Per Mr B A Shaikh, Hon’ble Presiding Member
1. This appeal is filed by the original opposite party Nos.1 & 2, against the order dtd. 30.11.2010, passed by District Consumer Forum, Yavatmal in consumer complaint bearing No.335/2009, by which the complaint has been partly allowed.
2. The case of the original complainant, who is respondent No.1 herein as set out in his complaint in brief, is as under.
The opposite party No.1 is the dealer and opposite party No.2 is the manufacturer of food product namely Cerelac Rice HMT 4006 bearing Box No.E-1/B and having Batch No.90550453 A-6. Its expiry date was February 2010. The complainant purchased one pack of the said Cerelac rice for Rs.112/- from opposite party No.1 on 21.08.2009. When on the same date two spoons of Cerelac powder was taken out from that packet and dissolved in a cup of water, it was found that there were 30 to 32 worms floating on the surface of water in that cup. Therefore, the complaint was made to opposite party No.1 dealer and he was shown the said worms in the said cup of water. The complainant also made a complaint about the same in writing on 24.08.2009 to opposite party No.3, who is an Assistant Commission of Food & Drug administration, Yavatmal. The opposite party No.3 did not accept the aforesaid packet from the complainant for analysis & report and said that necessary enquiry will be made. Therefore, the complainant made a second complaint on 25.08.2009 to opposite party No.3 but no cognizance of the same was taken. Thereafter, the complainant made a complaint in writing by Registered Post to District Supply Officer of Yavatmal, which addressed a letter to opposite party No.3 for taking action. The opposite party No.3 made a show of attaching the goods & stock of the opposite party No.1 and sent the same to the laboratory for analysis. However, no appropriate action was taken against opposite party Nos.1 & 2 by opposite party No.3. Hence, the consumer complaint was filed by the complainant against the opposite party Nos.1, 2 & 3, alleging unfair trade practice and deficiency in service on their part and claiming from them compensation of Rs.90,000/- towards sub-standard food product sold to the complainant and further claiming compensation of Rs.20,000/- for physical & mental harassment and cost of Rs.5,000/-.
- The said complaint was resisted by opposite party Nos.1, 2 & 3 by filing their respective reply before the Forum. The opposite party Nos.1 & 2 / appellants in brief submitted that there was as such no sub-standard quality of aforesaid food product. They denied the allegations made by the complainant against them in the complaint. According to them, the opposite party No.1 is a world class renowned company and leader in production of baby foods, stringent & strict quality control measures are taken while manufacturing food items. But the complainant did not send Cerelac packet containing worms therein for any inspection and investigation to them. But the complaint made by the complainant was investigated and it was found that there was no substance in his complaint. Therefore, they had prayed that the complaint may be dismissed.
- The opposite party No.3 in its reply / written version submitted that there is no relationship of consumer and service provider in between complainant and opposite party No.3 ant therefore, the complaint is not maintainable as against opposite party No.3. The opposite party No.3 submitted in brief that on 24.08.2009 opened Cerelac packet alongwith the complaint was received by it from the complainant. However, as per law it purchases Food sample directly from the dealer / seller, for carrying out analysis and it does not accept any such opened food packet for analysis and therefore, it did not send the said opened packet of said Cerelac powder to laboratory for analysis, which was received by it from the complainant. The complaint of the complainant was handed over by it to the Food Inspector for enquiry. Accordingly the Food Inspector made the enquiry and collected the sample of Cerelac powder from opposite party No.1 and sent the same for analysis. Therefore, the opposite party No.3 had prayed that the complaint may be dismissed as against it.
- The Forum below after hearing both parties came to the conclusion that when by open eyes the complainant found worms in the Cerelac powder after mixing it in a cup of water and when he had already made the complaint about the same to the opposite party Nos.1, 2 & 3, no expert opinion is required to prove that the Cerelac power purchased by the complainant was of substandard quality and not fit for consumption. Thus the Forum observed that opposite party Nos.1 & 2 adopted Unfair Trade Practice and opposite party No.3 also did not perform its duty in proper way and rendered deficient service to the complainant. Therefore, the Forum below directed the opposite party Nos.1 & 2 to pay jointly & severally to the complainant compensation of Rs.10,000/- and cost of Rs.1,500/- within 30 days on receipt of copy of that order and in case of default to pay said amount of Rs.10,000/- with interest @ 9% p.a. from the date of failure. The Forum below also directed opposite party No.3 to pay the complainant compensation of Rs.5,000/- for physical & mental harassment.
- As observed above, feeling aggrieved by the said order, the original opposite party Nos.1 – dealer & opposite party No.2 – manufacturer have filed this appeal. We have heard advocates of the appellants and the respondent No.1. The original opposite party No.3 / respondent No.2 herein failed to appear after service of notice and hence the appeal is proceeded exparte against it. The original complainant / respondent No.1 herein died during the pendency of the appeal and his wife and minor daughter are brought on record as respondent Nos.1(a) & 2(b) respectively. We have also perused the copies of the record of the original complaint filed by the appellant.
- The appellant has relied on the observations made in the following case in support of his submission that in the absence of expert analysis report, the Forum below erred in holding that the Cerelac Powder produced by the original opposite party No.2 was of substandard quality.
M/s EID Parry (India) Ltd Vs. Baby Benjamin Thushara, I(1992) CPJ 279 (NC).
In that case broken pieces of closet were not sent to laboratory for examination. Therefore, the Hon’ble National Commission held that manufacturing defect in the closet is not proved.
The learned advocate of the appellant also reiterated the aforesaid case of the appellant and submitted that the Forum has not properly considered the evidence brought on record and therefore, the impugned order may be set aside and the complaint may be dismissed.
7. On the other hand the learned advocate of the original complainant / respondent Nos.1 (a) & 1(b) supported the impugned order and submitted that the original opposite party No.3 / respondent No.2 herein did not collect the sample of the same batch and variety from the appellants as that of the packet purchased by the complainant and therefore no reliance can be placed on the ground taken by opposite party No.3 / respondent No.2 herein. He, therefore, requested that the appeal may be dismissed.
8. We find that the original complainant / respondent No.1 herein after purchasing Cerelac powder from opposite party No.1 – dealer / appellant No.1 herein as manufactured by opposite party No.2 / appellant No.2, immediately found that there were large number of worms in that powder and they were found floating over the water after adding two spoons of that powder into one cup of water. He had immediately made a complaint to the dealer - opposite party No.1 / appellant No.1 herein and to the manufacturer - opposite party No.2 / appellant No.2 herein and also to opposite party No.3 / respondent No.2 herein. However, his complaint was not entertained by any of them.
9. In our view, it was incumbent on opposite party No.3 / respondent No.2 herein to accept the opened packet of the Cerelac powder from the complainant and seal it and send it to the Government approved laboratory for analysis and report. However, the opposite party No.3 / respondent No.2 herein failed in its duty and for the same the complainant cannot be blamed. The opposite party Nos.1 & 2 / appellants herein before the Forum also did not make any request to send the sample of the powder of the same batch for chemical analysis and report. Therefore, the original opposite party Nos.1 & 2 cannot raise a plea that there is no analysis report on record to show the substandard quality of the said Cerelac powder.
10. We also find that the opposite party No.3 did not collect the sample of the same batch number from the opposite party Nos.1 & 2, which was sold by opposite party No.1 to the complainant. No explanation is given as to why the sample of the same batch number was not collected by the opposite party No.3 / respondent No.2 herein for analysis.
11. In this background, we find that the case of the complainant has been rightly believed and accepted by the Forum below as regard the substandard quality of Cerelac powder sold by opposite party No.1 – dealer & manufactured by opposite party No.2. We, thus, find that the Forum below has rightly come to the conclusion that the opposite party Nos.1 & 2 adopted unfair trade practice by selling Cerelac powder of substandard quality which was not fit for consumption, to the complainant and therefore, the complainant is entitled to compensation as granted by the Forum.
12. The aforesaid decision relied upon by the learned advocate of the appellants is not applicable to the facts & circumstances of the present case, which are totally different from those of the said case as discussed above.
13. Thus, we find no merits in this appeal and it deserves to be dismissed.
ORDER
i. The appeal is dismissed.
ii. No order as to costs in this appeal.
iii. Copy of the order be supplied to both parties free of cost.
