PRESENT: Sh.Vijay Mangla, Adv. for the Complainant.

         Sh.Hitender Kansal, Adv. for Sh.K.S. Cheema, Adv. for OP No.2.

           None for OP No.1.

PER ASHOK RAJ BHANDARI, MEMBER

        Concisely put, Complainants, who are permanent residents of Australia, had come to India in October, 2007 and visited the OPs on 23.11.2007 for watching movie “GOAL”. After watching movie, Complainants went to the Dining Restaurant on the top floor (OP NO.1) and ordered “PASTA” by paying the requisite amount of Rs.146.50/- vide bill Annexure C-5. It was alleged that when they had eaten half the dish, to their utter shock, two black/brown insects substance appeared in the Pasta, which were found to be dead cockroaches. The Complainant No. 1, thereafter, called for the Incharge responsible, but no one was available and those who talked to him, could not specify the reason for the presence of cockroach in the dish and moreover, it was not suitable for human consumption. It was averred that Complainants have to undergo nausea for more than 24 hours and have got phobia of eating Pasta. Their lives had been put in great danger with the act of carelessness on the part of OPs. No medical facility was provided by the OPs to the Complainants there. The OPs did not even apologize to the Complainants for their grave lapse. Hence, this complaint, alleging that the aforesaid acts of the OPs amount to deficiency in service and unfair trade practice. In the end, the Complainant has prayed for compensation of Rs.17,22,000/- (Rs.15,00,000/- as damages for playing with the lives of the Complainants, Rs.2.00 lacs on account of mental agony suffered by the Complainants and Rs.22,000/- as litigation expenses.

2]      Notice of the complaint was sent to OPs seeking their version of the case.

3]      OP No. 1 in their written statement, pleaded that Complainants had filed the instant complaint with ulterior motive with a view to malign the reputation of OP No.1. It was asserted that OPs served Pasta as per order and strictly as per the best hygienic standards of preparation. Had there been a dead cockroach, as alleged, in the said Pasta, the Complainants would not have been able to eat even a bit of it because of distaste of the Pasta; whereas, the Complainants had already eaten most part of the dish at the time of the alleged incident. It was pleaded that admittedly, the Complainants till date have neither experienced nor suffered any problem related to such consumption which corroborates the stand of the answering OP.  The Complainants were properly heard by the OP No.1 who did its best to explain and pacify the Complainants and they were also offered a fresh Pasta free of cost, as a replacement, just with a view not to lose a customer and to preserve the hard built goodwill irrespective of the genuineness of the complaint being customer oriented and believing in the image of professionalism, but the Complainants did not budge even a bit, and were rather hell bent to create a scene and to take the matter to the media in a threatening manner to gain wholly avoidable publicity. Further, no laboratory analysis was done for the left over pasta as no sampling of the same was got done by the Complainants and there are no witnesses to the said incident. All other material contentions of the Complainants were controverted. Pleading that there was no deficiency in service on their part, a prayer has been made for dismissal of the complaint with exemplary costs.

4]      OP No.2 in their written statement, while admitting the factual matrix of the case/reply, pleaded that OP No.2 is Incharge/managing the overall business of the Multiplex building. M/s Pasta Delight is neither being run under the management of the OP No.2, nor the OP No.2 was responsible for the acts and conduct of the business done by M/s Pasta Delight. The said premises were leased out to OP No.1 on lease and license based agreement whereby it has no right, title or interest over the working or profits of the licensee. On the same lines, no liability of the licensee (OP No.1) can be incurred upon the licensor (OP No.2). Hence, no compensation or damage can be claimed against OP No.2. All other material contentions of the Complainants were controverted. Pleading that there was no deficiency in service on their part, a prayer has been made for dismissal of the complaint with exemplary costs.

5]      Parties led evidence in support of their contentions.

6]      We have carefully gone through the entire case thoroughly, including the complaint and the relevant documents tendered by the complainants / OPs. We also heard the arguments put forth by the learned counsel for the Complainant and OP No.2 (none for OP No.1). As a result of the detailed analysis of the entire case, the following points/issues have clearly emerged and certain conclusions/arrived at, accordingly:-

i]  The basic facts of the case in respect of the Complainants having visited the OP’s Outlet, especially OP No.1 on 23.11.2007 and ordering of ‘Pasta’ by paying an amount of Rs.146.50/- and thereafter finding fault with the quality of the Pasta as supplied by OP No.1, have all been admitted. As per the Complainants, when they had eaten half of the dish, to their utter shock, two black/ brown insect type substance appeared in the Pasta, which they found to be dead cockroaches. Accordingly, the Complainant No.1 lodged a complaint with OP No. 1, telling them about the presence of cockroach in the dish served by the OP, which was according to them, unfit for human consumption. It was also stated that the Complainants had to undergo nausea for more than 24 hours and also suffered phobia of eating Pasta and that their lives had been put in danger due to the carelessness on the part of the OPs. Further, no medical facility was provided by the OPs to the Complainants and the OPs did not have the courtesy to even apologize to the Complainants for their grave lapse. 

ii] OP No.1, which is the main party in this case, in its written statement/ reply has denied all the allegations made by the Complainants saying that the OPs served Pasta to the Complainants as per order and strictly as per the best hygienic standards of preparation. It further says that had there been any dead cockroach in the Pasta, as alleged by the Complainants, the Complainants would not have been able to eat even a small bit of it, because of distaste of the Pasta in that case; whereas, the Complainants had already eaten most part of the dish at the time of the alleged incident and further, the Complainants till date have not suffered from any medical problem relating to such consumption. It is further emphasized that OP No. 1 did its best to explain the position and pacify the Complainants and they also offered a fresh Pasta free of cost, as a replacement to them, to preserve their goodwill, irrespective of the genuineness of the complaint. But the Complainants were totally non-cooperative and they wanted to gain wholly avoidable publicity. The OPs have further alleged that no laboratory analysis was done for the left over Pasta, as no sample of the same was got done by the Complainants and further, there were no witnesses to the said incident. On these grounds, OP No.1 has denied any deficiency of service on its part and prayed for dismissal of the complaint.

iii] OP No. 2 in its reply/ written statement, while admitting basic facts of the case, has stated that M/s Pasta Delight outlet was neither being run under the management of OP No. 2, nor they were responsible for the acts and conduct of OP No. 1. It has only leased out, on license based agreement, the said premises to OP No. 1 and there is no further connection whatsoever with OP No. 1 in respect of its working or profits of the licensee and, therefore, no compensation or damage can be claimed against the OP No.2. They have further denied all other allegations against them and asked for the dismissal of the complaint. 

7]      On the detailed study of all the facts of the case, as also the documents produced, it is quite clear that so far as OP No. 2 is concerned, it is only a proforma party. It has no role to play in the day-to-day working or maintenance of quality standards by OP No.1. In nutshell, it is only a licensor; whereas OP No. 1 is the licensee. OP No. 2 has only rented out its premises to OP No. 1, who are running the M/s Pasta Delight outlet on their own, without any direct supervision or control by OP No.2. Therefore, so far as OP No. 2 is concerned, there is clearly neither any deficiency of service, nor indulgence in any unfair trade practice on their part and, therefore, the present Complaint is dismissed qua OP No.2.

8]      So far as OP No. 1 is concerned, it is the main party in the present case, because the entire eating outlet under the name and style of M/s Pasta Delight Fun Republic is entirely their show and they are fully responsible for maintaining the quality standards of the dishes served by them to the customers. OP No. 1 had also taken a preliminary objection to the complaint saying that the present complaint has been filed by one Mr. Akshey Kumar, who is the GPA holder of the real Complainants [Annexure C-2] and that he has no power or locus-standi to file the complaint. So far as this objection of the OP is concerned, there is no technical hitch in GPA filing the complaint, as the GPA clearly states that Mr. Akshey Kumar is fully competent to file a case on behalf of the Complainants in the Consumer Forum/its Appellate Authority and also pursue the same for further action/ follow up accordingly. Another allegation made by OP No. 1 against the Complainants is that the Complainants made this complaint only with an ulterior motive to make a scandal and to malign the reputation of this OP, with a view to blackmail it. There is no document on record to prove the allegation of the OP that the Complainants had any intention or any specific reasons to damage its reputation or to blackmail it in any manner whatsoever. So far as the laboratory test of the left over sample of the Pasta is concerned, it is true that no such sample was sent by the Complainants to the laboratory and accordingly, there is no report from the laboratory on the left over pasta, which had been served to the Complainants by OP No.1. Another contention of the OP is that subsequently, samples of the Pasta as prepared by OP No. 1 were sent to the Public Analysts, Punjab Laboratory, Sector 11, Chandigarh and a report was received on 13.2.2008, in which it was certified by the said laboratory that the samples of Pasta were found to be conforming to the standards as laid down under the Prevention of Food Adulteration Act, 1954. But this report produced by the OP is of a date, which is more than two month’s later than the date of incident i.e. 23.11.2007 and more so, the said report is not in relation to the Pasta left over by the Complainants. Therefore, this laboratory report has no relevance whatsoever to the incident that had occurred on 23.11.2007 and hence, it does not support the case of the OP No. 1 in any way.

9]      The Complainants in support of their case have submitted a duly sworn in affidavit by their GPA and also produced 3 photographs of the allegedly adulterated Pasta served to them by OP No.1 on 23.11.2007. The photographs in question also show the black/brown substances, which are clearly not a part and parcel of the required contents of Pasta, but these are surely and evidently foreign/ unwanted materials. The Complainants claimed that they were permanent residents of Australia and had only come to India on a short visit. They had gone to the building complex of OP No. 2 to watch a movie and also enjoy the Indian dish Pasta, but their entire effort to have a short period of enjoyment was totally spoiled/ marred and they were put to a lot of inconvenience, harassment and suffered from continued nausea and subsequently, phobia for the item Pasta. The OPs have not been able to rebut the allegations made by the Complainants conclusively and have given only some alibis to save their skin like saying that the arrangement in their eating Outlet was on self- service basis and not table service. This contention does not lend any weight to their case and is jut not tenable. Therefore, OP No.1 has been surely  deficient in service and has also indulged in an unfair trade practice by being discourteous to the Complainants by not tendering even a simple apology which was the least it should have done in such a case for the grave lapse on its part. We, therefore, hold OP No. 1 as liable for the deficiency in service and unfair trade practice on its part qua the Complainants. Thus, we decide the complaint against the OP No. 1 and in favour of the Complainants.

10]     Keeping in view the foregoings, we direct the OP No. 1 to make the following payments to the Complainants:-

(i) To refund a sum of Rs.146.50/- as the cost of Pasta ordered by the Complainants from OP No.1 on 23/11/2007.

(ii) To pay a sum of Rs.10,000/- as compensation for the deficiency in service by providing an adulterated and unpalatable piece of Pasta to the Complainants thereby causing them physical harassment, mental pain and agony, which was as such wholly avoidable.

(iii)    Rs.5,000/- as cost of litigation.

11]     The aforesaid order be complied with by OP No.1 within a period of 04 weeks from the date of receipt of its certified copy, failing which, it shall pay the sum of Rs.10,146.50/- along with interest @18% per annum from the date of filing of this complaint i.e. 18.03.2008, till the date of realization, besides paying the cost of litigation at Rs.5,000/-.

12]    Certified copy of this order be communicated to the parties, free of charge. After compliance file