JUSTICE V.K.JAIN (ORAL)

1.      The complainant took food in the restaurant of the petitioners on 23.12.2014, paying a sum of Rs. 382/-.  The food served to him being unhygienic and emitting foul smell, he felt like vomiting on having a few bites.  The eater consulted a doctor and was diagnosed with food poisoning.  In a consumer complaint filed by him, compensation of Rs.10,000/- with cost of litigation at Rs. 4000/- and the cost of the food was awarded to him, by the District Forum.  The order was maintained by the State Commission.

2.      After some arguments the learned Counsel for the petitioner submits that since the onus was wrongly placed upon the petitioners, he will be satisfied if it is observed by this Commission that the onus of proving of any defect in the food served in a restaurant would be upon the customer who visits the restaurant. The compensation in terms of the orders passed by the fora  below having already been deposited.

3.      I am in agreement with the learned counsel for the petitioner that if a consumer complaint is filed alleging some defect in the food served to him in a restaurant the initial onus would be upon him to prove that the food served to him was defective or was of inferior quality. However, the burden of proof so placed upon the customer cannot be so high that an ordinary customer visiting a restaurant is unable to discharge the same. In my opinion, if a customer files an affidavit in the consumer complaint instituted by him stating therein that the food served to him was rotten/stale/inferior in quality, such an affidavit will be sufficient to discharge the initial onus placed upon the customer, unless it is shown that the complaint is motivated or was actuated by extraneous  considerations. It would be difficult for me to accept the submission that  a customer is expected to collect the stale/rotten/inferior food served to him in the restaurant and then send it to a laboratory for its analysis. In fact, the restaurant, where such a complaint is made by the customer in respect of the food, will not even allow them to carry the food with them. If a customer aggrieved on account of such food being served to him in a hotel/restaurant is required to collect the food and then approach a laboratory for its analysis, will just give up in frustration, instead of undertaking such an impractical, inconvenient and costly exercise.  He will have no option but to suffer despite the loss and indignity suffered by him.  Moreover, when such food is duly packed and preserved, it can always be claimed by the hotel/restaurant that the food had become stale/rotten due to improper packing and for want of preservatives, even if the food is analyzed and found to be defective.   The onus which was placed upon the complainant/respondent in this matter, in my opinion, had been duly discharged by the affidavit filed by him coupled with the medical certificate from doctor who certified that the complainant had suffered from food poisoning and was under his treatment for a few days.

4.      In view of the observations made hereinabove the learned Counsel for the petitioner does not press for revision petition which stands disposed of accordingly.