Chandigarh

DF-II

CC/1033/2019

Gurdeep Singh - Complainant(s)

Versus

The Punjab State Cooperative Milk Proudcers Federation Ltd. (Verka) - Opp.Party(s)

In Person

24 Apr 2023

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION-II

U.T. CHANDIGARH

 

 

Consumer Complaint No.	:	1033/2019
Date of Institution	:	14.10.2019
Date of Decision	:	24.04.2023

 

                     

            

 

Gurdeep Singh aged 31 years son of Sh.Jeet Singh r/o H.No.398, Village Maloya, Chandigarh

                 ...  Complainant.

Versus

1. The Punjab State Cooperative Milk Producers Federation Ltd., (Verka) SCO 153-55, Sector 34-A, Chandigarh 160022 through its G.M.

 

2. The D’Mart, Anjaneya Cooperative Housing Society Ltd., Opposite Hiranandani Foundation School, Orchard Avenue, Powai, Mumbai, Maharashtra-40076 through its G.M.

 

3. The D’Mart Zirakpur, 568/727, Chatt Bir Road, Ambala Chandigarh Road, Zirakpur, Tehsil Derabassi, District Mohali(Punjab) through its G.M.

 

…. Opposite Party.

 

BEFORE:
	SHRI AMRINDER SINGH SIDHU,	PRESIDENT
	SHRI B.M.SHARMA	MEMBER
Present:-
	Complainant in person. Sh.G.S.Sawhney, Counsel of OP No.1 Sh.Manav Bajaj, Counsel of OPs No.2 and 3

   

 

ORDER BY AMRINDER SINGH SIDHU, M.A.(Eng.),LLM,PRESIDENT

1.     The complainant has filed the present complaint under Section 12 of the Consumer Protection Act, 1986, as amended up-to-date alleging therein that on 27.09.2019, he purchased a Verka sterilized double toned sweetened flavoured Milk of net quantity 200 ml with batch No.B.No.ADSC/01.09.2019 from OP No.3 by paying Rs.25/- vide cash memo dated 27.09.2019. OP No.1 is the manufacturer of the product in question, OP No.2 is the authorized seller of “Verka’ and OP No.3 is the authorized store of D’Mart from where the complainant had purcahsed the product. He found that OP No.3 had sold the spoiled/stale or inconsumable product and as such he complained to OP No.3 who misbehaved with him by stating “problem hai to verka kay pass jao yeh unka product hai unhone rakha hai hum responsible nahi hai”.   It was alleged that the said product was not in consumable condition and not fit to consume. It has been alleged that the OPs did not pay any attention to his grievance. He intimated the OPs through email and demanded Rs.20000/- on account of mental and physical harassment. Alleging that the aforesaid acts of omission and commission on the part of the OPs amount to deficiency in service and unfair trade practice, the complainant has filed the instant complaint seeking directions to the OPs to pay Rs.20,000/- on account of mental as well as physical harassment besides litigation expenses.
2.     Upon service of notice, OP No.1 filed written version and took preliminary objection that the complainant does fall within the definition of consumer as no flavored milk was purcahsed by the complainant for any consideration as there is no entry of Rs.25/- in the said cash memo (Annexure C-2) and in fact the averment made in para 2 of the complaint is not corresponding to the entry in the cash memo by the specific name of sterilized double toned sweetened flavoured milk.  It has further been stated that OP No.1 is not the manufacturer of the product and rather the same was marketed by it. The complainant has not availed the alternative remedy available under Section 40 of the Food Safety and Standards Act, 2006. It has further stated that OPs No.2 and 3 and the complainant did not adhere to the instructions so mentioned on the label, which clearly states that it should be stored in cool and dry place and further the label also specified that before consuming the sold product, it needs to be shaken which was not done nor the product was consumed. It has further stated that the complainant is not an expert to have judged the contents of the bottle to state that it was spoiled/stale without any report or opinion of the expert.  The remaining allegations made in the complaint have been denied, being false. Pleading that there is no deficiency in service on its part, OP No.1 has prayed for dismissal of the complaint.
3.     In their separate written version, OPs No.2 and 3 have stated that complainant filed the false, frivolous & vexatious complaint to malign/sabotage their reputation and to illegally extract financial benefits and no cause of action has arisen to him to file the present complaint. No cogent and documentary evidence has been preferred before this Commission in corroboration to the alleged transaction and its relation with the impugned Annexure C-3. The complainant has miserably failed to discharge its own burden of proof pertaining to due diligence and cautiousness exercised by him while purchasing the goods, if any, from their store.  It has further submitted that the complainant was afforded all the opportunities to examine and then accept or discard the product before paying for the same, even if they do not like it or if they change their mood for not purchasing the product therefrom.  It has further been stated that since the bottle is a transparent one, then chances to pick wrong product, becomes impossible and still if in any case, a customer picks up, then it certain depicts gross negligence of the customer and /or deliberate attempt thereof to gain illicit benefits or unfair advantages.  It has been denied that the complainant has purchased Verka bottle as depicted by Annexure C-3.  It has further been stated that the in view of Section 14 of the Prevention of Food Adulteration Act, 1954 as well as section 26 of the new repealing act thereto namely The Food Safety and Stands Act, 2006”, they are not liable for any loss/trouble to the complainant. The remaining allegations made in the complaint have been denied, being false. Pleading that there is no deficiency in service on their part, OPs No.2 & 3 have prayed for dismissal of the complaint.
4.     Parties filed their respective affidavits and documents in support of their case.
5.     We have heard the complainant in person, Counsel for the OPs and have gone through the documents on record, including written submissions.
6.     The grievance of the complainant is that he purchased a Verka sterilized double toned sweetened flavoured Milk of net quantity 200 ml with batch No.B.No.ADSC/01.09.2019 from OP No.3 by paying Rs.25/- vide cash memo dated 27.09.2019 and the same was not consumable. However, the OPs have denied the same by stating that the complainant did not purchase the said product from them.
7.     The complainant has only placed on record a photocopy of the product in question as Annexure C-3 and a photocopy of the invoice dated 27.09.2019 as Annexure C-2. However, from the said invoice, it is not established that the complainant had purchased the Verka sterilized double toned sweetened flavoured Milk of net quantity 200 ml with batch No.B.No.ADSC/01.09.2019 from OP No.3 for Rs.25/- as there is no such mention in the aforesaid bill.  There is nothing on record to show that the product in question relates to the bill in question.  However, there is only mention of some incomplete batch number in the photograph of the bottle in question placed on record as Annexure C-3 but from this, it cannot be said that the same was purchased from the OPs as the bottle with the same batch number is available on all other shops.
8.     Besides this, it is the customer who enters the store and himself selects the item, which is displayed on the racks and if the item is not as per his satisfaction then the customer has an option to abandon the same or to select other one.
9.     Here our view is strengthened from the judgment of the Hon’ble National Commission reported as 2010(4) CPJ-295 titled as Monika Versus Big Bazar Pantaloon Retail (I) Ltd., in which it has been observed as under:-

(i) Consumer Protection Act, 1986 — Sections 2(1)(g), 14(1)(d), 15 — Food and Beverages — Soft drink — Date expired — Juice to be consumed within 6 months — Not consumable — Sold by OP after expiry — Contention, no such bottle sold — Nothing on record to show bottle relates to bill filed by complainant — Bar code is product specific, not unit specific — Cannot be said bottle purchased from OP as bottles with bar code available on all other shops — Practice in OP store that consumer enters, himself selects products displayed and not at all handled by OP except at clearance of bill — OP not liable — Complaint dismissed — Hence appeal — Nothing wrong in Forum’s findings — Order upheld.

         The principle of law settled in the above  mentioned judgment of the Hon'ble National Commission is fully attracted to the facts and circumstances of the present case. Thus, the complainant has failed to prove the alleged deficiency in service or unfair trade practice on the part of the OPs.

10.     In view of the above discussion, the present complaint is dismissed being devoid of any merit. The parties are left to bear their own costs.
11.     The pending application(s) if any, stands disposed of accordingly.
12.     Certified copy of this order be sent to the parties, as per rules. After compliance file be consigned to record room.

Announced in open Commission 24/04/2023
	Sd/- (AMRINDER SINGH SIDHU) PRESIDENT
	Sd/- (B.M.SHARMA) MEMBER