M/s Cadbury India Limited, petitioner herein, was the opposite party before the District Forum. Respondent is not present despite service. Ordered to be proceeded ex-parte. Allegedly, respondent purchased chocolate on 09.1.2006 from M/s Top Stores, No.54, 15th Cross, 100 Feet Road, J.P. Nagar, Bangalore. The product was packed in August 2005 and it was to be -2- consumed within nine months from the date of manufacture. On opening it, it was found that the chocolate contained worms and fungus inside the pack. Some of the family members of the complainant who had consumed the chocolate, had vomiting sensation after looking at the worms coming out of the chocolate. Hence, the complaint was filed before the District Forum. Before the District Forum, on being served petitioner put in appearance and took the stand that it was a reputed multi-national company engaged in the business of manufacture and sale of chocolate and sugar confectionary for over fifty years; that it manufactured premium quality chocolates by adopting most stringent manufacturing practices to the extent that the products are completely untouched by the human hands to ensure that the products are devoid of any external contamination and at all times the company has complied with various applicable food legislations such as the Prevention of Food Adulteration Act and the Standards of the Weights and Measures Act; that the complaint was liable to be dismissed on the ground of non-joinder of necessary parties as the respondent had failed to implead M/s Top Stores from whom the -3- chocolates were purchased by him. The allegations that the worms and fungus was found on the chocolate, were denied as the alleged procedure could not occur during the manufacturing process; that there were 6,50,000 retail outlets that supply the products and, therefore, due to oversight and any inadvertence or negligence on the part of the retailers, such incidents may occur at the retail outlets; for the negligence of the retailers, the manufacturer cannot be held responsible. Further stand taken by the petitioner was that on all the packets, it is declared to store the product in cool, hygienic and dry place; if hygienic storage practices are not followed and if the products are stored close to sources of infestation, it is quite possible that the alleged infestation may occur at the premises of the retailer; that the manufacturer could not be held liable for any fault of the respondent in providing the service. Thus, denying all the allegations made in the complaint, it was prayed that the complaint may be dismissed. District Forum held that the retailer was a proper party but not a necessary party. The complaint was allowed and the petitioner was -4- directed to pay a compensation of Rs.10,000/- together with costs of Rs.1,000/-. Petitioner being aggrieved filed the appeal before the State Commission which has been dismissed by the impugned order. The shop from where the chocolates were purchased has not been made a party/respondent. The conditions under which the chocolates were stored by the shop-keeper has not come on the record. Judicial notice can be taken of the fact that perishable items like chocolate have to be kept at a certain temperature so that they remain fit for consumption. The allegation in complaint is that one of the chocolates was found to be infected with fungus and a worm was embedded in the chocolate. This is not a manufacturing defect. Chocolate can be infected by fungus only if it is not kept at a controlled temperature. Similarly, worm in the chocolate can come if the chocolate is not kept at a controlled temperature. It was not a manufacturing defect for which the petitioner could be made liable. It was at the most a case of defect in service for which the shop-keeper who sold the chocolate could be held liable but unfortunately the shop-keeper has not been made a party/respondent. -5- For the reasons stated above we accept the revision petition and set aside the orders of the fora below. Complaint is ordered to be dismissed. In case any amount has already been paid to the respondent, the same be not recovered. No costs.
......................JASHOK BHANPRESIDENT
......................VINEETA RAIMEMBER | | 
