State Consumer Disputes Redressal Commission
Hindustan Unilever Ltd. vs D.K.Dubey on 17 January, 2017
2nd Additional Bench
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, DAKSHIN MARG, SECTOR 37-A, CHANDIGARH.
First Appeal No.380 of 2015
Date of institution : 09.04.2015
Date of order reserved : 10.11.2016
Date of decision : 17.01.2017
Hindustan Unilever Ltd. A-5/II-B, Focal Point, Rajpura-
140401. (Through its authorized representative)
...Appellant/OP No.1
Versus
1. D.K. Dubey s/o Sh. Om Parkash Dubey, c/o 624, SATA-
Bty, c/o 56 APO now at Faridkot Cantt.
Respondent No.1/Complainant
2. CSD Canteen, c/o 624, SATA-Bty, c/o 56 APO now at
Faridkot Cantt through its Commanding Officer.
3. 173 Military Hospital, Faridkot through its Authorized
Signatory/Incharge/C.O. Military Hospital, Faridkot Cantt.
....Respondents/OP No.2 & 3
First Appeal against the order
dated 27.01.2015 passed by the
District Consumer Disputes
Redressal Forum, Faridkot.
Quorum:-
Mr. Gurcharan Singh Saran, Presiding Judicial Member
Mrs. Surinder Pal Kaur, Member
Present:-
For the appellant :Sh. Ashim Aggarwal, Advocate
For respondent No.1 :Sh. Ashish Gupta, Advocate
For respondent No.2 :None
For respondent No.3: Ex-parte
F.A. No. 380 of 2015 2
MRS. SURINDER PAL KAUR, MEMBER
ORDER
The appellant/OP No.1 has filed the present appeal against the order dated 27.01.2015 passed by District Consumer Disputes Redressal Forum, Faridkot (hereinafter referred as "District Forum") in Consumer Complaint No.22 dated 04.03.2013 vide which complaint of the complainant was allowed and OP No.1 was directed to pay Rs.1 lac i.e. Rs.50,000/- for medical treatment and Rs.50,000/- for mental tension and harassment and Rs.2000/- as litigation costs. It was further directed that order be complied within 30 days from the receipt of the copy of the order, failing which, complainant entitled to initiate the proceeding under section 25 & 27 of the Act.
2. As per averments made in the complaint by the complainant, that he is working as L/NK in Military and posted in SATA-Bty, C/o 56 APO, Faridkot Cantt. He had been purchasing the goods for his entire family from the CSD Canteen/Retail Outlets in Faridkot Cantt. On 16.09.2012, he purchased some articles after paying a sum of Rs.953/-, from Retail Outlet CSD Canteen vide Bill No.005854 dated 16.09.2012 including one mixed fruit jam of Rs.63.99p from OP No.2 manufactured by OP No.1. He opened the jam on 30.09.2012 and the same was consumed by his minor son. After consuming the jam his son developed sensation of vomiting. He gave some medicines to his son but with no relief. On next day he got admitted his son in the F.A. No. 380 of 2015 3 Military Hospital, Faridkot Cantt. i.e. OP No.3. Doctors of the hospital had prescribed some medicines and asked the complete history of consuming the food by his son. It was found that his son was suffering from food poisoning but it was not clear as to from which item, the problem had arisen. The complainant used the jam for another day as he was not aware that food poisoning was due to contaminated Jam. He noticed that foul smell was coming out from the Jam and the same was brought to Military Hospital, Faridkot where it was found by the doctors that the jam was having dead Frog. He requested the doctors to seal Jam and the same was immediately sealed in his presence. The condition of his son did not improve and he got his son checked from Doctor Pankaj Bansal in G.G.S. Medical College & Hospital, Faridkot, where his son remained admitted on 13.10.2013 to 15.10.2013 but the condition of his son deteriorated day by day and his behavior changed due to loss of memory and his son was got checked from the Head of the Department, "Department of Psychiatry" and the doctors of that department referred for E.E.G. and M.R.I but no improvement was noticed in the condition of his son. Till filing the complaint, his son was under the treatment and doctors in G.G.S. Medical College & Hospital Faridkot, informed the complainant that due to contaminated Jam his son suffered from food poisoning. The complainant had spent a sum of Rs. 50,000/- on the treatment of his son and more than Rs 10,000/- on transportation. He prayed for issuance of the directions to OPs F.A. No. 380 of 2015 4 to pay Rs. 10,00,000/- as compensation for mental tension and harassment and Rs. 10,000/- as litigation costs.
3. The complaint was contested by OPs. OP No.1 in written reply took the preliminary objections that complainant had not approached the District Forum with clean hands and suppressed the material facts; no proof that the son of the complainant had consumed the jam or suffering from food poisoning; it revealed from the medical reports that there was no symptom of food poisoning noticed by the doctors of Military Hospital, Faridkot and son of the complainant was medically fit upto 01.10.2012; District Forum has no territorial jurisdiction as registered office of this OP is at Mumbai; fruit jam was manufactured under hygienic process where Product was heated to kill pathogens and filtered to remove foreign matter; pest control is implemented in all food manufacturing units; food products manufactured under strict microbiological tests and released into the market only after qualifying to be fit for human consumption. On merits, it was admitted that complainant is serving in the Army. Complainant failed to produce batch number/code to prove that alleged jam bottle was purchased from CSD Canteen on 16.09.2012 and the same was consumed by the son of complainant. Further, there was no proof that under which condition the alleged bottle was stored from 16.09.2012 to 30.09.2012 and the same was opened on 30.9.2012 or later. On 01.10.2012 son of complainant was brought in Military Hospital, F.A. No. 380 of 2015 5 Faridkot, however after medical examination by Maj. Ravi Prakash, son of complainant was found medically fit and there was no evidence of food poisoning. It was not believable that if there was any foreign material in the jam bottle then why complainant continuing to use the Jam for another day and why the same was not immediately sealed. There was no dead Frog in the bottle and the same was not sealed by the doctors of Military Hospital, Faridkot. Complainant had failed to prove that he used and kept the jam bottle as per instructions mentioned on the same. There is no proof that the bottle was kept in refrigerator after opening the same and foul smell was coming out in the bottle. Complainant used the jam till 30.09.2012 and his child was medically fit up to 01.10.2012 which proved that jam was not contaminated at the time of purchasing/opening of sealed bottle i.e. 16.9.2012. As per medical report there was no complaint of food poisoning. On 15.10.2012 complainant got his son discharged from Military Hospital, Faridkot on his own accord and after that he never reported food poisoning of his son. His son was only suffering from fever. Military Hospital, Faridkot has reported that child was admitted from 13-15th October, 2012 for investigation as to cause of alleged fever. Son of the complainant did not suffer any injury or ill health due to consumption of Jam. The contamination, if any, could have taken place at premises of the complainant due to improper storage condition for that this OP was not responsible. Complainant had refused to hand over the F.A. No. 380 of 2015 6 Jam or its contents to OPs for lab test. The food analyst had also reported that they are unable to test the toxicity of the sample or say whether the foreign material in the polythene bag is skin of frog. It was not proved that foreign material lying separately in polythene bag was taken out of the bottle of the Jam. There was no detail of alleged treatment/medicines administered to his son for Rs.50,000/-. No prescription/test reports/bills had been provided in support of the said averment. Merely because name of the Company mentioned on the bottle did not conclude that Jam was manufactured by this OP at Rajpura. The laboratory test was not as per the provisions of Food Safety Act. No intimation and opportunity was given to OP to send the article to another Laboratory. There is no unfair trade practice and deficiency in service on its part. It prayed for dismissal of the complaint with costs.
4. Separate written reply was filed by OP No.2 who took the preliminary objections that this OP was wrongly dragged into litigation whereas, no cause of action had arisen against it. This OP is responsible for collection of items from Canteen Store Department in short (CSD). The alleged Jam manufactured by OP No.1 and supplied to this OP in sealed condition and further it sold the product in same sealed condition. If there was any defect in the Jam then only OP No.1 is responsible for the same. On merits, it was admitted that complainant purchased the best quality Jam. Complainant informed this OP that his son was not F.A. No. 380 of 2015 7 feeling well. Complainant brought his son in Military Hospital, Faridkot, where his son was diagnosed with Food poisoning. On being questioned by the doctor's of Military Hospital, Faridkot complainant shown the Jam bottle to the same then it was observed that there was dead Frog in the jam bottle. Written complaint was forwarded to Military Headquarter, Faridkot with a copy to OP No.1. Thereafter, representative of OP No.1 Mr. Arvind Tandon, Senior Executive Manufacturing contacted the unit on 04.10.2013 and he tried to convince the unit that the incident not occurred due to the alleged jam bottle but this OP told to representative of OP No.1 that the matter was reported to higher headquarter. On 09.10.2013, another representative of OP No1 tried to contact this OP and asked the Jam bottle with dead Frog for further investigation. However, it was told that jam bottle with the complainant for further proceeding. Canteen Stores Department (CSD) supply the brands and items which are approved by the Adelphi Mumbai for their quality and authenticity. The Unit Run Canteens neither certifies nor approves the quality of any brand specific items to the customers. Unit Run Canteen 624 SATA Bty is merely a collecting agency for Canteen items which are available at CSD, Bathinda. Jam Bottle was purchased by complainant from the Unit Run Canteen in packed/sealed condition. Unit Run Canteen 624 SATA Bty procured 48 jams bottles of KISSAN Jam from CSD, Bathinda and sold 43 bottles to various customers. After receiving complaint of complainant F.A. No. 380 of 2015 8 remaining five bottles were kept sideway. However, no other complaint from any other customer regarding the Jam was received to Unit Run Canteen 624 SATA Bty till filing the complaint. There was no deficiency in service on its part. It prayed for dismissal of the complaint.
5. Complaint was contested by OP No.3 who took the preliminary objections that this OP wrongly dragged into litigation as there was no role to manufacture the alleged Jam. On merits, it was admitted that Master Satyavrath S/o Mr. D.K. Dubey C/o 624 SATA Bty was brought to OPD, 173, Military Hospital(MH), Faridkot on 01.10.2012. The wife of the complainant stated that her son consumed a spoonful of Jam. She found some foreign material inside the Jam bottle. She told that her son did not have any complaint at present but she brought him for medical checkup. She brought the Jam bottle and Major Ravi Prakash examined the patient and found him to be medically fit and also examined jam bottle, it seemed to be like a frog but he was not sure. As the patient was medically fit and there was no evidence of food poisoning so the patient did not require any active treatment therefore, he was not admitted at 173 Military Hospital. However, the patient was given prophylactic medicine i.e. pain killer and mother was advised to take back the child at home. Jam bottle was not sealed at 173 Military Hospital Faridkot and the same was with the complainant. After that the patient was never brought to the Military Hospital for any medical problem till F.A. No. 380 of 2015 9 12.10.2012. However, on 12.10.2012 patient was brought to 173 Military Hospital Faridkot with history of fever and he was attended by Major Ravi Prakash and advised to admit at 173 Military Hospital Faridkot but complainant refused to admit in the Hospital. On 13.10.2012 child was again brought 173 Military Hospital Faridkot and admitted in family ward in Military Hospital, Faridkot. Dr. Major Abhipsa Hota, Medical Officer in charge of family ward, 173 Military Hospital, informed that child was completely a febrile at the time of stay at ward. However, mother of the child insisted to let her child at least three day under observation as she had given the history of child having fever for 10 days. Necessary investigations were carried out to find out the cause of fever. However, the parents of the child insisted the doctors of Military Hospital Faridkot to discharge the patient therefore, patient was discharged on 15.10.2012 against the medical advice. There was no deficiency in service on its part. It prayed for dismissal of the complaint.
6. The parties produced evidence in support of their respective averments before the District Forum, which after going through the same and hearing learned counsel on their behalf, allowed the complaint, vide aforesaid order.
7. We have heard learned counsel for appellant/opposite party No.1 and the learned counsel for the complainant and have carefully gone through the record of the District Forum. F.A. No. 380 of 2015 10
8. It was argued by the learned counsel for the Appellant/OP that alleged Jam bottle was purchased on 16.09.2012 and there was no evidence when the same was opened, whether it was consumed by the son of the complainant or not. There was no proof that the bottle was stored from 16.09.2012 to 30.09.2012 as per the recommended conditions. It was specifically mentioned under storage instructions that "Refrigerate after opening". Wife of the complainant herself stated that upto 01.10.2012 her child was not having problem of food poisoning. However, son of complainant was admitted in Military Hospital, Faridkot 13th to 15th October as he was suffering from fever. On 15.10.2012, complainant got his son discharged against medical advice as per the discharge letter dated 15.10.2012 (Ex.C-6) there was no report of food poisoning. The District Forum has wrongly fixed the liability of the OP without proper appreciation of the evidence on the record. It prayed for acceptance of appeal and to set- aside the order of the District Forum.
9. On the other hand counsel for the complainant argued that District Forum after appreciating the entire evidence rightly held OP No.1 was deficient in service as in the report of Food Analyst Ex.C-3 shows that foreign matter was found in the fruit jam bottle was having irregular size and fruit jam was having foul smell which is unsafe for human consumption. There is no F.A. No. 380 of 2015 11 reason to upset the well reasoned order of the District Forum. It prayed for dismissed of the appeal.
10. We have considered the contention of both the parties. On 16.09.2012, complainant purchased several articles including a mixed fruit jam manufactured by OP-1, Hindustan Unilever Ltd. make Kissan Jam vide bill Ex.C-2. After consuming the jam his son developed feeling of vomiting and next day his wife took his son in the Military Hospital, Faridkot where his son was checked by the doctors and diagnosed food poisoning due to contaminated jam (Ex.C-8) which was manufactured by OP No1. Whereas, OP No1 alleged that neither foreign material in the Fruit jam bottle was found nor it was immediately sealed by the Military Hospital, Faridkot. The letter dated 3.10.2012 Ex.C- 4, issued by the Military Authorities, it reveals as under:-
"30.09.2012, Master Satyavarat Dubey son of No.15155105L L/NK(OpR) D.K.Duby of this Unit complained headache and dizziness. L/NK (OpR) D.K. Dubey took his son to 173 Military Hospital. When Military Hospital authorities enquired about the food which child ate, they were informed that he ate KISSAN jam. Military Hospital authorities tested the jam and found a dead frog inside the bottle of jam. Examining the remains of the frog, initial conclusion is that the frog was present in the jam when the bottle was packed and sealed. The bottle of jam and remains of frog have been sealed and held with this unit as proof."F.A. No. 380 of 2015 12
11. It is evident that the jam bottle was produced before military authority and the same was tested and dead frog inside the said bottle was found. Jam bottle and remains of frog as sealed by the Military Authorities were produced before the District Forum and the District Forum vide order dated 26.3.2013 send the jam with Food Analyst for analyzing the same and the Food Analyst vide his report Ex.C-3, declared the fruit jam unsafe for human consumption as the same was having foul smell and was containing some foreign matter. The report is as under:-
Physical appearance of the foreign matter found in the sample of jam and sent separately in the polythene bag appears to be similar and had given his opinion in the following manner:-
1. The contents of the sample contain foreign matter and the foreign matter is having foul smell. Hence, unsafe for human consumption.
2. The laboratory is not competent to tell that the foreign matter sent separately in a polythene bag is skin of frog or not, as mentioned in your letter that foreign matter is a dead frog.
3. This laboratory is also not competent to test the toxicity in the contents due to the presence of foreign matter."
12. Fruit Jam was purchased by the complainant vide bill No.005854 dated 16.09.2012 (Ex.C-2). After consuming the jam the son of the complainant developed sensation of vomiting. F.A. No. 380 of 2015 13 Jam was examined in lab where the factum of negligence on the part of opposite party No.1 regarding preparing fruit jam has been proved when foreign material was found in it. It is common practice that when a person goes to purchase consumable product from reputed companies it is hoped that the same will be free of any contaminated form or any foreign material. OP No.1 which is reputed company failed to provide quality product to the complainant. Therefore, OP No.1 is deficient in its service.
13. Resultantly, we do not find any force in the appeal filed by the appellant/opposite party No.1 against the impugned order passed by the District Forum, which deserve to be dismissed as the District Forum has given well reasoned findings after applying the judicial mind and considering the evidence brought on the record and there is no reason to interfere the order of the District Forum. The appeal filed by the appellant is dismissed with no order as to costs and the impugned order is affirmed and upheld.
14. The appellant/opposite party has deposited Rs.25,000/- at the time of filing of the appeal and Rs.26,000/- on 06.05.2015 as per order of the Commission dated 20.04.2015. Both the amounts along with interest which had accrued thereon, if any be remitted by the registry to the Respondent No.1/Complainant by way of cheque/ demand draft after the expiry of 90 days of the sending of certified copies of this order to the parties.
F.A. No. 380 of 2015 14
15. The appeal could not be decided within the statutory period due to heavy pendency of court cases.
16. Order be communicated to the parties as per rules.
(Gurcharan Singh Saran)
Presiding Judicial Member
(Mrs. Surinder Pal Kaur)
th
January 17 , 2017 Member
SK