IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, ALAPPUZHA
Saturday the 28th day of May, 2022.
Filed on 25.09.2021
Present
- Sri.S.Santhosh Kumar BSc.,LL.B (President )
- C.K.lekhamma, B.A.L, LLB (Member)In
CC/No.227/2021
between
Complainant:- Opposite parties:-
Sri. Sarun,K, Idicular, 1. Thomson Bakery
Kankalimalayil Arikupram Building
Thazhakara, Mavelikara Parumalakadavu
(Adv. Rakesh.R.K) Mannar, Alappuzha.
Rep by Proprietor
2. Jolly Food Products
387, Paynumoottil Plaza
Alumoodu, Mannar.P.o
Alappuzha,
Rep by Proprietor.
(Adv. Somanatha Kurup)
ORDER
SMT. C.K.LEKHAMMA(MEMBER)
Complaint filed u/s 35 of the Consumer Protection Act, 2019
1. Brief facts of complainant’s case are as follows:-
The complainant purchased 200 gm for Conflex Biscuit’ in a sealed plastic container along with some other food products from the 1st opposite party vide bill no 29682 for a sum of Rs.80/- bearing batch no.2126 manufactured and packed by the 2nd opposite party. On the label affixed with cap of the plastic container of the item manufacturing date is printed as 27th August 2021 – best before 11 Oct. 2021.
On consumption of the biscuit so purchased the complainant suffered stomach pain and other digestive issues. The complainant has to take the medication on 4/9/2021. Thereafter, the complainant intimated the matter to the 2nd opposite party’s customer care. At that time, 2nd opposite party admitted that the above batch of product was made with oil which has become expired for the reason unknown to them and handled matter irresponsible and carelessly. The complainant further states the product was having a displeasing adour. That the rancid and expired ingredients were used for making the above said food product has made it toxic, harmful and very dangerous for human consumption. Consumption of the above said product cause serious harmful health effect including cancer and various serious digestive disorder. As a large scale manufacturers or food products 2nd party should have taken utmost care and caution while making and marketing consumable food products. Thereafter the flavor and odour of the product have become more unsavory. The opposite party should have been taken utmost care of and duly bond to ensure quality, purity and all standards while manufacturing human consumable food products as per the Food safety and Standards Acts.
The manufacturing, marketing and selling of such type of adultered food product which is unsafe is a serious offence and such type of marketing is an unfair trade practice as well as deficiency of service. Due to the purchase of the above said stated contaminated and toxic food item, the complainant and his family members had suffered health issues, hardship and mental worries, the very through of its after effect if it is consumed at large caused much mental trauma to the complainant and his family.
The act of the opposite parties 1 and 2 by marketing, distributing and selling such type of contaminated packet food which can cause harmful effects on health is a gross unfair trade practice and the opposite parties are jointly and severally liable to compensate the complainant and his family adequately for the physical and mental hardships they suffered due to the consumption of the above said product, even though it cannot be measured in terms of money.
1. To award and amount of Rs.2 lakhs towards general as well as special damages each to the complainant for the loss and injury, suffered due to the deficiency of services and negligence by the opposite parties jointly and severally from their assets.
2. To return the price paid with 6% interest along with the cost of Rs.20,000/- towards litigation cost.
3. To award an amount of Rs.50,000/- as compensation in a product liability action and product service provider action each.
2. Version of the 1st and 2nd opposite parties are as follows:-
The above numbered complaint is not maintainable either in law or on facts and is filed without any bonafides with unlawful intention of unlawful gain. Opposite parties are making various biscuits and cookies with super quality ingredients all the products are sold in sealed packets and containers and all the ingredients and dates of manufacture and use before are specifically given, and are functioning for the last 15 years without causing any complaint from any part and the products are sold not only through first opposite party but through various shops and establishments. It is true that the complainant had purchased conflex biscuit of 200 gm with sealed container along with other items and he paid Rs.655/- in total and hence the averment that he purchased only biscuits contains for Rs.80/- is absolutely false and hence the averments are made with malafide intention.
The conflex biscuits purchased by the complainant is made with oil after expiry date is absolutely false and is added only for suiting the above vexatious complaint. These opposite parties are using sunflower oil and butter for making the biscuits which confirms the standard of FCS Act with utmost care and caution and hence the allegation of admission by opposite party is absolutely false and fabricated with unlawful intention of making unlawful gain. All the ingredients used for making the biscuits are of superior quality and those which confirms the standard of FCS Act and hence all the averments to the contrary are absolutely false and are fabricated malafied and vexatious intention of making unlawful gain. Opposite party is functioning for the last 15 years without causing any room for any sort of complaint as alleged to cause toxins or cancer or gastric issues to anybody. The complainant is making false allegations with an intention to tarnish the good-will of these opposite parties. And hence it is absolutely clear that the complainant himself had caused the biscuits in moisture which might have caused the unsavory odour and hence these opposite parties are not liable for the willful unlawful act of the complainant with unlawful intention. These opposite parties are making and distributing biscuits and food products for the last 15 years with utmost care, caution and responsibility and keeping FCS Standards and hence are absolutely useful for human consumption and nothing contrary heard for the last 15 years. These opposite parties never make any adulterated food products and had never committed any unfair trade practice and such an averment of the complainant is only an unlawful imagination. And the alleged health issues alleged to be caused to the complainant is only a fabricated story to be proved by the complainant with sufficient and satisfactory documents.
These opposite parties had never made or sold any unsavory or toxic or contaminated or adulterated food products or had committed any unfair trade practice or deficiency in their service as alleged and hence these opposite parties never caused any physical or mental hardship as alleged. No cause of action had arisen as alleged and the complainant is not entitled for any of the reliefs prayed for a compensation or cost or interest as claimed. Dismiss the complaint with cost of these opposite parties.
3. Points for consideration are as follows:-
1. Whether ops have supplied contaminated food to the complainant?
2.Whether there is a deficiency in service committed by the opposite parties? if so what would be the compensation?
3.Reliefs and costs
4. .The complainant , himself conducted the case and adduced oral as well as documentary evidence.Ext.A1 to A 4 and Ext. C1,certificate of examination from the Govt. Analyst’s laboratory was marked from his side. From the side of the opposite parties, Rw1 was examined and Ext. B1 to B5 were marked. Thereafter, we have heard both sides.
5. .Point.Nos.1 to 3:-
The case of the complainant is that he had purchased 200gm of ‘ Cornflex Biscuit' in a fully sealed plastic container along with some other food products from the 1st opposite party for a sum of Rs.80/- as per Ext.A1 bill dt.3.9.2021. The same was manufactured and packed by 2nd opposite party. It was stated that the label affixed on the container mentioned that the manufacturing date as'27 Aug 2021-Best before 11.Oct.2021. The complainant consumed said biscuit suffered stomach pain and digestive issues. The complainant has to take the medication on 4.9.2021. Ext.A3 is the op record from the Govt. hospital, Mavelikara. Further stated that the product was having a displeasing smell because of the rancid and expired ingredients used for making the said products. According to the complainant, the 2nd opposite party should have taken utmost care and caution while making and marketing the food. The opposite parties are bound to ensure the quality, purity and standard of the product as per the Food Safety and Standards Act. Due to the consumption of such contaminated and toxic food, the complainant and his family members suffered health issues. It was alleged unfair trade practices against opposite parties 1 & 2 about the marketing, distributing and selling of such contaminated packed food.
The 1st and 2nd opposite parties contended that they are making various products with super quality ingredients sold in sealed packets and containers, showing the list of ingredients, date of manufacture and the period of use. They are functioning for the last 15 years without any sort of complaints from the customers. The products are sold not only through 1st opposite party but also through various shops and establishments. The said product was made with oil which was expired as contended by the complainant is not correct since sunflower oil and butter were used for, which confirms the standard of F.C.S. Act. All the ingredients used are of superior quality and those confirm the standard of F.C.S.Act. The complainant intends to tarnish the goodwill of the opposite parties. The complainant himself had caused the biscuits to moisture which might have caused the displeasing odour and hence these ops are not liable. Therefore, they never committed any unfair trade practice or deficiency in services.
The allegation by the complainant is that he had consumed the contaminated food, which has been supplied by the ops caused health issues to him. According to him, it was found that the oil used in the product had expired due to which it became rancid and had displeased smell. But the opposite parties intended that in their version they had used sunflower oil and butter in the biscuits. During cross-examination of Rw1, who is the manager of the opposite parties, deposed that they had used sunflower oil in making the biscuits it is not shown in the list of ingredients on the label affixed to the container and the labelling was done in accordance with the law. He admitted, that the product appeared in the A4 series photographs is manufactured and sold by the opposite parties. On perusal of Ext. A4, it is found that the ingredients mentioned are conflex, maida, sugar and dalda. The complainant pointed out 2.2 of the Food Safety and Standards(Packing and labeling)Regulations,2011 in which 2.2.2 described Labelling of Pre-packaged Foods:- In addition to the General Labelling requirements specified in 2.2.1 above avery package of food shall carry the following information on the label, namely,-
1. The Name of Food: The name of the food shall include trade name or description of food contained in the package.
2. List of Ingredients: Except for single ingredient foods, a list of ingredients shall be declared on the label in the following manner.-
(a) The list of ingredients shall contain an appropriate title, such as the term “indgredients”
(b) The name of indgredients used in the product shall be listed in descending order of their composition by weight or volume, as the case may be , at the time of its manufacturer.
(c) A specific name shall be used for ingredients in the list of ingredients.”
The testimony of RW1 about said point is “ \nba{]Imcw ingrediants sâ volume and weight separate tNÀ¡Wsa¶dnbmtam(Q) Adnbnà (A), Nutritial composition tNÀ¡Wsa¶dnbmtam (Q) Adnbnà (A) Food Activities tNÀ¯n«ptm F¶v declaration display sN¿Wsa¶v \nbaaptm¶dnbnÃ.” Seemingly opposite parties did not follow the FSSAI regulations in labeling, which is a violation of prevailing rules. Moreover, it appears that the ops have not sure which oil they have used in the disputed product and it appears that they could not prove with cogent evidence either oral or documentary that they have used fresh oil for the product. So it cannot be ruled out by the allegation of the complainant that the oil used is expired since the product has a rancid odour. It is pertinent to note the opinion stated in the Ext. C1 report is that ’The said sample has a rancid odour &is unfit for consumption’.
Further, to find out under which circumstances a food product became rancid. The complainant argued with the support of the International Journal of Research Publication and Reviews in which the process of Rancidification and the factors affecting rancidity are discussed. We understood that is the process of complete or incomplete oxidation or hydrolysis of fat and oils when exposed to air, light or moisture or by bacterial action, resulting in unpleasant taste and odour. This deterioration or degradation of fat is termed as rancidity. The sampling details shown in Ext.C1 is the substance received in a plastic box which has a' rancid odour' the very same wording is used towards Physical appearance. As per the 6th column in Ext. C1 showed a ‘positive' result on the Kreis Test ie, the test for rancidity of fact. The learned counsel for the op argued that nowhere in the C1 report mentioned the rotten ingredient. It is to be noted that opposite parties did not file an objection to the C1 report and without any objection, the report was marked.
One of the contentions raised by opposite parties is that the rancidity occurred due moisture ie, Hydrolytic rancidity, it was the fault of the complainant to leave the product in that condition. As per the evidence, it is found that presence of moisture content is less therefore no possibility of Hydrolytic rancidity Moreover, nothing is before u to prove said contention. On the contrary, the complainant argued that the cause of deterioration of food is Oxidative rancidity which occurs when oxygen is absorbed from the environment and will increase the saturation of the oil. Rw1 deposed that “Manual Packing  Sealed Bbmepw oxygen Dw air Dw Ibdpw seal sNbvXmepw A4se container  space DmIpw. product  ingrediatns  sunflower oil Dv. A{]Imcw ingredient Dff hnhcw ImWn¨n«nÃ. I\bv¡m\pff ImcWw oil sâ temperature IqSpIbpw IpdbpIbpw sN¿p¶XpsImmWv.”..As per FSSAI Regulation defined pre-packaged or pre-packed food means “ Prepacked or Pre packed food” means food, which is placed in a package of any nature, in such a manner that the contents cannot be changed without tempering it and which is ready for sale to the consumer” In the said Regulation 3:-General packaging requirements for Canned products: (1)All containers shall be securely packed and sealed.” It was found that the packing was manual. International Journal of Research Publication and Reviews in which discussed the factors affecting Rancidity reactions typically occur in three steps.
1. An energy source (heat; light) creates a radical on the fatty acid in the initiating process. A radical is an atom, molecure, or iron with an unpaired electron by definition. This increases the chemical reactivity of the “radical”
2. A step in which oxygen produces peroxides, which react with additional un saturated fatty acids to produce new radicals.
3. Two radicals engage to generate in new single bond in a termination reaction.”
In view of the aforementioned discussions, we do not doubt that the reason for rancidity is the oxidisation of oil used in the product and the opposite parties did not disclose the actual oil used in the label. Even though, the 2nd opposite party has FSSAI registration it is found that they did not follow the guidelines in the FSSAI Regulation. Therefore, both opposite parties have committed negligence and deficiency in service by the supply of contaminated food to the complainant which caused various health issues. Ext.A3 OP ticket evident that he has to undergo medication in Dist. Hospital Mavelikkara.
The said act of opposite parties comes under the purview of product liability action envisaged under sections 83,84 and 86 of Consumer Protection Act 2019. Since the consumer buys the goods from the manufacturer or retailer to trust on the competency of the product. It is legally bound the duty of the manufacturer that whatever product they are producing should also be properly labelled and mention the proper information about the product. Hence both opposite parties are liable to pay compensation on that count to the complainant. We have already found that opposite parties have committed deficiency in service so they are liable to compensate the complainant. Moreover complainant is entitled to get cost of the proceedings from the opposite parties.
6. Point. No.3:-
In the result the complaint is allowed in part and direct as follows:-
1. The opposite parties Nos.1&2 are jointly and severally liable to pay Rs.50,000/- (Rupees Fifty thousand only)towards compensation for deficiency in service and another sum of Rs.50,000/-(Rupees Fifty thousand only)towards compensation for product liability and product seller action to the complainant. Failing which said amount shall carry interest @9%p.a from the date of compliance of this order till realization.
2. Both the opposite parties are liable to pay Rs. 10,000/-(Rupees Ten thousand only) as litigation cost to the complainant.
The order shall be complied within one month from the date of receipt of this order
Dictated to the Confidential Assistant, transcribed by her corrected by me and pronounced in open Commission on this the 28th day of May, 2022.
Sd/-Smt. C.K.Lekhamma(Member)
Sd/-Sri.S.Santhosh Kumar(President)
Appendix:-Evidence of the complainant:-
PW1 - Sarun.K.Idicula (Complainant)
Ext.A1 - copy of bill
Ext.A2 - copy of bill
Ext.A3 - OP Ticket
Ext. A4 - Photograhs
Evidence of the opposite parties:-
RW1 - Rajesh Kumar
Ext.B1 - Coy of Licence under FSSAI Act,
Ext.B2 - Copy of Licence issued by Mannar Grama Panchayath
Ext.B3 - Copy of receipt remitted for renewing licence in Mannar
Grama Panchayath dtd. 30/3/2022
Ext.B4 - Copy of water testing report dtd. 16/12/2021
Ext.B5 - Report on analysis of water.
///True Copy ///
To
Complainant/Oppo. party/S.F.
By Order
Assistant Registrar
Typed by:- Br/-
Compared by:-