PER SHRI. S.S.PATIL - HON’BLE MEMBER :
1) This is the complaint regarding the defective goods (i.e. edible oil) sold to the Complainant by Opposite Party No.1 and manufactured by Opposite Party No.3, the Opposite Party No.2 being an authorized dealer. Opposite Party No.4 & 5 later on took over Opposite Party No.3.
2) The facts of the case as stated by the Complainant are that the Complainant is a regular customer of Opposite Party No.3. On 18/10/2005 the Complainant purchased Gemini Sunflower Oil bottle valued at Rs.28.80. However, he noticed a fly like creature in the said sealed bottle containing edible oil purchased by the Complainant. The Complainant then took the said sealed bottle to the Opposite Party No.3.Here the Complainant cannot take bottle to Opposite Party No.3 as Opposite Party No.3 is situated at Pune. It seems that the Complainant has also averred that it took the bottle to Opposite Party No.1 and not Opposite Party No.3. The Complainant showed the fly like creature to Opposite Party No.1. The Opposite Party Representative - Mr. Ashok Jain. Mr. Ashok Jain informed the Complainant to complain to the dealer i.e. Opposite Party No.2.
3) It is further averred by the Complainant that the Opposite Parties are not maintaining the quality of the food product and do not bother about the health of the customers.
4) The Complainant has requested that the oil bottle be sent for proper analysis and further prayed that the Opposite Parties be declared as guilty of deficiency in service and for unfair trade practice. He has also prayed for the compensation of Rs.5 Lacs for mental harassment, agony, etc. He has further prayed for the cost of the complaint.
5) Initially there were 3 Opposite Parties subsequently Opposite Party No.4 & 5 were added by the amendment approved by this Forum as Opposite Party No.3 was taken over by Opposite Party No.4 & 5. Notices were served on the Opposite Parties. Inspite of service of notices, Opposite Party No.1 & 2 remained absent before this Forum. Hence, an ex-parte order was passed against Opposite Party No.1 & 2.
6) As the Complainant had requested to send the sealed bottle of edible sunflower oil to the laboratory for analysis, it was accordingly sent to the laboratory known as ITLAB, Meherhouse, Fort Mumbai for the analysis of the contents of the edible oil in the bottle. The opinion was sought on the following points –
a) Whether the sealed bottle contain fly like creature.
b) Whether the contents of the bottle suffer from any defect. The bottle was sent for analysis on 31/12/08.
The above said laboratory sent its report on 02/01/09 and the result of the analysis is as under –
“Black coloured fly like creature is present in the bottle.”
7) As the Opposite Party No.3 was taken over by Opposite Party No.5, Opposite Party No.3 did not file the written statement but Opposite Party No.5 appeared before this Forum and filed its written statement wherein it denied the allegations of the Complainant and specifically stated that Cargill Foods India Ltd. has been amalgamated with Opposite Party No.5 vide order dtd.13/08/08 by the Hon’ble High Court, Delhi. Therefore, Opposite Party No.4, Cargill Food India Ltd. does not exist.
8) The Opposite Party No.5 has further pointed out in its written statement that the Complainant had not annexed the photograph of the bottle and presented the bottle before this Forum at the time of filing the complaint. The bottle has been in the physical possession of the Complainant. Thus, there is a possibility of tampering the bottle.
9) The Complainant has also not mentioned the batch no. and expiry date, etc. in his complaint to show that the alleged product has been manufactured by this Opposite Party.
10) Further it is stated that the product in question is perishable in nature. Therefore, it would have been detoriated beyond its self life. Therefore, no reliance can be placed on the test report of the product.
11) It is further added by the Opposite Party No.5 that there is no privity of contract between the Complainant and the Opposite Party No.5.
12) It is also submitted that there is no allegation to point out that the Complainant purchased any goods from the Opposite Party No.5. There is nothing on record to show that the Complainant has availed any service from the Opposite Parties. It is further submitted that the Opposite Party No.5 is not a manufacturer, distributor of the seller of the alleged product.
13) It is also averred by the Opposite Party No.5 that no loss or injury has been suffered by the Complainant due to the negligence of Opposite Party No.5.
14) It is also submitted that the product has been analyzed after long 3 years from the date of date of filing the complaint, therefore, the report of analysis cannot be taken into consideration. Finally the Opposite Party No.5 has prayed for dismissed of the complaint with cost.
15) The Complainant has then filed an affidavit of evidence wherein he reiterated the facts mentioned in the complaint and denied the submissions in the written statement of the Opposite Party No.5. In this affidavit of evidence the Complainant has clarified that he purchased the sealed oil bottle on 18/10/05 and he did not open the seal of that bottle. He took the same to the salesman of Opposite Party No.1 Mr. Ashok Jain and intimated him the presence of fly like creature in the sealed bottle. The said sealed bottle was produced before the Forum at the time of filing the complaint before this Forum. Thereupon the bottle was deposited before this Forum for sending it for proper analysis. He has further vehemently stated that the bottle is in sealed condition before the Forum. All the details are clearly mentioned on the bottle.
16) The Complainant has further stated that the issue before the Forum is not of the quality or substandard quality but the main issue is the presence of a dead fly in the oil contained in the bottle.
17) The Complainant has also clarified that Opposite Party No.5 & 4 have suo-moto appeared before this Forum and stated before the Forum, producing relevant documents that they have undertaken the liability of Opposite Party No.3 by amalgamating Opposite Party No.3 in Opposite Party No.4 &5. Therefore, the issue of privity of contract exists. Opposite Party No.5 cannot deny the same. Therefore, it is the contention of the Complainant that Opposite Party No.3 is the manufacturer of the oil sold to the Complainant and which contained the dead fly. Opposite Party No.3 had packed & sealed the bottle which contained the dead fly. Such oil is not suitable for consumption. Opposite Party No.3’s name was changed to Cargill Foods India Ltd. Therefore, Opposite Party No.3 is the same party with different name. Cargill Foods India Ltd. cannot deny its liability. This Cargill Foods India Ltd. got amalgamated with Cargill India Pvt. Ltd. thereby Opposite Party No.5 has undertaken all rights and liabilities of Opposite Party No.3 & 4. The Complainant has also explained that legal entity does not die after amalgamation but it continues to survive. Therefore, Opposite Party No.5 cannot abstain from the liabilities of Opposite Party No.3 & 4.
18) The Complainant has further clarified that he had purchased the oil bottle for consideration but he could not use that bottle because of the contamination in the oil as there was a presence of fly like creature inside the bottle containing edible oil. His money was wasted. Hence, there is a financial loss to him therefore, the averment of the Opposite Party that there is no financial loss to the Complainant is baseless and false.
19) The Complainant also clarified that the fly creature was inside the bottle before sealing the bottle. Therefore, the quality or the life of the oil is not material. Therefore, sending the bottles for analysis after 3 years does not matter.
20) The Opposite Party No.5 also filed its affidavit of evidence wherein it reiterated the facts mentioned in its written statement and further added that the Complainant has not proved that the seal of the bottle was intact & not tampered.
21) The Complainant and the Opposite Party No.5 also filed their written arguments wherein they reiterated the facts and points raised in their affidavit of evidence. The Complainant has attached the Tax invoice i.e. cash memo issued by Opposite Party No.1. According to the cash memo, the Complainant has purchased Gemini Sunflower Oil 500 ml. bottle for 30 Rs. (including tax).
22) As per the order of the Hon’ble State Commission (Maharashtra), the sealed bottle containing sunflower oil was sent to the ITLab Laboratory for testing the contention as the sealed bottle. Its report is as follows –
“Black coloured fly like creature is present in the bottle.”
23) These two documents & pleadings filed by the Complainant proved that the Complainant has purchased an edible oil sunflower oil bottle from Opposite Party No.1 for Rs.30/-. The bottle in question was manufactured, packed & sealed by Opposite Party No.3. Opposite Party No.3 changed its name to Cargill Foods India Ltd and Opposite Party No.4 was amalgamated in Opposite Party No.5. However, there is no evidence on record to show that Opposite Party No.2 is the authorized dealer of Opposite Party No.3 or Opposite Party No.1. Therefore, it is established from the record that the Complainant is the consumer of Opposite Party No.1, 3, 4 & 5. It is also established from the record that the bottle was sealed when purchased and it contained a fly like creature in the edible oil. Therefore Opposite Party No.1, 3, 4 & 5 have supplied contaminated edible oil (containing a dead fly) to the Complainant. This establishes that these Opposite Parties have sold a defective goods (edible oil i.e. oil of substandard quality) to the Complainant and thereby Complainant has sustained a financial loss of Rs.30/- and what is more important that he has been going through mental agony since 18/10/05 till today.
24) In this case though Opposite Party No.1 & 2 were duly served with the notice of the complaint, they remained absent. Therefore, an ex-parte order was passed against Opposite Party No.1 & 2. Opposite Party No.3 appeared before this Forum but did not file its written statement. Hence, mater was proceeded without written statement against Opposite Party No.3. at first instance the Ld.Advocate for Opposite Party No.4 & 5 appeared before this Forum but stating that the Opposite Party No.4 has been amalgamated in Opposite Party No.5. he filed written statement of Opposite Party No.5 only. Therefore, in these circumstances, though there are 5 Opposite Parties as per the present title of the complaint, only Opposite Party No.5 has filed written statement, affidavit of evidence & written argument. We carefully went through these pleadings of the Opposite Party No.5 but we do not find any substance into the pleadings filed by the Opposite Party No.5 as all the pleadings are general denials of the allegations mentioned in the complaint. A sealed bottle was produced before the Forum for sending it to the appropriate lab for testing and the same was sent in the same condition to ITA Laboratory. Therefore, the contention of the Opposite Party that there is a possibility of tampering the seal does not hold water. The other point raised by the Opposite Party No.5 is that there is no privity of contract between the Complainant & Opposite Party No.5. This also does not hold water as the Complainant is the consumer of Opposite Party No.1. It is not denied. It is established by the cash memo issued by Opposite Party No.1. This product has been manufactured by Opposite Party No.3. It is not denied by Opposite Party No.5. Opposite Party No.5 itself has averred that Opposite Party No.3 changed its name as Opposite Party No.4 and Opposite Party No.5 took over Opposite Party No.4. Therefore, Opposite Party No.1 is the vendor and Opposite Party No.3, 4 & 5 are manufacturers of the product in question. It is also established that the product is contaminated with a fly like creature i.e. it is defective goods sold & manufactured by the Opposite Parties and Complainant is the consumer of all these Opposite Parties (Opposite Party No.1,3 4 & 5). The contaminated oil could not be used for the consumption by the Complainant. Hence, it caused a financial loss to the Complainant. It also caused great long mental agony since its purchase till date. The expenditure of the laboratory testing (Rs.393/-) was born by the Complainant. Therefore, the Complainant in this case deserves the cost of the contaminated oil, compensation for mental agony, cost of the laboratory test and cost of this complaint. As per the pleading of the Opposite Parties, it is clear that Opposite Party No.3 & 4 are not in existence at present. Therefore, orders against 3 & 4 would be infructuous. There is no evidence to establish that the Opposite Party No.2 is the authorized dealer of the Opposite Party No.1 & 3. Therefore, Opposite Party No.2, 3 & 4 are discharged from this proceeding and orders are passed against Opposite Party No.1 & 5 only.
Opposite Party No.1 & 5 are jointly and severally liable for supplying the contaminated edible sunflower oil manufactured and sold to the Complainant and therefore, caused financial loss and mental agony. Hence, the order
“O R D E R
1. Complaint No.22/2006 is partly allowed.
2. Opposite Party No.1 & 5 are directed to pay jointly and/or severally to the Complainant Rs.30/- (Rs. Thirty Only) as the cost of the Gemini bottle containing 500ml. edible sunflower oil alongwith interest @10% from 18/10/2005 till its payment.
3. Opposite Party No.1 & 5 are directed to pay jointly and/or severally an amount of Rs.393/-(Rs. Three Hundred Ninety Three Only) to the Complainant alongwith interest @ 10% from 01/01/2009 till its payment, towards the charges of laboratory testing.
4. Opposite Party No.1 & 5 are also directed to pay jointly and/or severally a compensation of Rs.1,00,000/- (Rs. One Lac Only) to the Complainant for mental agony caused to him because of defective goods sold to him.
5. Opposite Party No.1 & 5 are also directed to pay jointly and/or severally an amount of Rs.5,000/- (Rs. Five Thousand Only) to the Complainant towards cost of this complaint.
6. Opposite Party No.1 & 5 are directed to comply with the above said order jointly and/or severally within 30
days from the receipt of copy of this order.
7. Certified copies of this order be furnished to the parties.
