Date of Filing : 07.07.2021

Date of Disposal :13.07.2021

 

BEFORE THE KARNATAKA STATE CONSUMER DISPUTES REDRESSAL COMMISSION, BENGALURU (PRINCIPAL BENCH)

 

DATED:13th JULY 2021

 

PRESENT

 

HON’BLE Mr JUSTICE HULUVADI G RAMESH : PRESIDENT

 

Mr KRISHNAMURTHY B. SANGANNANAVAR: JUDICIAL MEMBER

 

Mrs DIVYASHREE M:LADY MEMBER

 

APPEAL No.505/2021

 

M/s Mondelez India Foods Pvt. Ltd.,

Plot No. 2001, 20th Floor

Tower 3, (Wing C)

One International Center

(Formerly known as

India Bulls Finance Center)

Parel, Mumbai-400 013

Represented by its representative

Ms.Sangeetha Kottilil   Appellant

(By M/s Kochhar and Co.,)

 

-Versus-

1.Mr Kumaraswamy M R

    S/o Late S Ramegowda

    Aged about 55 years

    R/at No.139, 5th Main

    1st Stage, Brindavan Extension

    Mysuru

 

2. M/s Brindavan General Store

    No.82, 7th Main, 1st Stage

    Brindavan Extension

    Mysore                               Respondents

                                 -:ORDER:-

 

MrJUSTICE HULUVADI G RAMESH : PRESIDENT

 

1. This is an Appeal filed under Section 41 of Consumer Protection Act  2019 by Appellant/OP 1 aggrieved by the Order dated 24.03.2021 passed in Consumer Complaint No.21/2020 by District Consumer Disputes Redressal Commission, Mysuru.

2. The brief facts of the case as observed from the Orders of the District Commission, on 10.01.2020 the Complainant purchased the provisions along with 4 Nos of Cadbury Dairy Milk Crackle Chocolate by paying a sum of Rs.439/-, each costing Rs.160/-, which is inclusive of VAT from OP2 and obtained Receipt vide Bill No.22283.   After purchasing, when Complainant examined the Chocolates at home, one of the Chocolate carrying Batch No.K-91013 C10 PKD 10/2019 was found to be not fit for human consumption as it was damaged and when he asked OP2 to exchange the same, but OP2 refused to give and did not oblige the request of the Complainant.  Hence, Complainant lodged the instant Complainant, seeking direction to the OPs to pay Rs.30,000/- towards sale of chocolate and towards mental agony caused to him.

 

On service of Notice, OP1 entered appearance and filed his Version.  In spite of service of Notice OP2, remained absent, hence he was placed ex-parte.

 

In his statement of Version, OP1 amongst other pleas, pleaded that the Complainant in his pleadings, has mentioned only one batch No.K-91013 C10 PKD 10/2019 of one Chocolate and not mentioned Batch Numbers of the other 3 Chocolates and he has not produced any sample of the Chocolate to this OP or Food Laboratory for analysis.  Although he had purchased 4 chocolates from OP2 on 10.01.2020 and if he had encountered any defect in it,  he should have contacted OP1 to examine the same.  Further pleaded that, OP1 Company is an International Company and famous for manufacturing candy product in the market. They have followed the Hazard Analysis and critical control and they will check any raw materials of the product as per safety food system before packing and despatching to the Distributors.  Complainant has not given even any grievance to the Grievance call to this OP, hence, there is no deficiency in service on part of OP1 and sought Dismissal of the Complaint. 

 

3. The District Commission after hearing the arguments and by looking into the Affidavit & documents filed by both the parties, deemed it fit allow the Complaint and directing the OPs to exchange the defective Cadbury Dairy Milk Crackle Chocolate to the Complainant and also pay Rs.2,000/- to the Complainant towards mental agony, within 30 days from the date the Order. Failing which, the said amount carries interest at 8% p.a, with cost of Rs.500/-.

 

4. Being aggrieved by the Order of the District Commission, OP1 is in Appeal inter-alia contending amongst other grounds, that Complainant has not made any allegations against him in the Complaint and Commission below ought not to have passed orders jointly against the Appellant/Respondent No.2. Further contended that, Commission below failed to take into the consideration of the fact that complainant has not furnished sample of the allegedly defective chocolate and not sent the sample to Laboratory for analysis.  Further contended that, it is the 2nd Respondent who is the Retailer for proper storage of the products manufactured by the Appellant and District Commission failed to appreciate the instructions regarding the storage of the products made known to all its retailers, since no manufacturing defects, neither pleaded nor established by the Respondent No.1/Complainant. Thus Appellant seeks to set aside the Impugned Order by allowing the Appeal.

 

5. Heard the arguments of the Learned Appellant. Issue of notice of this appeal on respondents hereby dispensed with.

 

6. The Learned Counsel appearing for the Appellant apart from reiterating the grounds urged in the Memorandum of Appeal, contended that he is only Manufacturer and supplied the product properly and there is no allegation made against this Appellant.  It is the liability of the Distributor to exchange the product purchased by the Customer, as the Distributor has not maintained the storage of the product properly.

7. Appellant/Manufacturer had supplied the Cadbury Dairy Milk Crackle Chocolate to its retailer viz., OP 2/Respondent 2 herein.  Although 1 of the Cadbury Dairy Milk Crackles Chocolate among 4 Chocolates purchased by the Complainant was defective one, he approached OP2 for exchange of the same, who did not exchange the same.  While supplying the product to the Consumer, there is mis-negligence and deficiency in service in so far as Cadbury Dairy Milk Chocolate is concerned by OP 2/ the Retail Distributor.  On going through the reasons assigned in the Impugned Order, commission satisfied with the findings recorded by the District Commission in the matter by imposing liability both on Manufacturer & Seller of the product while awarding Compensation is proper.   It cannot be said that liability is only on the Distributor not on the Manufacturer, since, till the product reaches the Consumer, there is vicarious liability on the Manufacturer also.  Thus liability gets fixed equally, both on the Manufacturer as well as Seller.  

          In the above circumstances, a reason assigned in the Impugned Order does not call for any interference.  Accordingly, Appeal is dismissed.   

8. Amount in Deposit is ordered to be transfer to the District Commission, for disbursement to the Complainant.

 

9. Send a copy of this Order to the District Commission as well as to the parties concerned, immediately.

 

Lady Member        Judicial Member                President

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