Delhi

East Delhi

CC/935/2014

SANDEEP - Complainant(s)

Versus

MAC DONALDS - Opp.Party(s)

16 Jan 2019

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM (EAST)

GOVT. OF NCT OF DELHI

CONVENIENT SHOPPING CENTRE, FIRST FLOOR,

SAINI ENCLAVE, DELHI – 110 092

 

C.C. NO. 935/14

 

Shri Sandeep Saxena

R/o 21/13, Kalyan Puri

Delhi – 110 091                                                          ….Complainant

Vs.    

 

1. McDonalds India.

Connaught Plaza Restaurants Pvt. Ltd.

Head office:13A, Jor Bagh

East and North India)

Delhi – 110 003

                                             

2. Connaught Plaza Restaurants Pvt. Ltd.

TZ-101, Worlds ofWonder, GIP Mall

Plot No. A-2, Sec. 38A, Nodia – 201 301                          …Opponents

 

Date of Institution: 04.10.2014

Judgement Reserved on: 16.01.2019

Judgement Passed on: 25.01.2019

CORUM:

Sh. Sukhdev Singh (President)

Dr. P.N. Tiwari (Member)

Ms. Harpreet Kaur Charya (Member)

 

Order By: Sh. Sukhdev Singh (President)

 

JUDGEMENT

            This complaint has been filed by Shri Sandeep Saxena against      McDonalds India, Connaught Plaza Restaurants Pvt. Ltd., Jor Bagh (OP-1) and Connaught Plaza Restaurants Pvt. Ltd., GIP Mall, Noida (OP-2) under Section 12 of the Consumer Protection Act, 1986 with allegations of deficiency in service. 

2.         The facts in brief are that the complainant Shri Sandeep Saxena on 10.07.2014 visited McDonalds India, Connaught Plaza Restaurants Pvt. Ltd., GIP Mall, Noida (OP-2) and gave an order of 2 EVM M Coke, 1 EVM McAloo Tikki and 1 EVM Chk. McGrill vide invoice no. 01840120006147 dated 10.07.2014.  When the complainant took a bite of the burger, he was surprised when he felt that some insect mosquito was in the burger.  After taking the bite, the complainant started vomiting.  He immediately checked the burger and when he opened the same, he was surprised that there was some ant, mosquito and cockroach into the burger.  He continued vomiting and he immediately made a complaint with the Manager of McDonalds, but the complainant did not get any satisfactory reply from the Respondent’s Manager.  He immediately made a PCR call and the police came over there.  He made a call to DM office and got the mobile number of Food Inspector     Shri Shiv Nath Singh. He also visited the GIP Mall and sought the video footage and sealed the disputed burger.  The Food Inspector assured the complainant that he has seen the video footage of the incident and complainant was absolutely right.

            It has further been stated that after some time, media executive also visited at respondent’s office and they also took the photographs of the burger.  When the complainant was having continuous vomiting, he visited at the Kukreja Hospital, Acharya Niketan, Mayur Vihar, Phase-I and was admitted with the help of his relative.  He was under tremendous depression. 

            The complainant felt cheated by the kind of defected goods of the respondent.  They were guilty of providing deficient services.  Thus, they were responsible for the deficiency in services.  Due to this deficiency, the complainant is stated to have sustained mental agony and torture and harassment. Hence, he has prayed for a sum of Rs. 18,00,000/- as compensation on account of mental agony and pain alongwith Rs. 25,000/- as cost of litigation.      

3. McDonalds India, Connaught Plaza Restaurants Pvt. Ltd., Jor Bagh (OP-1) and Connaught Plaza Restaurants Pvt. Ltd., GIP Mall, Noida (OP-2), they have stated that the complaint was liable to be dismissed on the principle of Caveat Empter i.e. the complainant should have been beware before purchasing the burger and should have taken all the precautions; the complaint was based on wrong, false, frivolous, fabricated, distorted and manipulated facts; complainant having purchased goods from Connaught Plaza Restaurants Pvt. Ltd., GIP Mall, Noida (OP-2) and admittedly, Connaught Plaza Restaurants Pvt. Ltd., GIP Mall, Noida (OP-2) was situated in Noida, the cause of action, if any, have arisen in Noida; there was mis-joinder of parties as no allegations have been attributed to respondent, no. 1 and 3; complainant never got the laboratory test done which was mandatory under the act; no complaint or FIR was lodged, though the complainant made a PCR call; no notice have been received by them from the Food Inspector Shri Shiv Nath Singh.  It requires a detailed cross examination of the witnesses. They have denied other facts also.

They have further stated that FSO Mr. H.N. Chauhan came at 3 p.m. alongwith the complainant who was shown the food licence and was provided 8 Mcaloo Tikki for sample purposes.No complaint was filed for violation of food laws despite the passage of more than one year.They have denied that complainant made a call to DM office and got the mobile number of Food Inspector Shri Shiv Nath Singh.They have denied other facts also.

During the course of proceedings, Moti McDonalds (OP-3) was deleted from array of parties.There remain only McDonalds India, Connaught Plaza Restaurants Pvt. Ltd., Jor Bagh (OP-1) and Connaught Plaza Restaurants Pvt. Ltd., GIP Mall, Noida (OP-2) as OPs. 

4.  
5. n support of its case, the complainant have examined himself.  He has deposed on affidavit.  He has narrated the facts which have been stated in the complaint

            In defence, McDonalds India, Connaught Plaza Restaurants Pvt. Ltd., Jor Bagh (OP-1) and Connaught Plaza Restaurants Pvt. Ltd., GIP Mall, Noida (OP-2) have examined Shri Devinder Kumar Jain, Authorized Representative of the company who has also narrated the facts which have been stated in the written statement. He has got exhibited copy of letter of authority as Ex.RW-1/1 and receipt of sample of 08 McAloo Tikki burgers as Ex.RW-1/2.

            During the course of proceedings, counsel for complainant filed the lab report alongwith complaint filed by the Food Inspector in the court of Additional Chief Judicial Magistrate at G.B. Nagar, UP.  McDonalds India, Connaught Plaza Restaurants Pvt. Ltd., Jor Bagh (OP-1) and Connaught Plaza Restaurants Pvt. Ltd., GIP Mall, Noida (OP-2) were given an opportunity to file the additional documents which they did not do so. 

6.         We have heard Ld. Counsel for the complainant as the counsel for McDonalds India, Connaught Plaza Restaurants Pvt. Ltd., Jor Bagh (OP-1) and Connaught Plaza Restaurants Pvt. Ltd., GIP Mall, Noida (OP-2) did not appear to argue.  The first and foremost plea which has been taken in the reply on behalf of Connaught Plaza Restaurants Pvt. Ltd., GIP Mall, Noida (OP-2) is with respect to territorial jurisdiction.  It has been stated in the reply of OP that this Forum was not having jurisdiction as the complainant have purchased the burger at Connaught Plaza Restaurants Pvt. Ltd., GIP Mall, Noida (OP-2).

            However, Ld. Counsel for the complainant have argued that the cause of action have arisen within the jurisdiction of this Forum as the complainant took the treatment at Kukreja Hospital, Mayur Vihar which falls within the jurisdiction of this Forum.  No doubt, the complainant visited at Connaught Plaza Restaurants Pvt. Ltd., GIP Mall, Noida (OP-2), but the fact that he took the treatment at Kukreja Hospital, Mayur Vihar, certainly, part of the cause of action have arisen within the jurisdiction of this Forum.  Therefore, this plea of part of OP stands rejected.

            Now, coming to the deficiency in service on the part of OP, the testimony of the complainant and Shri Devinder Kumar Jain have to be looked into.  It has been argued on behalf of complainant that there has been deficiency on the part of OPs and the OPs were liable to pay compensation to the complainant as he suffered mental pain and agony due to consuming the burger which was having insect in it. 

            Whether there has been deficiency on the part of OPs, the evidence on record is to be looked into.  If the testimony of the complainant    Sandeep Saxena is looked into, it is noticed that he has narrated the facts which have been stated in the complaint to support his allegations.  He has put on record the documents such as medical treatment taken by the complainant from Kukreja Hospital, the lab report of designated office of the office of Food Safety and Medicine Administration as well as the complaint submitted to additional Chief Judicial Magistrate, Gautam Budh Nagar, UP. 

The incident is of 10.07.2014 which is evident from the invoice placed on record.  This invoice also shows the items ordered by the complainant such as 2 EVM M Coke, 1 EVM McAloo Tikki and 1 EVM   Chk. McGrill.  Medical record of Kukreja Hospital which has been placed on record show that on the very day, i.e. 10.07.2014, he approached Kukreja Hospital with complaint of vomiting and pain in abdomen where he was examined and prescribed medicines for three days.  He was charged an amount of Rs. 700/- on account of short stay charges for medicines.  He has placed on record cash memo of Jindal Chemist for an amount of       Rs. 195/-, the lab report of Vineet Kumar, designated office of the office of Food Safety and Medicine Administration show that a sample was taken from Connaught Plaza Restaurants Pvt. Ltd., GIP Mall, Noida (OP-2) which was sent for analysis at their Lucknow office which reported that the sample was unsafe and advised that a dead insect was present in the sample of burger.  Further, the complaint has been filed against the officials of McDonalds in the court of Chief Judicial Magistrate, Gautam Budh Nagar.

The evidence which has been produced on behalf of McDonalds is the testimony of Shri Devinder Kumar Jain, the authorized representative, who has stated that sample was taken by Shri H.N. Chauhan, FSO, as per Ex.RW-1/2 and no complaint regarding the violation of food laws has been filed against the respondents.  He has denied that there was any mosquito and cockroach in the burger. 

It is admitted case of both the parties that the sample was taken by FSO Mr. H.N. Chauhan, but the only plea which has been taken in respect of this sample has been that no complaint has been filed against them.  However, this plea cannot sustain in the presence of complaint filed by Food Safety Officer (FSO), Office of Food Safety and Medicine Administration, Gautam Budh Nagar, in the court of Chief Judicial Magistrate, Gautam Budh Nagar.  This complaint is based on the lab report of Shri Vineet Kumar, Designated Officer of the Office of Food Safety and Medicine Administration, Gautam Budh Nagar.  This report categorically stated that the sample which was taken from Connaught Plaza Restaurants Pvt. Ltd., GIP Mall, Noida (OP-2) was found unsafe and a dead insect was present in the sample of burger.

The fact that a dead insect was found in the sample of burger, the testimony of complainant stands corroborated as he took the burger on 10.07.2014 by paying an amount of Rs. 271.19/- started vomiting and approached Kukreja Hospital from where he took the treatment.  Thus, when complainant have been served with unsafe food, certainly, it amounts to deficiency not only in the goods, but in the service also.  The complainant have took the treatment from Kukreja Hospital and have paid an amount of Rs. 700/- and an amount of Rs. 195/- for medicines.  Thus, he has spent an amount of Rs. 895/- on his treatment. 

The complainant have prayed for compensation for an amount of   Rs. 18,00,000/- on account of harassment, mental agony and pain.  He has not accounted for the compensation claimed.  When he has made a visit to Connaught Plaza Restaurants Pvt. Ltd., GIP Mall, Noida (OP-2) where a large number of people visit such a mall, he was served unsafe burger and his visit has turned into a nightmare.  Certainly, it has caused mental pain and suffering which was undeterminable.  Thus, he has to be given just compensation.  McDonalds India, Connaught Plaza Restaurants Pvt. Ltd., Jor Bagh (OP-1) and Connaught Plaza Restaurants Pvt. Ltd., GIP Mall, Noida (OP-2) are jointly and severally liable for the same.

Keeping in view the facts and circumstances of the case, it is ordered that the complainant be paid a sum of Rs. 895/- spent by him on his treatment.  He be further paid an amount of Rs. 50,000/- for mental pain and suffering and Rs. 20,000/- on account of litigation. 

This order be complied within a period of 60 days from the date of receipt of order.  If not complied, the total amount of Rs. 70,000/- shall carry 9% interest from the date of order till realization. 

Before parting with, it would not be out of place to mention that McDonalds India, a company of international repute runs its chain of restaurants at the malls to cater to the needs of a large number of visitors.  They have to ensure that the food served by them do not have adverse effect on the health of the consumers.  This complaint reflects the service of “Unsafe Food” served at such a mall where a large number of people go for shopping.  

The McDonalds company have a casual attitude towards “Food Safety” and “Risk” i.e. an adverse effect on the health of consumers of such food.  By serving unsafe food, the Mcdonalds company have been playing with the lives of the consumers.  They are directed to ensure that the food items served at their restaurants are safe for human consumption.   

            Copy of the order be supplied to the parties as per rules.

            File be consigned to Record Room.

 

 

(DR. P.N. TIWARI)                                              (HARPREET KAUR CHARYA)

       Member                                                                             Member 

  

            (SUKHDEV SINGH)

                   President