BEFORE THE A.P STATE CONSUMER DISPUTES REDRESSAL COMMISSION AT HYDERABAD.
F.A. 1044/2006 against C.D. 907/2005, Dist. Forum-I, Hyderabad
Between:
M/s. Gaint Hyper Market
Great Wholesale Club Ltd.
Rep. by its Authorised Signatory
Ajit, S/o. Radha Krishnan
Musheerabad, Hyderabad. *** Appellant/
O.P. No. 1
And
1. A.V. Raju, S/o. A. Balesham
Age: 30 years, R/o. DGI Wide
Park Apartment,
Snehapuri Colony, Nacheram
Hyderabad. *** Respondent/
Complainant
2. M/s. Indo Nissan Foods Ltd.
Rep. by its Directors
28, M. G. Road, At 18,
A2, Jigani Industrial Area
Bangalore-562 106. *** Respondent/
O.P. No. 2.
Counsel for the Appellant: M/s. Leo Raj
Counsel for the Respondent: M/s. C. Hariprith Rao
CORAM:
HON’BLE SRI JUSTICE D.APPA RAO, PRESIDENT.
SMT.M.SHREESHA, MEMBER.
&
SRI K. SATYANAND, MEMBER
WEDNESDAY, THIS THE TWENTY NINTH DAY OF APRIL TWO THOUSAND NINE
ORAL ORDER: (Per Hon’ble Sri Justice D. Appa Rao, President.)
***
This is an appeal preferred by opposite party No. 1 against the order of the Dist. Forum directing it to pay compensation of Rs. 10,000/- and costs along with opposite party No. 2, the manufacturer of the noodles.
2) The complainant purchased two Nissan veg-cup-noodles on 16.12.2004 from the appellant, manufactured by R2 Indo-Nissan Foods Ltd. He went to his house poured hot water as required and gave it to his daughter-in-law, who after consuming half a cup started vomiting. On verification he found white insects. Immediately she was referred to a doctor where she was given treatment. Immediately he approached the appellant, complained to him for which it did not heed, on the other hand talked rudely. He gave complaint to various authorities and sent the same to the Chief Public Analyst after paying a fee of Rs. 200/- as required. The Analyst on analysis opined that it contains worms, black beetles and webs and also salmonella a pathogenic organism injurious to health. He issued notice for which they did not give any reply. Therefore, he claimed Rs. 10 lakhs towards compensation besides costs.
3) The appellant resisted the case. However, it admitted that it sold the noodles manufactured by R2 in a packed condition as was supplied to it by the manufacturer. While putting the complainant to prove as to the existence of worms etc. alleged that the very prescription would show that the child who has consumed the noodles suffering from loose motions and fever and that could not be attributed to noodles. The noodles were supplied by M/s. Radha Krishna Marketing, a distributor of the manufacturer under the invoice. It was within the warranty period. It was no way responsible for the alleged deficiency. It gave reply to the notice issued by the complainant. It sold it in as is where is condition, and that no negligence could be attributed to it. Therefore it prayed for dismissal of the complaint with costs.
4) The complainant in proof of his case filed his affidavit evidence and got Exs. A1 to A11 marked. Refuting his evidence, the appellant got Exs. B1 to B3 marked.
5) The Dist. Forum after considering the report of the Chief Public Analyst confirming the presence of white worms etc. in the noodles opined that the appellant besides the manufacturer was equally responsible, and awarded a compensation of Rs. 10,000/- together with costs of Rs. 1,000/-.
6) Aggrieved by the said decision, appellant preferred the appeal contending that it cannot be made liable for the deficiency, if any, in the pre-packed product, and if at all responsible it was the manufacturer which had manufactured the noodles. The Dist. Forum failed to consider non-compliance of Section 13(e) of the Consumer Protection Act, and therefore it prayed that the appeal be allowed.
7) The point that arises for consideration is whether the order of the Dist. Forum is vitiated by mis-appreciation of fact and law?
8) It is an undisputed fact that the complainant purchased Nissan veg-cup-noodles manufactured by R2 from the retailer the appellant under receipt Ex. B1. When the complainant detected worms etc., he immediately referred the same to Chief Public Analyst, State Food Laboratory, Hyderabad after paying requisite fee of Rs. 200/-evidenced under Ex. A2. The Analyst after analysis opined that “the sample contains worms, black beetles and webs and also salmonella a pathogenic organism injurious to health. It is therefore adulterated.” vide Ex. A1. The complainant immediately reported the said fact to the Director, Medical & Health Service, Director, Institute of Preventive Medicine and the Medical Officer, Hyderabad equally to the appellant as well as the manufacturer by way of notices evidenced under Exs. A7 to A10.
9) It is also not in dispute that after taking noodles his daughter-in-law fell sick evidenced under doctor’s prescription Ex. A11.
10) The manufacturer kept quiet, did not bother to respond to the notice nor contested the matter. The appellant who sold the food article contends that M/s. Radha Krishna Marketing distributor for Marico Industries supplied the said food article evidenced under bunch of bills Ex. B1. For the notice issued on 8.3.2005 under Ex. A3 it gave reply under Ex. B2 on 11.4.2005 denying the facts. At any rate the article of food being in a sealed packed condition and as there is warranty, if at all any liability is to be fastened, it is the manufacturer that it has to be mulcted with the liability.
11) The appellant did not file the so called warranty issued by the manufacturer. Had it been filed, we would have been in a position to determine the liability or otherwise on the part of the appellant.
12) Despite the fact that the complainant had filed the report of the Public Analyst under Ex. A1, evidencing the presence of worms etc., the appellant who had sold the food material did not in turn issue notice to the manufacturer or its distributor mentioning these facts. It did not take up the cause of the complainant to the manufacturer, it having sold it to the complainant. It cannot take umbrage or defence that it had sold a packed food material. This contention that they owed no duty and that though they sold the food article but in fact, it was manufactured by R2, and therefore it was not under contractual obligation. We believe this contention, it is repetition of 19th century fallacy which was exploded by Donoghue Vs. Stevenson. The seller who sells the product is under duty to take reasonable care in selling the goods. It could not contend that whatever the company manufactures it sold, and therefore not liable.
It is up to it to satisfy the nature, quality and purity or consumablity, and sell it. It is for the appellant to pay and claim whatever damages it pays on its behalf, as it is equally liable and responsible for the goods sold to the customer. It would not be allowed to say that it was not liable, since it did not manufacture. Having taken up business, it will be immediately liable for payment of damages, whatever occasioned to its customer. Since it is joint and several liability along with manufacturer it is for it to recover the amount whatever was liable to be paid due to the negligence of its manufacturer. On that score it cannot escape liability or disown the responsibility. Since a joint and several liability was fastened, the appellant cannot disown its liability.
13) The compensation in the light of Public Analyst report cannot be said to be high, more so, when the consumer had not only suffered physically but also mentally evidenced from the prescription chit issued by the doctor. Absolutely there are no merits in the appeal.
14) In the result the appeal is dismissed with costs computed at
Rs. 2,000/-.
1) _______________________________
PRESIDENT
2) ________________________________
LADY MEMBER
3) _________________________________
MALE MEMBER
Dt. 29. 04. 2009.
*pnr
“UP LOAD – O.K.”
