State Consumer Disputes Redressal Commission
Manager, Lion Dates Impex Private ... vs 1. K.S.Ganesan S/O. K.Sankaranpillai, ... on 19 December, 2013
IN THE TAMILNADU STATE CONSUMER DISPUTES REDRESSAL
COMMISSION, MADURAI BENCH.
Present: Thiru.A.K. ANNAMALAI, M.A.M.L.,M.Phil., Presiding Judicial Member
Thiru.S. SAMBANDAM, B.Sc, Member
F.A.No.37/2013
(Against the order in C.C.No. 44/2011 dated 01.02.2013 on the file of DCDRF,
Kanyakumari @ Nagarcoil )
THURSDAY, 19th DAY OF DECEMBER 2013.
MANAGER,
Lion Dates Impex Private Limited,
27/3, Cauvery Road,
Trichy-620 002. Appellant/2nd opposite Party
Vs
1. K.S.GANESAN
S/o. K.Sankaranpillai,
919/A4, Waterline Street,
Aruguvilai, Krishnankoil,
Nagarcoil-629 001.
Kanyakumari District. 1st Respondent/Complainant
2. M.THOMAS
President-The Kanyakumari Jilla
Consumer Protection Centre,
UGP Complex, 2nd Floor,
14, Patal Vilai, Cape Road,
Nagarcoil-629 001.
Kanyakumari District. 2nd Respondent/Complainant
3. THE PROPRIETOR,
Margin Free Market,
No.5, Balamore Road,
Vadasery, Nagarcoil-629 001.
Kanyakumari District. 3rd Respondent/1st Opposite Party.
Counsel for Appellant/Opposite Party : Mr. M.Vijayanath, Advocate.
Counsel for Respondents 1-3/Complainants: Mr. Served Called Absent.
2
This appeal coming before us for final hearing on 27.11.2013 and on
hearing the arguments of appellant side and upon perusing the material records
this Commission made the following:
ORDER
THIRU. A.K.ANNAMALAI, PRESIDING JUDICIAL MEMBER.
1. The 2nd opposite party is the appellant.
2. The 1st respondent/complainant purchased Lion brand dates from the 1st opposite party who is the dealer for the 2nd opposite party/appellant's products and on using the Lion dates the 1st complainant found some living as well as dead insects in those dates which caused stomach pain to his wife and as well as mental agony and other troubles to the complainants which forced him to file a consumer complaint after giving notice through the 2nd complainant to the 2nd opposite party claiming refund of the purchase amount of Rs.128/- and Rs.50,000/- as compensation for mental agony and for costs.
3. The District Forum on the basis of the both sides materials and after an enquiry allowed the complaint directing the opposite parties to pay a sum of Rs.5000/- each as compensation and costs payable to the 1st complainant by accepting the contentions of the complainants.
4. Aggrieved by the impugned order, the 2nd opposite party alone has come forward with the appeal by contending that the District Forum has erroneously allowed the complaint without taking into considerations of the facts of the case since the purchase Exhibited as M.O.1 and M.O.2 was sent to the 3 chemical analysis after their shelf life that is after the expiry of consumable period and thereby there was infirmity in the lab report and the actual date of packing of M.O.1 and M.O.2 was on March 2011 which are having expiry date as September 2011 purchased on 13.04.2011 and 15.04.2011 and those were received by the lab only on 29.11.2011 and report was given on 19.12.2012 and thereby the consumable items were examined after the expiry period and there cannot be no use of accepting the laboratory report under Ex.C1 and thereby the complaint is devoid of merits which is to be dismissed.
5. Per contra the complainants/Respondents have contented that the 1st purchase was made on 13.04.2011 in which the dead insects were found only at the time of use by the 1st complainant's wife and thereafter once again at the 2nd purchase was made on 15.04.2011 even in the container when seeing the container with naked eye some living insects were found in the dates and thereafter the complainant had taken steps for analysis which itself would prove the products are having foreign objects caused mental agony while using the same. As far as the contentions of the appellant are concerned, it is not in dispute that the 1st complainant purchased the items M.O.1 and M.O.2 from the 1st opposite party being the seller of the products of the 2nd opposite party/appellant being the producer and manufacturer of the lion dates eventhough contending that they are only receiving imported dates as natural products which is repacked and sold sending for marketing the same as it is and there are certain conditions like keeping the products in an acceptable weather 4 conditions and packed manner itself to be used within the expiry of consumable period as mentioned on the products packages. In our case, it is not in dispute that the complainant had purchased those lion dates during the month of April 2011 having consumable period up to September 2011, but as soon as the complainant found dead as well as living insects in the products, he rushed to the Consumer Forum in the month of August 2011 itself after giving legal notice in the month of May 2011 and before an expiry period of product to be consumable the complainant used the same and found with defects of having some living and dead insects which is confirmed by the analysis report under Ex.C1 in which it is stated that it contains live and dead insects on visual examination and the total plate count is more than the permissible limit and the blemished/damaged units are more than the prescribed limit for Dates under Regulations 2.3.47(4) of Food Safety and Standards ( Food Products Standards & Food Additives) Regulation, 2011.
6. Though the appellant counsel contented that the lab report was obtained only after the expiry of the product to be consumable, it is pertinent to note that because it was consumed even before the expiry of the period in September 2011 that is in April 2011 itself nearly 5 months prior to the date of expiry itself and as soon as the complainant came to know about the presence of such foreign materials in the eatable Dates fruits approached the Consumer Forum after giving legal notice and thereby the contentions that the products were examined after expiry date cannot be accepted and the products was 5 examined only to confirm the contentions of the complainant to ascertain the visualized nature of presence of foreign materials in the product/lion dates and there by these contentions cannot be accepted one. Regarding this, the learned counsel relied upon a ruling reported in Baskar Vembu Vs The State of Tamil Nadu, decided on 19th August, 2008 by the Hon'ble High Court, Madras in which it is held that the sample of the product was sent to the analysis belatedly and prosecution was initiated after 17 months of the analysis report and thereby based on this finding, in this case also the appellants prays to set aside the District Forum order. On perusal of the rulings, relied upon by the appellant, the case was decided in the Criminal OP matter before the Hon'ble High Court under the Prevention of Food Adulteration Act which is criminal proceedings in nature and there are strict and stringent rules are to be followed in filing complaint under that Act, the complainant being the State Government and the defendant/accused being the dealer, manufacturer of the food items and these procedures are all not applicable under the Consumer Protection Act, 1986 in which the complainant is entitled to seek remedy under relevant procedures to be followed and there will be no applicability of provisions of Cr.P.C or C.P.C. except for limited purpose as envisaged in the Act. As far as our case is concerned, it is obviously proved by the complainant that the purchase made by the 1st complainant from the 1st opposite party that is the lion dates for which the 2nd opposite party being the manufacturer/supplier having responsibility in selling the product and with naked eyes the foreign objects were 6 found in the eatables if it is taken or consumed certainly it would cause health hazard and also thereby the purchaser/consumer would be put into mental agony and unnecessary troubles and thereby in this case, we find no infirmity or error on the findings of the District Forum in this regard and there is no need for interfering with the well-considered order passed by the District Forum. In those circumstances, we are of the view that there is no merit in this appeal which is liable to be dismissed of devoid of merits.
9. In the result, the appeal is dismissed by confirming the order of the District Forum, Kanyakumari @ Nagarcoil passed in C.C.No.44/2011, dated 01.02.2013. No order as to costs in the appeal.
S.SAMBANDAM, A.K.A. ANNAMALAI, MEMBER. PRESIDING JUDICIAL MEMBER. INDEX: YES / NO TCM/Mdu Bench/Orders- 2013/Dec