Date of Filing:12/05/2016

Date of Order:10/07/2018

BEFORE THE BANGALORE I ADDITIONAL DISTRICT CONSUMER DISPUTES REDRESSAL FORUM SHANTHINAGAR BANGALORE -  27.

Dated: 10^TH DAY OF JULY 2018

PRESENT

SRI.H.R. SRINIVAS, B.Sc., LL.B. Rtd. Prl. District & Sessions Judge And PRESIDENT

SRI D.SURESH, B.Com., LL.B., MEMBER

COMPLAINT NO.709/2016

V/s

ORDER

BY SRI.H.R. SRINIVAS, PRESIDENT:

1. This is the complaint filed in person by the Complainant against the Opposite Party(hereinafter referred to as O.P) under Section 12 of the Consumer Protection Act, 1986  praying this Forum to order the OP to refund a sum of Rs.90/- being the cost of 3 Nos. of Elite Cakes purchased and for Rs.7,280/- spent towards medical expenses of his son due to the consumption of the said cake which caused food poison and Rs.5,000/- towards stress and mental agony also to pay cost of the proceedings and to pass such other order as this Forum deems fit.

2.  The contents of the complaint in brief are that, on 18.4.2016 complainant visited the O.P store for purchase of some articles. He purchased the articles including 3 Nos. of ELITE CAKE. The same was consumed by complainant’s son and after consumption he developed stomach ache with unbearable pain, resulting in the complainant taking his son to the nearest hospital and he was treated as inpatient and diagnosed for food poison.

3.    Further complainant submits that, the package of Elite Cake indicates that the product was packed on 22.12.2015 and to be used before 75 days from the date of packing.  The complainant incurred expenditure of Rs.7,280/- towards the treatment of his son, after discharge from the hospital. The complainant addressed a letter to O.P dated 30.4.2015 bringing the said facts and demanding and requesting him to pay the said amount as damages. In spite of it O.P did not respond to the same.  O.P has indulged in unfair Trade Practice also deficiency of service in keeping the out dated food items in their shelf and thereby misleading the general public to purchase the same. Hence this complaint.

4.     Upon the service of notice, OP appeared through its counsel and filed its version denying the statements, allegations, contentions and claims made against  by the complainant. The complaint is false, incorrect, baseless and misconceived and the complainant is to put to strict proof of the same. The complainant has no cause of action against it and as such the complaint is liable to be rejected.

5.   It is contended that O.P is engaging in retail sale of consumables, including groceries, etc. and most of them are manufactured by well-known manufacturers. It is admitted that complainant has purchased three numbers of Elite Cakes from them at Indiranagar outlet on 18.04.2016 and denied that the said cakes were sold after its expiry and not fit for consumption. It has denied that the son of the complainant fell sick only after eating the said cake and given treatment in the hospital by spending Rs.7,280/- on 19.4.2016 and discharged on 20.4.2016.The rapper and the cake produced by the complainant before the Forum is not the one sold by it. The same has to be proved by the complainant. Complainant has not produced medical report regarding his son’s ailment is only due to the consumption of cake sold by it.   In the absence of medical evidence the claim of the complainant cannot be granted and denied all the allegations made against it and prayed for dismissal of the complaint.

6.     In order to substantiate the irrespective cases and the Complainant and O.P have filed their affidavit evidence along with documents. We heard their arguments.

7.     The points that arise for our consideration are:-

1)   Whether the complainant has proved

     deficiency in service on the part of the

     Opposite Party?

2)  Whether the complainant is entitled to

     the relief prayed for in the complaint?

8.     Our answers to the above points are:-

POINT 1: In the Affirmative.

POINT 2: Partly in the Affirmative.

As per the final order.

REASONS

ON POINTNo.1:-

9.    On perusing the complaint averments the version and the documents filed, it becomes clear that on 18.4.2016 complainant visited the O.P store for purchased of three (3) Nos. of ELITE CAKE along with other items.  The same has been admitted by the O.P, the receipt produced also shows that the complainant purchased three cakes along with other items and paid Rs.346.18. He has also produced the rapper of the cake which according to him consumed by his son who fell ill afterwards due to it and was admitted to the hospital for treatment of food poisoning. 

10.   It is the specific case of the complainant that, O.P ought not to have showcased the food items which has been expired by time.  O.P made him to purchase the same since it was exhibited in the showcase of the O.P’s outlet.  On perusing the rapper it becomes clear that the cake is sold under brand name ‘ELITE’ Pineapple Chocholate Cake. The same has been packed by the manufacturer on 22.12.2015 the batch number being B-221-1B, it is also mentioned best before 75 days from packaging.  It is to be noted here that when this is taken into consideration the complainant visited the store of the O.P and purchased the said cakes which were exhibited by the O.P in its showcase/shelf.  Had it not exhibited complainant would not have purchase the same. much care  ought to have been taken by O.P in keeping the articles, food items in its show case by giving all possible care regarding its validity date and expiry date. Especially in case of food items the validity date and the expiry date plays a major role.

11.   Legal notice also been issued by the complainant to O.P in this regard which has been served on the O.P.

12.   Complainant has also produced the medical details in respect of the treatment given by the doctor after the complainant’s son consumed the cake and fell ill. On going through the said documents there is no mention by the doctor who has treated the complainant’s son in respect of food poison and that too eating the cake purchased from the O.P’s shop. Further the said cake was not sent to laboratory to access as to its suitability for consumption.  Whatever it be the fact is that O.P showcased and made the general public to look into the cake for purchase even though the validity period  for consumption has expired.

13.   As per the said rapper from 22.12.2015 the date on which the cake was packed ought to have been sold within 75 days from that day and the purchaser ought to have consumed within that time.  In this case, O.P exhibited the said cakes in its showcase and complainant purchased the same on 18.04.2015 at about 16.54 hours, which is much after 75 days of its package i.e. the said cake package ought to have been removed from the shelf on or before 10^th of March 2015.  Whereas, O.P kept it for sale till 18.04.2015 which is not expected of him which amounts to selling outdated product to the complainant Consumers without informing the same it also a kind of unfair trade practice made to gain wrongfully.  Hence we are of the opinion that there is negligence on the part of O.P in keeping the expired food articles in its shelf for sale and unfair trade practice in selling the out dated food articles. Hence we answer POINT NO.1 in the Affirmative.

POINT No.2:

14.   In view of our answer Point No.1 O.P. is liable to pay the cost of the expired product sold to the complainant besides for practicing unfair trade practice in selling the out dated product and negligent act of  keeping the out dated product for sale the complainant has to be compensated since he has to undergo the ordeal of seeing his son suffering from ailment.  There is no direct evidence since the doctor has not mentioned anything regarding the food poison due to the consumption of the cake and hence the complainant is not entitle for the amount claimed by him towards medical expenses of his son. There is no medical evidence to that effect and also the lab report regarding the said cake becoming stale.  In view of this, we are of the opinion that Complainant entitled only the cost of Rs.90/- being the value of the cakes purchased, for a sum of Rs.5,000/- towards damages for the mental and physical sufferance  undergone by the complainant and Rs.5,000/- towards the cost of litigation if ordered would meet the ends of justice. Further O.P is directed to take all possible care under its supervision to see that the outdated expired food article are not be exhibited in its showcase to be sold by the general public in any manner whatsoever and we answer Point No.2 Partly in the Affirmative and pass the following:-

ORDER

1. The Complaint is allowed in part with cost.

2. The O.P i.e. Reliance Retail Ltd., Represented by its Store Manager/Authorized signatory is hereby directed to pay a sum of Rs.90/- to the complainant towards the cost of the cakes purchased.

3. The O.P further is hereby directed to pay a sum of Rs.5,000/- towards damages and Rs.5,000/- towards litigation expenses

4.   The O.P is hereby directed to comply the above order within 30 days from the date of receipt of this order and submit the compliance report to this forum within 15 days thereafter.

5. Send a copy of this order to both parties free of cost.

(Dictated to the Stenographer over the computer, typed by him, corrected and then pronounced by us in the Open Forum on this 10^th Day of JULY 2018)

MEMBER                        PRESIDENT

*RAK                       

ANNEXURES

1. Witness examined on behalf of the Complainant/s by way of affidavit:

CW-1:- R.Jayachandran - Complainant.

Copies of Documents produced on behalf of Complainant/s:

Doc.No.1:Photo copy of cash memo dated 18.04.2016.

Doc.No.2: Photo copy of Cake Packet.

Doc.No.3: Photo copy of letter dtd:20.04.2016.

Doc.No.4: Photo copy of postal acknowledgment.

Doc.No.5: Photo copy of Medical Bill.

2. Witness examined on behalf of the Opposite party/s by way of affidavit:

RW-1: Sri Suresh, Authorized Representative of O.P

Copies of Documents produced on behalf of Opposite Party/s

-Nil-

MEMBER                        PRESIDENT