D.o.F:23/12/2008 D.o.O:18/9/2010 IN THE CONSUMER DISPUTES REDRESSAL FORUM, KASARAGOD CC.NO. 303/08 Dated this, the 18th day of September 2010 PRESENT: SRI.K.T.SIDHIQ : PRESIDENT SMT.P.RAMADEVI : MEMBER SMT.P.P.SYAMALADEVI : MEMBER Madhusoodhanan Nambiar, S/o Late K.N.Madhavan Nambiar, Bavikkara House, Kolathur Po,Kasaragod. : Complainant (Adv.A.Radhakrishnan ,Hosdurg) 1.Manager, Sudha Narmada Formic Acid Pon Pure Chemicals Pvt.Ltd, IV/23 A Irumbanam, Chithrapuzha Road, Irumbanam Po, Kochi.682309. 2.The Manager,Kanhangad rubbers Limited, : Opposite parties Besto Centre, Behind Bus Stand, Po.Kanhangad. 671315. (Adv. Kumaran Nair,Kasaragod) ORDER SRI.K.T.SIDHIQ : PRESIDENT: Case of the complainant can be summarized as follows: Complainant on 23/10/08 purchased 2.5Kg formic acid from 2nd opposite party packed in a plastic carboy and entrusted with his mother’s sister son Mr. Divakaran Nambiar who accompanied with him to the shop. Divakaran Nambiar kept the article in a big shopper bag and put the same on his lap while travelling to their house. Due to the improper and careless packing the acid spilled over on his lap on account of which Devakaran Nambiar sustained grievous burn injuries on both thighs. The overflow is noted only on getting burns on the body. Immediately he consulted with his relative doctor Sri. KochuKrishnan at Payyanur. On examination doctor advised him to get treatment as an in patient. Accordingly Divakaran Nambiar has undergone inpatient treatment for the injuries. Since the injuries were serious , doctor advised him to undergo skin grafting. He suffered very much both physically and mentally on account of the culpable negligence committed by opposite parties. The complainant has already spent a huge amount for the treatment of his relative Divakaran Nambiar. All the difficulties and hardships were caused due to the deficiency in service and negligence of opposite parties. Though complainant caused a lawyer notice on 13/10/08 to opposite parties sent a reply denying their liability. Hence the complaint claiming a compensation of ` 2,00,000/- together with a cost of ` 10,000/-. 2. Opposite parties entered appearance through counsel Sri.Kumaran Nair and filed their version. According to opposite parties the complaint is not maintainable . On merits opposite parties contend that the purchase of 2.5kg Formic Acid on 23/10/08 is true. But the rest of the allegations made in the complaint is not correct. Those are put to strict proof. First opposite party is the authorized distributor of Gujarat Narmada Valley Fertilizer Co. Ltd for marketing their product Formic Acid in state of Kerala. The formic Acid supplied by them will be repacked at their repacking factory located at Puthen Cruz, Kochi. The formic acid stored in the tank will be refilled in HMHDPE Carboys in different packing sizes like ½Kg, 1 Kg, 2 ½ Kg and 6 Kgs. The repacking is done with utmost care and as per the rules of the Excise Department. After filling the acid in the Carboy, inner is placed in the mouth of Carboy and the same is caped and sealed. After completing the process of caping and sealing the Carboy and after thorough checking carboys are again packed in corrugated boxes and thereafter dispatched to the State Rubber Co-operative Societies/ Dealers located in various parts of the state. The Formic Acid mentioned in the complaint was supplied to the 2nd opposite party by first opposite party after the aforesaid packing process. On delivery by the first opposite party, 2nd opposite party stock and handle the formic acid packs very diligently and safely in the regulated manner. If any leakage or defect is noticed, the item will be send back to Ist opposite party. Further formic acid is a corrosive material to be handled and used very cautiously and diligently. On the carboy it is clearly printed in English as well as in Malayalam languages that it is a corrosive material and the same is to be handled with care and caution. The caution notice also states that in any case of any direct contact of acid with skin to wash the same with more quantity of water. Being a rubber planter the complainant might to aware of these facts well but his relative who allegedly sustained injuries unaware of the handling might have handled the pack negligently. Further the formic acid being a corrosive material with high burning sensation and pungent odor, any minute leakage or spillage could be easily detected on delivery itself. No such defect is noted in any packs delivered to the 2nd opposite party by the first opposite party at any time much less during the relevant period. The above mentioned formic acid sold to the complainant by the 2nd opposite party was without any defect. The alleged leakage in the carboy carried by the relative of the complainant is not due to any defect in packaging by the opposite party and the same might be result of mishandling of the same by complainant or by his said relative. The carrying of the Formic Acid pack in a big shopper and keeping on the lap while in travel by bus or by motorbike would have caused damage to the carboy if any. The complainant has not contacted either of the opposite parties after the alleged incident but issued a lawyer notice after one week. The complainant has not brought the alleged defective package to the notice of the opposite parties. So the alleged burning injury is caused due to negligence of the complainant or his said relative is unrelated to the service of the opposite parties. The opposite parties are no way responsible or liable for the alleged injuries and loss sustained by the complainant or his said relative Sri.Divakaran Nambiar. The complaint is without any merits and it is filed with an intention to make an unlawful financial gain as an after thought and therefore the complaint is liable to be dismissed. 3. Complainant filed proof affidavit in support of his case as PW1. Exts A1 to A4, A3(a) to A3(z), A3 (A-1) to A3(A- 12), and MO1 to MO3 marked. PW2, Divakaran Nambiar and PW3, Dr.Kochu Krishnan were also examined. All witness cross examined by learned counsel for opposite parties. On the side of opposite parties DW1, P.K.Raghunath, General Manager of Kanhangad Rubber Limited and DW2 M.Sivajothi Marketing Executive Pon Pure (P) Ltd filed affidavits and cross examined by the learned counsel for complainant. Both sides heard. Documents perused. MO’s were closely examined. In addition to that the burn injury sustained to Sri.Divakaran Nambiar, PW2 is also noted as per the order in IA 348/09 filed by the learned counsel for complainant. Ext.A1 is the purchase bill of Formic Acid (MO1). Ext.A2 is the lawyer notice dtd.30/10/2008 issued at the instruction of complainant to Ist opposite party. Ext.A3(a) to Ext.A3(A12) are the medical bills pertaining to the treatment of PW2. Ext.A4 is the purchase bill of MO2 dtd.20/9/09. MO1 is the carboy containing formic acid purchased by complainant as per Ext.A1 bill. MO3 is the big shopper in which the MO1 is carried by PW2 on the material date injuries sustained to him. MO2 is a fresh piece of carboy containing formic acid. 4. PW1, Madhusoodanan Nambiar filed affidavit reiterating what is stated in the complaint. In addition to that he denied all the contentions raised by opposite parties in their version. He further added in his affidavit that PW2 the injured Divakaran Nambiar is also a rubber planter conversant with the handling of formic acid as against the defense of opposite parties in their version that the injured Divakaran Nambiar might be unaware of the same handled the pack negligently . PW1 is cross examined by Sri Kumaran Nair, the learned counsel for opposite parties at length for tracking the route of PWs 1&2 on the day they travelled to rule out the possibility of negligent handling the formic acid carboy. But no incriminating evidence has been brought in. PW2, Divakaran Nambiar the victim of acid burn, deposed that he is accustomed with the use of formic acid. He stated that he consulted Dr.Kochukrishnan since PW3 is a Plastic Surgeon. During cross examination PW2 stated that immediately he came to know about the burning injury informed his family members and PW1 & he poured cold water on the injured part. He also explained the tracks of his travelling with the carboy. He added that he handed over the MO1 to PW1 from Perladukam when PW1 alighted from the bus. During that time he has not noticed any leakage. From Kanhangad upto Poinachi he kept MO1 carboy in his lap . At the time of examination of PW2, MO1 carboy is brought for his examination and at that time the sides of MO1 seen produced inward. Learned counsel for opposite parties then put a suggestion that it is seen protruded inward due to the negligent handling of carboy .But PW2 denied the suggestion that the sides of plastic carboy is produced inward due to negligent carrying. He further denied the suggestion that he has no experience to handle formic acid. He further deposed that carrying formic acid by keeping on lap is risky if carboy is leaking. 5. PW3, Dr.V.Kochukrishnan stated that he treated Divakaran Nambiar for the burn injuries sustained because of formic acid and he had done skin grafting to him. For 2nd opposite party, DW1 P.K.Raghunath , General Manager of Kanhangad Rubber Limited filed affidavit reiterating that is stated in the version of 2nd opposite party. In his affidavit he made an attempt to establish that their firm is doing the sale not on profit motive. However he admitted that their last year profit is ` 21,000/-. According to him, the alleged leakage in the pack carried by PW2 is not due to any defect in packing but it is caused due to mishandling of the same by PW2 himself. According to him the shape of MO1 that it is protruded inward is an indication of strong pressure for a long time on it. During cross examination DW1 deposed that his office is situated on the first floor of the building of Kanhangad Rubber. The sales counter situated on the ground floor. Therefore he could not see what is transpiring in the sales counter. He deposed that MOs 1&2 did not contain the certificate of quality controller that they are safely packed and the cap of seal of both Mos 1&2 are seen intact. He further deposed that MO1 is seen leaking and there is no leakage in MO2. He did not feel any smell at the time of evidence even after dropping 2-3 drops formic acid on the floor in front of him. He added that the leaking demonstrated before him is due to defective packing. DW1 further states that at the time of sale they did not use to shake or check any leakage to the seal. In MO1 there is no other damages. He did not know the scientific aspect of formic acid and the rules and regulations of chemical packing and they are used to deal with other chemicals also and they did not exhibit any display board showing the hazardness of the chemicals sold by them and also did not know whether it is packed as per excise rules. 6. DW2 , M Sivajothi Marketing Executive a Pon pure Chem(P) Ltd Cochin filed affidavit in support of the contentions of Ist opposite party. In his affidavit he asserted that if there is any defect and leakage in any carboy it can be revealed easily or detected at various points of its packing, transportation and handling by several persons including the retail dealers at the end. No such repacking defect was noticed in respect of the carboy in question and therefore the leaking could be happened only due to mishandling of the same against specific guideline on the point. It could only be a result of some post delivery mishandling by the customer or the person carried it. The relative of complainant carried the acid carboy very casually on his lap in a big shopper along with other articles. The said mishandling might have caused the damage to the same. In cross examination he deposed that he did not know the excise rules as per which the commodity is repacking. DW2 after physically verifying MOs 1&2 has stated that he don’t know the thickness of the carboy in its micron units. After these packing the chance of shaking the carboy is only at the retail shop and what happened to the carboy after its purchase by a customer is not known to them. During evidence DW2 examined MO1 and after shaking he noticed that acid is leaking from MO1. On seeing the leaking he further stated that the leaking is not due to the deficient packing. He further deposed that the smell of formic acid will not spread more than 2 feet radius. In re-examination he stated that he checked MOs1&2 and MO1 carboy is softer than MO2 and it may be soft due to keeping it on a hot place or due to pressure on it. MO1 is a damaged piece due to mishandling and that is why it is leaking . In further cross examination by the learned counsel for complainant DW2 stated that he cannot say the gauge of pressure to be applied on the carboy to cause damage to it and on MO1 it is not stated that there is a chance of leaking if pressure is applied. He further deposed that the handling method is not mentioned on the carboy. 7. Learned counsel for the opposite parties raised a legal issue that the injury caused is not to the customer/consumer but to a third party and the Forum is not competent to award compensation to a third party other than the purchaser/customer since the injured is not a consumer. The said contention is not sustainable. The complainant herein is the purchaser of the formic acid and he is the fit person to institute the complainant and Sec.2(1)© defined a ‘complaint’ means any allegation in writing made by a complainant that the goods bought by him and agreed to be bought by him suffer from one or more defects. In this case the injury to Divakaran Nambiar is alleged to be caused due to defective packing of the carboy and the CP Act nowhere states that the purchaser/customer would himself suffer on account of the defects in goods manufactured/supplied by opposite party/parties. Apart from the complainant stated that it is who born all the expenses for the treatment of Divakaran Nambiar. On that account also he is entitled to claim damages. 8. Therefore, we hold that the complainant is a consumer and the complaint is maintainable. On merits it is the contention of opposite parties that due to mishandling and negligent carrying the carboy containing formic acid the burn injuries are sustained to the victim . But the evidence let in by parties would not establish that the injuries were occurred on account of negligent handling of the carboy. At the same time it is repeatedly brought in evidence that the victim was keeping the MO2 bigshopper containing the formic acid carboy on his lap during travelling in the bus. This would indicate that the victim was very careful in carrying the carboy and that is why he kept the big shopper on his lap for a safer handling and carrying. 9. That apart Sri.A.Radhakrishnan, the learned counsel for the complainant convincingly demonstrated before us both MOs 1&2 and the leaking of formic acid from Mo1 and the non leaking of MO2, even after a considerable pressure is applied on the carboys containing formic acid. On a close checking of both the MOs it is seen that the leaking to MO1 is caused due to the improper fixing of inner cap and it is easily perceivable without any expert aid. The opposite parties have no case that the complainant committed any tampering to the inner cap and the external lid of the carboy. It is pertinent to mention that any mishandling like application of high pressure externally would have caused some damage to the carboy externally. But no such defects are seen externally. On examination of the MO1 carboy the inward protrusion of the carboy pointed out by the learned counsel for the opposite parties, is found that it is not due to any external pressure or negligent handling but it is on account of the leaking of the acid. When a considerable portion of formic acid is emptied from the carboy due to leaking the air is entered in the empty space and naturally the pressure inside the carboy is decreased and therefore the carboy became vulnerable for such an inward protrusion even on a firm grip of the carboy by bare hand. But such a susceptibility is unseen on MO2. 10. When a hazardous corrosive chemical like Formic acid is sold to a consumer. It is the duty of the dealer to verify whether it is free from all defects especially in the packing. It is also applicable to the packer of the said commodity . DW1 representing the dealer has stated that at the time of sale they did not use to shake or check any leaking to the seal of the carboy. 11. The presumption is that every packaged product is safely packed during its packing process until it is rebutted . In this case complainant could able to prove that MO1 carboy in dispute was not packed in a fool proof manner and that caused all the sufferings to PW2 Divakaran Nambiar. 12. Another defense raised by the learned counsel for opposite parties Sri. Kumaran Nair is that the carboy ought not to have been kept on the lap while travelling. This is also a feeble defense. The carboy nowhere contains a warning that there is chance of leaking or it is improperly packed. In the absence of such a warning keeping of carboy on one’s lap while travelling in a passenger vehicle cannot be regarded as a negligent handling of the commodity especially when there is no such warning that it shall not be carried on by keeping it on one’s lap while travelling. The plastic carboy only contains a warning that it is a corrosive chemical and handle it with care. Handling and carrying are not the same meaning. Hence opposite parties cannot took shelter on the caution notice. The injuries sustained to PW2 is examined on application of the counsel for the complainant. The wound scars indicate that the burn injuries sustained are grievous in nature. The opposite parties are therefore liable to compensate the complainant. Relief & costs. The claim of the complainant is ` 2,00,000/- as damages and `10,000/- as compensation for mental agony and sufferings with costs. Ext.A3 series are the medical bills pertaining to the treatment of PW2 Divakaran Nambiar. The total sum spent as per Ext.A3 series seen are ` 21865/-. However considering the pain and sufferings undergone by the complainant and PW2, we pass the following order. Complaint is allowed in part and opposite parties are jointly and severally directed to pay ` 1,00,000/- to the complainant as compensation together with a cost of ` 5000/-. Time for compliance is limited to 30 days from the date of receipt of copy of the order. Failing which opposite parties shall be liable to pay interest@12% per annum for ` 1,00,000/- from the date of complaint till payment. MEMBER MEMBER PRESIDENT Exts; A1- dt.23/10/08-purchase bill of formic acid A2-Lawyer notice-30/10/08 A3 & A3(a) to A3(z) and A3(A1) to A3(A12) series- medical bills A4-20/9/09-purchase bill PW1- Madhusoodhanan Nambiar- complainant PW2-Divakaran Nambiar-witness of complainant PW3-Dr.KochuKrishnan- -do- DW1- P.K.Raghunath- witness of OP DW2- M.Sivajothi- -do- MEMBER MEMBER PRESIDENT eva/
| | HONORABLE P.Ramadevi, Member | HONORABLE K.T.Sidhiq, PRESIDENT | , | | 
