Rajasthan

StateCommission

A/469/2023

LAXMI FOOD PRODUCTS - Complainant(s)

Versus

SMT. MAYA - Opp.Party(s)

KUSHAGRA SHARMA

26 Dec 2023

ORDER

RAJASTHAN STATE CONSUMER DISPUTES REDRESSAL COMMISSION,JAIPUR

 

FIRST APPEAL NO: 469/2023

 

Laxmi Food Products through authorized officer, Factory & Office E-294, Road No. 14, Vishwakarma Industrial Area, Jaipur (Raj.)

…..Appellant/ Opposite party no.1

Vs.

Maya w/o Satnarayan Gandhi r/o 2/344, Jawahar Nagar, Jaipur,Rajasthan

….Respondent/complainant

 

Date of Order 26.12.2023

 

Before:

Hon'ble Mr. Atul Kumar Chatterjee- Member(Judicial)

Hon'ble Shailendra Bhatt- Member

Present:

For Appellant - Ms. Nishita Gambhir & Mr. Saurabh Kumar Jaiman Advocates

For Respondent- Mr. Rajendra Vijay Advocate

 

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BY THE STATE COMMISSION ( PER HON'BLE MR.ATUL KUMAR CHATTERJEE, MEMBER ( JUDICIAL):

 

This appeal has been filed by appellant/opposite party no.1 against the judgment of learned District Consumer Commission, Jaipur 1^st dated 15.9.2023 passed in its Complaint Case No 120/2017 whereby the complaint filed by the respondent/complainant has been allowed and all the opposite parties have been ordered to pay Rs. 20/- ( cost of the delicious brown bread ) alongwith interest @ 9% p.a. from the date of filing the complaint i.e. 10.2.2017. Besides this compensation in lieu of mental agony of Rs.10,000/- and litigation expenses of Rs. 2500/- has also been ordered.

 

Briefly stated the relevant facts of this case are that respondent /complainant had purchased two packets of Laxmi brand delicious brown bread @ Rs. 20/- per packet manufactured by appellant/opposite party no.1 from opposite party no.3 Shivam Medical & Departmental Store, Sindhi Colony, Jawahar Nagar, Jaipur. Out of these two packets

 

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one packet was consumed by the family members of the complainant & while the another packet of bread was likely to be opened, some black thing was visible in the bread and when closely observed it was found to be a dead poisonous housefly. It caused vomiting to one or two members of the family as well and everybody was stunned to see it. The bread packet was kept in sealed condition as it was purchased. Upon consulting the vendor opposite party no.3 he refused to take back the packet and has conveyed that since the bread was purchased from opposite party no.2 Prem Chand Sales Agency, Dealer Laxmi bread, Sindhi colony Raja Park therefore, the complainant should go to this party and lodge the complaint regarding the contaminated bread. When in turn the complainant went to opposite party no.2 he also refused to exchange the packet of the bread and has conveyed that opposite party no.2 had no role in packing and production of the bread. He was simply the wholesale dealer therefore, the complainant was asked to go to opposite party no.1 manufacturer and lodge the complaint accordingly. On telephonic contact no response was provided by appellant/ opposite party no. 1 thereafter alleging deficiency in service/ unfair trade practice against the opposite parties, the

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respondent/complainant filed the complaint before the learned DCC Jaipur 1^st.

 

A joint reply was filed by the opposite parties no. 1 to 3 wherein while denying the allegations against the opposite parties, it has been emphasized that the way in which the expiry of the bread was shown to be 13.2.2017 was not correct. It has also been averred that admittedly the disputed packet of bread was not consumed by any of the family members of the complainant therefore, all the allegations are simply assumptions. It has further been averred that the manufacturer appellant/opposite party no.1 takes full care of quality and hygiene during manufacturing of the breads. The wrapper used for packing was also transparent which would reveal everything put inside the packet. The bread is manufactured at a high temperature and the packet was totally packed/closed therefore, there was no possibility of existence of any poisonous dead housefly inside the packet of the bread. It has also been averred that since for packing, only cello tape is used therefore, the probability of opening the bread and re-packing of the packet of the bread cannot be denied. In this way non-commission of any negligence or wrong practice in

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manufacturing the bread has been averred. In special reply the procedure adopted by the learned DCC in sending the disputed packet of the bread for chemical examination in the State Central Public Health Laboratory, Jaipur has been alleged to have been done in an ex-parte manner without hearing the opposite parties. It has also been averred that no where it is mentioned that the packets of the bread were purchased by the complainant himself. It has further been averred that admittedly on the packet it was written that it was Best Before 13.2.2017 whereas the packet has been sent to the laboratory for chemical examination on 28.3.2017 much after 13.2.2017.

 

The learned DCC after obtaining evidence of all the parties heard the final arguments and passed the impugned judgment which has been challenged by the appellant/opposite party no.1 alone in this appeal.

 

During the course of arguments on appeal the learned counsel for the appellant/opposite party no.1 has more or less reiterated the contents of the memo of appeal and has mainly questioned the part of the finding of the learned DCC Jaipur

 

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1^st where the conclusion has been based on the chemical report. According to the learned counsel for the appellant/ opposite party no.1 since the sample was sent to the laboratory on 28.3.2017 much later than the date of purchase and 13.2.2017 upto which the bread was stated to be Best Before. The learned counsel has referred judgment of Hon'ble NCDRC in Revision Petition No. 3471 of 2013 (M/s. Heinz India Pvt. Ltd. Vs. Shibu T Paul & anr.) decided on 15.1.2015.

 

Per contra the learned counsel for the respondent/complainant has vehemently opposed the contentions of the learned counsel for the appellant/opposite party no.1 and has contended that through naked eye only something lying inside the packet of the bread was visible, which according to the complainant and his family members was a poisonous dead housefly. According to him the complainant had produced the packet of the bread before the District Commission at the very beginning of filing of the complaint. The learned counsel has referred judgment of Hon'ble NCDRC in Sabmiller India Ltd. Vs. Ashok Kumar Sharma & anr ( III (2016) CPJ 673 (NC).

 

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Though the learned DCC has relied upon the report of the Chief Food Analyst, State Central Public Health Laboratory, Jaipur but even if the contentions of the learned counsel for the appellant/opposite party no.1 manufacturer are held to be true that this chemical report could not be read in evidence because the sample was sent to the laboratory much belatedly, still we are of the view that the complainant has submitted the packet of the bread physically before the learned DCC and coloured photographs of that packet are available on the record itself wherein it is clearly revealed that despite the packet being in a sealed packed condition, a black material is being seen lying inside the bread.

 

For the above disputed black article lying inside the bread the complainant has alleged it to be a dead housefly whereas the appellant/opposite party no.1 manufacturer has emphasized that since the bread is manufactured at very high temperature therefore, it is quite improbable that a poisonous dead housefly would lie inside the packet of bread.

 

In our humble view the case of respondent/complainant that something like a dead poisonous housefly was lying inside

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the bread cannot be straight forward declined because admittedly it is expressly visible from the naked eye itself. The appellant/opposite party's case that in the high temperature wherein the bread is being manufactured, the possibility of lying any insect like housefly is much less can only be said to be an assumption only because admittedly in the disputed packet of the bread some foreign article (which may be an insect like housefly) was lying inside the bread. Therefore, manufacturing such bread and selling the same by the dealer and the local vendor can only be said to be a deficiency in service as well as unfair trade practice.

 

In our humble view the judgment referred to by the learned counsel for the appellant/opposite party no.1 pertains to a bottle of tomato ketchup and the concerned laboratory report was held not proved to be connected with the disputed ketchup sample. Therefore, in the peculiar circumstance Hon'ble NCDRC had taken contrary view than two Foras below.

 

On the contrary the judgment referred to by the learned counsel for the respondent/complainant Sabmiller India Ltd.

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Vs. Ashok Kumar Sharma & anr ( supra) wherein finding garbage inside the beer bottle was held to be deficiency in service because the garbage was visible from the naked eye and as such the finding of the concerned District Forum that there was no need to have sample analyzed was held to be correct. This judgment seems to be much relevant in the case in hand.

 

On the basis of above discussions we find that though the conclusion arrived at by the learned DCC based on the chemical report cannot be sustained but as stated above since the defect was visible from the naked eye itself and no reasonable justification has been given by the appellant/opposite party no.1 manufacturer and/or other opposite parties therefore, ultimately the finding that the opposite parties have committed deficiency in service/unfair trade practice cannot be questioned on the grounds given in the appeal. As such we do not find any force in this appeal and therefore, the same is hereby dismissed. No costs.

 

(Shailendra Bhatt) (A.K.Chatterjee)

Member Member (Judicial)

 

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