State Consumer Disputes Redressal Commission
Parshotam Das Sharma vs M/S Parle Products Pvt. Ltd. on 11 March, 2015
FIRST ADDITIONAL BENCH
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, SECTOR 37-A, DAKSHIN MARG, CHANDIGARH.
First Appeal No.666 of 2011
Date of Institution: 20.04.2011
Date of Decision: 11.03.2015.
Parshotam Das Sharma son of Shri Dev Raj Sharma resident of
House no.636, Kundan Puri, Backside Jagdamby Market, Civil Lines,
Ludhiana.
.....Appellant/complainant
Versus
1. M/s Parle Products Private Limited, North Level Crossing, Vile
Parley East, Mumbai-400 057 (MH) through its Managing
Director.
2. M/s Zeal Foods Private Limited, 51/4, Kadoli, Bhandara Road,
Kamptee, Nagpur-441 002 (MH) through its Managing Director
(Manufacturer of confectionary item).
3. M/s Lyallpurian Di Hatti, (PIK-N-Pay Departmental Store)
Model Town Main Road, Near Deep Nursing Home,
Mintgomery Chowk, Ludhiana, (Retail Seller of Confectionary
Item).
.....Respondents/opposite parties
Present:-
For the appellant : None.
For respondents : Ex-parte
AND
2) First Appeal No.721 of 2011
Date of Institution: 29.04.2011
Date of Decision : 11.03.2015
M/s Parle Products Private Limited, North Level Crossing, Vile
Parley East, Mumbai-400057 through its duly Constituted Attorney
Sh. Zahir Sayyed.
.....Appellant/opposite party no.1
First Appeals No. 666 & 721 of 2011 2
Versus
1. Parshotam Das Sharma son of Shri Dev Raj Sharma resident
of House no.636, Kundan Puri, Backside Jagdamby Market,
Civil Lines, Ludhiana
.....Respondent no.1/complainant
2. M/s Zeal Foods Private Limited, 51/4, Kadoli, Bhandara Road,
Kamptee, Nagpur-441 002 (MH) through its Managing Director
(Manufacturer of confectionary item).
.....Respondent no.2/opposite party no.2
3. M/s Lyallpurian Di Hatti, (PIK-N-Pay Departmental Store)
Model Town Main Road, Near Deep Nursing Home,
Mintgomery Chowk, Ludhiana, (Retail Seller of Confectionary
Item).
.....Respondent no.3/opposite party no.3
Present:-
For the appellant : Sh. Harish Sharma, Advocate
For respondent no.1 : None
For respondent no.2&3 : Dispensed with.
First appeals against order dated
14.03.2011 passed by the District
Consumer Disputes Redressal
Forum, Ludhiana.
Quorum:-
Shri J. S. Klar, Presiding Judicial Member.
Shri Vinod Kumar Gupta, Member.
.............................................. J. S. KLAR, PRESIDING JUDICIAL MEMBER:-
Since the above referred first appeal no.666 of 2011 and first appeal no.721 of 2011, as detailed in the head note of the order, have arisen out of the same order of District Forum Ludhiana dated 14.03.2011, hence, we propose to decide them together. The order shall be pronounced in main appeal no.666 of 2011 titled as Parshotam Das Sharma versus M/s Parle Products Ltd. and another. First Appeals No. 666 & 721 of 2011 3
2. The appellant of main appeal no.666 of 2011 (the complainant in the complaint) has directed this appeal against the respondents herein (the opposite parties in the complaint), challenging order dated 14.03.2011 of District Consumer Disputes Redressal Forum Ludhiana (in short, "the District Forum"). The instant appeal has been preferred against the same by the complainant now appellant for enhancement of compensation.
3. The complainant Parshotam Das Sharma filed the complaint under Section 12 of the Consumer Protection Act, 1986 (in short "Act") against the OPs on the allegations that he enjoyed good reputation in social circle. That he arranged one social gathering and purchased certain confectionary items/biscuits from OP no.3 M/s Lyallpurian Di Hatti (Pik-N-Pay Departmental Sotre), Model Town, Main Road Ludhiana on 03.06.2010, vide bill no.3130 for a sum of Rs.38/-. The one packet of Parle Marie-140 GM+20 GM of Rs.10/- was also purchased. This packet was packed in 4/10 and was carrying batch no.NP/05-F, which is stated to have been manufactured on behalf of OP no.1 by one M/s Zeal Foods Private Limited, 51/4, Kadoli, Bhandara Road, Kamptee, Nagpur, MH-441 002 OP no.2. On opening of this package of parle marie biscuits, the complainant was embarrassed in the presence of his friends discovering one jute string of some gunny bag baked in the dough was detected therein. OP no.1 got manufactured them from small First Appeals No. 666 & 721 of 2011 4 manufacturers without adopting hygienic methods of preparing dough for the biscuits. The belief of the complainant was totally shattered thereby. The complainant served notice dated 16.06.2010 through Shri S.M. Gulati, Advocate upon the OPs, but to no effect. The complainant has, thus, filed the complaint praying that OPs be directed to pay compensation of Rs.5,00,000/- (five lakhs) for his mental harassment and for serving unhygienic and unhealthy biscuits on account of unfair trade practice of OPs.
4. Upon notice, OP no.1 M/s Parle Products Private Limited appeared and filed its written reply, raising preliminary objections that complaint is not maintainable. Any deficiency in service was vehemently denied by OP no.1 on its part. On merits, the complaint was contested by OP no.1 as well. It was averred in the written reply that OP no.3 is not the authorized distributor/dealer of OP no.1. This fact was denied that the complainant purchased the above referred confectionary, vide bill no.3130 for a sum of Rs.38/- in cash. It was also denied by OP no.1 that one packet of parle marie-140 GM+20 GM of Rs.10/- was also purchased by the complainant along with confectionary items. It was also denied that any jute string of some gunny bag was found in the parle marie biscuit as alleged by the complainant, when packet was opened by the complainant. It was also pleaded by OP no.1 that OP no.2 manufactured some products for OP no.1, but in this case, no detail or evidence has been First Appeals No. 666 & 721 of 2011 5 provided with regard to the product manufactured by OP no.2 for OP no.1. OP no.1 controverted the other averments of the complainant and prayed for dismissal of the complaint of the complainant.
5. OP no.2 and 3 were set ex-parte before District Forum Ludhiana.
6. The complainant tendered in evidence his affidavit Ex.C-A along with documents Ex.C-1 to C-13 and closed the evidence. As against it, OP no.1 tendered in evidence affidavit of Saurav Sharma Ex.RW1/A and closed the evidence. On conclusion of evidence and arguments, the District Forum Ludhiana accepted the complaint of the complainant and directed OP no.1 and 2 to pay the compensation of Rs.50,000/- (Fifty thousand), out of which, Rs.40,000/- (Fourty thousand) was ordered to be paid to the Consumer Legal Aid Fund of the District Forum Ludhiana and remaining amount of compensation was ordered to be paid to the complainant along with costs of litigation Rs.4000/-. Dissatisfied with this order of the District Forum dated 14.03.2011, the above referred two separate appeals have been preferred against the same.
7. We have heard Sh. M.K. Bhatnagar counsel for the complainant Parshotam Das Sharma and Sh. Harish Sharma counsel for OP no.1 and also examined the record of the case. The onus is on the complainant to prove that he purchased the packet of parle marie biscuits manufactured by OP no.2 for OP no.1 for First Appeals No. 666 & 721 of 2011 6 consideration of Rs.10/- and foreign jute substance was found in one of the biscuits in the above packet of parle marie. The complainant Parshotam Das Sharma has to discharge the initial onus of this issue on the record. The complainant placed on record his affidavit Ex.C-A. This affidavit is in reiteration of the pleadings of the complainant on oath. The complainant relied upon, the copy of bill no.5130/- for Rs.38/- issued by Lyallpurian Di Hatti OP no.3, showing that some confectionary items were purchased by the complainant thereby. Ex.C-2 and C-3 are the photographs of biscuit and packet. Ex.C-4 is the notice served upon the OPs by the complainant. Ex.C-5 to C-7 are the postal receipts thereof. Ex.C-8 is the copy of UPC. Ex.C-9 to C-11 are the copies of acknowledgement. This is only evidence on the record led by the complainant to establish his case. To refute this evidence, OP no.1 placed on record the affidavit of Saurav Sharma Ex.RW-1/A. This affidavit is the reiteration of the version of OP no.1 on oath in this case. He has testified the plea of OP no.1 on oath in the affidavit in this case.
8. From conclusion of above referred evidence on the record and hearing the respective submissions of counsel for the parties. We proceed to determine this point as to whether the extraneous jute substance in the parle biscuit can be proved without any laboratory test report or not. Herein, we find that the complainant moved an application before District Forum on First Appeals No. 666 & 721 of 2011 7 07.02.2011 producing the biscuits and the wrapper, which were got packet and sealed and kept on file by the District Forum. This fact is evident from order of the District Forum dated 07.02.2011. We have also examined the respective documents on the record. We find corroboration to the case of the complainant from the photographs Ex.C-2 and Ex.C-3 on the record. Ex.C-2 is the photograph of the marie parle biscuit and the extraneous jute substance in the biscuit is clearly visible even to the naked eye. The OPs could not establish it on record by rebutting the evidence of the complainant that this photograph Ex.C-2 is of some other marie parle biscuit. The photograph Ex.C-2 lends support to the case of the complainant. Laboratory examination is generally required to test the substance, but this rule also has come exceptions. Herein, the photograph Ex.C-2 has clearly shown that extraneous jute substance was put in the marie parle biscuit by the manufacturer. In such type of evident matter, we find that further examination by the laboratory would not be of any much consequence except wasting the time of the Forum. The OPs failed to refute it by any evidence on the record that extraneous jute substance, as sworn by the complainant, was not a part of this biscuit. The OPs referred to law laid down by The Union Territory Consumer Disputes Redressal Commission, Chandigarh in case of "Darshan Singh Ahuja Versus Hamdard (Wakf) Laboratories & Anr." reported in 2005(III) CPJ-312 that contents of bottle not tested in laboratory. Averments not proved. We find that First Appeals No. 666 & 721 of 2011 8 the authority distinguishable from this case. In the cited authority, even affidavit of complainant was not on the record in support of his allegations contained in the complaint. There was no substance led by the complainant in the cited authority to prove sub-standard nature of the bottle. Similarly, the OPs relied upon the law laid down by Uttar Pradesh State Commission also held in "Aquaous Victuals Ltd. Versus Rajesh Kumar Bajpai" reported in 2004(I) CPJ-138 that complainant purchased 2 bottles of cold drink, started vomiting, loose motions, after consuming one bottle. Absence of proof regarding actual contamination and complaint was not accepted. We again find that this authority to be distinguishable from the fact situation of the case. The contents of the cold drink without laboratory test could not be said to be sub-standard. The complainant also placed on record his affidavit supported by the evidence Ex.C-2 and production of original biscuits before District Forum coupled with the bill of purchase of the biscuits by the complainant Ex.C-1, vide bill no.5130 against consideration.
9. The counsel for OPs also submitted that District Forum could not have awarded Rs.40,000/- to be paid to Consumer Legal Aid Fund of the District Forum. The OP relied upon law laid down in "Cellular operators Association of India and others Versus Nivedita Sharma and other" reported in 2010 CJ-829 (Del.) by Delhi High Court to the effect that there is no indication as to manner First Appeals No. 666 & 721 of 2011 9 in which fund would be distributors to consumers, who had actually been effected. We are of this view that this authority is distinguishable in this case. The Consumer Welfare Fund (Legal Aid) of each state is different. Here, the Consumer Welfare Fund (Legal Aid) of the State of Punjab would be in question not of Delhi. This authority pertains to Delhi and not to State of Punjab and hence no benefit can be had therefrom by the OPs.
10. The complainant has filed F.A. no.666 of 2011 for enhancement of compensation. On carefully considering the entire fact and circumstances of the case and gambit of the circumstance, we hereby order that out of the total awarded amount of compensation of Rs.50,000/-, the amount of Rs.25,000/- would be paid to the complainant as compensation and remaining amount of Rs.25,000/- would be deposited by OP no.1 and 2 in the consumer Legal Aid Fund of the District Forum Ludhiana within a period of 45 days from the date of receipt of certified copy of the order. We also award the amount of Rs.4000/- to complainant as litigation expenses in this case.
11. As a result of our above discussions, we accept the First Appeal no.666 of 2011 with the modifications in the order of District Forum, as referred to above. We find no substance in F.A. no.721 of 2011 and dismiss the same.
First Appeals No. 666 & 721 of 2011 10
12. The amount of Rs.25,000/- deposited in First Appeal no.721 of 2011 by its appellant at the time of filing the appeal be remitted along with interest, which accrued thereupon, if any, to the complainant to the extent of his entitlement thereto.
13. Arguments in this appeal were heard on 09.03.2015 and the order was reserved. Now the order be communicated to the parties. The appeal could not be decided within the statutory period due to heavy pendency of court cases.
(J. S. KLAR) PRESIDING JUDICIAL MEMBER (VINOD KUMAR GUPTA) MEMBER March 11, 2015.
(MM)