DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION
THIRUVALLUR
BEFORE TMT. Dr.S.M. LATHA MAHESWARI, M.A.,M.L, Ph.D (Law) .…. PRESIDENT
THIRU.P.MURUGAN,M.Com., ICWA(Inter)., B.L., ....MEMBER-II
CC. No.144/2022
THIS TUESDAY, THE 06th DAY OF DECEMBER 2022
Mr.M.Kamesh,
No.5/2, Kaveri Nagar, 2nd Street,
P.T.C.Colony, 2nd Avenue,
Thiruverkadu, Chennai 77. ……Complainant.
//Vs//
1.M/s.I-Fresh Super Market,
Rep. by its Manager,
No.32, Vetri Nagar, Water Canal Road,
Korattur, Chennai 600 080.
2.M/s.Sakthi Masala Private Limited,
Rep. by its Managing Director,
No.6, Maamarathu Palayam,
Erode -638 004. …..opposite parties.
Counsel for the complainant : M/s.S.Tamilvendan, Advocate.
Counsel for the 1st opposite party : exparte.
Counsel for the 2nd opposite party : M/s.V.Shankar, Advocate.
This complaint is coming before us on various dates and finally on 22.11.2022 in the presence of M/s.S.Tamilvendan Advocate, counsel for the complainant and M/s.V.Shankar Advocate, counsel for the 2nd opposite and upon perusing the documents and evidences produced by both parties this Commission delivered the following:
ORDER
PRONOUNCED BY TMT. Dr.S.M. LATHA MAHESWARI, PRESIDENT.
This complaint has been filed by the complainant u/s 12 of the Consumer Protection Act, 1986 alleging unfair trade practice and deficiency in service in selling poor quality Dhal Rice Powder along with a prayer to refund the sale consideration of Rs.60/- with 12% interest from the date of purchase to till realization and to pay a sum of Rs.1000/- which has been spent for the medical expenses and to pay a sum of Rs.15,00,000/- towards mental agony and damages and to pay a sum of Rs.4,50,000/- towards deficiency in service and to pay a sum of Rs.20,000/- towards cost of the complaint to the complainant.
Sum and substance of the complaint:-
It was the case of the complainant that he purchased two packets SAKTHI DHAL RICE POWDER on 07.08.2019 for a sum of Rs.60/- with invoice No.7507 from the 1st opposite party. The product had one year expiry period. It was mentioned that the SAKTHI DHAL RICE POWDER was manufactured in the month of December 2018 and hence will expire only in the month of December 2019. When the complainant opened the product and ate some quantity he noticed that there were insects and bugs coming out from the packets. The complainant got sick and got stomach upset and diarrhea due to intake of the buggy and detoxified food product and got medical treatment spending around Rs.1000/-. When the complainant approached the 1st opposite party with a complaint they did not bother. The 2nd opposite party had manufactured the product ignoring the rules and regulations and terms and conditions provided by the Food Quality Control Board of Government. Hence the complainant sent a legal notice to the opposite parties on 19.08.2019 regarding quality issue for which the 2nd opposite party sent a reply denying the allegations made by the complainant. Thus aggrieved the present complaint was filed by the complainant for the following relief as mentioned below;
To refund the sale consideration of Rs.60/- with 12% interest from the date of purchase to till realization;
To pay a sum of Rs.1000/- which has been spent for the medical expenses;
To pay a sum of Rs.15,00,000/- towards mental agony and damages;
To pay a sum of Rs.4,50,000/- towards deficiency in service;
To pay a sum of Rs.20,000/- towards cost of the complaint to the complainant.
Defence of the 2nd opposite party:-
The 2nd opposite party filed version denying all the allegations made by the complainant. It was submitted by them that their food article not only undergoes stringent internal quality tests but also rigorous external quality assessment by competent authority before sale to the general public. It is not clear that the product purchased by the complainant was their product as the bill issued by the 1st opposite party mentioned purchase of food product name S.Dhall Powder thereby raising a doubt over their product. The complainant becoming sick after consuming the product was disputed. No question arises as to labeling by the 2nd opposite party either as unlawful trade practice or deficiency of service. The products were manufactured in a hygienic ambiance ensuring the product of superior quality. Thus denying the allegations made in the complaint and stating that there is no cause of action for the complaint, 2nd opposite party sought for the dismissal of the complaint.
On the side of complainant proof affidavit was filed and documents Ex.A1 to Ex.A7 were marked on their side. On the side of 2nd opposite party proof affidavit was filed and document Ex.B1 was marked on their side. The 1st opposite party remind absent and was called absent and was set exparte on 20.05.2022 for non appearance and non filing of written version within the mandatory period as per the statute.
Points for consideration:-
Whether the complainant is successful in proving by admissible evidence that the opposite parties had committed deficiency in service and unfair trade practice in selling a product which is unfit for consumption and whether he sustained injury on consuming the said product and to what extent?
If so to what relief the complainant is entitled?
Point No.1
On the side of the complainant following documents were filed in support of his allegations;
Receipt issued for purchase of Sakthi Masala Dhall Powder For Rs.60/- by the 1st opposite party dated 07.08.2019 was marked as Ex.A1;
Medical prescription for the treatment of the complainant dated 07.08.2019 was marked as Ex.A2;
Legal notice sent by the complainant to the opposite parties dated 19.08.2019 was marked as Ex.A3;
Acknowledgement card for proof of delivery was marked as Ex.A4 &Ex.A5;
Reply notice sent by the 2nd opposite party dated 06.09.2019 was marked as Ex.A6;
CD was marked as Ex.A7;
Acknowledgement card for proof of delivery was marked as Ex.A7;
On the side of the 2nd opposite party following document was filed in support of their defence;
Food Safety and Standard (Laboratory and Sample Analysis Regulation,2011 was marked as Ex.B1;
It was represented by the complainant that the written arguments filed by them may be treated as oral arguments. Hence, we decided to consider the written arguments for determination of the issue.
The crux of the written arguments filed by the complainant is that the product purchased from the 1st opposite party and manufactured by the 2nd opposite party was not fit for human consumption as it got bugs and insects. Hence, he doubt that it would have been manufactured even before the manufacturing date printed on the wrapper of the product. He relied upon the report issued by the “TAMIL NADU FOOD SAFETY AND DRUG ADMINISTRATION DEPARTMENT FOOD ANALYSIS LABORATORY, KING INSTITUTE CAMPUS, GUINDY, CHENNAI- 32” and submitted that the act of the opposite parties was a totally unlawful trade action and deficiency in service. Thus he sought for the complaint to be allowed as prayed for.
On the other hand the learned counsel appearing for the 2nd opposite party argued that they have filed objections to the expert report and hence the expert report could not be relied upon. The sample sent for testing was disputed and stated that 74 grams is the minimum quality required for testing all the parameters. Further he argued that the product was manufactured in December 2018 but was examined in 2019 and as the report was given after the expiry period it could not be relied upon. It was also argued that the packets would not have stored properly by the complainant and not used in proper manner and hence the product would have got spoiled. Thus the learned counsel for the 2nd opposite party sought for the dismissal of the complaint alleging no deficiency in service on their part.
Records perused. We are of the view that the complaint has to be allowed for the reason that the product purchased on 07.08.2019 and was consumed on the same day. Thus the argument of the 2nd opposite party that it would not have been stored properly and not used in a proper manner has to be brushed aside. Further when the letter sent to the expert Analyst with alleged packets to FOOD ANALYSIS LABORATORY, KING INSTITUTE CAMPUS, GUINDY BY THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM it has been specifically mentioned by the learned Court that “One Sakthi Dhall Rice Powder packet 100gms, dated 07.08.2019, which has been received from the complainant in C.M.P.No.109/2019 in CC.No.146/2019, for lab test. Accordingly, I sent herewith properly packed and sealed condition for lab test”. Thus it is stated that the packets sent were properly packed and sealed. The said contention was also confirmed in the report of the Food Analysis Laboratory that the sample has been received in two portions, one in sealed packet (Original Packet) and another in loose condition with labels attached to it respectively. Both the samples are analyzed and results furnished separately.
In such facts and circumstances it is proved that the products were sealed properly and also one of the product is in unwrapped condition. Further no where the 2nd opposite party denies that the said product was a fake product and not manufactured by them except a bald allegation that in the wrapper it was mentioned that S.Dhall Powder and hence they doubt whether the product was their own manufactured product. But the expert report has clearly mentioned as follows;
“I am of the opinion that the sample “Proprietary food-Dhall Rice Powder” sent for analysis falling under the Regulation 2.12.1 r/w Table 6.6 of Appendix-A of Food Safety and Standards (Food production Standards and Food Additives) Regulations 2011 does not conform to standards as it shows the presence of living insect (160 insects) which should be Absent.
Hence the sample is found to be Sub-standard and Unsafe as per Section 3(1)(zx) and section 3(1)(zz)(iii)(ix) and Section 26(1) (2) (i) (ii) of Food Safety and Standards Act 2006.”
Another defence by the 2nd opposite party is that the expert report was dated 07.01.2020 but the expiry date of the product was in December 2019. The said defence is also could not be accepted as it is seen that the product was sent for testing vide letter dated 20.12.2019 i.e., well before the expiry date of the product. In such scenario, the defence of the 2nd opposite party that the expert report was given after the expiry date period to be rejected. could not be accepted for the reason that the product was sent very well within the expiry period. Hence this commission based on the report hold that the product manufactured by the 2nd opposite party and sold by the 1st opposite party is clearly unsafe for human consumption. In such circumstances we hold that the opposite parties had committed deficiency in service in selling the product as per Section 3(1)(zx) and section 3(1)(zz)(iii)(ix) and Section 26(1) (2) (i) (ii) of Food Safety and Standards Act 2006. Thus the point is answered accordingly in favour of the complainant and as against the opposite parties.
Point No.2:-
As we have held above that the opposite parties had committed deficiency in service, though the product was manufactured by the 2nd opposite party and sold by the 1st opposite party, the 1st opposite party did not appear before this commission to prove that there is no error on their part in selling the product. But we hold both the opposite parties to be liable to provide relief to the complainant and we direct the opposite parties jointly and severely to refund the sale price of the product with 6% interest from the date of complaint till realization and we also award a compensation of Rs.25,000/- for the mental agony and hardship caused to the complainant by the opposite parties and we also award Rs.10,000/- towards litigation expenses to the complainant.
In the result, the complaint is partly allowed and the opposite parties 1&2 are jointly and severely directed
a) To refund the sale consideration of Rs.60/- (Rupees sixty only) with 6% interest from the date of complaint till realization;
b) To pay a sum of Rs.25,000/- (Rupees twenty five thousand only) towards compensation for the mental agony caused to the complainant;
c) To pay a sum of Rs.10,000/- (Rupees ten thousand only) towards litigation expenses to the complainant.
Dictated by the President to the steno-typist, transcribed and computerized by him, corrected by the President and pronounced by us in the open Commission on this the 06th day of December 2022.
Sd/- Sd/-
MEMBER-II PRESIDENT
List of document filed by the complainant:-
Ex.A1 07.08.2019 Receipt for purchase of Sakthi Masala Dhall Power for Rs.60/-. Xerox
Ex.A2 07.08.2019 Medical prescription for the treatment of complainant. Xerox
Ex.A3 19.08.2019 Legal notice sent by the complainant to the opposite parties. Xerox
Ex.A4 .............. Acknowledgement card. Xerox
Ex.A5 .............. Acknowledgement card. Xerox
Ex.A6 06.09.2019 Reply notice sent by the 2nd oppostie party. Xerox
Ex.A7 ............... CD Xerox
List of documents filed by the 2nd opposite party:-
Ex.B1 ............ Copy of Food Safety and Standard (Laboratory and Sample Analysis Regulation,2011 Xerox
Court Document:-
Ex.C1 07.01.2020 Certificate of Aalysis issued by Tamil Nadu Food Safety And Drug Administration Department Food Analysis Laboratory, King Institute Campus, Guindy, Chennai- 32. Original
Sd/- Sd/-
MEMBER-II PRESIDENT
