BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, PONDICHERRY

                                           C.C.No.50/2015

Dated this the  20^th day of July 2017

(Date of Institution: 03.08.2015)

S. Anbudasan rep. by Authorised Power of

Attorney Agent J. Muralidharan,

Old No.315, New No.6, Vaigai Street

Ashok Nagar, Lawspet

Puducherry – 8.

….     Complainant

Vs

1.  The Authorised Signatory

     Agro Teck Foods Limited                       

     31, Sarojini Devi Road             

     Secunderabad – 500 003

     Andhra Pradesh

2. Ganesan Stores           

    No.21, College Road, Lawspet       

    Puducherry – 605 008.

                                       ….     Opposite Parties

BEFORE:

          THIRU.A.ASOKAN, B.A., B.L.,

          PRESIDENT 

Tmt D. KAVITHA,  B.A., LL.B., 

MEMBER

FOR THE COMPLAINANT:  Thiru J. Muralidharan, Party in person

FOR THE OPPOSITE PARTIES: For OP1 – Thiru K.V. Shanmuganathan

Advocate

For OP2 – Party in person.

O R  D  E  R

(by Tmt. D. Kavitha, Member)

              This is a complaint filed by the complainant u/s 12 of Consumer Protection Act for directing the first opposite party to pay a sum of Rs.50,000/- for the negligent and deficiency in service and to pay a sum of Rs.2,000/- towards cost of this proceedings. 

2.  The case of the complainant is as follows:

The complainant purchased a Peanut Butter Bottle on 23.01.2015 from the second opposite party and found a hair like material inside the bottle and he reported the same to Maa Veera Napolean Social Welfare Youth Kazhagam to take necessary action.  The complainant approached the first opposite party through telephone and registered a complaint and the OP2's official contacted them and demanded to return the bottle for examination.  The complainant refused the same and sent a letter dated 05.02.2015 calling for explanation for the hazardous material found in the peanut butter bottle.  The first opposite party though sent reply, did not show any importance to the  customer's indict on their product. On 23.02.2015 the complainant sent another letter to the first opposite party to witness the bottle seal status to avoid the upcoming debate about the seal confirmation which was responded by the first opposite party on 11.03.2015.  The hazardous material in the food product is very well visual in nature, needs no necessity to direct it to the Laboratory for examination.  Hence, this complaint. 

3. The reply version filed by the first opposite party briefly discloses the following:

The first opposite party denied all the allegations made by the complainant in the complaint.  It is stated by the first opposite party that the products manufactured by it involved various process involved in the manufacturing  at its state of art plant where there is lease or almost negligible human intervention since the whole process and operation is automatic.  The 1^st opposite party received notice dated 05.02.2015 from the General Secretary of the “MAA VEERAN NEPOLEAN SOCIAL WELFARE YOUTH KAZHAGAM”  alleging that a human hair like material has been found in the peanut butter bottle purchased by one customer.  It is also stated by the OP1 that no complaint was received either from the consumer or from the above said association before the above said notice.  By the notice dated 05.02.2015 the said association threatened to initiate various actions against this opposite party including publication of Government Lab Report in its website etc.  Immediately after receiving the above said notice from the association this opposite party gave a reply dated 11.02.2015 explaining the safeguard taken by the company in the manufacture of peanut butter.  This opposite party has clearly reiterated its stand in its reply dated 18.02.2015 and informed the above said association that it would wait for the report from the Government Lab.  Thereafter the complainant again wrote to the OP1 and requested them to visit their office to witness the product in question vide their letter dated 23.02.2015.  In response to that letter the Opposite Party No.1 sent  one  Venkatraman TK-Area sales Manager- Chennai as its authorized representative to visit the consumer and inspect the product in question.  However, even at that time neither consumer nor his representative provided opportunity to the authorised representative to physically, directly verify the product in question and ascertain that whether the product is really having any foreign material as alleged by the complainant.   Having travelled all the way and taking efforts to reach out to the consumer and address his issues in a bonafide manner, the complainant and the representative did not provide the opposite party No.1 to ascertain the reality of the matter.  Again vide letter dated 27.05.2015 the complainant’s representative asked the opposite party No.1 to come to their place and inspect the sealed status of the peanut butter pack purchased by the consumer.  By the said notice the representative of the complainant nearly after the lapse of 4 months from the date of purchase of the pack by the consumer informed this opposite party that the subject pack has not been sent to lab.  Though vide reply dated 18.02.2015 itself this opposite party had categorically informed the complainant’s representative that no contamination would have taken place as alleged by the complainant as the product undergoes several stringent tests before going out for market distribution, the complainant’s representative has again maintained in the above said letter that foreign material has been found in the pack purchased by the consumer and insisted that this opposite party should furnish explanation for the alleged deficiency.  By the said letter the complainant’s representative threatened to take recourse to legal action unless this opposite party agrees for out of court settlement.  The complainant has neither sent the product purchased by him to Government Lab for examination nor permitted this opposite party to physically check and verify the same.  He also did not permit the authorized representative of this opposite party to physically examine the product purchased by him.  The complainant was totally unwilling to give any opportunity to this opposite party to verify the veracity of his claim.  The communications received from the complainant side would go to show that the complainant was interested only to squeeze money from this opposite party.  The presence of alleged hazardous material can be ascertained only by proper analysis and testing of the bottle from any specialized laboratory.  The complainant has not consumed the product purchased by him and not sustained any injury which is sine qua non for making any claim for compensation.  In the instant case, the complainant has entirely failed to prove that there is any negligence and/ or deficiency in service on the part of the opposite party No.1 which has caused any harm, loss and /or damages to the complainant.  The complainant herein had vide his first letter of February 2015 informed this opposite party that he would hand over the product for analysis and this opposite party No.1 had agreed for such a course.  However, the complainant has even after that deliberately delayed the process and failed to take any steps for analysis.  The complainant has even after discovering the alleged defect in the product in question waited for more than six month to file the present complaint before the Hon’ble Forum and six months is a sufficient time to very carefully tamper with the seal of the bottle which could not be detected after the lapse of such long period.  With the inordinate delay in getting the sample tested and with the expiry date (since the “best before date” of the product in question is 16^th May 2015) already lapsed no purpose would now serve for getting the sample tested as the product is anyway not fit for consumption and any lab may deny to test it as the sample is not in fit condition to be tested.  The complainant has not approached to this Hon’ble Forum with clean hands and has suppressed the true material facts before this Hon’ble Consumer Forum.  The complainant has not suffered any loss, damage and injury as neither the complainant himself nor any other person consumed the contents of the alleged bottle.  The total claim of the complainant is without any basis or merits and is based on surmises and conjectures and also on hypothetical grounds.  It is well settled law that the proof of such loss or injury is a sine qua non for the award of any compensation and as such the complainant is not liable for any compensation.  Hence, prayed for dismissal of the complaint. 

4. The reply version filed by the second opposite party briefly discloses the following:

The above complaint is not maintainable either in law or on facts.  This opposite party admitted the sale of Peanut Butter Bottle to the complainant on 23.01.2015.  Further, there is no accusing on his side by the complainant.  The alleged hair like material found in the product is the mistake of manufacturer i.e. the first opposite party only.  There was no complaint rose by the complainant as expired goods sold.   Further the complainant never issued any letter or notice to him.  Hence, the complainant cannot challenge me before the court of law, that his action is unlawful.  Since the complainant never claimed any compensation from the second opposite party, he prayed to release him from this case. 

5.       Points for determination are:

1. Whether the Complainant is a Consumer as defined in the Consumer Protection Act?
2. Whether the opposite parties have committed unfair trade practice by selling a defective product to the complainant?
3. To what relief the complainant is entitled for?

6.  Point No.1:

The complainant purchased a Peanut Butter Bottle on 23.01.2015 from second Opposite Party.  To prove the same, the complainant has produced the purchase bill vide Ex.C1 dated 23.01.2015.  Hence, the complainant is considered to be a Consumer for the opposite parties. 

          7.  Point No.2:

          This Forum has perused the complaint and the reply versions filed by the complainant and by the OPs.  The complainant is represented by his Power of Attorney by name Muralidharan vide Ex.C6 to conduct this consumer dispute.  On the side of the complainant, CW1 was examined and Exs.C1 to C6 were marked.  On the side of first opposite party, RW1 was examined and Ex.R1 was marked and on the side of the second opposite party, RW2 was examined.    

          8. The complainant submitted that he has purchased a Peanut Butter Bottle on 23.01.2015 from the second opposite party.  After he went home, look over the bottle for expiry date.  While seeing the date, he noticed a hair like material inside the bottle through its transparent area.  Soon after,  the complainant reported to his association about the hazardous material which he has found in the bottle and also to take necessary action about his complaint.  As such the complainant along with his office bearers approached the second opposite party and he reported that this the matter subject to the manufacturer fault, it is better to approach the concerned manufacturer i.e. first opposite party.  Therefore, the complainant contacted the first opposite party through telephone for which the first opposite party demanded the bottle to return for examination.  But the complainant's association refused to return the bottle and sent a letter on 05.02.2015 vide Ex.C2 to give explanation for the hazardous material found in the food product.  For which, the first opposite party has given a reply dated 18.02.2015 vide Ex.R1.  Since the reply of OP1 never satisfied and explained about foreign material found in the product, the complainant's association sent again one intimation letter to OP1 on 23.02.2015 vide Ex.C3 to witness the bottle seal status to avoid the upcoming debate about the seal confirmation.  For which, the first opposite party has responded only on 11.3.2015 by authorizing Mr. Venkataraman A.K. Sales Manager, Chennai to inspect the Peanut Butter bottle the MO1.  Accordingly the Authorised person who inspected the bottle MO1 in sealed status and noticed the foreign material found in the food pack.  The complainant stated that he is one of the member of Non-Government Organisation, either the complainant or the Association is not the right person to direct the disputed butter bottle to the laboratory for examination and also the harzardous material in the food product is very well visual in nature vide Ex.C4 and MO1 needs no necessary for laboratory examination.  There was no explanation given even after 80 days from the side of OP1 of this case, it needs the necessary to adduce third notice dated 27.05.2015 Ex.C5.  The OP1 never come forward to settle the case out of court settlement with their proper explanation about the foreign material found in the food product.  Hence, the complainant approached this Forum for justice on behalf of public interest and health. 

          9. On the other hand, the OP2 stated that it is true that the said product was sold by them to the complainant on 23.01.2015.  OP2 also witnessed there was a hair like material found visually through the transparent part of the sealed food product bottle Sundrop Peanut whereas, there is no part of mistake is found in OP2 side.  It is absolutely mistake of manufacturer and OP2 has not aware of the manufacturing fault.

          10. OP1 alleged that it is a company incorporated under the Company's Act 1956 and involved in the product and marketing of food products like Sundrop Edible Oils, Act II Popcorn and Sundrop Peanut Bottles etc.  The Peanut butter whole process and operation is automatic and without human intervention.  It is true that OP1 has received a notice on 05.02.2012 Ex.C2 issued by General Secretary of the Maaveeran Napolean Social Welfare Youth Kazhagam alleging that a human hair like material has been found in the peanut butter bottle purchased by one customer and also the association threatened to initiate various actions against the first opposite party.  The association did not whisper anywhere in letter Ex.C2 that the subject product will be made available for physical examination by the representation of first opposite party.  Since the  tenor of Ex.C2 was to effect that the subject product has been already sent to Government Lab for scientific examination.  The first opposite party informed that they will wait for the lab report.  The first opposite party also explained the stringent process involved in the manufacture of peanut butter vide Ex.R1 dated 18.02.2015.  The wrong impression given by the complainant as if they have already handed over the MO1 peanut butter pack to the Government lab for scientific investigation, the first opposite party would have replaced with new one and this has been succinctly explained in Ex.R1 dated 18.02.2015.  As per the request by the complainant vide Ex.C3 for authorised person, the first opposite party deputed his representative Mr. Venkataraman T.K.  Area Sales Manager, Chennai, but the complainant did not provide an opportunity  to the OP1 to ascertain the reality of matter.  There is no truth in the ascertain made in the proof affidavit by the complainant Mr. Venkataraman was allowed to physically verify the pack and presence of foreign material was shown to him.  After lapse of four moths from the date of purchase, the complainant informed to the  OP1 that the disputed article has not been sent to laboratory examination vide Ex.C5 dated 27.05.2015. 

          11. It is pertinent to point out that the complainant has neither sent the product to Government Lab for examination nor permitted this OP to physically check up and verify the same.  The complainant remained obdurate and insisted for out of court settlement.  The complainant has filed this complaint after the expiry date of product.  No averments in the complaint that the subject pack was kept intact and there was no chance of tampering it.  The complainant has not suffered any loss or damage at all due to the consumption of the product and hence, for any loss or damage as claimed by the complainant does not arise. 

          12. We have carefully considered and perused the respective submissions and the documents.  On perusal of Ex.C1, the cash receipt dated 23.01.2015 shows that the MO1 was purchased by the complainant.  In which the complainant has found a foreign particle inside the bottle through its transparent area.  Immediately, on 5.2.2015 the complainant has sent a letter to the manufacturer i.e. OP1 because of OP2 has stated that he is not the manufacturer,  presence of foreign particle inside the sealed pack is manufacturing fault.  OP1 received the letter and has given the reply vide Ex.R1 dated 18.02.2015.  Wherein, the OP1 has stated that the product has undergone several stringent test before going out for market distribution, so there is no possibility of human hair like material has been found in the peanut butter pack as alleged by the complainant.  Moreover, the whole process and operation is automatic and without human intervention.  The complainant has stated in Ex.C2 that they had decided to hand over the said material to Government Food and Drug Office lab for examination about the suspected material found in the peanut butter bottle is hair or what.  In Ex.C3, the complainant submitted that even though the Government will certify the status of the sealed bottle genuineness, it is formal procedure to give a chance to the proprietor to examine the product for their own satisfaction and to avoid upcoming conflict.  As per the request made by the complainant vide Ex.C3, the OP1 deputed Mr. Venkataraman T.K.  Sales Manager to see the status of the MO1 on 11.3.2015.  OP1 in his cross examination stated that he was not allowed to see the MO1,  for the same, he has not sent any letter to the complainant stating that the complainant did not allow him to see the MO1 and also did not send any reply to Ex.C5.  In the absence of reply, the onus lies upon the opposite parties to prove their plea.  The complainant stated in his complaint that the MO1 was intact.  The complaint filed after the expiry date of product is not bar this complaint as stated by the OP1 because the factum of complaint is defective product not for expired product sold by the OPs.  The second opposite party also witnessed that there was a hair like material inside the bottle.  It is relevant to mention herein that the MO1 was produced before this Forum with unopened condition.  Further, on perusal of MO1 foreign material is visible to the naked eye.  It is quiet natural that the MO1 sold by the Opposite parties should not suffer from any kind of fault or imperfection or shortcoming in the quality, quantity, potency and standard which is required to be maintained.  But, in this case, the foreign material is apparently visible to the naked eye in MO1.  It is clear that the OP1 has not maintained the standard which is required by this Act.  Hence, as per section 2 (1) (f) of the Consumer Protection Act the MO1 is a defective one.  Further nothing warranted this Forum to send MO1 for laboratory analysis, since the foreign material is found in naked eye.  In this regard, various State Commissions and the Hon'ble National Commission held that if the District Forum satisfies that the foreign particle is visible in naked eye, there is no necessity to send the same for laboratory tests. 

13.  To fortify the same, this Forum has relied upon the judgment reported in Skol Breweries Ltd. vs Amarjeet Singh Sahni in Appeal No. F.A. 721/2006 of the Hon'ble State Commission, Delhi wherein it has held that "…..the District forum has seen and examined the bottle and it was crystal clear that it contained visible amount of dirt. If any product, which is for human consumption, is found to be unpalatable or not consumable even on physical examination by naked eyes it is not necessary for sending the same for chemical analysis".

          14. Further, OP1 has stated that the complainant has not consumed the MO1, the complainant remained obdurate and insisted for out of court settlement to squeeze money fromOP1.  It is not the question of consumption of product.  In case, the complainant would have consumed the product, then there should be chances of injury or loss.  Even though the MO was not consumed by the complainant, it will not discharge the opposite parties from the liabilities for the supply of defective product and Unfair Trade Practice, since the presence of the hair like substance by itself is a defect in the goods in question.   Hence, the citations referred by the first opposite party namely, 1) Chief Administrator, HUDA vs. Shakunthala Devi   [CDJ 2016 S.C. page 1116] and 2) Shruti Xerox Centre vs HCL Ltd., reported in CDJ MRTPC 027 are not applicable to the case on hand and hence, this Forum is not considered the same. 

          15. Hence, the complainant established that the opposite parties have committed Unfair Trade Practice by selling a defective product.  The complainant proved his case.  Hence, the opposite parties are liable for the same and the complainant is entitled for the relief.

          16. POINT No.3:

          In view of the decision taken in point No.2, this complaint is hereby allowed. 

1. The second opposite party is directed to return a sum of Rs.105/-to the complainant being the cost of Sundrop Peanut Butter.
2. The opposite parties are jointly and severally directed to pay a sum of Rs.15,000/-  as compensation to the complainant for the mental agony caused due to Unfair Trade Practice of Opposite Parties.
3. To pay a sum of Rs.5000/- as cost of the proceedings.

 Dated this the 20^th day of July 2017.

1. ASOKAN)

PRESIDENT

(D. KAVITHA)

   MEMBER

COMPLAINANTS' WITNESS:  

CW1           10.12.2015           J. Muralidharan

OPPOSITE PARTY'S WITNESS:  

RW1           25.05.2016           Phani Kumar Mangipudi

RW2           27.09.2016           G. Rajasekaran

COMPLAINANT'S SIDE DOCUMENTS:

OPPOSITE PARTY'S EXHIBITS:

LIST OF MATERIAL OBJECTS:

MO1           Peanut Butter bottle – 1 no.

1. ASOKAN)

PRESIDENT

(D. KAVITHA)

   MEMBER