By Jayasree Kallat, Member:
Complainant Mr. M. Prakashan has filed the petition under Sec. 12 of the Consumer Protection Act alleging negligence and deficiency in service on the part of opposite parties. The complainant’s daughter’s marriage was to be solemnized on 25-5-08. Complainant had placed an order with the 1st opposite party Varkeys Retail Ventures for supply of 350 liters of milk on 24-5-08. 50 liters of milk was supplied on 24-5-08 at 12 Noon. The balance 300 liters was supplied around 9 P.M. on 24-5-08. When the 300 liters of milk was boiled for the preparation of Palada Pradhaman, the entire milk got spoiled. The complainant could not use 300 liters of milk. Complainant could not prepare the most delicious dish that was intended to be prepared for the function. Complainant had issued notice to the opposite parties-1 and 2. Both opposite parties refused to redress the grievance of the complainant. Hence the complainant has filed this complaint for the mental agony he had to suffer due to the unfair trade practice and deficiency in service of the opposite parties.
Opposite party-1 filed a version denying the averments in the complaint except those that are expressly admitted. Opposite party-1 admits that the complainant had purchased 350 liters of milma milk from first opposite party on 24-5-08. Later on complainant had represented to the first opposite party that 300 liters of milk received at 9 P.M. got spoiled when boiled for preparing Palada Pradhaman for the marriage on 25-5-08. Opposite party-1 replied to the complaint of the petitioner that they have not received any complaint from any other customers who purchased the milma milk packet from first opposite party on that day. The milk can get spoiled in several ways. One of the possibilities is the inherent defect in the milk which is packeted by the second respondent. Another possibility is the lack of proper storage of the milk. The defect of the vessels which are used for boiling milk is another possibility. Opposite party-1 states that it is not known whether milk from any other source was added to the milma milk while boiling. The first opposite party has stored the milk in freezer at the required temperature. The damage of the milk might have happened due to improper storage of milk by the complainant. The milk got damaged only due to the negligence on the part of the complainant, and opposite party-1 is not liable and responsible for the damage of the milk opposite party-1 did not adopt any unfair trade practice and there was no deficiency of service from opposite party-1’s side. The complainant is not eligible to claim any relief as prayed in the petition. Opposite party-1 is not liable to pay the price of the 300 liters of milk or to give compensation to the complainant. Opposite party-1 prays to dismiss the complaint with costs to O.P.-1.
Opposite party-2 Milma also filed a version denying the entire allegations in the complaint. Opposite party-2 supplies only best quality milk. Opposite party-1 Varkeys Super Market is not a dealer of opposite party-2. Opposite party-2 has not supplied any milk to opposite party-1. Hence if any spoilage of milk has happened opposite party-2 had no responsibility. Opposite party-2’s enquiry revealed that the milk allegedly purchased by the complainant was urgently dispatched from opposite party-2’s diary on 23-5-08 night and same was received by the dealer on 24-5-08 early morning. It is understood that the dealer supplied milk to Varkeys Super Market at 7A.M. on 24-5-08. This milk was intended and supplied for the use on 24-5-08 morning. This milk can be used till 24-5-08 evening, provided the milk should be kept under refrigeration below 6 o C from the time of delivery till the time of use. Enquiry conducted by the opposite party-2 also revealed that the milk stored in Varkeys Super Market is in open trays using ice pieces spread on the top. It is insufficient for maintaining the quality of milk which is a perishable good. Unless and until it is properly preserved it will be spoiled. It is clear that the improper storage of milk by Varkeys Super Market lead to alleged spoilage of milk. Hence opposite party-1 alone is responsible for the damages if any caused to the complainant. Opposite party-2 has sold 1,12,000 liters of milk from Kozhikode diary on that day. There were no complaints from anywhere else. Opposite party-2 is not liable to compensate the complainant. There is no deficiency of service on the part of opposite party-2. Hence opposite party-2 prays to dismiss the complaint with costs to opposite party.
The only point for consideration is whether the complainant is entitled for any relief?
PW1 was examined and Ext.A1 to A7 were marked on complainant’s side. RW1 was examined and Ext.B1 and B2 were marked on opposite party’s side.
The case of the complainant is that he had ordered for 350 liters of milk from opposite party-1 for the auspicious occasion of marriage of his daughter on 25-5-08. The milk was to be supplied by opposite party-1 on 24-5-08. Accordingly the complainant had taken delivery of 50 liters of milk at 12 Noon on 24-5-08. The remaining 300 liters of milk was taken by the complainant at around 9 P.M. on 24-5-08. When 300 liters of milk was boiled for the preparation of Palada Pradhaman the entire milk got spoiled. Due to this incident the complainant had to suffer huge hardship and mental agony. Inspite of engaging a chef of high profile and costly complainant could not serve the delicious dish Palada on the marriage day of his daughter as he desired. Complainant informed the opposite party-1 on 25-5-08 itself. Complainant had issued a registered notice to both the opposite parties, for which first opposite party refused to receive the notice. The second opposite party replied disowning responsibility. Opposite party-2 has taken a definite contention that they are supplying only quality milk. According to opposite paprty-2 they have made an enquiry regarding this complaint. Opposite paprty-2 submits that opposite party-1 is not their dealer for supply of milk. Opposite party-2 is not supplying any milk to opposite party-1. During the enquiry it was revealed that opposite party-1 used to purchase milk from a retail dealer of opposite party-2. Ext.B2 sent by Milma to the Manager of opposite party-1 is produced by opposite party-1. A perusal of Ext.B2 show that opposite party-2 had made an enquiry regarding this complaint and from the enquiry it was understood by opposite party-2 that the milk was stored in opposite party-1’s premises in the open tray using ice pieces spread on the top. This sort of storage is insufficient for maintaining the quality of milk. In the same letter opposite party-2 has stated that they have sold 1,12,000 liters of milk from Kozhikode Diary on that day and there was no spoilage issue anywhere else. The General Manager of opposite party-1 was examined as RW1 who has stated that “S¹w h¢vhi¤¨T GQ©Ê¡ V£k©s¡ A¿. h¢vhi¢vc¢¼¤« S¹w ©cj¢¶® d¡v l¡¹¤¼¤« C¿.In the deposition Page-3 RW1 has clearly stated that “Cª d¡k¢¨Ê shelf life Y£yh¡c¢©´ÙY® h¢vhi¡X®. In the version of opposite party-2 they have stated that on enquiry about this complaint it was revealed that the milk allegedly purchased by the complainant was urgently dispatched from opposite party-2’s Milma diary on 23-5-08 and it was received by the dealer on 24-5-08 at around 5 A.M. The complainant purchased the milk from Varkeys super Market at 9 P.M. on 24-5-08. Opposite party-2 has also stated that this milk was intended and supplied for the use on 24-5-08 morning. It can be used till 24-5-08 evening provided the milk should be kept under refrigeration below 6 o C from the time of delivery till the time of use. Opposite party-1 has taken the contention that the milk must have got spoiled from the complainant’s premises. On a perusal of Ext.B2 it is sufficient enough to prove that opposite party-1 who was not a dealer of Milma had taken bulk order to supply the milk and were not able to handle the milk in the proper way. The milk supplied on 23-5-08 was given to the complainant on 24-5-08 at 9P.M. As per the version of opposite party-2 this milk is intended to be used on 24-5-08 morning or upto until evening on 24-5-08. But opposite party-1 has delivered this milk to the complainant at 24.5.08 at 9P.M. Opposite party-2 has also not taken any steps to explain all these allegations in Ext.B2 and prove their innocence. All the evidence are against opposite party-1. The complainant has given order for milk in connection with the marriage of his daughter, due to the negligence and deficiency of opposite party-1 he had to suffer. Hence we are of the opinion that the complainant is entitled for relief.
In the result the petition is allowed and opposite party-1 is directed to refund Rs.6600/- the cost of 300 liters of milk along with compensation of Rs.5000/- and cost of Rs.1000/- to the complainant within one month from the date of receipt of copy of the order.
Pronounced in the open court this the 5th day of March 2010.
Sd/- PRESIDENT Sd/- MEMBER Sd/-MEMBER
APPENDIX
Documents exhibited for the complainant:
A1. Photocopy of letter dt. 25-5-08 sent by the complainant to the 1st opposite party.
A2. Photocopy of letter dt. 27-5-08 sent by the complainant to the 2nd opposite party.
A3. Unclaimed registered letter returned addressed to 1st opposite party.
A4. Letter dt. 31-5-08 sent by O.P.1 to the complainant.
A5. Copy of Regd. Lawyer notice dt. 2-7-08 sent by the complainant to the
Opposite parties.
A6. Unclaimed cover containing Lawyer notice returned by 1st opposite party.
A7. Reply notice dt. 19-7-08.
Documents exhibited for the opposite party.
Documents exhibited for the opposite party:
B1. Letter dt. 10-6-08 sent by O.P.2 to O.P.1.
B2. Copy of letter sent by O.P.1 to O.P.2.
Witness examined for the complainant:
PW1. Prakashan (Complainant)
Witness examined for the opposite aparty.
RW1. Balachandran, Varkeys Retail Ventures (P) Ltd., Mavoor Road, Calicut-4.
Sd/- President
// True copy //
(Forwarded/By order)
SENIOR SUPERINTENDENT.
