State Consumer Disputes Redressal Commission
Hindustan Unilever Ltd. vs Tejinderpal Singh & Anr. on 28 November, 2023
ADDITIONAL BENCH
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, CHANDIGARH
First Appeal No.955 of 2022
Date of Institution : 09.11.2022
Date of Reserve : 03.11.2023
Date of Decision : 28.11.2023
Hindustan Unilever Limited, A-5, Phase 11B, Focal Point, Rajpura,
Patiala-140401, Punjab FSSAI, License No.10014063000346
through its authorized representative Ms. Garima Singh.
.....Appellant/opposite party No.1
Versus
1. Tejinderpal Singh, aged 56 years, S/o Sh.Chamanjit Singh,
R/o House No.4143, L.I.G., Phase-2, Urban Estate, Dugri,
Ludhiana-141013.
2. Reliance Retail Limited (Formerly Reliance Fresh Limited),
SCO No.86, Phase-I, Urban Estate, Dugri, Ludhiana-141013.
....Respondents/opposite parties
First Appeal under Section 41 of the Consumer
Protection Act, 2019 against the order dated
02.08.2022 of the District Consumer Disputes
Redressal Commission, Kapurthala (Decided at
Camp Court, Ludhiana).
Quorum:-
Mr.Harinderpal Singh Mahal, Presiding Judicial Member
Mrs. Kiran Sibal, Member Present:-
For the appellant : Sh.Ashim Aggarwal, Advocate For respondent No.1 : Sh.R.K.Rathore, Advocate For respondent No.2 : Sh.Rajat Pabbi, Advocate for Sh.Sanjeev Pabbi, Advocate First Appeal No 955 of 2022 2 HARINDERPAL SINGH MAHAL, PRESIDING JUDICIAL MEMBER This appeal has been preferred by the appellant/opposite party No.1-Hindustan Unilever Limited; against the order dated
02.08.2022 passed by District Consumer Disputes Redressal Commission, Kapurthala (decided at Camp Court, Ludhiana) (in short, "the District Commission"), whereby the complaint filed by the complainant under Section 12 of the Consumer Protection Act, 1986 (in short 'the Act') was partly allowed and opposite parties were directed to compensate the complainant for an amount of Rs.35,000/- to be paid within 30 days from the date of receipt of copy of the order, failing which the opposite parties were directed to pay interest @8% per annum till actual realization.
It would be apposite to mention that hereinafter the parties will be referred, as have been arrayed before the District Commission.
2. The complainant preferred the complaint against the opposite parties before the District Commission on the ground that on 30.04.2015, he purchased Kissan Jam from the Reliance Store, vide Batch No.4251 dated 05.09.2014. The complainant is using this product for the last number of years. It is further averred that when he opened the bottle and after consuming the half bottle of the jam on 16.06.2015, he and his family members saw a roasted worm in the jam and a complaint qua the same was made on Toll Free Number of Kissan Jam Company and got registered the complaint, vide complaint No.00443535. On the asking of the First Appeal No 955 of 2022 3 senior officials, Mumbai Head Office, the complainant sent two photographs of roasted worm. On 19.06.2015, he received a telephonic call from senior expert of the company and offered him to receive three different flavours of Kissan Jam and one bottle of sauce which was rejected by the complainant. The complainant also made a complaint to Civil Surgeon on 29.06.2015, Food Safety Commission of Punjab, Mohali, Chief Minister of Punjab and Health Minister of Punjab on 07.07.2015. It is further submitted that there is a possibility that this could be the cause of slow poison and would affect the health of the complainant and his family members. So, the complainant filed this complaint seeking compensation of Rs.10,00,000/- from the opposite parties.
3. Upon notice, opposite parties appeared through their counsel and filed their separate replies.
4. Opposite party No.1 filed its reply taking preliminary objections and denied all the contentions as raised by the complainant in his complaint and alleged that this complaint is an abuse of process of law and has no merits. The complaint is false, frivolous and misconceived and has been filed in order to harass the opposite parties. It is further averred that there is no proof of purchase of Jam and also not proved that the Jam bottle is same, which was purchased by the complainant on 30.04.2015 as the bill does not bear any manufacturing date. As the opposite party No.1 is a renowned company they take care of the quality of the products strictly. The Jams are prepared in the best food manufacturing facility with total control of experts. The opposite First Appeal No 955 of 2022 4 party No.1 took it seriously and made all efforts to go to the root of the problem and also explained to the complainant that in the factories they took utmost precaution while preparing such consumable product and opposite party also requested the complainant to send the bottle and the contents to confirm the allegations of the complainant. All the averments as averred by the complainant in the complaint are denied and prayed for dismissal of the complaint.
5. Opposite party No.2 filed its written reply on the similar lines as that of opposite party No.1 and denied all the averments as raised by the complainant.
6. The parties led their evidences in support of their respective contentions before the District Commission and after hearing the parties, the complaint was partly allowed, vide impugned order dated 02.08.2022.
7. Aggrieved by the said order, this appeal has been filed by the appellant/opposite party No.1 for setting aside the impugned order dated 02.08.2022 and to allow the appeal.
8. We have heard the contentions of the parties and have carefully gone through the record as well as written arguments filed by the parties. We have also given our thoughtful consideration to the same.
9. The appellant/opposite party No.1 filed the written argument as well as orally submitted that the contentions of the respondent No.1/complainant is not tenable in the eyes of law because firstly the jam bottle was allegedly purchased on 30.04.2015 and it was First Appeal No 955 of 2022 5 consumed on 16.06.2015 i.e. after lapse of about 2 months and that was also opened so it cannot be construed that if there is any insect or worm in the jam bottle and that it was due to the manufacturing negligence on behalf of the appellant/opposite party No.1. He further submitted that though the District Commission did not allow the appellant/opposite party No.1 for cross examining the testing analyst but permitted the appellant/opposite party No.1 to file the interrogatories and in answer to the interrogatories issues related to the product, the analyst admitted that the sample had expired and was received in loose form and is not possible to ascertain the stage at which the insect came into the product that if it came at the manufacturing stage or at the retail stage or after opening of the bottle. So, without any clear certainty, the appellant or opposite parties cannot be held liable for negligence or deficient in providing the food product to the complainant this aspect has been totally ignored by the District Commission and District Commission has passed the order against the appellant and respondent No.2/opposite party No.2 merely on conjectures and surmises.
10. Per contra, learned counsel for the respondent No.1/complainant contended that the respondent/complainant is using the Kissan Jam for the last 20 years and he is living in the Urban Estate which is neat and clean and there is no possibility of any unhygienic condition prevailing over there but it was the appellants who are guilty of manufacturing worm-infested product. He further pleaded that even the analyst in his report has clearly First Appeal No 955 of 2022 6 mentioned that after analyzing the product one dead insect was found, as such, the product was not safe for consumption. Referring to this report, he urged that from this observation of the analyst clearly shows that it was the negligence on the part of the appellant/opposite party No.1 in manufacturing the contaminated consumable product causing harmful effect to the respondent No.1/complainant and his family members and was entitled for the compensation as awarded by the District Commission.
11. The case made up by respondent No.1/complainant that he purchased one bottle of Kissan Jam from respondent No.2/opposite party No.2 on 30.04.2015 vide Bill No.C1784, Ex.C-2 for consumption of himself and for his family members. He submitted that while they were consuming the same on 16.06.2015, they found that there was a roasted worm inside the jam bottle and qua the same he made the complaint on toll free number and got registered the same, vide complaint No.00443565 to the appellant/opposite party No.1 along with the photographs of the worm and in response to the same a telephonic call was received by respondent No.1/complainant from the senior officials of the appellant/opposite party No.1 but no action was not taken by them. In order to substantiate his claim regarding the presence of worm, the complainant relied upon the report of the food analyst, exhibited as Ex.C-30, whereby following observation was given:
"OPINION : From examination of the sample herein referred to and the result obtained by analysis, I am of the opinion First Appeal No 955 of 2022 7 that the contents of the sample contain one dead inset. Hence, unsafe for human consumption."
12. Though, the appellant/opposite party No.1 at District Level fully denying all these allegations and alleged that since the product was produced open without seal it was not their fault regarding the presence of worm in the product. Although, the analyst in his report has alleged that there was presence of worm in the sample but in answer to the interrogatories he has specifically mentioned that it is not possible to ascertain that when the said worm entered into the bottle of the jam. This report of the analyst, who is expert in analyzing the food product indicates that even an expert cannot ascertain the stage when was the presence of the insect in the jam and that this is also clear from the fact. Had it seen from the naked eye from outside then the respondent No.1/ complainant should not have consume the half of the bottle of the jam because this is the plea of respondent No.1/ complainant that when he and his family consumed the half of the bottle they seen the insect in the jam. The possibility cannot be ruled out that the jam bottle which was opened by respondent No.1/ complainant might have accessed by the insect, where it was placed or it could be due to some other reason.
13. The appellant/opposite party No.1 has also referred a judgment of Hon'ble National Commission passed in "Cadbury India Ltd. Vs. L.Niranjan" in support of his contentions, however, the facts of the referred case are not applicable to the present case as the set of facts are totally different.
First Appeal No 955 of 2022 8
14. Since the respondent No.1/complainant himself has approached the Court with the certain plea that there was an insect in the jam bottle when he purchased it then it was his duty to prove by cogent and convincing evidence that insect was in the bottle when the bottle was sealed the insect did not enter into the bottle subsequently. Though, the District Commission by relying upon the pleas of respondent No.1/ complainant allowed the complaint but there is no finding qua the fact that when this insect entered the bottle because only if there is any finding qua the presence of the insect at the manufacturing stage, only then the appellant/opposite party No.1 can be held liable for the negligence and deficiency in service, whereas in the whole of the file nothing has been produced on record that there was any malfunctioning on behalf of the appellant/opposite party No.1 while manufacturing the said jam. It is mentioned by the appellant/ opposite party No.1 that while preparing the jam they follow the proper procedure as per the guidelines of the Food Safety Act and there is no possibility of any such malfunctioning on their behalf while producing the product. Moreover, as discussed above, it was the duty of the respondent No.1/complainant to prove that the insect was already present when he purchased the bottle on 30.04.2015 and it was omission on behalf of the appellant/ opposite party No.1. Once the sealed item is opened, then the manufacturer of the said item cannot be held liable for any other foreign particle in the same.
15. The District Commission while deciding the complaint of the respondent No.1/complainant has not properly appreciated the First Appeal No 955 of 2022 9 contentions and evidences produced on record by the appellant/opposite party No.1 and passed the order in favour of the respondent No.1/complainant.
16. In view of the above discussions, we find merit in the appeal of the appellant/opposite party No.1 and the same is hereby allowed and the order of the District Commission is set aside as well as the complaint filed by the complainant before the District Commission is also dismissed.
17. The appellant/opposite party No.1 had deposited a sum of Rs.18,000/- at the time of filing of the appeal. This sum, along with interest accrued thereon, if any, shall be remitted to the appellant/opposite party No.1, after the expiry of 45 days of the sending of certified copy of the order to them.
18. The appeal could not be decided within the statutory period due to heavy pendency of court cases.
(HARINDERPAL SINGH MAHAL) PRESIDING JUDICIAL MEMBER (KIRAN SIBAL) MEMBER November 28th,2023 parmod