Tamil Nadu

StateCommission

RP/1/2021

Avenue Supermart Ltd., - Complainant(s)

Versus

S.Sivasankar S/o Sundaram, - Opp.Party(s)

M/s. K. Ganesan

17 Aug 2021

ORDER

IN THE TAMILNADU STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI.

 

Present:    HON’BLE THIRU. JUSTICE.  R. SUBBIAH ,                                     PRESIDENT

              TMT. S.M.   LATHA  MAHESWARI,                                                       MEMBER  

 

R.P.No.01/2021

(Against the order passed in C.C.No.01/2012, dated 08.03.2021 on the file of the District Commission, Salem)

 

  THE 17^th DAY OF AUGUST 2021.

 

 

Avenue Supermart Ltd.,

Represented by its Authorized Signatory,

“DMart” Salem,

Old  Ramani Hyundai Show Room,

131/2,  Narasothipatty,

Omalur Main Road,

Salem – 636 004.                                                    Revision Petitioner/Opposite Party    

 

 

                      Vs

 

 

S. Sivasankar,

S/o. Sundaram,

Office at First Floor,

No.93,  Theerthagiri Road,

Opp. to T.M.S. Petrol Bunk,

Salem – 636 001.                                                   Respondent/Complainant  

 

 

Counsel for the Revision Petitioner/Opposite party:    M/s. K. Ganesan, Advocate.

Counsel for the Respondent/Complainant             :    M/s. J. Ramakrishnan, Advocate.   

             This Revision Petition is coming before us for final hearing today, on 17.08.2021 and on hearing the arguments of both sides and on perusing the material records, this Commission made the following

ORDER

HON’BLE  THIRU. JUSTICE R. SUBBIAH, PRESIDENT (Open Court)  

 

1.       This Revision Petition has been filed as against the interim order passed by the District Commission, Salem in C.C.No.01/2021, dated 08.03.2021 ordering for sending the “Wheat Auto” flour to the lab for analysis.   

2.       For the sake of convenience and brevity, the parties are referred to here as they stood arrayed in the District Consumer Disputes Redressal Commission, Salem. (In short, “District Commission”).              

3.     The brief facts which are necessitated to dispose of this Revision Petition is as follows;-   The Revision Petitioner, the opposite party before the District Commission in C.C.No.01/2021,  is a Public Limited Company engaged in the chain of organized retail trade and business in Supermarkets segment, selling Grocery, Staples, Daily essentials, Diary & Frozen products, Home and Personal care, Bed and Bath, Home Appliances, Crockery, Footwear, Luggage, Toys and Games, Plastic  Containers, Kid’s Apparel, Men’s Apparel, Women’s Apparel and Fruits and Vegetables under the trade name “D Mart”.  The revision petitioner/opposite party is running Multiple Retail Marts in various cities across the country and one of such mart is situated in Salem in Tamil Nadu where the respondent/complainant resides. On 27.10.2020, when the complainant visited the store at Salem, he found loose Atta Wheat was being sold at the rate of Rs.24/- per kilogram. The complainant bought 5 kilogram of loose Wheat Atta.  When the same was used in cooking for preparing “Chapatti”, it turned out to be hardened, unbending and toughened like gelatinous cake rendering it inedible. Hence, the “Atta Wheat” sold to the complainant was inferior, defective and sub-standard in quality and unsafe for human consumption. Hence, he was constrained to preserve the residue of the loose Atta Wheat as evidence of sub-standard and unsafe food article. The complainant has also issued a legal notice dated 06.11.2020 to the opposite party/revision petitioner herein underscoring the defects in the loose Atta Wheat and thereupon sought for remedy to his grievances. After receiving the notice on 11.11.2020, the opposite party caused a reply notice, dated 02.12.2020 and served the same to the complainant on 04.12.2020 enclosing an undated Xerox copy of food analysis report.  In the reply notice, the opposite party claims on the strength of the alleged food analysis report, that loose “Atta Wheat” sold to the complainant conformed  to the standards prescribed under the Food Safety and Standards (Food Products Standards and Food Additives) Regulations, 2011.  The Revision Petitioner is denying the claim of the complainant. But, it is the assertive statements of the complainant that the said food article sold to him was sub-standard, defective and unsafe for human consumption. Hence, the complainant has filed a consumer complaint before the District Consumer Commission on 19.12.2020 against the opposite party in C.C.No.01/2021.

4.           When the complaint was pending enquiry, the complainant filed a petition before the District Commission to send the Atta Wheat for analysis to prove his case. The request was opposed by the Revision Petitioner/Opposite Party by filing a statement contending that the Atta Wheat purchased by the complainant cannot be sent to the analysis as the products already expired the shelf life of 90 days and subjecting the product to any analysis after its shelf life period of 90 days will give only an adverse result. Therefore, the opposite party opposed for sending the product for analysis. But, rejecting the contention of the revision petitioner/opposite party, the District Commission ordered for sending the sample to the Government Food Analysis Laboratory, namely King Institute of Laboratory, Gundy, Chennai-32.  Aggrieved over the same, the present Revision Petition has been filed by the opposite party.

5.      When the matter was taken up for enquiry, the  counsel for the Revision Petitioner submitted that the manner in which a sample was collected and sent for analysis is not in conformity with the section 38(2) (c ) and (e) of the Consumer Protection Act, 2019 and the rule framed therein.  The sample sent for analysis did not conform with the standards prescribed. The sample was sent in a plain polythene cover kept in sealed paper cover without label which is not a scientific method of sampling. The Wheat Atta flour that was purchased being loose flour and not packed by the manufacturer it is the purchaser who ought to have kept the materials safe during the shelf period of 90 days after it was purchased.  When the Wheat Flour was allowed to be kept in contact with moist atmosphere the flour absorbs moisture from the atmosphere.  Furthermore, the poor packaging conditions would enable the flour to absorb moisture from the ambient atmosphere and aids faster deterioration of the food product.  The increase of moisture content would cause the increase of the Alcoholic Acidity of the Wheat Flour whereby it becomes a must to state the meaning of Alcoholic Acidity of Flour and its relationship with moisture.  Therefore, the complaint ought to have been thrown out by the District Commission in threshold itself whereas the District Commission had sent it for analysis to the Food Safety and Drug Administration Department, Food Analysis Laboratory, King Institute Campus, Guindy and since it is the violation of section 38(2) (c) and (e) of the Consumer Protection Act, 2019 the same is liable to be set aside.  

6.       Countering the above submission, the counsel for the respondent/complainant made submissions in support of the order passed by the District Commission.  Further, he stated that pursuant to the order passed by the District Commission, sample was already tested by the Food Analysis Laboratory, King Institute Campus, Guindy, Chennai.  The Food Analysist attached to with the said Laboratory who analyzed and tested the sample has opined that the “Loose Atta Wheat does not confirm to Standard  prescribed for “ Atta” and the same is Sub-Standard as per section 3(1) ) (zx) and Section  26(1) (2) (ii) & (v) of the Food Safety and Standards Act, 2006.  Therefore, the revision petition is to be dismissed as infructuous.  

7.       Heard the submissions made by both sides and perused the materials available on records. The only grievance of the revision petitioner is that the sample was not sent in accordance with the section 38(2) (c) and (e) of the Consumer Protection Act, 2019 and therefore the order of the District Commission to send the sample for analysis has to be set aside.   But, we are of the view that the revision petitioner is having every right to make an objection against the analysis report as per clause 38 (3) (f) of the Consumer Protection Act, 2019 before the District Commission.  Therefore, we are of the considered opinion that there is no need to go into the details of the petition on merits and accordingly the Revision Petition is to be dismissed by giving liberty to the Revision Petitioner/Opposite Party to move with an objection to the analysis report before the District Commission.  On filing such objection, the District Commission is directed to pass an appropriate order on hearing both sides as early as possible. 

8.        In the result, this Revision Petition is dismissed with liberty to the Revision Petitioner/Opposite Party to approach the District Commission with an objection to the analysis report. On filing such objection, the District Commission shall pass an appropriate order after hearing both sides as at early date.  There shall be no order as to costs in this Revision Petition.    

                     

 

 

 

 

S.M. LATHA MAHESWARI,                                                              R. SUBBIAH,

           MEMBER.                                                                              PRESIDENT. 

 

Index: Yes/No

TCM/SCDRC/Chennai/Orders/August/2021