DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, KOZHIKODE

PRESENT: Sri. P.C. PAULACHEN, M.Com, LLB    : PRESIDENT

Smt. PRIYA.S, BAL, LLB, MBA (HRM) :  MEMBER

Sri.V. BALAKRISHNAN, M Tech, MBA, LL.B, FIE: MEMBER

Wednesday the 24^th day of April 2024

CC.209/2019

Complainant

Joseph. P.M,

Pthenpurakkal (HO),

Pattanippara, Avadukka.P.O,

Kozhikode - 673528

( By Adv. Sri. M. Yusuf)

Opposite Party

The Proprietor, Mani,

Hotel Highway, 33/3201,

B,C, Chevarambalam,

Thottil Peedika, Kozhikode – 673017

( By Adv. Sri. Pavithran. K)

ORDER

By Sri. P.C. PAULACHEN  – PRESIDENT

            This is a complaint filed under Section 12 of the Consumer Protection Act, 1986.

2.  The case of the complainant, in brief, is as follows:

The opposite party is the proprietor of ‘Hotel Highway’, Thottilpeedika, Kozhikode. On 21/05/2019 at about 12.15 noon the complainant purchased 4parcel chicken biriyani from the shop of the opposite party paying Rs. 100/- per parcel, total being Rs. 400/-. No bill was issued by the opposite party. Rs. 100/- per parcel was charged against the published price list which showed the price as Rs. 70/-.The complainant and his family members had the biriyani. The chicken and masala in the biriyani were not fresh. Within one hour, the complainant had stomach complaints and vomiting and he was admitted in the hospital. The medical and treatment expenses amounted to Rs. 32,500/-.

3.  On the same day at 3 pm, he preferred a complaint before the Food Safety Commissioner, Kozhikode, pursuant to which, the food safety officials inspected the hotel of the opposite party on 22/05/2019. On enquiry, the food safety officials could collect evidences against the opposite party and fine was levied from him. The act of the opposite party amounts to unfair trade practice and deficiency of service. The complainant was put to gross mental agony, besides monetary loss. Hence the complaint claiming compensation of Rs. 50,000/-.
4. The opposite party has resisted the complaint by filing written version wherein he has denied and disputed all the allegations and claims made against him in the complaint. It is admitted by the opposite party that he was running the said hotel. According to him, it was only a small hotel providing breakfast and lunch only. The opposite party does not remember whether the complainant had come to his hotel. Chicken biriyani is sold at Rs. 100/-. No document is produced by the complainant to show that he had purchased chicken biriyani from the opposite party on the particular day.
5. The food items are prepared in the house of the opposite party, which is adjacent to the hotel and he and the family members are eating the same food. Food is prepared in neat and tidy atmosphere. No adulterated ingredients are used for preparing the food. There used to be no balance of food and so there is no question of selling old or contaminated food articles in his hotel. The allegation that the complainant had stomach problems and vomiting on taking the biriyani and the further allegation that he was under treatment in the hospital is false and hence denied. The allegation that a sum of Rs. 32,500/- was spent for treatment is untrue and hence denied. It is true that on 22/05/2019 the food safety officials inspected his hotel. But the fine levied was for conducting the hotel without licence. There was no deficiency of service or unfair trade practice on his part.   With the above contentions, the opposite party prays for dismissal of the complaint.
6. The points that arise for determination in this complaint are;

      1) Whether there was any deficiency of service on the part of the opposite party,  as alleged?

             2) Reliefs and costs.

7. Evidence consists of the oral evidence of PW1 and Exts A1 to A4 on the side of the complainant.  RW1 was examined on the side of the opposite party.
8. After the close of evidence, the complainant remained absent and did not advance any arguments. Heard the opposite party. Brief argument note was also filed by the opposite party.
9. Point No 1:    The allegation of the complainant is that contaminated chicken biriyani was sold to him by the opposite party which caused stomach complaints and vomiting to him, for which, he had to undergo treatment. The claim is for compensation of Rs. 50,000/- for the physical and mental agony suffered by him on account of the deficiency of service of the opposite party.
10. In order to substantiate his case, the complainant has got himself examined as PW1. PW1 has filed proof affidavit and deposed in terms of the averments in the complaint and in support of the claim. Ext A1 is the copy of the complaint dated 21/05/2019 preferred by the complainant before the Food Safety Commissioner, Kozhikode, Ext A2 is the reply received under the Right to Information Act informing that the opposite party was fined by the Food  Safety Officials, Ext A3 is the casualty OP ticket dated 21/05/2019 and Ext A4 is the trip sheet dated 21/05/2019.
11. RW1 is none other than the opposite party and he has filed proof affidavit and deposed supporting and reiterating the contentions in the written version.
12. The learned counsel for the opposite party has argued that the complainant had not produced any bill or any other proof to show that he had purchased biriyani from the opposite party. It was pointed out that the allegation that the biriyani was contaminated is false and this is clear from the fact that the family members of the complainant, who had eaten the same biriyani, had no such problems.  
13. Going by the pleadings, it can be seen that the definite case of the complainant is that on 21/05/2019 at about 12.15 noon he had purchased 4 parcel chicken biriyani from the hotel run by the opposite party paying Rs. 400/- in total. The opposite party has not specifically denied the sale of the chicken biriyani to the complainant on the particular day. His only case is that he does not remember whether he had sold the item to the complainant. However, in the cross examination, RW1 has rather admitted the sale. RW1 has categorically stated that he did not issue bill to the complainant, as he did not ask for it. As long as bill was not issued by the opposite party, the complainant cannot be blamed for not producing the bill before this Commission. From the evidence tendered by PW1 and the admission of RW1, it is crystal clear that the opposite party had sold the parcel biriyani to the complainant on the particular day. Ext A1 further lends assurance to this fact. Ext A1 was preferred by the complainant on 21/05/2019 itself wherein it is clearly stated that on that day at 12.15 noon he had purchased 4 parcel biriyani from the opposite party. It is also admitted by the opposite party that the food safety officials had inspected his hotel on the next day. Thus , from the evidence of PW1 coupled with Ext A1  and the admission of RW1, we have no hesitation to hold that the opposite party had sold 4 parcel chicken biriyani to the complainant after receiving consideration of Rs. 400/-.
14. PW1 has alleged that on consuming the same, he developed stomach problems and had vomiting which necessitated treatment. There is no reason to disbelieve PW1. Ext A3 shows that on 21/05/2019 the complainant was treated in the Government District Hospital, Wadakkanchery with complaints of loose stool/vomiting. The alleged history stated in Ext A3 is intake of food from hotel. He was treated as OP and medicines were prescribed. It is an admitted fact that the food safety officials had fined the opposite party for his latches. This is further evidenced by Ext A2. Thus the evidence of PW1 coupled with Ext A2 and A3 would prove that the complainant developed stomach problem and vomiting due to the intake of food purchased from the hotel of PW1.
15. The fact that the family members of complainant who had the same biriyani had not raised any such complaint is not a reason to disbelieve the case of PW1.
16. It is the duty of the opposite party to take steps to prevent food from containing substances that would harm a person’s health and to preserve the quality of the food that is sold in his hotel.  The opposite party is bound to ensure that the food prepared and sold in his hotel is safe for human consumption. There ware latches on the part of the opposite party in this regard and the complainant had to undergo both physical and mental agony due to the negligence and deficiency of service of the opposite party. The complainant deserves to be compensated adequately. Though the complainant had claimed that he had to spend Rs. 32,500/- for treatment, no medical bills are produced. However, considering the entire facts and circumstances, we are of the view that a sum of Rs. 25,000/- will be reasonable compensation in this case. The complainant is also entitled to get Rs. 5,000/- as cost of the proceedings.
17. Point No. 2:- In the light of the finding on the above point, the complaint is disposed of as follows;

                  a)  CC.209/2019 is allowed in part.

b) The opposite party is hereby directed to pay a sum of Rs. 25,000/- (Rupees twenty five thousand only) to the complainant as compensation.

c) The opposite party is hereby directed to pay a sum of Rs. 5,000/- (Rupees five thousand only) as cost of the proceedings to the complainant.

d)  The payment as afore stated shall be made within 30 days of the receipt  of copy of this order, failing which, the amount of Rs. 25,000/- shall carry an interest of  9% per annum from the date of this order till actual payment.   

Pronounced in open Commission on this, the 24^th day of April, 2024.

Date of Filing: 29/06/2019

                                            Sd/-                                                                   Sd/-                                                  Sd/-

                                  PRESIDENT                                                         MEMBER                                       MEMBER

APPENDIX

Exhibits for the Complainant :

Ext.A1 – Copy of the complaint dated 21/05/2019 preferred by the complainant before the Food Safety Commissioner, Kozhikode.

Ext.A2 – Reply received under the Right to Information Act informing that the opposite party was fined by the Food  Safety Officials.

Ext.A3 – Casualty OP ticket dated 21/05/2019.

Ext.A4 – Trip sheet dated 21/05/2019. 

Exhibits for the Opposite Party

Nil.

Witnesses for the Complainant

PW1 -  Joseph. P.M, (Complainant)

Witnesses for the opposite parties 

RW1 – Mani. M. K,

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                                 PRESIDENT                                                   MEMBER                                       MEMBER

True Copy,      

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