C.F. CASE No. : CC/10/105
COMPLAINANT : Sri Narayan Chandra Sarkar,
S/o Nitaidas Sarkar
Subhash Nagar, Chakdah,
P.S. Chakdaha, Dist. Nadia
Pin – 741 222
OPPOSITE PARTIES/OPs: 1) Sri Barun Das,
S/o Late Sukumar Das
Proprietor Guru Das Drug Hall,
N.S. Road, Chakdaha, P.S. Chakdaha,
Dist. Nadia, Pin – 741 222
2) Sri Tapash Chaki,
S/o Sri Anil Chaki,
Chaki Traders, Dealer, Nestle India Limited,
Khosh Bagh Mohalla, KBM Chakdaha
P.S. Chakdaha, Dist. Nadia, Pin – 741 222
3) Senior Manager,
Consumer Service & Corporate,
Wellness, Nestle India Limited, Nestle House,
Jacaranda Marg, ‘M’ Block, DLF City, Phase – II
Gurgaon – 122002,050, Hariyana,
PRESENT : SHRI KANAILAL CHAKRABORTY PRESIDENT
: SHRI SHYAMLAL SUKUL MEMBER
DATE OF DELIVERY
OF JUDGMENT : 30th June, 2011
: J U D G M E N T :
In brief, the case of the complainant is that on 17.09.09 at about 9am he purchased one pack NAN-1 baby food for his baby, Shreya Sarkar aged about 13 days along with his friend one Sona Sarkar from Gurudas Drug Hall. At the time of purchase though he paid full amount but the OP No. 1 did not deliver any cash memo on demand. From that very date, he started to feed this baby milk NAN-1 as his wife had crisis of breast milk. From the next day, i.e., on 19.09.09 he observed that the baby was passing stool irregularly and complication also arose in her body. On 24.09.09 he observed temperature on the body of the baby and on 26.09.09 he took his baby to Chakdaha State General Hospital at 6pm where the emergency doctor examined the baby and prescribed some medicines and also referred for admission at JNM Hospital, Kalyani. The Chakdaha Hospital doctor also advised to examine the baby by Dr. S.M. Adhikary, Paediatrics and as per that advice Dr. Adhikary examined the baby on 30.09.09 who prescribed some medicines and diagnosed the disease of his baby as septicemia. He also referred the case to JNM Hospital, Kalyani. As per that advice the baby was admitted at Kalyani JNM Hospital on 30.09.09 under Dr. J. Hazra who also prescribed some medicines. Dr. Hazra also diagnosed the disease as septicemia which he noted in the discharge certificate. After returning home the baby became ill again, so he was examined by Dr. Hazra who advised for admission at the Institute of Child Health, Kolkata and as per that the baby was taken to Kolkata and was admitted at the Institute of Child Health, Kolkata on 04.10.09 where he was treated up to 06.10.09 under the leadership of Dr. Joydeb Roy. Thereafter the baby was under ventilation for 11 days at Repose Clinic from where she was released on 20.10.09 and in that clinic she was under the treatment of Dr. Joydeb Roy. It is his specific case that though the doctors did not write the cause of suffering of his baby in their prescriptions, but all the doctors who examined and treated the baby opined that the baby was attacked with septicemia which happened due to food infection and i.e., NAN-1 of Nestle India Ltd. because other than this food no other food was taken by the baby except her mothers breast milk. On 21.10.09 on taking the NAN-1 pack he found some fungus in the pack and on the same day he went to Gurudas Drug Hall and asked its proprietor, Sri Barun Das to issue cash memo who declined to issue the same. Thereafter, Sri Barun Das took him to dealer Sri Tapash Chaki of Chaki Traders who told him that he would contact with the company person for checking it by the company in their laboratory in Gurgaon, Hariyana and if anything wrong found he would pay full compensation the amount which he spent for the treatment of his baby. On 24.10.09 the said pack was taken by company person, one Arijit Bal in presence of dealer representative Sri Ajay Sing from him at about 4 pm. After much persuasion on 04.02.10 the test report of the company was served upon him by Arijit Bal and Sri Ajay Sing who also wrote to Nestle India Ltd. for sending laboratory analyst report on 05.02.10 and 05.04.10. In the report it was stated that some foreign particles were available on the sample food after examination. It was reported that this could be happened due to improper storage of the pack / product in question at some point post its release / dispatch from the factory. But the Nestle India Ltd. did not send laboratory report to him. The President, Nadia District Consumers’ Association wrote a letter to Nestle India Ltd. and to the other OPs on 09.07.10, inter alia, stating about the suffering of his baby and for payment of compensation which the complainant had to spend for her treatment, but to no effect. Nor this complainant received any reply either from the dealer Tapash Chaki or the proprietor Gurudas Drug Hall though he spent huge amount for the treatment of his baby. So having no other alternative he has filed this case praying for the reliefs as stated in the petition of complaint.
OP No. 1, Barun Das has filed a written version in this case, inter alia, stating that the complainant has no cause of action to file this case. It is his specific contention that the complainant along with his friend never visited his shop-room on 17.09.09 for purchasing the product of Nestle India Ltd. of NAN-1. So no question of issuing any cash memo on his part does arise. He also submits that the complainant once approached him to introduce the complainant with the dealer of Nestle India Ltd. (OP No. 2) for obtaining some information about the product of the said company. He has denied all the allegations made by the complainant against him in the petition of complaint. Rather it is his submission that in collusion with one Sona Sarkar the present case is filed by him. He has no knowledge regarding the statement made by the complainant at Para 13 to 17 of the petition of complaint. As the complainant did not visit his shop-room, so no question of purchasing of any baby food from his shop as alleged by the complainant does arise. So no question of claiming any compensation from this OP is tenable. Therefore, the complainant has no cause of action to file this case and the same is liable to be dismissed.
OP No. 2 has filed a separate written version in this case, inter alia, stating that the case is not maintainable in its present form and nature. It is his submission that he is the distributor of the product manufactured by the OP No. 3 and he never sold any product to this complainant. So he is made an unnecessary party in this case. He also submits that the complainant contacted him with a view to obtain information regarding the product NAN-1 and told that he had some grievances regarding the said product and on being so he conveyed the grievances of the complainant to the Sales Officer, Mr. Arijit Bal (OP No. 3). Then the Sales Officer along with representative of this OP No. 2 met the complainant at his house on 26.09.09 where the complainant produced the distorted half empty product of NAN-1 which was found as damaged. On inspection it was found that contents of the said product had not been transferred to an air tight container nor the pack was used within one month from the opening date of the pack i.e., on 17.09.09. As per request of the complainant the OP No. 3 took sample of the pack product and duly tested it in laboratory. OP No. 3 duly communicated the test result to the complainant for his satisfaction. The complainant neither produced any medical advice to feed the said product for his 13 days old baby nor submitted any bill of purchase of the said product on 17.09.09 from the shop-room of the OP No. 1. This complainant also failed to produce any documentary evidence to that extent that his baby suffered from septicemia due to feeding of NAN-1 as alleged. He has no knowledge regarding the alleged ailment of the baby of the complainant. He also denied regarding serving of any letter to him by Nadia District Consumers’ Association for claiming compensation. The complainant has practically filed this case without having any due cause rather to extort huge compensation from him. So the case is liable to be dismissed against him.
OP No. 3 has filed a separate written version in this case. It is his contention that the case is not maintainable in its present form and nature. He has denied that on 17.09.09 the complainant purchased one NAN-1 food pack from the OP No. 1, but no cash memo was issued by the OP No. 1. Without prescription of any health worker this baby food cannot be used in lieu of mother’s breast milk. But in the instant case no where it is stated by the complainant that as per advice of any medical practitioner the baby food was fed by his child. It is clearly mentioned on the pack that “On opening this pack, the contents should be immediately transferred to an empty, clean and airtight container. After each use, replace lid tightly and store in a cool and dry place.” It is also advised on the pack “After opening use the contents within one month of the expiry date, whichever is earlier.” At the request of the complainant a Sales Officer of the company visited the house of the complainant on 26.10.09 to whom the complainant handed over the pack in question and at his request the pack was sent to company laboratory at Gurgaon where it was tested. The detailed analysis report was sent to the complainant by the company through its letter dtd. 26.10.09. A letter was sent to him claiming compensation. Rather he submits that on 26.11.09 the Nestle company supplied two lactogen-1 as replacement of pack. So no question of claiming any compensation from him does arise. There is no document on the side of the complainant to show that his baby was attacked with septicemia due to use of NAN-1 baby food. So this complainant has no cause of action to file this case and the same is liable to be dismissed against him.
POINTS FOR DECISION
Point No.1: Is the complainant a consumer under the OP No. 1?
Point No.2: Has the complainant any cause of action to file this case?
Point No.3: Is the complainant entitled to get the reliefs as prayed for?
DECISION WITH REASONS
All the points are taken up together for discussion as they are interrelated and for the sake of convenience.
On a careful perusal of the petition of the complaint and the written versions filed by the OPs along with the annexed documents filed by the parties and also after hearing the arguments advanced by the ld. lawyers for all sides, it is the case of the complainant that on 17.09.09 at about 9am he purchased one pack NAN-1 baby food for his baby from the OP No. 1 and at that time one Sona Sarkar was present which is denied by the OP No. 1. The complainant submits that at the time of purchase though he paid the money, but no cash memo was delivered by the OP No. 1 which was detected at his home by his wife. So we find that admittedly, there is no cash memo on the side of the complainant to show that he purchased one NAN-1 baby food from the OP No. 1 on 17.09.09. PW-3, Sona Sarkar has stated in his evidence that the complainant asked the shopkeeper of the OP No. 1 to give one pack of NAN-1 with cash memo and shopkeeper supplied the NAN-1 pack in a plastic carry bag after receiving the money from the complainant in his presence. But in his deposition as PW-1 the complainant has not stated that the OP No. 1 delivered the NAN-1 pack in a plastic carry bag. Besides this, neither the complainant has stated nor PW-3 has stated in their evidence about the exact price of the NAN-1 baby food. Even in the petition of complaint, nowhere it is stated by the complainant that he paid how much amount as price of the NAN-1 food. Nor it is stated either in the petition of complaint or in the evidence that subsequently on which date he demanded for delivery of cash memo by the OP No. 1. It is also stated by the complainant as PW-1 that he asked the shopkeeper to give the cash memo along with the pack, but the cash memo was not found by his wife at home, though it is his duty to check whether the shopkeeper actually delivered the cash memo along with the pack food. The evidences of the PW-1, 2 & 3 are not satisfactory on this point. It is not established from evidences that the complainant purchased the pack food from the shop room of the OP No. 1 on the alleged date and no cash memo was delivered at that time. So we hold that the alleged purchase of the pack food from the shop room of the OP No. 1 by the complainant on 17.09.09 is not at all established. As his purchase is not established, so we have no hesitation to hold that there is no buyer and seller relationship between the complainant and the OP No. 1.
Complainant’s specific allegation is that as there is no breast milk of his wife, so he purchased the baby food to feed his 13 days old baby. Nowhere it is stated in the petition complaint that as per advice of doctor or any medical personnel he purchased the said food pack for his baby.
Purchase of baby food is not established. It is his allegation also that the baby food was an adulterated one and due to use of that his baby was attacked with septicemia. The alleged baby food was tested by the OP No. 3 in his laboratory. From the report of the analyst it is available that some foreign particles were available on the sample food after examination and the examination was done on 24.10.09 i.e., about one month after purchase by the complainant. It was also stated in the report that this could be happened due to improper use of the pack at some points. As per submission of the complainant he opened the sealed tin and nowhere it is stated that during one month it was taken in a safe and air tight container, though there is a direction of the company to use the pack within one month after opening the seal of the pack. Naturally, due to mishandling of the pack some foreign elements were available in the pack at the time of test.
Complainant’s specific allegation is that due to feeding of the baby food his baby became ill who was subsequently treated by a number of doctors and ultimately she was treated at Repose Clinic at Calcutta by Dr. Joydeb Roy. His contention is that due to use of this contaminated baby food his baby became ill and subsequently attacked with septicemia ultimately. In the prescriptions none of the doctors has stated that due to use of the baby food his baby was attacked with septicemia. At para-17 of the petition of complaint, it is stated by the complainant also that though the doctors had not written the cause of suffering of his baby in their prescriptions, but all the doctors who ever checked his baby opined that it was happened due to food infection i.e., from NAN-1 of the Nestle India Ltd. So from this Para-17 of the petition of complaint we find that none of the doctors namely Dr. S.N. Adhikary, Dr. J.N. Hazra, Dr. Joydeb Roy gave their opinion in writing to the extent that the baby of the complainant was attacked with septicemia due to feeding of NAN-1 baby food.
On the other hand on the side of the OP a copy of WiseGEEK (Page 1 to 24) is filed in which it is stated about some causes of septicemia. It is stated here that “Septicemia is a systemic infection, usually caused by bacteria of various types contaminating a person’s blood. There are many things that can cause septicemia, most notably, cuts that have become infected. Infections of the mouth or teeth, when untreated by antibiotics, can cause septicemia. Infections of cuts or surgical wounds both carry a risk of developing septicemia.” Nowhere in this book it is stated that septicemia can be caused from infection of food / baby food also.
So on a careful consideration of the prescriptions issued by different doctors who treated the baby of the complainant and this copy of the WiseGEEK book, our considered view is that a baby cannot be attacked with septicemia from baby food. Besides this, none of the doctors has filed any evidence in this case in support of the complainant that the baby was attacked with septicemia for use of NAN-1 baby food. We have already discussed that the alleged purchase of baby food from the shop-room of the OP No. 1 is not at all established.
In view of the above discussions, our considered view is that the complainant has not become able to prove his case. So he is not entitled to get any relief as prayed for. In result the case fails.
Hence,
Ordered,
That the case, CC/10/105 be and the same is dismissed on contest against the OPs without any cost.
Let a copy of this judgment be delivered to the parties free of cost.
