BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, VELLORE DISTRICT AT VELLORE. PRESENT: THIRU. A. SAMPATH, B.A., B.L., PRESIDENT THIRU. K. DHAYALAMURTHI,B.SC. MEMBER – II CC. 24 / 2002 WEDNESDAY THE 28TH DAY OF DECEMBER 2011. 1. Vadivel, 2. Minor Balachandar Rep. by next friend Father Vadivel, Kilkuppam Village, Vadayamuthur Post, Thirupathur Taluk, Vellore District. … Complainants. - Vs – 1. M/s. Britanniya Industries Ltd., 5/1A Hungford Street, Calcutta – 17. 2. The Sales Manager, Britanniya Industries Limited, MTH Road, Padi, Chennai – 50. 3. M/s. Meenakshi Agencies, 106, Pillaiyar Koil Street, Gandhipettai, Tirupattur, Vellore District. … Opposite parties. . . . . This petition coming on for final hearing before us on 20.12..2011, in the presence of Thiru. T.S. Kannaiyan, Advocate for the complainant and Thiru.S. Elayakumar, Advocate for the opposite party-1 & 2, and Thiru. N.S. Ramanathan, Advocate for the opposite party-3 and having stood over for consideration till this day, the Forum made the following: O R D E R Pronounced by Thiru. A. Sampath, President of the District Consumer Disputes Redressal Forum, Vellore District. 1. The brief facts of the case of the complainant is as follows: The opposite parties are respectively the Manufactures, Sales Manager and Seller of the Britannia Industries Products Biscuits like Time Pass, Milk Bikis, 50-50 PP (New), G.D Cashew PP and 50-50 Maska Chaska PP. The 1st complainant purchased on 04.02.2002 from the 3rd Opposite Party Time Pass 200 gm 5 packets, Milk Bikis PP 100 gms 3 packets, 50-50 PP (New) 75 gms 3 Packets, G.D Cashew PP 100 gms 2 Packets and 50-50 Maska Chaska PP 75 gms 2 Packets valued at Rs.137.78 by cash Bill dated:04.02.2002. The complainant ate a portion of the Biscuits contained in Time Pass Packet and became sick. They were all suffering from Stomach pain, Loose Motion and Head ache. They were admitted as in-patients in the hospital and after intensive and prolonged treatment for 7 days, they were able to be saved for life. They have spend more than Rs.10,000/- for hospital treatment. The said Time Pass Biscuit Manufactured by the 1st opposite party, marketed by the 2nd opposite party and sold by the 3rd opposite party. The first complainant is an young man with busy work and was earning more than Rs.10,000/- per month. He is unable to work as before and consequently he lost the income. His son is unable to maintain good health and his studies are affected. The complainants sent lawyer’s demand notice dated: 02.04.2002 to opposite parties demanding a compensation of Rs.10,00,000/- and all of them have received the notice but none of them either paid the amount or replies to notice. Therefore, the complainants prays this Forum for directing the opposite parties to pay a sum of Rs.10,000/- for hospital treatment and to pay a sum of Rs.4,80,000/- damages for mental agony, suffering and loss of earnings due to deficiency of service and also to pay a sum of Rs.825/- towards the cost of notice and another sum of Rs.3,000/- towards the cost of this proceedings. 2. The averments in the counter filed by the 2nd opposite party and adopted by the 1st opposite party is as follows: This opposite party denies the allegations made in the complaint save and except those that are specifically admitted herein and as regards the rest the complainants are put to strict proof of the same. This opposite party denies the allegations that the 1st complainant had purchased on 04.02.02 from the 3rd opposite party some biscuits including Time Pass Biscuits. As per the bill submitted by the complainant himself, the purchaser is one S.Vadivel Maligai, Jolarpet and not the complainant. As such the complainant would not be a consumer under the provisions of Consumer Protection Act, and so the complaint is liable to be dismissed in limine. The complainants were never admitted as inpatient in any Hospital for 7 days and the complainants had not spent any sum much less Rs.10,000/- for hospital treatment. Mere production of two packets of Time Pass biscuits, would not substantiate the claim of becoming ill after eating the biscuits said to contain in the packets. Further the same would have been purchased elsewhere long back and not consumed by the complainants before the date of expiry printed on the biscuit packets. The third opposite party sold only the stocks that are good for consumption and that too before the date of expiry. He never used to keep any old stocks. Further the bill did not specify about the Batch Number of the stock. This opposite party denies the allegations that the bill was issued to the 1st complainant. The bill would have been prepared as if issued to the S.Vadivel Maligai, Jolarpet. In any event the 3rd opposite party had not sold any biscuits which are not fit for consumption that too after expiry date. The medical certificate did not specify that the complainants have become ill after eating the unexpired stock of Time Pass Biscuits. The complainants have produced two packets of Time Pass Biscuits one opened and other with the seal. This opposite party objects for spending the opened packet for testing since there is every possibility of the complainants tampering with the contents because of their complaint and claim for compensation, if the other packet is inact with temper proof seal this opposite party has no objection to send the same for analysis to the factory of the opposite party who are having full fledged R & D facilities and a fully equipped laboratory at Chennai. There is no deficiency of service as alleged in the complaint. The complainants are not entitled to any damages much less Rs.1 lakh or Rs.50,000/-. They had not suffered any damages, loss of income or mental agony. They have no cause of action to file this complaint. 3. The averments in the counter filed by the 3rd opposite party are as follows: - The 3rd opposite party denies the allegations made in the complaint save and except those that are specifically admitted herein and as regard the rest the complaints are put to strict proof of the same. The 3rd opposite parties denies the allegation that the 1st complainant had purchased on 4.2.02 from the 3rd opposite party some biscuit including Time Pass Biscuits. As per the bill submitted by the complainant himself, the purchaser is one S. Vadivel Maligai, Jolarpet and not the complainant. As such the complainant would not be a consumer under the Provisions of C.P. Act and so the complaint is liable to be dismissed in limine. The 3rd opposite party denies the allegation that the complainant become sick after eating a portion of Time Pass Biscuits alleged to be purchased from them. The complainants were never admitted as inpatient in any hospital for seven days and the complainant had not spent any sum much less Rs.10,000/- for hospital treatment. The complainants have not become sick. The 2nd complainant had attended the school on the days complained. Mere production of two packets of time pass biscuits, would not substantiate the claim of becoming ill after eating the biscuits said to contain in the packets. Further the same would have been purchased elsewhere long back and not consumed by the complainants before the date of expiry printed on the biscuit packets. The 3rd opposite party sold only the stock that are good for consumption and that too before the date of expiry. He never used to keep any old stocks. If such old stocks are with this opposite party the same would have been noticed by the Inspecting officer of the 2nd opposite party and they would have destroyed the same. Further the bill did not specify about the batch number of the stock. The 3rd opposite party denies the allegations that the bill was issued to the 1st complainant. The bill would have been prepared as if issued to the S.Vadivel Maligai, Jolarpet. In any event the 3rd opposite party had not sold any biscuits which are not fit for consumption that too after expiry period. The medical certificate did not specify that the complainants have become ill after eating the unexpired stock of time pass biscuits. 4. The complainants have produced two packets of Time Pass Biscuits one opened and other with the seal. The opposite party objects for sending the opened packet for testing since there is every possibility of the complainants tampering with the contents because of their complaint and claim for compensation. If the other packet is intact with tamper proof seal the opposite party has no objection to send the same for analysis to the factory of the 2nd opposite party who are having full fledged R & D Facilities and a fully supplied Laboratory at Chennai. There is no deficiency of service as alleged in the complaint. Dhandapani who was working with the opposite party and he was in the billing and cash section. The 3rd opposite party noticed discrepancies in the accounts maintained by said Dhandapani and so he was questioned. The 3rd opposite party had warned Dhandapani to make good of the amount taken by him before 7.2.02 giving five days time form 2.2.02 when such discrepancy is the accounts was noticed by the opposite party. The opposite party also informed Dhandapani that if the amount is not reimbursed before 7.2.02 then police action will be taken against him. The first complainant in the neighbour of said Dhandapani and also related so to blackmail the opposite party and to escape from the liability and criminal action Dhandapani and the first complainant colluded together and prepared the bill relied upon the 1st complainant dating the bill on 4.2.02. The company named in the bill is Vadivel Maligai and obviously the first complainant is not running any Maligai and the bill does not relate to and has no connection with the 1st complainant. The opposite party never used to stock a sell any packets which are not fit for consumption that too after the expiry of the period printed on the packet. Hence this compliant is to be dismissed with cost. 5. Now the points for consideration are: a) Whether the complaint is maintainable before this Forum? b) Whether there is any deficiency in service, on the part of the opposite parties? c) Whether the complainants are entitled to the reliefs asked for?. 6. Ex.A1 to Ex.A9 were marked on the side of the complainant and no documents were marked on the side of the opposite parties. The Analytical Report marked as Ex.C1. Proof affidavit of the complainant and Proof affidavit of the opposite parties have been filed. No oral evidence let in by either side. 7. POINT No. a & b) The complainants contended that the 1st complainant purchased Time Pass 200 gm 5 packets, Milk Bikis PP 100 gms 3 packets, 50-50 PP (New) 75 gms 3 packets G.D. Cashew PP 100 gms 2 packets and 50-50 Maska Chaska PP 75 gms 2 packets valued at Rs.137.78 by cash bill dt.4.2.02 The complainant ate a portion of the Biscuits contained in Time Pass Packet and they were all suffering from stomach pain, loose motion and head ache, and immediately admitted as in-patients in the hospital and after intensive and prolong treatment for 7 days. The said Time Pass Biscuit Manufactured by the 1st opposite partly marketed by the 2nd opposite party and sold by the 3rd opposite party. Hence the opposite parties committed deficiency in service. The opposite parties contended that as per the bill submitted by the complainant himself, the purchaser is one S.Vadivel Maligai, Jolarpet and not the complainant. As such the complainant would not be a consumer under the provisions of Consumer Protection Act and so the complainant is liable to be dismissed in limine. 8. According to the 1st complainant that he purchased Time Pass 200 gm 5 packets, Milk Bikis PP 100 gms 3 packets, 50-50 PP (New) 75 gms 3 packets G.D. Cashew PP 100 gms 2 packets and 50-50 Maska Chaska PP 75 gms 2 packets valued at Rs.137.78 by cash bill Ex,A1m dt. 4.2.02 from the 3rd opposite party. From the perusal of the complaint, and proof affidavit of the 1st complainant it is seen that the 1st complainant Thiru. Vadivel is working as a Vakil’s clerk at Tirupathur. Accordingly the complainant Thiru. Vadivel is not doing any Maligai business under the name and style of S.Vadivel Maligai. A careful perusal of Ex.A1 Cash bill, dt. 4.2.02 it is mentioned that Time pass 200 gm 5 packets, Mil Bikis PP 100 gms 3 packets, 50-50 PP (New) 75 gms 3 packets G.D Chasew PP 100 gms 2 packets and 50-50 Maska Chaska PP 75 gms 2 packets were sold by Meenashi Agency, A/W-M/s. Britannis Industries Limited, No.106, Pillayar Koil Street, Gandhi Pettai, Tirupattur, Vellore District to M/s. G. Vadvel Maligai, Jolarpet – Local. Therefore it is clear that the above said Biscuits packets not sold to the 1st complainant Vadivel S/o. Ganesan residing at Kilkuppam Village, Vadayammuthur Post, Thirupathur Taluk, Vellore District, but it is sold to the M/s. G. Vadivel Maligai, Jolarpet for resale (Maligai business) purpose. 9. The C.P. Act 1986 a consumer is defined u/s 2 (1) (d) is as follows: (d) “consumer” means any person who – (i) buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose or” In the present case, the Ex.A1 cash bill dt.4.2.02 reveals that the 3rd opposite party sold the above said Biscuits to M/s. G. Vadivel Maligai, Jolarpet for (Maligai business) commercial purpose. Hence the 1st complainant who is working as a Vakil’s Clerk residing at Kilkuppam Village, Vadayammuthur Post, Thirupathur Taluk, Vellore District is not a “Consumer” under the Consumer Protection Act 1986 u/s 2 (d) (i). Therefore the contention of the opposite parties that as per the bill Ex.A1, the purchaser is one S. Vadivel Maligai, Jolarpet and not the 1st complainant Thiru. Vadivel, who is working as Vakil Clerk and as such the 1st complainant would not be a consumer under section 2 (1) (d) of Consumer Protection Act is acceptable. 10. Hence, taking all the above facts into consideration from the contention in the complaint and the counter, as well as proof affidavit of the both the parties, and from the documents Ex.A1 to A9 and Ex.C1 we have come to the conclusion that the complainants herein are not a consumer, hence this complaint is not maintainable before this Forum as defined under section 2 (1) (d) of Consumer Protection Act 1986. We have also come to the conclusion, that the complainants have not clearly proved the deficiency in service, on the part of the opposite parties. Hence we answer this point (a) & (b) as against the complainants herein. 11. POINT NO; (c) : In view of our findings on point No.(a) & (b) since we have come to the conclusion that the complainants are not a consumer, hence this complaint is not maintainable as defined under Consumer Protection Act 1986, and we have also come to the conclusion that the complainants are not at all entitled to any relief asked by them in this complaint. Hence, we answer this point (c) also as against the complainant herein. 12. In the result, this complaint is dismissed. No costs. Dictated to the Steno-typist and transcribed by her, corrected and pronounced by the President, in Open Forum, this the 28th day of December 2011. MEMBER-II PRESIDENT. List of Documents: Complainant’s Exhibits: Ex.A1- 4.2.02 - Cash bill No.864, for Rs.137/- Ex.A2- 2.4.02 - X-copy of legal notice. Ex.A3- -- - Postal Ack. Card. Ex.A4- -- - Postal Ack. Card. Ex.A5- -- - Postal Ack. Card. Ex.A6- 12.2.02 - Medical Certificate. Ex.A7- 12.2.02 - Medical Certificate. Ex.A8- -- - Complaint in CC.315/02 filed on behalf of the complainant. Ex.A9- -- - FIR filed on behalf of the complainant. Opposite parties’ Exhibits: .. Nil .. Court’s Exhibits: Ex.C1 - -- - Analytical Report. MEMBER-II PRESIDENT.
| | [HONABLE MR. Hon'ble Tr K.Dhayalamurthy, Bsc] MEMBER[ Hon'ble Thiru A.Sampath, B.A., B.L] PRESIDENT | | 
