State Consumer Disputes Redressal Commission
Cadbury India Limited vs Shri S. Zahur Haidr Zaidi on 18 September, 2007
H H.P. STATE CONSUMER DISPUTES REDRESSAL COMMISSION, SHIMLA Appeal No. 325/2004. Date of Decision 18.09.2007. Cadbury India Limited, 19, Bhulabhai Desai Road Mumbai- 400 026. . Appellant. Versus 1. Shri S. Zahur Haidr Zaidi, Senior Superintendent of Police, Kangra at Dharamshala, Himachal Pradesh, 2. Chadha General Store Kotwali Bazar, Dharamshala, Tehsil Dharamshala Distt. Kangra, H.P. . Respondents. Honble Mr. Justice Arun Kumar Goel, President. Honble Mr. Narinder Singh Thakur, Member. Honble Mrs. Saroj Sharma, Member. Whether Approved for reporting? Yes. For the Appellant. Mr. Anand Sharma, Advocate. For the Respondents. None. O R D E R:
Justice Arun Kumar Goel (Retd.) President (Oral) This appeal is directed against the order dated 2.11.2004, passed by District Forum Kangra at Dharamshala, in Consumer Complaint No. 511/2003. By means of impugned order while allowing the complaint of respondent No.1, it has been held that the appellant and respondent No.2 are jointly and severally liable in the following terms:-
11. In view of our findings on points No.1 to 4 above, the complaint is partly allowed and we order O.Ps jointly and severally to deposit Rs. 80/- in favour of the complainant, in this Forum within 30 days from the receipt of copy of this order. In addition to this, we order the O.Ps jointly and severally to pay compensation to the tune of Rs. 5000/- for causing mental harassment and torture to the complainant including medical expenses. In addition to this, we also order O.Ps to deposit Rs. 3250/- as cost of public analyst which was paid by the complainant to examine the samples in question. We also order the O.Ps to pay Rs. 1000/- as litigation expenses in favour of the complainant. The O.Ps are directed to deposit the aforesaid amounts within 30 days from the receipt of copy of this order, failing which it shall carry interest @ 9% p.a. from the date of complaint till its realization. The copy of this order be sent to the parties, free of costs. The file after due completion be consigned to the record-room.
2. We have heard Mr. Anand Sharma learned counsel for the appellant and with his assistance have also examined the record of the complaint file. Purchase of chocolates alongwith two other items is established on record.
3. According to respondent No.1 Chocolates were purchased by him from respondent No.2. His wife gave one of these chocolates to their son, who after consuming felt uneasiness and complained of stomach pain. The boy had to be taken to the hospital.
4. In this background complaint is based on the plea that there was manufacturing defect in the chocolate in question. Record of the complaint file shows that at the instance of the respondent No.1, sample was sent for testing to the Division of Diary Technology, Indian Council of Agricultural Research, National Diary Research Institute, ( Deemed University), Karnal (Haryana). Its opinion after analyses report of the chocolate samples sent by the District Forum, below is at pages 81 to 83 of the complaint file, and is being reproduced hereinbelow for ready reference :-
DIVISION OF DIARY TECHNOLOGY NATIONAL DAIRY RESEARCH INSTITUTE (Deemed University) (Indian Council of Agricultural Research) KARNAL-132001 (Haryana) India Dr. G.R. Patil, Chairman Consultancy Processing Cell Ref: CCNo.
511/2003 titled S. Zahur Haider Zaidi Vs. Cadbury India Ltd.
Analysis Report of Chocolate Samples
1. Organoleptic Quality The chocolate sample was subjected to sensory evaluation by a penal of five judges.
The Product as well package was analyzed.
Sr. No. Sensory Attributes Comments Product Flavour Chocolate sample had sweet chocolate flavour. Some evaluators noticed a slight aftertaste of free fat.
Colour and Appearance The appearance of the product was not good. There were fat bloom and dark patches towards the edges. The surface was rubbed surface and most probably these problems aroused due to improper storage.
Mouthfeel The product was chewable and good melting characteristics. Some panelists noticed unpleasant mouthfeel due to free fat or higher amount of emulsifier.
Package Appearance The packages were normal. In one of the package the paper wrapper above the aluminum foil had fat soaked areas most probably due to the leakage of fat.
Comments The product was eatable and the defects were minor in nature. All the defects noticed were not harmful to human being and as per PFA specification samples were free from rancid or other off odour, insect, mold or fungus infestation. The reason for poor appearance may be because of exposure to high temperature during storage or transport.
2. Chemical Analysis The chocolate samples were analysed for moisture, fat and ash content. The analysis for cocoa solid, rancidity, crude fiber and milk solid could not be done because of lesser sample size. Moreover these tests are not carried out on routine basis in our institute and many of the chemicals and apparatus are not available here for the same.
Sr. No. Parameter Result
1. Moisture 2.36 +0.23
2. Fat(Mojonnier) Moisture basis 25.36 +0.48
3. Ash(Moisture basis) 1.49 +0.08 Comments The chocolate samples were analysed for the three parameters and all the three constituents were well within the limits as prescribed by PFA and BIS for milk chocolate. The moisture content was less than 3 percent and fat content was more than the prescribed minimum percentage of 25 percent. Similarly ash content below 1.5 percent indicated that the ash content is well within the permissible limit.
Sd/-
(G.R. Patil)
5. This report clearly shows that the chocolate in question was consumable and the defects were minor in nature, which were not harmful to human being. As per PFA specification samples were free from rancid or other off odour, insect, mold or fungus infestation. Reason for poor appearance may be because of exposure to high temperature during storage or transport.
6. Final comments given on analysis basis are self explanatory. In these circumstances, without going into other questions we feel that the impugned order needs to be quashed and set aside, so far it records finding to the contrary. Ordered accordingly.
7. However, now coming to the question as to whether the compensation awarded should be refunded or not. We are of the view that looking into the meagre amount awarded in this case, it need not be refunded to the appellant. Though Mr. Sharma persisted with vehemence that once his submission is accepted and impugned order is set aside, the amount awarded needs to be refunded to the appellant. We do not agree with him on this count. Though we reiterate that in view of the analysis report of the chocolate in question, submission of Mr. Sharma has been upheld. Subject to this direction while setting aside the impugned order except the payment part, the appeal stands allowed, with no order as to costs. Amount with upto date interest is ordered to be remitted to the respondent, and this order will not be precedent to other similar cases.
All interim orders passed from time to time shall stand vacated forthwith.
Office will make available a copy of this order to the parties free of costs as per rules.
Shimla 18th September, 2007.
(Justice Arun Kumar Goel) Retd.
President.
(Narinder Singh Thakur) Member.
(Saroj Sharma), Karan* Member.