Tamil Nadu

North Chennai

89/2012

Daniel Mary, - Complainant(s)

Versus

M/s.Rautch FruChts GMBH Co. - Opp.Party(s)

M/s.K.P.Kiran Rao

07 Apr 2016

ORDER

                                                              Complaint presented on  :  18.04.2012

                                                                  Order pronounced on  :  07.04.2016

 

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, CHENNAI (NORTH)

    2^nd Floor, Frazer Bridge Road, V.O.C.Nagar, Park Town, Chennai-3

 

PRESENT: THIRU.K.JAYABALAN, B.Sc., B.L.,         :      PRESIDENT

                    TMT.T.KALAIYARASI, B.A.B.L.,            :     MEMBER II

 

THURSDAY THE  07^th  DAY OF APRIL 2016

 

C.C.NO.89/2012

 

 

Daniel Mary

Wife of Mr.Gnanasekaran,

Residing at Chitra Apartments,

102, Shopping Block,

Choolaimedu,

Chennai – 94.

                                                                                                 ..... Complainant

 

..Vs..

	1.M/S.Rauch Fruchtsficce, GMBH & Co., 06, Kuhbruckweg 2, 6714, Nuziders by Red Bull Asia FZE, Dubai Airport Free Zone, U.A.E.   2.M/S.Red Bull India Pvt Ltd., Head Office: 1st Floor, Kakad Chambers, Annexe, Near Podar Hospital, 132, Dr.Annie Besant Road, Worli, Mumbai 400 018.   Also at M/s.Red Bull India Pvt Ltd., 1st Floor, B Wing, 215, Artium, Kanakia  Spaces, Chakala, Andheri  Kurla Road, Andheri (East) Mumbai 400 059.     3.M/S.Haneefa Supermarket, No.9, Chitra Avenue, Choolaimedu, Chennai.
	...Opposite Parties

Date of complaint                                  19.04.2012

Counsel for Complainant                      : M/S K.P.Kiran Rao

Counsel for 1^st & 2^nd   Opposite party      :S.Sethuraman

 

Counsel for 3^rd Opposite Party                        : Ex parte       

 

O R D E R

 

BY PRESIDENT THIRU. K.JAYABALAN B.SC., B.L.,

          This complaint is filed by the complainant u/s 12 of the Consumer Protection Act.1986.

1.THE COMPLAINT IN BRIEF:

          “RED BULL” is a tinned energy drink which is manufactured by the 1^st Opposite Party and widely advertised by the 1^st Opposite Party all over the world and imported and marketed in India by the 2^nd Opposite Party. The said energy drink is said to remove fatigue and provide instant energy by vitalizing body and mind. The Complainant states that she is a regular consumer of the said energy drink. On 12.03.2012, the Complainant had visited the grocery supermarket of the 3^rd Opposite Party which is near the Complainant’s residence and she had purchased several articles including the tinned “Red Bull’’ energy drink under Bill No.CA70823 and the cost of the said energy drink was Rs.85/-. Her usual practice to verify the expiry date of the drink, found in the product, should be used before 24 months from the date of manufacture. The date of manufacture of the product was specified as 31.10.2011.  She had thereafter returned home and opened the slot of the tin drink and found a change in the taste and some residue sticking to her tongue after consuming. As the contents of the tinned drink is not visible, the Complainant had opened the tin and poured the contents into a glass, The Complainant was utterly disgusted to see such a big filthy mass in a reputed energy drink manufactured by the 1^st Opposite Party and imported and marketed by the 2^nd Opposite Party. The Red Bull Tin which she purchased bears the No. PR: 31.10.11/01”53C1 and another code number Rs.85/1218431. The Complainant states that she had immediately contacted the 3^rd Opposite Party with the tin and its contents and the 3^rd Opposite Party had also photographed the same but expressed his helplessness regarding the issue. She suffered from nausea, vomiting and dysentery for which she was immediately taken to the doctor by her daughter, was administered with I V drips and the Complainant had taken treatment and suffered for 2 days thereafter. The 1^st and 2^nd Opposite Parties are manufacturing and marketing the product under the name of energy drink but the said product is contaminated and of sub standard quality. The manufacturer and importer are responsible for maintaining the quality of the drink and this responsibility is much higher when the product is tinned and supplied to the consumer.  This act of the 1^st and 2^nd Opposite Parties amounts to Deficiency in Service and unfair trade practice. She issued a legal notice dated 29.03.2012 calling upon the Opposite Parties to pay the compensation of Rs.6,00,000/- but they failed to do so as she has suffered mental agony and stress apart from the ill health caused to her by consuming the drink. The Complainant states that the act of the Opposite Parties is clear case of Deficiency in Service as well as unfair trade practice. Hence the Complainant filed this Complaint for compensation for ill health, mental agony treatment expenses etc and also for cost of the Complaint.

2.WRITTEN VERSION OF THE 2^nd OPPOSITE PARTY  IN BRIEF ADOPTED BY THE 1^st OPPOSITE PARTY:

          The Opposite Party No.1 who is the manufacturer of the Red Bull Energy Drink is a company, which has immense goodwill, name and repute for itself and its product and  is famous not only in India but also in more than 160 other countries across the world. It is a well known fact that the Opposite Party No.1 and Opposite Party No.2 have been in the business of respectively manufacturing and importing Red Bull Energy Drink , since 1987 and the same is exported and sold in India since 1998. The care and caution is exercised at the manufacturing stage to ensure that the product is of highest standards of quality, hygiene and sanitation. Since 1987, around 30 billion cans of Red Bull Energy Drink have been consumed; more than 4.6 billion cans have been consumed in 2011 alone. The Complaint is not maintainable is as much as the subject matter thereof comes directly under the purview of the Food Safety and Standard Act, 2006 (“hereafter referred to as “FS&S ACT”) which under 40 specifically provides for a purchaser of any food article to have the food article to be analyzed by the Public Analyst and take appropriate actions. Under Section 65 of the FS & S Act if the manufacturer/seller of the impugned product is found guilty, the consumer is entitled to receive monetary compensation as provided therein. It is therefore submitted that when there is a special legislation that provides a special enforcement regime and procedure for satisfaction of the grievance of a consumer of a food product, the Consumer Protection Act, 1986 does not come into play. The can was manufactured on 31.10.2011 at 1.53 am. On checking record it is clear that there was no batch of cans of Red Bull Energy Drink produced at that time and date bearing the aforesaid code number. Hence it would appear that either the data provided in the Complaint is (a) incorrect or (b) that the can is spurious and/or an imitation or (©) the can has been tampered with.  The requirement of section 13 (©), (d) and (e) of the Act is that the allegedly defective product is required to be produced before the Hon’ble Forum for submission for analysis by a recognized laboratory. Any alleged defect in Red Bull Energy Drink which is a food product cannot be determined without proper analysis or test of the product by an appropriate laboratory. The Opposite Party No.1 and 2 are engaged in manufacture, import and sale of the food product Red Bull Energy Drink and not providing service to its consumers. Hence, there could not have been Deficiency in Service offered to the Consumer. The Complainant being an Advocate herself that a Complaint needs to be supported by documentary evidence that needs to be produced along with the Complaint regarding the proof of purchase, doctors diagnosis, medicine prescriptions, details of medical treatment, etc. If this is not done at the first instance along with the Complaint then it is an opportunity lost that cannot be restored by giving a second opportunity. The Opposite Parties denies other averments made in the Complainant. Hence these Opposite Parties prays to dismiss the Complaint with cost.

3.POINTS FOR CONSIDERATION:

          1. Whether there is deficiency in service on the part of the opposite parties?

          2. Whether the complainant is entitled to any relief? If so to what relief?

4.POINT:1

          The  admitted facts are that the 1^st Opposite Party is a manufacturer  of the “Red  Bull”  tinned energy drink, the 2^nd Opposite Party imported and  marketed the said drink in India and  the Complainant purchased  the “Red  Bull”   tinned drink on 12.03.2012 from the 3^rd Opposite Party super market who is a retailer under Ex.A1 Bill.

          5. According to the Complainant after reaching home, she opened the slot of the  tin and consumed some  quantity of drink and found a change in the taste and some residue  sticking  in  her tongue and hence she poured the contents into a glass and seen  a big block mass fell into the glass and she photographed the same which is marked as Ex.A2 and immediately she contacted the 3^rd Opposite Party with contents, he expressed his inability in this issue and  the  Complainant suffered  from nausea, vomiting and dysentery and her daughter taken her  to a doctor, who administered with I V drips  and had taken treatment and suffered for 2 days and the doctor issued Ex.A3 certificate that she is suffering from food poisoning  and therefore the said drink is having deficiencies.

          6. The sample was analyzed by the King Institute, Guindy, Chennai – 32 and the report was sent to this Forum which is marked as Ex.C1. The findings  of the report are as follows.

Report: The above said sample is found to contain Yeast & mould count/ml to extent of 182 cfu Aspergillus niger isolated & identified which makes the sample “Unwholesome” & hence it is “Unsafe Food” & “Not fit for Consumption” as per Sec.3(zz) (iii) & (x) of FSS Act, 2006.

The contention that the presence of Aspergillus niger is an unsafe food and it is poisoning and for which she relied on a literature taken from black mold Awards speace.com. In the said literature the Complainant relied on the following passage.

 

ASPERGILLUS NIGER

Aspergillus niger is the most abundant species of Aspergillus in nature as it can grow on a large variety of substances. Aspergillus niger can even grow in environments with very little nutrients available. In houses it is often found growing on damp walls.

Of the Aspergillus species, Aspergillus niger infects humans the third most often. A funfal bal in the lungs is eventually created by Aspergillus niger after it infects a person’s lungs and begins to grow. The health effects of Aspergillus niger include hearing problems and even hearing loss.

Aspergillus niger is black on the surface and white or yellow underneath.

          7. The Opposite Party replied that the said drink is a safe one and further  Aspergillus niger are used in the Industrial Preparation of Citric Acid and the same was accepted World Health Organization and for which the Opposite Party relied on a literature taken from  WIKIPEDIA (The Free Encyclopedia)  as follows:

INDUSTRIAL USES 

A.Niger is cultured for the industrial production of many substances. Various Strains of A.niger are used in the industrial preparation of citric acid (E330) and gluconic acid (E574) and have been assessed as acceptable for daily intake by the World Health Organisation. A.niger fermentation is “generally recognized as safe “(GRAS) by the United States Food and Drug Administration under the Federal Food, Drug, and Cosmetic Act. (8)

Many useful Enzymes are produced using industrial fermentation of A.niger. For example, A.niger Glucoamylase is used in the production of high fructose corn syrup, and pectinases are used in cider and wine clarification. Alpha-galactosidase, an enzyme that breaks down certain complex sugars, is a component of Beano and other products that decrease flatulence. Another use for A.niger within the biotechnology industry is in the production of magnetic isotope-containing variants of biological macromolecules for NMR analysis.

IS ASPERGILLUS HARMFUL?

Aspergillus Niger occurs naturally on rotting fruit and vegetables in our homes, as well as in damp basements and other areas. At its worst, it can be very harmful if inhaled in large quantities or over long periods of time. In these scenarios in which homeowners become ill, it is sometimes referred to as “black mold”. Like  many other substances which are dangerous in large quantities Aspergillus niger can be just the opposite  in small quantities.  This fungus has proven to be useful in many manufacturing processes and for production of digestive enzymes for human and animals.

          8. The literature referred by the Complainant and the Opposite Parties are in their favour respectively. However there is no expert opinion advanced by either party to accept the literature referred by them. When such is the position, when there is no  acceptable evidence how the presence of Aspergillus niger in the drink is harmful to human, the  Complainant literature cannot be accepted and therefore as contended by the Complainant it cannot be held that the presence  of Aspergillus Niger species in the “Red Bull” drink is harmful and dangerous to the human beings.

          9. The Opposite Party contended that the King Institute is not an accredited Laboratory to Analyse the Food and therefore Ex.C1 report issued by the King Institute cannot be relied on. The Opposite Party filed the Ex.B7 containing the Food Testing Laboratories for Analysis. In the said Ex.B7 at page 56 dated 12.03.2012 the Laboratories mentioned therein have been extended further one month period to analyze the Food. Whereas the King Institute is known for all in Tamil Nadu and almost the food from various courts in Tamil Nadu and also other States  are sending  to the King Institute for Analysis and its report  is accepted by the courts. Further the said report Ex.C1 issued by the King Institute only under the FSS Act, 2006.  The Complainant also referred an order of the State Consumer Disputes Redressal Commission, Chennai at 09.07.2014 rendered in CC 30/2006 & 49/2006, wherein the State Commission has accepted the report of the King Institute. Therefore the Ex.C1report is wholly reliable and in view of the same contention of the Opposite Party that Ex.C1 cannot be relied, is rejected.

          10. The Complainant purchased the product “Red Bull” on 12.03.2012 and after 17 days only the Complainant issued Ex.A4 legal notice to the Opposite Party. According to the Complainant she is suffered from nausea, vomiting and dysentery due to consumption of “Red Bull” drink and further she was administered with I V drips and suffered for two days. Ex.A3 is the certificate issued by the doctor in favour of the Complainant that she suffered due to food poisoning. As per the case of the Complainant the doctor has not stated in Ex.A3   that she was administered I V drips to the Complainant. Further other than I V drips what kind for treatment she had taken for 2 days have not been stated either in the Complaint or in Ex.A3 certificate. Normally any doctor treating the patient in the clinic,  they will issue prescription by prescribing medicines. In the case in hand I V drips was administered to the Complainant. That being so certainly the doctor should have issued prescription to purchase the I V drips  from the medical. Therefore, the Complainant failure to file the Medical  Prescription and bill for the purchase of  medicines and I V drips create a doubts in the Complainant case that whether she was really affected and  undergone the treatment as stated by her in the Complaint.

          11. In Ex.C1, the analysis found that the drink ‘unsafe food’. The Complainant is an advocate. According to her she opened the tin and drank and  found some difference then she poured in the  glass tumbler and found the presence of mass and immediately the very next day after  issuance of  notice to the Opposite Party she should have taken steps through this Forum to send the drink for analysis and such steps was not taken by the Complainant create a doubt in the Complainant case, that as contended by the Opposite Party whether the drink was purchased  on 12.03.2012 was sent for analysis. Therefore in the circumstances of the case the order relied on by the Complainant reported in I (2007) CPJ 40 (NC) (CADBURY INDIA LTD. Vs. L,NIRANJAN) is not applicable to the facts of the case in hand. In Ex.C1 the analysis found that  Aspergillus Niger present and therefore the “Red Bull” drink is unsafe food and not fit for consumption. No expert evidence adduced by the Complainant Aspergillus Niger is harmful and dangerous to the human body as contended by the Complainant. Therefore from the forgoing discussions we hold that the Complainant has not proved that the Opposite Parties health drink “Red Bull” is a deficient one and hence we hold that the Opposite Parties have not committed any  Deficiency in Service.

12.POINT:2

          Since the Opposite Parties have not committed deficiency in service, the complainant is not entitled for any relief in this complaint and the complaint is liable to be dismissed.

          In the result the Complaint is dismissed. No costs.

          Dictated to the Steno-Typist transcribed and typed by her corrected and pronounced by us on this 07^th   day of April 2016.

 

MEMBER – II                                                               PRESIDENT

LIST OF DOCUMENTS FILED BY THE COMPLAINANT:

Ex. A1 dated 12.03.2012                  Cash Bill of 3^rd Opposite Party

Ex.A2 dated 12.03.2012                   Photographs of the contaminated drink

Ex.A3 dated 12.03.2012                   Doctor Certificate

Ex.A4 dated 29.03.2012                   Legal Notice with RPAD Receipts and AD cards

Ex.A5 dated 28.04.2012         Reply Notice

LIST OF DOCUMENTS FILED BY THE OPPOSITE PARTIES:

Ex.B1 dated 26.06.2014                 Certificate copy of the resolution passes by the

                                                   board of directors. Rauch fruchtsafte GMBH & Co.

 

Ex.B2 dated 07.07.2014                 Resolution passed by the board of directors

Ex.B3 dated 31.10.2013                 Complaint report

Ex.B4 dated NIL                    Food poisoning information prescription

Ex.B5 dated NIL                    Food poisoning information

Ex.B6 dated NIL                    Low blood pressure (Hypotension)- causes

Ex.B7 dated 12.03.2013                Authorization of NABL accredited food testing

                                                 Laboratories for analysis of food sample taken under

                                             FSS Regulation

 

 

LIST OF  COURT DOCUMENT:

Ex.C1 dated 04.05.2012                Food Analysis Laboratory Certificate of Analysis

 

 

MEMBER – II                                                               PRESIDENT