IN THE CONSUMER DISPUTES REDRESSAL COMMISSION,
ALAPPUZHA
Tuesday the 10th day of August, 2021
Filed on 29.09.2018
Present
1. Sri.S.Santhosh Kumar, Bsc.LLB(President)
2. Smt. Sholy.P.R, BA, LLB(Member)
In
CC/No.252/2018
Between
Complainant:- Opposite parties:-
Sri. Sunny Mathew 1. Smt. Anila Sam Samuel
S/o Kochu Kunju Mathew W/o Samuel Tharayil
Valiyaparambil Sam Villa Samsum Super Market &Bakery
Kallumala.P.O Kallumala South Junction
Mavelikara Mavelikara
(Adv. Jyothi Gopinathan) (Exparte)
2. Double Horse Customer Care
Centre Executive, T.C No.20/26
Manjilas, Sasthri Road, ,
Nellikkunnu, Thrissur-680005,
3. The Managing Director
Manjilas Food Tech Pvt.Ltd
2/119, SF No.76/3,
Unjavellam Patty
Pollachi, Tamilnadu
(Adv. K. George for Ops 2&3)
O R D E R
SRI. S. SANTHOSH KUMAR (PRESIDENT)
Complaint filed u/s 12 of the Consumer Protection Act, 1986.
1. Material averments briefly stated are as follows:-
1st opposite party is running a provision as well as bakery at Kallumala South Junction, Mavelikkara. 2nd opposite party is the manufacturer of various types of food products in a large scale. The 2nd opposite parties food products are branded as ‘Double Horse’. The 3rd opposite party is a statewide distributer and marketing agency of 2nd opposite party.
2. On 21/8/2018 complainant purchased one packet of ‘Double Horse’ Corn Puttupodi manufactured by 2nd opposite party and marketed by 3rd opposite party from the shop of 1st opposite party by paying Rs.46/-. The manufacturing date is printed as May-2018 in the packet and “best before six months”. Complainant opened the food packet at his house for cooking and found dead cockroaches and its remnants along with the Corn Puttupodi. The packet was fully sealed and there was no chances of cockroaches enter into the packet through any opening. Complainant immediately approached the 1st opposite party along with the Corn Puttupodi packet where upon 1st opposite party said that she is only a petty retailer. Complainant intimated the matter to the 3rd opposite party and customer care agency of 2nd opposite party. 3rd opposite party offered another food packet and handled the matter very carelessly.
3. Cockroaches which were found in the food packet is a noxious object which is deadly and harmful and dangerous for human consumption. The sight of the cockroaches have caused omitting tendency to the wife of the complainant. Due to the purchase of contaminated packet food item, complainant and his family had to suffer hardships and mental worries. The act of the opposite parties 1 to 3 by marketing, distributing and selling contaminated packed foods endangering human life is a gross unfair trade practice and the opposite parties are jointly & severally liable to compensate the complainant. Complainant is claiming an amount of Rs.2,00,000/- as compensation and Rs.10,000/- as cost. Hence the complaint.
4. 1st opposite party remained exparte. 2nd and 3rd opposite parties filed a joint version mainly contenting as follows:-
The purchase of ‘Double Horse’ Puttupodi from the 1st opposite party on 21/8/2018 is not known to these opposite parties. It is not mentioned how the puttupodi was stored till the complaint was filed. The mode of keeping the packet after opening it is not mentioned in the complaint. The allegation that the puttupodi contained dead cockroaches and remnants is false. The packet was opened on 21/8/2018 and if it is kept open till 17/6/2019 on the date of complaint there is every chance of contamination for which these opposite parties are not responsible. The allegation that contamination occurred at the manufacturing unit is false.
5. Food items are manufactured with utmost care with hygiene and there is no possibility of contamination. The allegation that 3rd opposite party had offered another packet is false. These opposite parties came to know about the incident only on receipt of notice from this Commission. Contamination might have occurred at the time of storing after opening the packet. Complainant is not entitled for any compensation and hence the complaint may be dismissed with compensatory cost.
6. On the above pleadings following points were raised for consideration :-
1. Whether there is any deficiency of service from the part of opposite parties as alleged?
2. Whether the complainant is entitled to realize an amount of Rs.2,00,000/- as compensation from the opposite parties as prayed for?
3. Reliefs and costs.
7. Evidence in this case consists of the oral evidence of PW1 and PW2 and Ext.A1 from the side of complainant. Ext.X1 was marked through PW2.
8. Point No.1 and 2:-
PW1 is the complainant in this case. He filed an affidavit in tune with the complaint and marked Ext.A1.
9. PW2 is working as Government Analyst, Government Analysts Laboratory, Thiruvananthapuram.
10 On 1/7/2019 she received sample packet from this commission containing 100gms. It was having a disagreeable smell. It contained remnants of dead cockroaches. The remnants were not fresh. Her report is marked as Ext.X1.
11. Pw1, the complainant in this case, on 21/8/2018 purchased one packet of ‘Double Horse’ Corn Puttupodi manufactured by 3rd opposite party and marketed by 2nd opposite party from the shop of 1st opposite party. It was purchased as per Ext.A1 bill dated.21/8/2018 and price for the Corn Puttupodi was Rs.46/-. On the next day when they opened the packet it was found that the puttupodi contained two dead cockroaches. When contacted 2nd and 3rd opposite party through the 1st opposite party they had offered another food packet. But the complainant was not satisfied with the same, since according to him there was a serious issue affecting the health of public. Hence he preferred the complaint claiming an amount of Rs.2 lakh as compensation and Rs.10,000/- as cost. 1st opposite party the retail seller remained exparte. 2nd and 3rd opposite parties filed a detailed version denying the allegations. According to them they are manufacturing the product in hygienic conditions and there is no reason for cockroaches entering to the packet. According to them the allegations are false and baseless and so the complaint is only to be dismissed. Complainant got examined as PW1 and marked Ext.A1. As per the request of the complainant the Corn Puttupodi produced by him along with the packet was sent for chemical analysis. The sample was analyzed by PW2 on 1/7/2019 and Ext.X1 report was forwarded. Though opposite parties 2 and 3 filed a detailed version they did not prefer to enter the witness box.
12. The allegation in a nutshell as stated above is that as per Ext.A1 bill dated 21/8/2018 PW1 purchased Corn puttupodi along with other articles from the shop of 1st opposite party. Ext.A1 is dated 21/8/2018 and it is seen issued in the name of complainant. So there is no reason to disbelieve the purchase of the product. Ofcourse the brand name M/s Double Horse is not mentioned in Ext.A1. Ext.A1 is a bill issued from a shop at Mavelikkara. We cannot expect retail sellers to write the brand name of the products in such bills. Along with the complaint complainant has produced five photographs of the packet. But it is not seen marked. However from the photographs it is seen that brand name is Double Horse and it is manufactured by M/s Manjilas food product Pvt. Ltd.(3rd opposite party). From one photograph it is seen that the date of manufacture is May,2018 with an indication “best before six months from manufacture”. Since Ext.A1 bill is dated 21/8/2018 there is every probability that the product purchased was the same one which is seen in the photographs. Now the case of PW1 is that on the next day when the packet was opened and a portion was transferred in to a vessel for making “putt” it was found that it contained two dead cockroaches. The photographs produced along with the complaint shows two dead cockroaches along with the puttupodi. Though it was contented by the 2nd and 3rd opposite party in their version that the manufacturing process is done in a highly hygienic conditions they did not prefer to enter the witness box to prove their case on oath. As held by the Hon’ble Surpeme Court in AIR 1999 SC 1441(Vidhyadhar Vs Manikrao)
“WHERE a party to the suit does not appear into the witness box and states his own case on oath and does not offer himself to be cross examined by the other side, a presumption would arise that the case set up by him is not correct.”
Since opposite parties 2 and 3 did not prefer to enter the witness box to prove their case inspite of filing a detailed version applying the principles laid down by the Hon’ble Supreme Court, it can be presumed that the case set up by them is not correct. It is true that in the complaint the case of PW1 is that the packet was opened by him whereas during cross examination he stated that it was opened by his wife. Such minor contradictions can only be ignored considering the gravity of the case. It is true that PW1 admitted that himself or his wife has not consumed the article. When they opened the same and transferred the contents into a vessel for making “Puttu” they saw the dead body of cockroaches. So they put it into the packet and brought the same along with the complaint. In a case under the Consumer Protection Act we cannot expect the standard of sampling prescribed under the Prevention of Food Adulteration Act. As per Ext.A1 article was purchased on 21/8/2018 and the packet was opened on 22/8/2018. The complaint is seen filed on 29/9/2018. Hence it can be seen that without much delay the complaint was filed and the product was produced along with the complaint. Though PW1 was thoroughly cross examined nothing was brought out to discredit his testimony. There is no reason to show that he has filed such a false complaint only to harass the 2nd and 3rd opposite parties.
13. As per the request of the complainant the article was forwarded to the chemical analyst. PW2 the analyst inspected the article on 20/6/2019 and issued Ext.X1 certificate. It is true that in Ext.X1 certificate PW2 has stated that the sample was received in spoiled condition. Hence unfit for further analysis. However she has stated the physical appearance of the sample as follows. “Sample consists of off-white coloured powder having disagreeable odour, dead cockroach, parts of cockroach and lumps of Corn powder”.
So the evidence of PW2 coupled with Ext.X1 report shows that the sample contained dead cockroach and parts of cockroach. It was also having a disagreeable order. From the photographs produced by the complainant it can be seen that the product was manufactured during May,2018 and best before six months from manufacture. The date of analysis was on 20/6/2019. So even as per the manufacturer the expiry date ended during November 2018 since it was manufactured in May,2018 and it was best before six months from manufacture. The learned counsel appearing for opposite parties 2 and 3 contented that since the product was unfit for further analysis Ext.X1 cannot be taken into account. As stated earlier the physical appearance of the sample was stated in Ext.X1 report. Ofcourse it was unfit for further analysis. Further analysis is required only to find out whether the Corn powder is adulterated with substances which cannot be found by naked eye. However in this case the physical appearance itself shows that it was having a disagreeable odour and it contained dead cockroach and parts of cockroach. So the contention of the learned counsel appearing for opposite parties 2 and 3that Ext.X1 report is of no use is unfounded. Opposite parties have no case that PW1 put dead cockroaches into the packet only to malign the reputation of opposite parties 2 and 3. Their only case is that it might have happened during the time of storage at the house of PW1. But PW1 stated that he transferred the contents into a Tin and stored it. So there is no chance of cockroach entering at the house of PW1. So the evidence of PW1 and 2 coupled with Ext.X1 report clearly proves that the Corn puttupodi purchased by PW1 as per Ext.A1 bill contained dead cockroaches. It is true that PW1 has not consumed the product but it is to be remembered that opposite parties 2 and 3 are large scale manufactures of food product and they are marketing it in several places. If it was consumed by PW1 and his family it would have caused serious health issues and so the contention that it has not caused any harm to the complainant and his family members is without any foundation. In said circumstances PW1 is entitled for compensation for deficiency of service.
14. PW1 is claiming an amount of Rs.2,00,000/- as compensation and Rs.10,000/- as cost from the opposite parties. It is to be remembered that 1st opposite party is a retail seller and she sold the article to the complainant as per Ext.A1bill. Admittedly the article was manufactured by 3rd opposite party and it was marketed by 2nd opposite party. The product was in a sealed condition and so 1st opposite party cannot be held liable. However there was clear negligence from the part of opposite parties 2 and 3 for manufacturing the product in an unhygienic manner and marketing the same. Though PW1 is claiming an amount of Rs.2,00,000/- as compensation considering the entire circumstances in this case we are of the view that complainant is entitled to realize an amount of Rs. 25,000/- as compensation. These points are found infavour of the complainant.
15. Point No.3:-
In the result complaint is allowed in part.
A) Complainant is allowed to realize an amount of Rs.25,000/- as compensation for deficiency of service from opposite parties 2 and 3
B) Complainant is allowed to realize an amount of Rs.5000/- as cost from the opposite parties 2 and3.
The order shall be complied within one month from the date of the receipt to this order.
Dictated to the Confidential Assistant, transcribed by him corrected by me and pronounced in open Commission on this the 10 th day of August, 2021.
Sd/-Sri.S.Santhosh Kumar(President)
Sd/-Smt. Sholy.P.R(Member)
Appendix:-Evidence of the complainant:-
PW1 - Sunny Mathew(Complainant)
PW2 - C.P.Saradamani(Witness)
Ext.A1 - Bill dated.21/8/2018
Ext.X2 - Certificate of Examination(Govt. Analyst’s Laboratory)
Evidence of the opposite parties:-Nil
// True Copy //
To
Complainant/Oppo. party/S.F.
By Order
Senior Superintendent
Typed by:- Br/-
Compared by:-
