Tamil Nadu

StateCommission

A/97/2017

The Nilgiris Dairy Farm Private Ltd., Rep by its Director - Complainant(s)

Versus

Veeramani & anr - Opp.Party(s)

R.Saravana kumar

17 Mar 2022

ORDER

 

IN THE TAMIL NADU STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI.

 

                          Present: Hon’ble Thiru Justice R.SUBBIAH       ... PRESIDENT

                                       Tmt. Dr. S.M.LATHA MAHESWARI    ... MEMBER

 

F.A. Nos.97 & 235 of 2017

(Against the Order, dated 16.11.2016, passed in CC No.124/13,

on the file of  the DCDRF, Chennai-North)

                                                    

                                                                                                                          Orders pronounced on:   17.03.2022

 

F.A. No.97 of 2017:-

            

The Nilgiris Dairy Farm Private Limited,

Rep. by its Director,

New No.4, Old No.14,

Nostalgia Building,

Ashok Nagar,

Chennai 600 083.                                       … Appellant / 2^nd OP

 

Vs.

 

1. Mr.Veeramani,

S/o.D.Narayanan,

No.90, 1/1,

Basin Road,

Indira Gandhi Nagar,

Thiruvottiyur,

Chennai 600 019.                                         … R1/Complainant

 

2. VVV Enterprises,

Nilgiris Franchisee,

Rep.  by its Proprietor,

No.43/8,

West Mada Street,

Royapuram,

Chennai 600 013.                                 … R2 / 1^st OP.

 

F.A. No.235 of 2017:-

 

 

VVV Enterprises,

Nilgiris Franchisee,

Rep.  by its Proprietor,

No.43/8, West Mada Street,

Royapuram, Chennai 600 013.     … Appellant / 1^st OP

 

Vs.

 

1. Mr.Veeramani,

S/o.D.Narayanan,

No.90, 1/1, Basin Road,

Indira Gandhi Nagar,

Thiruvottiyur,

Chennai 600 019.                                   … R1/Complainant

 

2. The Nilgiris Dairy Farm Private Limited,

Rep. by its Director,

New No.4, Old No.14, Nostalgia Building,

Ashok Nagar,

Chennai 600 083.         .                         … R2 / 2^nd OP.      

 

             For Appellant in FA No.97

             of 2017 & R2 in FA.235/17 : Mr.R.Saravna Kumar

 

For Appellant in FA No.235

of 17 and R2 in FA.97/17 : M/s. S.Bruno Cruz

 

             For Respondent No.1         : Mr.R.Muthukumar.

 

          These First Appeals came up for final hearing on 18.02.2022 and, after hearing the arguments of the counsels and perusing the materials on record and having stood over for consideration till this date, this Commission passes the following:-

 

COMMON ORDER

 

R.Subbiah, J. – President.

 

 

              The appellants herein/Opposite Parties before the District Forum challenge the Order, dated 16.11.2016, passed by the DCDRF, Chennai-North, in C.C. No.124 of 2013, whereby, the District Forum partly allowed the complaint filed by the complainant/1^st respondent herein against the appellant in F.A. No.97 of 2017/2^nd OP  as well as the appellant in FA. No.235 of 2017/1^st OP, by directing them to jointly pay Rs.50,000/- as compensation to the complainant for mental agony and another sum of Rs.5,000/- towards litigation expenses.  

            

         2. Inasmuch as, in both these appeals, challenge is made to the same impugned order and the issues involved therein being one and the same, they are disposed of by this common order.

 

    3.  For the sake of convenience, the parties are referred to in this order as per their respective rankings before the District Forum.

 

        4. In brief, the case of the complainant, as reflected in the complaint filed before the District Forum, is as follows:-

       The 1^st OP is running a shop in the name and style of  ‘Nilgiris Supermarket” and the 2^nd OP is the controlling authority over the 1^st OP.   On 13.12.2012, the complainant had purchased some food products including NILG SD ALOO BHUJIA 100 gms. MIXTURE and NILG JELLY BITES DIAMOND from the 1^st OP shop for Rs.331/-.  On 17.12.2012, after consuming the Mixture and Jelly Bites, the complainant and his family members developed vomiting and stomach pain, whereupon, he verified both the product packs to find the date of package as 01.10.2012 and 29.09.2012 respectively with the indication in the expiry clause ‘BEST BEFORE SIXTY DAYS FROM PACKAGING’. After realizing that the sudden physical change in the body was due to the consumption of the expired contents, they rushed to a Hospital, where they received treatment for 1 day as in-patient and spent a sum of Rs.12,000/- and above towards hospital and medical expenses and also, the complainant was not able to attend Office for 3 days and the children could not attend school for two days.  While so, after discharge from the Hospital, when the complainant approached the 1^st OP and, by explaining the consequences faced by him in consuming the expired products, asked him to replace the other expired product and to compensate for the loss suffered by him, the 1^st OP behaved indecently without maintaining the customer-friendly relationship. 

        The 1^st OP is a franchisee doing business under the supervision and control of the 2^nd OP and both of them have a social obligation to supply goods to the customers free from expired goods with good packaging. The 2^nd OP is also duty bound to verify the correctness of the products sold by the retailers in the market free from expiry. Both the OPs, due to the failure in adhering to such procedure in dealing with customers, violated the rules and regulations stipulated under law.  The complainant not only suffered mental agony and physical strain and also incurred loss by spending Rs.12,000/- and above for medical expenses and sustained loss of pay for Rs.3,000/-, since he could not attend work for 3 days.  When a legal notice, dated 22.12.2012, was sent, calling upon the OPs to pay Rs.12,000/- and Rs.3,000/-, the 1^st OP sent a vague reply while the 2^nd OP neither replied nor came forward to comply with the claim. Hence, he filed the complaint, seeking the District Forum to direct the OPs to pay him Rs.12,000/- incurred towards medical expenses, Rs.3,000/- towards loss of pay, and Rs.4,50,000/- towards deficiency of service and mental agony caused to him.

 

        5. The 1^st OP filed a written version, inter alia, stating that they are the franchisee of the 2^nd OP; that they are not aware of the complainant purchasing the food products in question on 13.12.2012, since all buyers/visitors to the shop are unknown persons; that they are also not aware of the claim that the complainant and his family members suffered physical problems after consuming the food products on 17.12.2012; that it is for the complainant to prove that they had suffered the alleged illness only due to the consumption of the food products in question; that the manufacturer had disclosed the statutory particulars such as the contents of the food stuff, nutritional facts, weight and the date of manufacturing; that the declaration on the pack to the effect ‘Best Before’ does not mean that the date mentioned had become the date of expiry; that the 1^st OP sold those items and other products to many customers and they had not received any complaint so far; that they were not aware of the claim that the complainant and others had rushed to the hospital and incurred medical expenses; that they did not sell any expired product; that, for the legal notice sent by the complainant, a fit reply was given by them vide Notice, dated 12.01.2013; that they are not liable to pay any sum towards medical expenses or loss of pay or compensation, since all those claims are imaginary; and that the complaint filed with ulterior motives and mala fide intention only to extract money without any valid reason may have to be dismissed.

 

         6. In short, the stand of the 2^nd OP, as projected in the written version filed by them, is that the they do not exercise any authority or control over the sale of goods by the franchisee; that they never dealt with any customer so as to give rise to any allegation that they violated the rules and regulations stipulated under law; that the allegations made by the complainant about suffering health problems and incurring expenses towards treatment and loss of pay are absolutely false; and that, since the 2^nd OP has been unnecessarily made a party to the litigation on vexatious grounds, the complaint against them is liable to be dismissed in limini.

 

              7. To substantiate the case, the complainant filed proof affidavit and marked 7 documents as Exs.A1 to A7.  On the side of the Opposite Parties, although separate proof affidavits have been filed, they did not choose to mark any document. By the impugned order, dated 16.11.2016, the District Forum, after finding that there is no evidence adduced to prove that it was only due to consumption of the food item under Ex.A6, the complainant and his family members fell ill, however, held that the food item under Ex.A6 sold by the 1^st OP to the complainant under Ex.A1/Bill on 13.12.2012, from the manufacturing date and the usage printed in the food cover, clearly establishes that, nearly after expiry of 13 days, the food items were sold, which is nothing but an unfair trade practice.  After so finding, the District Forum came to the conclusion that there might be a possibility that the 2^nd OP should have supplied the goods to the 1^st OP either before expiry or even after expiry date and that, since the 1^st OP is the franchisee of the 2^nd OP, they are jointly liable for the unfair trade practice.  Based on such conclusion, ultimately, the District Forum allowed the complaint in part, as aforementioned, and aggrieved thereby, the Opposite Parties, who are the retailer and supplier respectively, have come up with the present individual First Appeals.    

 

             8.  Learned counsel for the 1^st OP would point out that, while the food packets purchased by the complainant on 13.12.2012 were opened for consumption on 17.12.2012, the complainant was not fair enough to disclose as to how he stored the food products between 13.02.2012 and 17.12.2012 and as to whether he followed the conditions as mentioned in the packet. Of course, it is declared on the package that the products fall under the category ‘BEST BEFORE’, but, that does not mean that the said date becomes the date of expiry. While so, when the District Forum categorically found that the complainant failed to prove by adducing evidence that he suffered the alleged physical problems only due to the consumption of the food stuff in question, the contrary finding recorded to hold against the Opposite Parties that they indulged in unfair trade practice/committed deficiency in service, that too based on a pure guess-work, clearly shows that the District Forum deviated itself from its own factual findings for the purpose of wrongly fastening the liability on the OPs; as such, the impugned order calls for absolute interference.

 

 

              9. Learned counsel for the 2^nd OP would submit that  they  supplied  the  goods  to the retail sellers and, after such supply, the obligation to sell those products within the validity sphere, lies only with the retail sellers like the 1^st OP, since they cannot have any control or timing of the sale and, as such, they cannot be held or made liable for the alleged sale of any product much less ‘best before’ product to any consumer including the complainant.  He repeated that the 2^nd OP is in no way directly or indirectly connected with the sale of any product that was sold by the 1^st OP since the 2^nd OP does not supervise the sale of products in the market.  With much stress, learned counsel would further submit that, when a customer/consumer is clearly indicated by the written/printed version that the product is BEST BEFORE 60 DAYS FROM PACKING and thereby, he/she is given the option either or not to purchase/consume any such product, the supplier/2^nd OP can, at best, only caution the customer about the validity of the product alone and, that being so, if the product is sold even after the best before date by the retailer, the supplier cannot be legally held responsible.  Although the District Forum correctly repelled the contention of the complainant that, only due to the consumption of the food items in question, the complainant and his family members fell ill, as there is no evidence adduced by him in that regard, however, completely misdirected itself by holding on pure presumptive basis that there might be a possibility that the 2^nd OP should have supplied the goods to the 1^st OP either before or even after the expiry date; as such, the ultimate direction based on guesswork has vitiated the impugned order.  Similarly, the finding of the District Forum to the effect that the 2^nd OP should have periodically checked the products before sale of the same to the customers is wholly untenable for the reason that the 2^nd OP has no control or supervision over the timing of the products’ sale by the retailer to any customer.  At any rate, as there is no legal basis at all to sustain the ultimate conclusion reached by the District Forum to the effect that there was deficiency in service/unfair trade practice on the part of the 2^nd OP, the impugned order warrants absolute interference by this Commission, he pleaded.

    

             10.  Learned counsel for the complainant submitted that the impugned order is well-founded both factually and legally; as such, the ultimate directions issued, being perfectly in order, no interference is called for by this Commission.

 

             11. Having regard to the rival claims between the parties, the only issue that arises for consideration in these Appeals is as to whether, in the present factual scenario and on the face of the categoric finding of the District Forum to the effect that there is no evidence to show that the illness suffered by the complainant was due to the consumption of the product purchased by him from the 1^st OP, deficiency in service/Unfair Trade Practice can be attributed to the OPs particularly when the issue relating to the food packs concerned does not pertain to ‘date of expiry’ rather ‘best before date’.

 

             12. Before proceeding further, it would be apt to refer to the definition-1.2.1 of the Food Safety and Standards (Packaging and Labelling) Regulations, 2011, dated 05.08.2011, which reads thus:

             “1.2.1: In these regulations unless the context otherwise requires:

1. “Best before” means the date which signifies the end of the period under any stated storage conditions during which the food shall remain fully marketable and shall retain any specific qualities for which tacit or express claims have been made and beyond that date, the food may still be perfectly safe to consume, though its quality may have diminished.  However the food shall not be sold if at any stage the product becomes unsafe.”

Now, let us look into Explanation VIII given at part-VII of the Prevention of Food Adulteration Rules, 1955, that runs thus:-

            “ Explanation VIII- (i) ‘Best Before’  means the date which signifies the end of the period under any stated storage conditions during which the product will remain fully marketable and will retain any specific qualities for which tacit or express claims have been made.  However, provided that beyond the date the food may still be perfectly satisfactory.“      

A conjoint reading of the above provisions would plainly show that ‘best before date’ indicates the end of the period during which the food item is still marketable and safe to consume, though its quality may have diminished.  At the same time, the rigor & tenor of the provision, as available in the Regulations, is still extensive in stating ‘however, the food shall not be sold if at any stage the product becomes unsafe.”  Thus, the complete meaning conveyed is, although the items covered by ‘best before date’ are absolutely marketable, they shall not be sold once the products become unsafe.  To apply the said provision in its real spirit corresponding to safety aspect and also, for the purpose of fastening liability, one has to look at the starting point where the process of packaging is done with relevant labelling.  Although, in general, the visible entity is the retailer, the actuality is that the Manufacturer, from whom the products originate, is the decision-maker as to whether a particular item requires either ‘best before’ or ‘use by/expiry date’ labelling, based on their food safety management system/protocol, and it is only after undergoing manifold subsequent processes at the manufacturing corridor, the products are made available at the sale-point of the retailer; as such, both of them are saddled with the legal obligation to ensure that the item concerned is safe, else, they shall have to face the risk-cum-consequences of having sold unsafe items for consumption.  Standing at the other end, the consumer is left with a cautioned option to decide with common-sense as to whether the product is still edible, since it might have lost its freshness, taste and nutrients. Therefore, while the consumer is left with the option either to purchase or not by making a self-decision, the manufacturer/retailer at the other end take the risk to face the consequence in selling such items, in case the same turned to be unsafe.  While so, when a consumer, having purchased food items under ‘best before date’ category, if suffered any illness due to consumption of such items and comes up with a claim against the manufactuer/retailer before consumer forum, he is legally bound to first discharge the burden that it is only because of the consumption of the ‘best before date’ items purchased by him, he suffered the illness, by producing satisfactory/tangible evidence.  Further, even if he feels that such item is unfit/unsafe for consumption, by resorting to the procedure available under Section 13 (c) of the CP Act, 1986, which provides thus,

    “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 from any other defect and to report its findings thereon to the District Forum ……”

he can very well seek the District Forum to get analysis report from the Laboratory as to the safety, defect, etc. of the item suspected.  At any rate, in between these two ends of cautioned option and risk, let us examine as to whether the complainant, who exercised the option of purchasing the food items in question, substantiated his claim that, due to consumption of those food items, he suffered illness and consequently, incurred medical expenses/sustained loss of pay, etc., so as to in turn hold the OPs liable for the risk of selling unsafe items and to attribute unfair trade practice or deficiency in service to them.

           In this regard, on perusal of the records, in particular, the documents marked by the complainant, we fail to see any material in the form of hospital case sheet, etc., except Ex.A2, which is nothing but a prescription of drugs/injection/syrup.  Although the complainant claimed that he was admitted as in-patient and spent more than Rs.12,000/-, there is no piece of material available to corroborate such claim, hence, it is nothing but  a self-projected claim, which cannot be given any credence at all.  As such, the District Forum also rightly discredited the claim of the complainant on that score. Thus, we hold that, consequent to such failure on the part of the complainant in discharging the burden that the food item was unsafe, the risk factor that stood against the Opposite Parties is obviously nullified. Further, when it is the specific stand taken by the complainant at para No.6 of the complaint that he sought for replacement of the other expired product from the 1^st OP, nothing prevented him from seeking the District Forum to send the sample thereof for lab analysis, so as to further fortify his claim. The act of the complainant in not resorting to such course definitely suggests otherwise.   That being so, the very wordings employed by the District Forum to the effect that ‘there may be a possibility that the 2^nd OP either he should have supplied the goods to the 1^st OP before expiry or even after expiry date’, without any material basis, clearly reflect its guesswork, based on which, the ultimate directions came to be issued against the OPs. Having rightly disbelieved the claim of the complainant that he suffered illness only due to the consumption of the food stuff in question, the District Forum impliedly negatived the allegation of the complainant that the food item was unsafe so as to bring the OPs inside the sphere of risk. While so, the District Forum completely misdirected itself in subsequently proceeding on pure presumptive basis to hold against the OPs, as abovementioned.  Further, when the case relates to food items covered by ‘best before date’, the District Forum superfluously proceeded to consider an issue of ‘expiry date’, once again, on the basis of mere guesswork, which cannot be legally sustained.  Thus, we see no justification whatsoever to sustain the impugned order.

 

           13. In the result, the appeals stand allowed, by setting aside the impugned order, dated 16.11.2016, passed by the DCDRF, Chennai-North, in C.C.No.124 of 2013.

 

S.M.LATHA MAHESWARI                            R.SUBBIAH, J.

MEMBER                                                             PRESIDENT.