such, Analyst Report carries no value in the eyes of law. He further contended that there is no allegation in the complaint that there was any deficiency in service on the part of OP-1 and the alleged fruit jam bottle was actually manufactured by Rajpura unit and Food products are also manufactured at Nasik unit, but Nasik unit has not been made party in the complaint and as such, complaint is also bad for non joinder of necessary party. He also contended that son of the complainant was fit, when he was taken to hospital on 1.10.2012 and was discharged on the same day as no abnormality was found in the son of complainant and he was found medically fit. He contended that complaint is totally false and has been filed by the complainant in order to harass the OP-1 and to extract money by wrong means and as such, complaint is liable to be dismissed.

   12                              The representative of OP-2 contended that OP-2 is a Military Canteen and it sells the articles as it receives from the main unit or from the manufacturing company. He contended that fruit jam bottle was received in the canteen in the sealed condition and the same was sold in the same condition as it was received and as such, OP-2 is not at all liable in this case. He supported his arguments with case titled as Jamna Devi Vs FDC Ltd and others 2004 (1) Consumer Protection Cases page 341.

   13                              The representative of OP-3 contended that OP-3 has been wrongly arrayed as party in this case as no allegation has been made in the complaint against OP-3, which is Military Hospital and simply treated the son of the complainant and as such, complaint is liable to be dismissed against OP-3.

   14                                 Admittedly, complainant is serving in the Army and is entitled to purchase articles from Military Canteen /OP-2. Complainant has proved on the file that he purchased the fruit jam bottle manufactured by OP-1 from canteen of OP-2 on 16.09.2012 alongwith other articles vide bill Ex C-2 and as such, complainant is a consumer of Ops. It is the case of complainant that he opened the fruit jam bottle on 30.09.2012 and the same was consumed by his son, who developed sickness and thereafter his son was taken to Military Hospital for check up. It is further case of complainant that his son did not recover and was again taken to Military Hospital and then, fruit jam bottle was produced before the Military Authorities and it was having foul smell and on inspection, a dead frog was found in the jam, which was immediately sealed by the Military Authorities. OP-2 and OP-3 have not contended in the reply that fruit jam bottle or the foreign material found in it was sealed but a letter Ex C-4 dt 3.10.2013 is issued by the Military Authorities, which shows that on investigation,  jam bottle was found to contain a dead frog and jam of the bottle and foreign material was immediately sealed. Complainant has proved on the file that his son remained sick from the date of consumption of mixed fruit jam till number of months and he took treatment of his son from different hospitals. Ex C-6 is a hospital descharge slip showing that his son remained admitted in the Military Hospital from 13.10.2012 to 15.10.2012. Ex C-8 is medical case sheet issued by the Military Hospital stating therein that indigestion in the patient was developed after consumption of jam in which a decomposed frog was found. Complainant has also proved slips showing that son of the complainant underwent different tests and analysis. Ex C-9 is a prescription issued by Guru Gobind Singh Medical College and Hospital, Faridkot and MRI Head was advised as son of complainant was  allegedly showing abnormal behaviour after consumption of fruit jam and the MRI of the brain was performed on the son of complainant on 31.12.2012 and it shows that son of complainant remained under treatment for number of months after consumption of fruit jam and must have spent huge amount on the treatment of his son as the medical slips proved on the file show that complainant took his son to different hospitals. He must have spent also on transportation of his son for treatment and medication of his son and his abnormal behaviour during sickness must have caused lot of harassment, mental agony and tension to the complainant as the hospital record shows that son of the complainant at the time of treatment was of only 5 years. The fruit jam was manufactured by OP-1 in its Rajpura unit and Rajpura unit is also arrayed as party in this case. Otherwise also, impleading of other units as parties is not necessary as the Company has been arrayed as party in the complaint and as such, it includes all the units of the Company. The report of the Food Analyst Ex C-3 shows that foreign matter found in the fruit bottle was having irregular size and fruit jam was having foul smell and it was concluded by the Food Analyst that the sample contains foreign matter and the foreign matter is having foul smell and is unsafe for human consumption. As such, the fruit jam manufactured by OP-1 was definitely deficient in quality and was not fit for human consumption. Generally, a person buys an article manufactured by reputed Company, which is usually costly than the like items manufactured by less reputed companies and if that article is found contaminated and not fit for human consumption, then, the Company is required to be dealt with sternly. The Ops have not produced any evidence in rebuttal except the oral evidence, whereas complainant has proved his case on the file through medical as well as evidence of Food Analyst.

   15                                   In the light of above discussion, the complainant has proved his case on the file and as such, complaint is allowed with costs in favour of complainant and against OP-1 as OP-2 and OP-3 are not involved in the manufacturing process of fruit jam bottle in question and complaint against OP-2 and Op-3 is dismissed. Complainant is held  entitled to compensation of Rs 01 lac against OP-1 i.e Rs 50,000/- on account of medical treatment and transportation expenses and Rs 50,000/- on account of harassment, mental agony etc. Complainant is also entitled to recovery of Rs 2000/- as litigation expenses. OP-1 is directed to comply with the order within one month from the date of receipt of the copy of the order failing which, complainant is entitled to initiate proceedings under Section 25 and 27 of Consumer Protection Act. Copy of the order be supplied to parties free of cost as per law. File be consigned to the record room.

   Announced in open Forum:

        Dated: 27.01.2015                          Member             Member       President                                                           (Parampal Kaur)   (P Singla)   (A K Mehta)

4.