BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-I, U.T. CHANDIGARH

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Gautam Singal, DSP Intelligence Wing, Punjab at Chandigarh (formerly, DSP/Detective Rupnagar), r/o #53, Shaheed-E-Azam Bhagat Singh Nagar, Rupnagar-140001.

…..Complainant

                                V E R S U S

Sindhi Sweets, Shop No.403, Sector 37-D, Chandigarh through it proprietor.

                                        ……Opposite Party

CORAM:    SH.JAGROOP SINGH MAHAL      PRESIDENT

                DR.(MRS) MADHU BEHL              MEMBER

                SH.RAJINDER SINGH GILL            MEMBER

Argued by:         Complainant in person.

Sh. Rajesh Sood, Adv. for OP.

PER SHRI JAGROOP SINGH MAHAL, PRESIDENT 

                Succinctly put, the complainant on 18.09.2009 had purchased a fruit cake worth Rs.40/- alongwith other food items for a total sum of Rs.277/- from the OP.  He found a dead insect inside the cake on which he lodged a complaint at Police Station, Sector 36, Chandigarh, on 19.09.2009. He also lodged a complaint to the Director, Health Services, Chandigarh and deposited the said cake in original, which was sent to the Public Analyst, Punjab, Sector 11, Chandigarh for examination from where it was reported that the contents of the sample contained five dead insects and were therefore adulterated. Hence this complaint alleging that the aforesaid acts of the OP amount to deficiency in service and unfair trade practice.

2.                Notice was served to the OP. In their written reply the Learned Counsel for the OP submitted that the fruit cakes and other articles sold by them were of the best quality and there was no dead insect in the cake. The complainant after purchasing the said food articles had started demanding discount from the employee of the OP and when the discount was not given, he became angry and started shouting and threatened them. The complainant had tampered with the cake, which was purchased by him on 18.09.2009 and had put the dead insects in that, so as to malign the reputation of the OP and to harass them, as they had not given discount to the complainant. It was submitted that the complainant who is a DSP was well versed with Prevention of Food Adulteration Act and Section 12 of the said Act but he had intentionally not complied with the provisions of Section 12 and had straightway sent the food article to the public analyst Chandigarh, without informing the OP about the same and such a report relied upon by the complainant was of no consequence. Denying all the material allegations of the complainant, the OP pleaded that there has been no deficiency in service or unfair trade practice on their part and prayed for dismissal of the complaint. 

3.                The Parties led evidence in support of their contentions.

4.                We have heard the complainant in person and Learned Counsel for the OP and have also perused the record. 

5.                It is admitted by the OP that the complainant had purchased from them a fruitcake alongwith some other items totaling to Rs.277/- vide bill Annexure C-1.  According to the complainant the fruitcake was having a dead insect in it, which is visible in the photographs Annexure C-5 to Annexure C-7.  The OP has denied this contention. According to them the complainant wanted concession in the price of the articles purchased by him to which they did not agree and therefore the complainant has concocted this false case against them.  This argument appears to be ridiculous.  Admittedly the complainant is posted as DSP, which is a Class-1 post. It is not mentioned by the OP as to how much concession he wanted.  Otherwise also what concession the OP could give to him in the payment of Rs.277/-.  In any case it would have been so meager that it could not be to the standards of a Class-1 Gazetted Officer.  The complainant cannot be believed to have asked for such a concession.  Admittedly the complainant was not posted in Chandigarh but was posted in Punjab.  Everybody knows the culture of Chandigarh that neither anybody demands nor the shopkeepers give any concession to any purchasers. The question of asking for compensation by the complainant who is not even posted in Chandigarh therefore would not arise. It is therefore clear that the OP has concocted a false story to justify the deficiency in service on their part. 

6.                It is also argued by the Learned Counsel for the OP that in order to frame the OP, the complainant may have prepared the cake himself and had put the dead insects therein.  According to them proper procedure was not adopted by the complainant in sending the food item for analysis as is required under Section 12 of the Prevention of Food Adulteration Act. Again we do not find any merit in this argument.  When the dead insect was visible to the naked eye as is clear from the photographs Annexure C-5 to Annexure C-7, there was no need for sending the cake to the Public Analyst for analysis.  The cake was handed over by the complainant to the local health authority, who got it analyzed from the Public Analyst, Punjab, Sector 11, Chandigarh.  Annexure C-4 is the report showing that there were five dead insects in the sample and therefore the same was adulterated.  On the other hand the OP has produced the report Annexure R-1 vide which one Krishan Bajaj of M/s Sindhi Sweets was informed that the sample of fruit cake seized from him was found to be confirming to the prescribed standards under the Prevention of Food Adulteration Act but no such report of the Public Analyst reporting the sample to be confirming to the prescribed standard has not been placed on file.  Annexure R-1 is therefore a secondary evidence with respect to the contents of the said report and is therefore not admissible in evidence.  It is only the Public Analyst who could report about the prescribed standard which is missing in the present case.  Secondly it is not mentioned in this report as to on which date the said sample was collected from the OP.  In any case it is not proved that the fruitcake which was purchased by the complainant on 18.09.2009 was ever analyzed by the Public Analyst through this report Annexure R-1. If some other cake was sent to the Public Analyst and if the same was prepared by the OP in such a manner that confirmed to the prescribed standards, it would not be good defence to the allegation showing dead insects in the fruitcake.  Otherwise also if dead insects were found in the cake sold to the complainant, it is not necessary that the same would be available in every piece of cake prepared by the OP.  The dead insect is not such material like ghee, sugar or salt which is proportionately mixed in every part of the food article but it remain static at a particular place in the food article where it is embedded therein, as happened in the present case.  The report Annexure R-1 does not therefore militate against the case of the complainant. The mere fact that no other complaints were received by the OP from the customers who purchased the cake on 18.09.2009 also cannot be said to be a ground to presume that the dead insect which is visible in the photographs Annexure C-5 to Annexure C-7 is not actually a dead insect.

7.                In view of the above discussion, we are of the opinion that the present complaint must succeed. The same is accordingly allowed.  The OP is therefore directed to refund to the complainant a sum of Rs.40/- received from him towards the sale of the fruitcake and to pay Rs.5,000/- as compensation for selling adulterated item to him. The aforesaid amount alongwith litigation costs of Rs.1100/- shall be paid to the complainant within 30 days from the date of receipt of the copy of this order failing which the OP would be liable to pay the same alongwith penal interest @12% p.a. since the filing of the present complaint i.e. 11.01.2010, till the payment is actually made to the complainant.

                Certified copies of this order be sent to the parties free of charge.  The file be consigned.