Date of Filing : 11.02.2021
Date of Disposal: 30.09.2022
DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION
THIRUVALLUR
BEFORE TMT. Dr.S.M. LATHA MAHESWARI, M.A.,M.L, Ph.D (Law) .…. PRESIDENT
THIRU. J.JAYASHANKAR, B.A, B.L. ..… MEMBER-I
THIRU.P.MURUGAN,M.Com., ICWA(Inter)., B.L., ....MEMBER-II
CC. No.19/2021
THIS FRIDAY, THE 30th DAY OF SEPTEMBER 2022
Mr.J.Kartheesh, S/o.Jayaseelan,
Bazar Street,
Perambakkam,
Thiruvallur. ……Complainant.
//Vs//
The Proprietor,
Sri Balaajee Bhavan,
No.412/7, GST Road,
Chromepet, Chennai – 600 044. …..opposite party.
Counsel for the complainant : Mr.S.Muthukumaraval, Advocate.
Counsel for the opposite parties : M/s.N.Nithianandam, Advocate.
This complaint is coming before us on various dates and finally on 26.09.2022 in the presence of Mr.S.Muthukumaraval, Advocate counsel for the complainant and M/s.N.Nithianandam, Advocate counsel for the opposite party 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 35 of the Consumer Protection Act, 2019 alleging negligence and deficiency in service in serving the food items by the opposite party along with a prayer to pay a sum of Rs.5,00,000/- towards compensation for the mental agony and to pay a sum of Rs.3,00,000/- towards deficiency in service and to pay a sum of Rs.15,000/- towards cost of the proceedings to the complainant.
Sum and substance of the complaint:-
It was the case of the complainant that he went to the opposite party’s restaurant on 21.02.2019 at about 06.30pm along with his friend and ordered rava dosa which was supplied to both of them. While having the rava dosa the complainant seen cockroach in the rava dosa and he vomited immediately. On complaining to the server he replied evasively and he was keen on taking back the poisonous food served to the complainant. As complainant reported to the staff and as they did not care, the complaint was made to the Manager in the restaurant. On threatening by the staff of the opposite party the complainant paid the bill amount of Rs.140/- for two rava dosa. Since the staffs of the opposite party threatened the complainant and his friend, police was called from Chromepet police station and they came and enquired but there was no proper reply from the staff. Hence the complainant went to Chromepet Police station and lodged a complaint about the rude behaviour of the staff of the opposite party vide CSR.No.80/2019. Since the vomiting sensation continued due to having poisonous food the complainant got treatment from Government Hospital, Chromepet and was advised medicines from the Doctor for poisonous food he had. As the health of the complainant was spoiled due to the poisonous food he had in the opposite party‘s hotel he could not go to work for 10 days which caused financial loss to him. Thus aggrieved the present complaint was filed alleging deficiency in service in not serving hygienic and healthy food to the customers which is the primary and basic duty of the opposite party for the following reliefs;
To pay a sum of Rs.5,00,000/- towards compensation for the mental agony;
To pay a sum of Rs.3,00,000/- towards deficiency in service;
To pay a sum of Rs.15,000/- towards cost of the proceedings to the complainant.
Defence of the opposite party:-
The opposite party filed version disputing the complaint allegations stating that the complaint is a sheer misuse of the provision of the Consumer Protection Act, 2019 and was filed without any basis. It was submitted that the complaint was barred by limitation submitting that no prudent Advocate would remain dormant even above two years of the alleged incident and this fact itself reveals that there was no incident happened in the opposite party hotel. It was submitted that the alleged incident was fallacious and the alleged suffering was illusory. Any prudent customer who had come across such a perilous situation of finding a cockroach in the food consumed by him would have diligently and instantly reported the same to the local or State Health Department to initiate action against the said hotel. Thus the opposite party specifically denies any such incident happened in the hotel and submitted that there is no material evidence to substantiate the alleged incidents. It was submitted that no police from Chromepet Police station visited them. Thus contending that there was no negligence and deficiency in service as alleged by the complainant on the part of the opposite party. Thus they sought for the dismissal of the complaint.
On the side of complainant proof affidavit was filed and documents Ex.A1 to Ex.A6 were marked on their side. On the side of opposite party proof affidavit was filed and documents Ex.B1 was marked on their side.
Points for consideration:-
Whether the alleged negligence and deficiency in service on the part of the opposite party in serving un-hygienic food to the complainant has been successfully proved by the complainant by admissible evidence?
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;
Bill copy issued by the opposite party dated 21.02.2019 was marked as Ex.A1;
Complaint given by the complainant to the Inspector of Police, Chromepet Police Station was marked as Ex.A2;
CSR copy issued by the Chromepet Police Station was marked as Ex.A3;
Outpatient slip and prescription issued by the Government Doctor, Chromepet dated 21.02.2019 was marked as Ex.A4;
Legal notice issued by the complainant to the opposite party dated 05.02.2021 was marked as Ex.A5;
Photo and CD was marked as Ex.A6;
On the side of opposite party the following document was filed in support of their defense;
Reply notice issued by the opposite party to the complainant’s counsel was marked as Ex.B1;
We heard the arguments of the learned counsel appearing for both the parties and perused the pleadings and evidences produced by them. It was submitted by the complainant that the complaint has been filed with the limitation period as the exemption for limitation granted by the Hon’ble Supreme Court in Suo Moto Writ Petition (C) No.03/2020 was in force at the time of filing of complaint. It was further argued that for the defence raised by the opposite party that no such incident took place in their place, Ex.A1 to Ex.A6 were filed which proves the occurrence as stated in the complaint. Submitted that the opposite party does not had any courtesy to seek apology from the complainant. The decision rendered by the NCDRC in YUM RESTAURANTS (INDIA) PRIVATE VS KISHAN HEGDE ON 05.02.2020 was referred wherein it was held that “in my opinion, if a customer files an affidavit in the consumer complaint instituted by him stating therein that the food served to him was rotten/stale/inferior in quality, such an affidavit will be sufficient to discharge the initial onus placed upon the customer, unless it is shown that the complaint is motivated or was actuated by extraneous considerations”. Contending that as per the said judgment the complainant has proved the incident by filing affidavit and producing the documents. Thus the counsel sought for the complaint to be allowed as prayed for.
On the other hand, the learned counsel appearing for the opposite party argued that the complaint is vague and unsubstantiated and not maintainable before this commission. It was argued that the complainant is guilty of suppression of material facts and the documents exhibited by the complainant did not substantiate his allegation. It was specifically denied that no such incident happened in their hotel on the specified date. It was argued by them that the legal notice issued by the complainant itself with an inordinate delay and no proper reason was assigned by the complainant for the delay. It was further argued that the complainant did not establish that he vomited on finding the cockroach in the food served to him by the staff of the opposite party. The allegation that the staff threatened the complainant was also not proved and the allegation that the health condition of the complainant spoiled due to alleged poisonous food was imaginary and invented for the purpose of complaint. Thus arguing that the complainant has not proved that there was any negligence or deficiency in service he sought for the dismissal of the complaint.
On appreciation of materials evidence we could see that the complainant had filed the copy of bill paid by him at the opposite party’s restaurant on the alleged date and time vide bill No.BN374727 as Ex.A1. But it is the specific case of the opposite party that no such incident took place on that specified date and time. When the complainant had produced the Bill in proof of the incident and when the opposite party denied the same, It is their duty to produce the Bill book ledger to show that no such Bill was issued by them. Also the issuance of the bill was not denied by the opposite party. Hence we come to a conclusion that on that day the complainant had two rava dosa along with his friend at the opposite party’s hotel has been proved by him. With regard to the allegations that cockroach was found in the rava dosa he had proved the same by producing filed a document filed by him before the Sub Inspector, Chromepet Police Station wherein he had specifically stated that a cockroach measuring half inch was found in the rava dosa and that when he enquired the staff insisted to leave the place without giving proper reply not claiming the bill amount, however he paid Rs.140/- for the food they had. The CSR copy issued by the police was also filed in proof of the complaint given by the complainant. The above documents show that the alleged incident occurred on the particular date i.e. 21.02.2019 at about 6.30pm a cockroach measuring half inch was found in the rava dosa which fact was also supported by the photograph submitted as Ex.A6. Whether the complainant suffered any health issue due to the alleged incident is a question to be decided next for which the complainant had produced Ex.A4 which was an outpatient slip issued by the General Hospital, Tambram. In that outpatient slip the name of the patient was mentioned as Kartheesh and the date was found as 21.02.2019.
Though it is specific defence put forth by the opposite party that no such alleged incident took place on that specified date but no documents was filed by the opposite party in proof of the same and the only document filed by them was the reply notice given on behalf of them for the legal notice issued by the complainant. Further the allegation that there was inordinate delay in making complaint and issuing legal notice by the complainant after the alleged incident was also could not be accepted as it is seen that the incident happened on 21.02.2019 and the complaint was filed on 19.02.2021 very well within the limitation period of two years as provided under the Consumer Protection Act. No efforts was taken by the opposite party to disprove the contention of the complainant that he went to the doctor and suffered health condition. In such facts and circumstances we hold that the complainant had successfully proved that the opposite party had committed negligence and deficiency in service in serving un-hygienic food with a small cockroach to the complainant/customers and thereby committed dereliction of their duty. Thus we answer the point accordingly in favour of the complainant and as against the opposite party.
Point No.2:-
With regard to the relief to be granted, we have already held above that the complainant had successfully proved that the food served to him on 21.02.2019 was un-hygienic and poisonous. However, though the outpatient slip has been produced by the complainant in proof that he approached a hospital after the incident no documents or evidences were produced by him to show that he suffered any health condition like test reports, medicial bill etc., which prevented him from doing profession causing financial loss for him affecting his normal health. In such circumstances we are of the view that a compensation of Rs.20,000/- would be appropriate in the facts and circumstances. Further we also award Rs.5,000/- towards cost of the proceedings to the complainant.
In the result, the complaint is partly allowed directing the opposite party
a) to pay a sum of Rs.20,000/- (Rupees two thousand only) towards compensation for the mental agony caused to the complainant within six weeks from the date of receipt of copy of this order;
b) to pay a sum of Rs.5,000/- (Rupees five thousand only) towards litigation expenses to the complainant.
c) Amount in clause (a) to be paid within six weeks from the date of receipt of copy of this order failing which an interest of 6% will be levied on the said amount from date of complaint till realization.
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 30th day of September 2022.
Sd/- Sd/- Sd/-
MEMBER-II MEMBER-I PRESIDENT
List of document filed by the complainant:-
Ex.A1 21.02.2019 Bill copy issued by the opposite party. Xerox
Ex.A2 ............ Complaint given to the inspector of police, Chromepet Police Station. Xerox
Ex.A3 21.02.2019 CSR.No.80/2019 copy. Xerox
Ex.A4 21.02.2019 Out-patient slip and prescription issued by the Government Doctor, Chromepet. Xerox
Ex.A5 05.02.2021 Legal notice issued by the complainant to the opposite party with the acknowledgement card. Xerox
Ex.A6 .............. Photo &CD. original
List of documents filed by the opposite party:-
Ex.B1 08.03.2021 Reply notice given by the oppostie party to the complainant’s counsel. Xerox
Sd/- Sd/- Sd/-
MEMBER-II MEMBER-I PRESIDENT
