Tamil Nadu

North Chennai

124/2013

Veeramani, - Complainant(s)

Versus

VVV Enterprises, Nilgris Franchisee,rep. by Proprietor, - Opp.Party(s)

R.Muthu Kumar

16 Nov 2016

ORDER

                                                            Complaint presented on:  14.06.2013

                                                                Order pronounced on:  16.11.2016

 

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, CHENNAI (NORTH)

    2^nd Floor, Frazer Bridge Road, V.O.C.Nagar, Park Town, Chennai-3

 

PRESENT: THIRU.K.JAYABALAN, B.Sc., B.L.,        PRESIDENT

                    TMT.T.KALAIYARASI, B.A.B.L.,           MEMBER II

 

WEDNESDAY THE 16^th   DAY OF NOVEMBER 2016

 

C.C.NO.124/2013

 

 

Mr. Veeramani,

S/o. D.Narayanan,

No.90, 1/1, Basin Road,

Indira Gandhi Nagar,

Thiruvottiyur,

Chennai – 600 019.

                                                                                     ..... Complainant

 

..Vs..

 

1. VVV Enterprises,

Nilgiris Franchisee,

Rep by its. Proprietor,

No.43/8, West Mada Street,

Royapuram,

Chennai 600 013.

 

2. The Nilgiris Dairy Farm Private Limited,

Rep. by its Director,

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

Ashok Nagar,

Chennai – 600 083.

	...Opposite Parties

Date of complaint                                  : 17.06.2013

Counsel for Complainant                      : M/s.R.Muthukumar

Counsel for 1^st opposite party                  : M/s.S.Bruno Cruz

Counsel for 2^nd opposite Party                       : M/s. R.Saravanakumar

 

O R D E R

BY PRESIDENT THIRU. K.JAYABALAN B.Sc., B.L.,

          This complaint is filed by the complainant u/s 12 of the Consumer Protection Act.1986.

1.THE COMPLAINT IN BRIEF:

          The 1^st Opposite Party is running the shop in the name and style of “Nilgiris Supermarket” under supervision and control of 2^nd Opposite Party. The 2^nd Opposite Party is the controlling authority over the 1^st Opposite Party. The Complainant states that on 13.12.2012, he has purchased some of the food products including NILLG SD ALOO BHUJIA 100 GMS MIXTURE and NILLG JELLY BITES DIAMOND from the 1^st Opposite Party’s shop through vide bill No.630501008195 for a sum of Rs.331/-. The Complainant further states that on 17.12.2012 he had his daughter Nandhini, son Nandakumar and his sister’s sons Joseph and Seemon Consumer the NILLG SD ALOO BHUJIA 100 GMS MIXTURE and NILLG JELLY BITES DIAMOND. Immediately after consuming the above product they are all suffered vomiting and stomach pain. On suspicion, he looked into the NILLG SD ALOO BHUJIA 100 GMS MIXTURE and NILLG JELLY BITES DIAMOND product pack and realized that the above product was originally packed on 1^st October 2012. The expiry clauses in the said packet embolden ‘BEST BEFORE SISTY DAY FROM PACKAGING’. The other product namely NILLG JELLY BITES DIAMOND was originally packed on 29^th September 2012. The expiry clause in the said packet emboldens ‘BEST BEFORE SIXTY FROM PACKAGING’.  The Complainant and his family members rushed to a hospital for treatment and took treatment as inpatient for one day and spent a sum of Rs.12,000/- towards hospital and medical expenses. After discharge from the hospital the Complainant approached the 1^st Opposite Party and informed him about the incident and asked him to replace the other expired product and to compensate the loss. However the 1^st Opposite Party refused to do so and he has not treated the Complainant as a customer. The Complainant and his family members suffered with inconvenience health and mental agony and hence the Opposite Parties have committed unfair trade practice and thereby committed Deficiency in Service. The Complainant issued legal notice and for which the 1^st Opposite Party has sent frivolous reply and the 2^nd Opposite Party not at all replied. Hence the Complainant filed this Complaint for compensation for the deficiency committed by the Opposite Parties with cost of the Complaint.

2. WRITTERN VERSION OF THE 1^st OPPOSITE PARTY  IN BRIEF:

          The 1^st Opposite Party is the franchisee of M/s.Nilgiri Dairy Farm, the 2^nd Opposite Party herein. It is also admitted that the 1^st Opposite Party have a super market where they market consumer goods in retail are supplied by the M/s.Niligiri Dairy Farm and other products that are popularly sold. The 1^st Opposite Party is not aware of the fact that on 13.12.2012, the Complainant had purchased food products particularly NILLG SD ALOO BHUJIA 100 GMS MIXTURE and NILLG JELLY BITES DIAMOND as all the buyers and visitors to shop of the 1^st Opposite Party are unknown persons. The 1^st Opposite Party is not aware of the fact that the Complainant, his children and siblings consumed these products on 17.12.2012 and they had suffered vomiting and stomach pain. It is for the Complainant to prove such facts firstly and thereon it is for the Complainant to prove that they had suffered due to the usage of these products, suffice for the 1^st Opposite Party to state that all kind of food products more particularly the alleged both the products were sold in packed conditions which were sealed. It is for the Complainant to prove such facts firstly and thereon it is for the Complainant to prove that they had suffered due to the usage of these products, suffice for the 1^st Opposite Party to state that all kind of food products more particularly the alleged both the products were sold in packed conditions which were sealed. In addition to these particulars the manufacturer had also disclosed the statutory particulars, such as the contents of the food stuff, nutritional facts, weight and the date of manufacturing. Of course it is declared on the package that the products may be used on the date which is declared as “Best before”. This does not mean that his date becomes the date of expiry. It may be noted that the 1^st Opposite Party sells the products and other products to many customers and so far they had not received any Complaint. However this Opposite Party makes it clear that they have not sold the expired products. By reply notice dated 12.01.2013, this Opposite Party given a fitting reply to legal notice dated 22.12.2012 sent by the Complainant to this Opposite Party. Hence this Opposite Party has not committed any Deficiency in Service and prays to dismiss the Complaint.

3. WRITTERN VERSION OF THE 2^nd  OPPOSITE PARTY  IN BRIEF:

          The fact that the 1^st Opposite Party is a franchisee of the 2^nd Opposite Party, all other allegations are denied as false and the Complainant is put to strict proof of the same. However, the 2^nd Opposite Party neither has supervisory powers nor exercises control over the day today sales of the 1^st Opposite Party. The 2^nd Opposite Party supplies goods to the 1^st Opposite Party based on their requirement from time to time. However, the sale of the goods is completely within the domain of the 1^st Opposite Party and 2^nd Opposite Party has no control or supervisory authority over such sales. The franchisee alone are solely responsible to take all steps to comply with all applicable laws, rules, regulations/notifications including shops and Establishments Act and relevant quality control and safety regulations as laid down under any law. The 2^nd Opposite Party only provides the requisite training and technical knowhow to conduct the business. It is prudent on the part of a common man to see the manufacture and expiry date of any product at the time of purchase, particularly eatables like snacks, if the Complainant had seen the expiry date, he could have very well avoided purchasing the product. It is absolutely false to state that this Opposite Party had caused mental and physical strain besides loss of pay to the Complainant. The 2^nd Opposite Party has been unnecessarily made a party to the litigation based on false and vexatious allegations. Therefore, the above Complaint is liable to be dismissed as against this Opposite Party in limini. Hence this Opposite Party has not committed any Deficiency in Service and prays to dismiss the Complaint.

4.POINTS FOR CONSIDERATION:

          1. Whether there is deficiency in service on the part of the opposite parties?

          2. Whether the complaint is entitled to any relief? If so to what relief?

5.POINT : 1

          It is an admitted fact that the 2^nd Opposite Party supplied goods to the 1^st Opposite Party based on the requirement from time to time and the 1^st Opposite Party is a franchise of the 2^nd Opposite Party and the Complainant purchased NILLG SD ALOO BHUJIA 100 GMS MIXTURE and NILLG JELLY BITES DIAMOND under Ex.A6 and also purchased NILLG SD ALOO BHUJIA 100 GMS MIXTURE under Ex.A7 along with other food product for a sum of Rs.331/- from the 1^st Opposite Party on 13.12.2012 as per Ex.A1 bill.

          6. The Complainant contended that the 1^st Opposite Party sold the expired goods from his shop to the Complainant and after purchase the Complainant consumed the food product in the Ex.A6 cover himself and other his family members fell ill and took treatment in a hospital and further having the goods supplied by the 2^nd Opposite Party and sold the expired goods by the 1^st Opposite Party is an unfair trade practice and therefore the Opposite Parties 1 & 2 committed Deficiency in Service.

          7. The 1^st Opposite Party contended that the food product was not sent for lab test by the Complainant and further he had sold the goods only supplied by the 2^nd Opposite Party and therefore he has not committed any Deficiency in Service.

          8. The 1^st Opposite Party would contend that “it is prudent on the part of the common man to see a manufacture and expiry of date of any product at the time of purchase”, particularly eatable items, if the Complainant had seen the expiry date he could have very well avoided purchasing the food product and further the 2^nd Opposite Party is not having any control over the day today sale of the 1^st Opposite Party and therefore this Opposite Party has not committed any Deficiency in Service and prays to dismiss the Complaint.

          9. The 2^nd Opposite Party admits that he had supplied the goods to the 1^st Opposite Party and the 1^st Opposite Party used to sell the goods to the customers and the 1^st Opposite Party is the franchise of the 2^nd Opposite Party and the 1^st Opposite Party also cannot dispute the Ex.A6, Ex.A7 items sold to the Complainant under Ex.A1 bill and the said products also purchased by the Complainant from the 1^st Opposite Party for valuable consideration.

          10. The Complainant would contend that after consumption of the food products purchased from the 1^st Opposite Party himself and his family members    fell ill and took treatment at K.K.Hospital and  to prove the same he has marked Ex.A2 prescription of the doctor. There is no evidence filed by the Complainant to prove that due to consumption of Ex.A6 food item himself and his family members fell ill and in view of the same we reject that due to consumption of Ex.A6 item the Complainant and his family members fell ill.

          11. The Complainant counsel specifically argued that the Opposite Parties practiced in selling the expired food products and they have adopted an unfair trade practice. NILLG SD ALOO BHUJIA foods items 100 gms was manufactured on 01.10.2012 as per Ex.A6 cover and the said food should be used best before 60 days. It means the item found in the Ex.A6 cover should have been used before 30.11.2012. Likewise the NILLG JELLY BITES DIAMOND found in Ex.A7 manufactured on 29.09.2012 and the said food also should have been used best before 60 days i.e before 29.11.2012. However the said items under Ex.A6 sold to the Complainant by the 1^st Opposite Party 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 sold to the Complainant. Since the food items sold after the expiry of the usage date such a selling of expiry date product is nothing but an unfair trade practice and therefore we hold that the 1^st Opposite Party committed Deficiency in Service by adopting unfair trade practice to sell the food items.

          12. The 2^nd Opposite Party contended that though he had supplied goods to the 1^st Opposite Party and he is also selling the same supplied by them, he is not responsible for the expiry item sold by the 1^st Opposite Party to the Complainant. There is no evidence on the part of the 2^nd Opposite Party that when he has supplied the sold items to the Complainant was supplied by him to the 1^st Opposite Party. In the absence of such specific evidence there may be a possibility that the 2^nd Opposite Party either he should have supplied the goods to the 1^st Opposite Party before expiry or even after expiry date. Further the 1^st Opposite Party is the franchises of the 2^nd Opposite Party and therefore in such circumstances, the 2^nd Opposite Party is also jointly liable for the unfair trade practice committed by the 1^st Opposite Party. Therefore we hold that the 1 & 2 Opposite Parties have committed Deficiency in Service by practicing the unfair trade practice.

13. POINT NO:2

          The Opposite Parties are reputed firm and having branches in most of the parts of Chennai and also in other parts of Tamil Nadu and such a reputed firm should periodically check the products before selling to the customer whether the products are the expired one are not. If such practice should have been adopted by the Opposite Parties they ought not to have sold the expiry date products to the Complainant.  Further when the Complainant asked the 1^st Opposite Party to replace the Ex.A7 items he did not concede for the same. Considering the status of reputed form and they failed to check the products of the  expiry date periodically   and that too nearly after 13 days of the expired  food products sold to the Complainant and to curb such an unfair trade practice, we feel that a heavy  compensation has  to be awarded to the Complainant and accordingly we award a compensation of Rs.50,000/- to the Complainant payable by the Opposite Parties for Deficiency in Service committed by them and caused mental agony to him and also to pay a sum of Rs.5,000/- towards litigation expenses.  

          In the result the Complaint is partly allowed. The Opposite Parties 1 & 2 jointly or severally are ordered to pay a sum of Rs.50,000/- (Rupees fifty thousand only) to the Complainant compensation for mental agony, besides a sum of Rs.5,000/- (Rupees five thousand only) towards litigation expenses.

The above amount shall be paid to the complainant within 6 weeks from the date of receipt of the copy of this order failing which the above said amount shall carry 9% interest till the date of payment.  The Complaint in respect of the other relief is dismissed.

Dictated to the Steno-Typist transcribed and typed by her corrected and pronounced by us on this 16^th day of November 2016.

 

MEMBER – II                                                               PRESIDENT

LIST OF DOCUMENTS FILED BY THE COMPLAINANT:

Ex.A1 dated  13.12.2012                  Bill issued by the 1^st Opposite Party

Ex.A2 dated 17.12.2012                   Medical Bills

Ex.A3 dated 22.12.2012                   Legal Notice

Ex.A4 dated 24.12.2012                   Acknowledgement Cards

Ex.A5 dated 12.01.2013                   Reply by 1^st Opposite Party

Ex.A6 dated         01.10.2012           Original Wrapper Pocket

Ex.A7 dated 29.09.2012                   Original Wrapper Pocket

LIST OF DOCUMENTS FILED BY THE OPPOSITE PARTIES:

                                      …..NIL …..

                                                                                               

 

MEMBER – II                                                               PRESIDENT