KERALA STATE CONSUMENR DISPUES REDRESSAL COMMISSION VAZHUTHACAUD, THIRUVANANTHAPURAM APPEAL NO.868/03 JUDGMENT DATED.30.07.08 PRESENT:- SMT.VALSALA SARANGADHARAN : MEMBER SRI.M.V.VISWANANTHAN : JUDICIAL MEMBER Britannia Industries Limited, 5/IA, Hunger Ford Street, : APPELLANT Calcutta – 17. (By Adv.Menon & Pai) Vs 1.V.O.Mathew, Olickal House, Poovarani, Paika Palai, : RESPONDENTS Kottayam. 2. Manager, Kalpaka Super Market, Kottayam -1. JUDGMENT SMT.VALSALA SARANGADHARAN : MEMBER This appeal is preferred against the order dated.18.9.03 of CDRF, Kottaym in OP.No.314/02 directing the first opposite party to pay Rs.12/-, the cost of the biscuit Rs.1000/- as compensation and Rs.1000/- as costs to the complainant. 2. The facts of the case are that the complainant purchased a packet of Britania Jacobs Thin Arrow Root Biscuit for Rs.13/- from the shop of the second opposite party. The first opposite party is the manufacturer of the said biscuit. The complainant purchased the packet because of the caption in the packet that the packet contained ‘arrow root biscuits’. But when he examined the biscuit packet the ingredients were shown as wheat flour, sugar, edible vegetable oils, edible starches, milk and milk products, invert syrup, leavening agents, salt, permitted emulsifiers dough conditioner and antioxidants. But the arrow root was not seen included in the list of ingredients. Hence alleging unfair trade practice the complainant filed this complaint before the forum. 3. The first opposite party filed version and contended that “edible starches” printed on the packet of the biscuit packet cover arrow root also which is in the form of arrow root starch and like any other ingredient having a therapeutics helps in assisting digestion when consumed at reasonable doses and hence the same is not being added at very high levels in the biscuit and arrow root comes under the generic name “edible starches”. They further contended that the major ingredients of the biscuits are wheat flour and there is no misrepresentation as alleged by the complainant. 4. We heard the counsel for the appellant/first opposite party. There was no representation for the respondent. The learned counsel for the appellant argued the case on the basis of the grounds urged in the appeal memorandum. It is further submitted that the biscuits contained arrow root and the same is not controverted by any analysis and the person complaining the defect in product has to take steps to analysis the same in the laboratory and if the Forum had any doubt regarding defect it should have sent a sample for chemical analysis. But this was not done. Thus the appellant requested for setting aside the impugned order passed by the forum below. 5. The complainant has not adduced any acceptable evidence to substantiate his case that the biscuit does not contain arrowroot. No laboratory test was conducted to ascertain the correctness of the allegation leveled against the opposite parties. The Forum below without any reliable evidence came to the conclusion that the 1st opposite party has adopted unfair trade practice in marketing the biscuit as ‘arrowroot biscuit’. 6. Clause © of sub section (1) of section 13 of the Consumer Protection Act, 1986 deals with the procedure to be adopted where the complaint alleges a defect in goods which cannot be determined without proper test of the goods which reads as follows:- “Where the complaint alleges a defect in the goods which cannot be determined without proper analysis or test of the goods the District Forum shall obtain a sample of the goods from the complainant, seal it and authenticate it in the manner prescribed and refer the sample so sealed to the appropriate laboratory along with a direction that such laboratory make an analysis or test whichever may be necessary with a view to finding out whether such goods suffer from any defect alleged in the complaint or suffer from any other defect and to report it findings thereon to the District Forum within a period of forty five days of the receipt of the reference or within such extended period as may be granted by the District Forum. 7. The procedure prescribed in S 13 (1) (C) of CP Act, 1986 was not followed by the Forum. The lower forum ought to have followed the said procedure. Since it was not done, the order passed by the forum cannot be justified. Moreover, the complainant has not adduced any evidence to establish his case. It is well settled law that the pleadings are not evidence much less proof. There is nothing on record to show that the complainant suffered any sort of loss or mental agony on account of the purchase of the biscuits in dispute. So, the complainant is not entitled to get any compensation as ordered by the Forum below. Thus, the findings and conclusion of the Forum below can be treated as one based on the pleadings made by the complainant. Hence the impugned order passed by the forum below is liable to be set aside. In the result the appeal is allowed and the impugned order dated.18.09.03 passed by the CDRF, Kottayam in OP.No.314/02 is set aside. As far as the present is concerned, there shall be no order as to costs. VALSALA SARANGADHARAN : MEMBER M.V.VISWANANTHAN : JUDICIAL MEMBER R.AV
......................JUSTICE SHRI.K.R.UDAYABHANU
......................SMT.VALSALA SARNGADHARAN
......................SRI.M.A.ABDULLA SONA | | 
