National Consumer Disputes Redressal
M/S. Food World Supermarkets Ltd. & Anr. vs Consumer Association Of India & 5 Ors. on 6 January, 2026
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION
NEW DELHI
FIRST APPEAL NO. NC/FA/478/2014
(Against the Order dated 9th June 2014 in Complaint 24/2004 of the State Consumer Disputes
Redressal Commission Tamil nadu)
M/S. FOOD WORLD SUPERMARKETS LTD. & ANR.
PRESENT ADDRESS - 4th FLOOR, SPENCERS PLAZA, 769, ANNA SALAI, , CHENNAI-600042
, TAMIL NADU ,
MS FOOD WORLD SUPERMARKETS
PRESENT ADDRESS - VELACHERY, , CHENNAI-600042 , TAMIL NADU , CHENNAI,TAMIL
NADU.
.......Appellant(s)
Versus
CONSUMER ASSOCIATION OF INDIA & 5 ORS.
PRESENT ADDRESS - REP. BY ITS TRUSTEE , 4/386, RAM GARDENS, ANNA SALAI,
PALAVAKKAM, , R. DESIKAN, SINGARA ILLAM, , CHENNAI,TAMIL NADU.
JAGAN NATHAN VAMANAN,
PRESENT ADDRESS - E-8, GEETHALAYA, SEMBAKKAM, 157, TAMBARAM VELACHERY
ROAD, , CHENNAI-600073 , TAMIL NADU ,
M/S. PACIFICPHYTO PRODUCTS PVT LTD.,
PRESENT ADDRESS - 250, R.K. MUTT ROAD, R.A. PURAM, , CHENNAI-600028 , TAMIL
NADU ,
M/S. R.B. TRADERS,
PRESENT ADDRESS - 38 (1/23)PHILOMINA NAGAR, , TANJORE-613006 , TAMIL NADU ,
THE UNION OF INDIA
PRESENT ADDRESS - REP. BY ITS SECRETARY TO GOVERNMENT, MINISTRY OF
COMMERCE-FOREIGN TRADE, , NEW DELHI-110001
THE DIRECTOR GENERAL OF FOREIGN TRADE,
PRESENT ADDRESS - NEW DELHI-110001
.......Respondent(s)
BEFORE:
HON'BLE MR. JUSTICE A. P. SAHI , PRESIDENT
HON'BLE MR. BHARATKUMAR PANDYA , MEMBER
FOR THE APPELLANT:
MR. SHASHANK DEO SUDHI, ADVOCATE
FOR THE RESPONDENT:
FOR RESPONDENT NO.-5-6 : MR. ADITYA ACHARYA, ADVOCATE FOR
RESPONDENT NO.-2 : EX-PARTE VIDE ORDER DATED 15.02.2016 FOR
RESPONDENT NO.-4 : EX-PARTE VIDE ORDER DATED 07.01.2015 NONE FOR
OTHERS
DATED: 06/01/2026
ORDER
1. The Appeal questions the correctness of the Order passed by the State Consumer Disputes Redressal Commission, Chennai on 09.06.2014 in Original Petition No. 24 of 2004. The Complaint had been instituted by the Consumer Association of India along with the actual consumer Mr. Jagan Nathan Vamanan arrayed as Complainant No.-2. The allegation made was that the Complainant No.-2, who is Respondent No.-2 in this Appeal, had consumed Dates after purchasing it from the Appellant No.-2 store at Chennai where he was a regular customer. The said dates were described as "Persepolis masafatl wet dates". According to the Complainant the same had been purchased from the Appellant No.-2 store on 08.04.2003. He consumed 8 - 10 pieces of the dates on 14.05.2003 that resulted in a severe stomach pain and problem of gastritis. Feeling difficulty in breathing he was admitted as alleged at the Apollo Hospital, Chennai and had to remain hospitalised from 14.05.2003 to 16.05.2003. The doctors as alleged diagnosed erosive gastritis and consequently something described as "abdominal gastrocy" had to be performed.
2. The Complainant states that he realised that this might have happened due to consumption of dates but in Paragraph No.-7 of the Complaint he alleges that the complications might have arisen only because of dates and that was the only food from outside consumed by him. As a result of hospitalisation he had to undertake substantial expenditure and while pondering as to the reason of his sudden illness, he discovered that the pack of the dates purchased by him had an expiry date mentioned as February 2002 that was embossed in German language. The dates had been imported from a German Firm by the respondent no. 3, Importer at Chennai, M/s. Pacificphyto Products Pvt. Ltd., Chennai and supplied by M/s. R. B. Traders, Tanjore (Supplier), respondent no. 4. The endorsement about the shelf life was engraved in German language. The Complainant also alleges in Paragraph No. - 8 of the Complaint that since he had his professional training at Siemens in Germany in 1993 - 94, therefore he could speak, read and write the German language.
3. The Complainant further alleged that the Opposite Parties had pasted a new label of shelf life of April 2004, thereby suppressing the original date of expiry which was a deceptive act adopted only to sell off the dates the consumption whereof was completely out-dated. It was alleged that but for his knowledge of the German language the discovery of the fact could not have been made. The Complainant has referred to the endorsement in the German language and its translation in para 9 of the complaint which is reproduced hereinunder:
"MINDESTENS HALTBAR BIS FEBRUARY 2002 meaning thereby "Minimum retention upto February 2002."
4. The Complainant then alleged that when a complaint was made to the appellant no. 2, the matter was reported to the Appellant No.-1 who merely tried to shift the responsibility on the merchants from whom the dates had been procured by the Appellants and who were the importers and suppliers of the dates. This letter dated 30.05.2003 has been placed on record as Annexure - 1.
5. It is then alleged that the Public Analyst of the Health Department, Corporation of Chennai was approached along with a sample of the wet dates by the trustee of the Complainant No.-1 Consumer Association, one Mr. R. Desikan. The report from there tendered on 25.06.2003 stated that the "sample contained live insects", the presence whereof affected the nature and purity of the sample, and since the same was a product indicated as per the instructions in German to be used before February 2002, it was sold to the Consumer on 08.04.2003 after the said date when it was unfit for human consumption.
6. The Complainant No.-2 approached the Food Analysis Laboratory in the King Institute, Guindy, Chennai in the Department of Public Health and Preventive Medicine with a request for testing the samples produced by him on 02.07.2003. A report on 14.07.2003 was tendered by the Government Analyst which was said to be countersigned on 27.07.2003. The said report according to the Complainant also indicates that the sample had been reported to have a "fermented odour" and was not fit for human consumption.
7. Thus with these two reports in hand and the communication referred to above the Complainant, who stated that he was a Senior Software professional and Vice President of a software group, had suffered mental agony, stress and strain due to this unethical and unlawful conduct of the Appellants, and hence the Complaint was filed praying for 75,00,000/- compensation as an injury caused to the public at large who may be similarly situated, to be handed over to the representatives of Complainant No.-1 for it being utilised to predict the interest of consumers and further award of Rs.24,00,000/- to the Complainant No. - 2 in lieu of the expenses incurred by him during hospitalisation and for purchase of medicines.
8. The Appellants contested the claim by moving a preliminary counter along with a reply on merits and then written submissions were filed on behalf of both the Appellants. Written Version and preliminary objections were filed in 2005 and the Written submissions were filed in 2011 - 12 that are on record.
9. The State Commission after having assessed the ingredients and also the material on record accepted the Complainant's version, and treating this to be an act of negligence, allowed the Complaint even though it has noted that neither the product purchased by the Complainant was produced nor any medical bills, etc. were filed from the Apollo Hospital to prove the nature of the treatment undergone by the Complainant, yet since the Appellants/ Opposite Party had failed to counter the analysis report relied on by the Complainant, and in view of the circumstances as discussed therein, the deficiency was clearly made out. The Appellants have adopted an unfair trade practice in selling unconsumable and expired food products. Accordingly a sum of Rs.2,00,000/- was directed to be deposited by the Appellants as compensation for the loss and injury suffered by the public at large for being paid over to the Cancer Institute of Chennai. However on the issue of personal claim of the Complainant for medical expenses that was claimed to the extent of Rs.24,00,000/-, the same was found to be exaggerated and it was substituted by an award of Rs.38,653/- plus the fees paid by the Complainant to the tune of Rs.4,775 and Rs.20,000/- for mental agony and other ordeals.
10. The Appellants have preferred this Appeal questioning the correctness of the Order on several grounds. The Appeal was entertained with an interim order passed on 27.08.2014 to the following effect:
"Heard learned counsel for the appellant.
Issue notice of the memo of appeal to the respondents, returnable on 07-01-2015.
Operation of the impugned order is stayed subject to depositing Rs.1,00,000/- with the State Commission within four weeks."
11. Accordingly a sum of Rs.1,00,000/- was deposited by the Appellant with the State Commission.
12. The matter was adjourned on several occasions and since services were not complete directions were issued for taking further steps for publication of notice, one in English and one in Tamil vernacular newspaper at Chennai. The Appellants carried out the said directions and have brought on record as proof the notices having been published in a English newspaper and another paper in a vernacular language indicating the publication of notice. The said publication is not disputed. We can find from the Order sheet that inspite of the publication directed in October, 2017 and having been carried out no one has appeared on behalf of the Respondents except the Counsel for the Union of India namely, Mr. Sanjib Kumar Mohanty and Mr. Aditya Acharya, Respondent No. 5 and 6 herein. The paper publication having been carried out service will be presumed on the contesting Opposite Parties. The case could not be heard on one account or the other and was adjourned when finally an order on 15.03.2024 whereby fresh service was to be carried out through dasti summons. The Petitioner was directed to file proof of payment under the order dated 27.08.2014. The case has been listed thereafter on several occasions and ultimately the matter was heard today. As noted above, except for the Counsel for the Union of India and its Department Respondent nos. 5 and 6 neither the Respondent / Complainant No.- 1 nor the Respondent / Complainant No.-2 are represented nor have they opposed this Appeal. The Respondent NO. 3 Importer and the Respondent No. 4 Supplier have also not responded and have been proceeded ex parte.
13. We have considered the submissions raised and perused the records. The argument of the learned Counsel for the Appellant is that the report of the Analyst cannot be relied on inasmuch as these reports were taken out at the instance of the Complainants themselves without any participation of the Appellants. The Appellants were nowhere informed of any such sample being sent to the Public Analyst and the report being obtained behind their back. Nonetheless these reports were relied on and they were objected to by the Opposite Parties through the Written Submissions. None of these objections were taken into account by the State Commission in correct perspective as a result whereof wrong conclusions have been drawn.
14. Learned Counsel has urged that there is no proof that the samples which were sent by Complainant No. 1 and 2 separately to two Public Analysts had been drawn up and preserved as per the norms of the Food Adulteration Act and other relevant provisions. The claim of the Complainant that he knew German Language and therefore he could understand the date of expiry is not a correct argument inasmuch as according to the translation as presented by the Complainants, the instructions in German that have been reproduced in Paragraph No. - 9 of the Complaint as quoted above does not exactly translate into the date of expiry of the foodstuff. According to the Complainant the same means minimum retention upto February 2002.
15. We have checked up Collin's dictionary and we find the translation of the endorsement "Mindestens Haltar Bis" to mean "at least durable till". The words used in the instructions are not the date of expiry but the period of durability or shelf life. The period of expiry if any defines a perishable limit, and the German word for the termination of such a time period is 'ABGELAUGFEN'. From the Collin's dictionary we could also gather that a period of expiry or end of time is represented by the word 'ABLAUF TERMIN' in German. Consequently what can be gathered is that the phrase used and involved in the present case as endorsed on the sample depicts the shelf life, and an inference can be drawn that the indication of the date is to depict "best before" as the duration period thereof. Thus, the written instructions do not amount to an instruction per se about date of expiry. The distinction between a date of expiry and the best before clause has been explained by the Madras High Court in the case of Amrut Distilleries Limited Represented by its Company Secretary versus Authorized Officer, Chennai Seaport and Airport, Food Safety and Standards Authority of India (2015) 3 Mad LJ 18 We are therefore satisfied that there were no instructions in German indicating the date of expiry as the same appears to be "used best before" or "at least durable till" (Mindestens+ at least; Haltbar+ durable; Bis+ Till). Meaning assigned to these words by the Public Analyst as synonyms to the date of expiry is therefore incorrect and accordingly the conclusion drawn by the State Commission on the said basis suffers from the same infirmity. The attempt to give the meaning of expiry in the aforesaid manner is therefore not in conformity with the German language reflecting its true intent.
16. The second aspect needs more attention namely, that the product even though had been allegedly taken to the Public Analyst by both the Complainants separately yet there is nothing on record to indicate that they were samples of the same batch and were taken from the same packet or had been preserved or sealed without exposure. The Complainant has alleged that he purchased a couple of packets and he had then obtained the reports from the Public Analysts. We also find that neither the Complainant No. 1 Association, on whose behest the report dated 25.06.2003 was given by the Food Analyst, Corporation of Chennai, had given information to the analyst about the alleged presence of insects or any other sample so affected nor did the Complainant no. 2 seems to have intimated to the analyst about the purchased dates being infected by insects. The Complainant No. 2, who actually consumed 8 to 10 of the dates has nowhere stated that he saw any insects or smell any unusual odour while consuming the dates. It is a little surprising that the Complainant consumed about 10 dates, may have been one after the other on the same day but he did not notice either any odour or the presence of insects even though the date of consumption is after more than a month of the purchase. It does not look probable that the Complainant would have missed the smell of any odour or the presence of any insects when he consumed quite a number of dates on 14.05.2003 which is the date stated by him in the Complaint.
17. The sample given to the King Institute by the Complainant No. 2 for test was long after on 02.07.2003 the date of consumption, i.e., 14.05.2003 and alleged hospitalisation between 14.05.2003 and 16.05.2003. These were a different sample purchased later on which were not the dates that were consumed by the Complainant. The consumption of the dates is itself after a gap of more than a month. There is no disclosure in the entire complaint as to how the dates were preserved and in what manner, during this period from 08.04.2003, which is the date of purchase till 14.05.2003. This was almost a months gap. It is quite possible that some different sample was given or even if of the same batch, it was after a lapse of much time. The condition of the product may have deteriorated during the period and therefore cannot be any conclusive evidence about the product alleged to have been purchased on 08.04.2003 and consumed on 14.05.2003 by the Complainant No. 2.
18. We find there is a sharp distinction between the contents as reported that were found in the samples sent. The report dated 25.06.2003 states the presence of insects whereas the report dated 14.07.2003 only mentions a fermenting odour. Even though both the reports state that the samples were not fit for the human consumption but there is no finding in the reports that the said samples received were from the same batch or packets that had been purchased on 08.04.2003 and were of the same lot which has been consumed by the Complainant. Secondly one of the reports indicates presence of insects whereas the other report indicates bad odour. This is an inconsistency even though the reports state the contents to be unfit for human consumption. In the light of the aforesaid inconsistencies and non-production of the samples before the Commission we find that the argument of the learned Counsel for the Appellants which was also an objection taken before the State Commission that the State Commission ought to have invoked its powers under Section 13(1)(c), seems to be correct. Section 13(1)(c) is reproduced as under:
"The section dictates the procedure of testing a product sample where the alleged defect in the good/goods cannot be determined without proper analysis or test of the goods. The section lays down clearly that the District Forum shall obtain a sample of the goods from the complainant, seal it and authenticate it in the manner prescribed and refer the sample so sealed to the appropriate laboratory.
It can be observed, from the O.P No.-4 of 2004, that the required procedure was not followed, the sample sent to Public Analyst was not authenticated by the District Forum which is the requirement per the statute. The Respondent admittedly approached the Public Analyst independently."
19. There is no indication as to how and when the sample was given to the Complainant No.-1 Consumer Association for being sent to the Public Analyst. There is nothing on record like the Affidavit of Mr. R. Desikan to prove that he had taken the samples for being tested at the Public Analyst. The manner of packing and sending off the dates to the Food Analysis Laboratory of King Institute Campus has also not been disclosed. There is no indication in the report of 25.06.2003 as to what type of identified insects were found. In the absence of any description the same cannot be treated as complete or credit worthy. After all, if there was an insect it could have been indicated as to whether it was a dead ant or a live worm. There is nothing in the report. Similarly the other report dated 14.07.2003 also does not indicate any cause of fermentation like presence of moisture or self fermentation. To the contrary the State Commission has assumed that no material steps have been taken to dispute the analysis report by way of cross check by sending samples collecting from the analyst to some other lab. As noted above, this was the obligation of the State Commission under Section 31(c) to confirm the same after obtaining samples that was not done. We therefore find the procedure prescribed by law has not been followed and the onus of the deficiency has been incorrectly shifted on the Appellants.
20. This procedure has not been followed in the present case by the State Commission and to the contrary the reports had been obtained earlier even prior to the filing of the Complaint. Learned Counsel for the Appellant is correct in his submission that in order to impose penalty under Section 14(1) by recording a finding, the same has to be as per the proceedings under Section 13 and on recording the satisfaction to that effect. Admittedly in the present case neither the samples were produced nor sent for testing by the State Commission itself. On the contrary the burden has been shifted on the Appellants that they failed to contradict and counter the said evidence. This is factually not correct inasmuch as that the Appellant / Opposite Parties had categorically raised this issue as a preliminary objection in Paragraph No.-3 thereof which is extracted herein under:
"3. This Opposite Party humbly draws the attention of this Hon'ble draws the attention of this Hon'ble Forum that the product as required under Section 13(1)(c) of the COPRA 1986 which is a pre requisite to determine the veracity of the allegation made by the Complainants in their complaint."
21. Secondly the question of a wrong label having pasted by the Appellants had been clearly denied and the Complainant was put to strict proof of the same. The question of pasting any such new label has been categorically rebutted in Paragraph No. 8 and 9 of the reply which is extracted herein under:
8. This Opposite Party denies what has been stated in Para 8 of the Complaint. It is not correct to state that German declaration on the product declared that the expiry date of the Product was February 2002. This Opposite Party further state it has not pasted any new label on the Product nor has it suppressed any expiry date. This Opposite Party vehemently denies the Complainants baseless allegation of cheating committed by this Opposite Party and put the Complainants to strict proof of such allegation. This Opposite Party humbly points out before this Hon'ble Forum that this Opposite Party is not authorized to make any alterations to the label of the products.
Under these circumstances it is mischievous on the part of the Complainant top attribute dishonest intention as unfair trade practice on this Opposite Party.
9. This Opposite Party denies the allegations made in para 9 of the Complaint. This Opposite Party further prays before the Hon'ble Forum that it should not entertain any conjecture or presumption on the quality of the product or its fitness, based on which the Complainants have filed this fraudulent complaint. As per the statements of the Complainant the product contained a label declaring best before February 2002 (Minimum retention Feb 2002). The Complainants are trying to hoodwink this Hon'ble Forum to believe that the "best before date" and the "expiry date" are the same. As per the explanation provided in Rule 32 of the Prevention Food Adulteration Rules, 1955 on Best Before Date, "Best Before" means the date which signifies the end of the period under any stated storage conditions during which the product remain fully marketable and will retain any specific qualities for which tactic or express claims have been made. However, provided that beyond the date the food may still be perfectly satisfactory. Hence it is not correct to state that the product is not fit for human consumption beyond that date."
22. The Appellants received a complaint from the Complainant upon which the information was given by the appellants through the letter dated 30.05.2003 with the names of the importers and suppliers of the dates:
"Mr. Jagan Natham Vamanan E-8, Geethalaya, 157, Sembakkam, Velachery Tambaram Main Road, Chennai - 600 073 Dear Sir, Sub: Purchase of Masafatl Dates from Food World.
Ref: Your Letter dated 21.05.2003 and e-mails dated 20/05/2003 & 21/05/2003.
Thank you very much for giving an audience on 21/05/2003 when our representatives called on you.
We confirm that we have noted down your concerns and are doing our best to address them. At the outset we wish to highlight that being in a business that de4als with food products, we have a system in place by which we ensure that quality products are offered to our customers. We also have a procedure to check the credentials and quality of service offered by our suppliers. The customer response that we have been receiving is also a standing testimony to the quality and service that we offer our customers. As you yourself have stated that you are a regular customer at Food world and that you were in the regular habit of purchasing the Masafatl Dates from us. Such patronage from esteemed customers like you have only reinforced our belief that we need to constantly improve our benchmark in quality and service to our customers to grow further in this business. Nevertheless, we are sure you will appreciate, that as retailers we are in a way dependent on our suppliers with regard to the quality of the product.
We purchased the Masafatl dates from R. B. Traders, Thanjavur. In fact the products are imported into India by Pacificphyto Products Pvt. Ltd., Chennai. The statutory declarations on the product are made by the Importers and we have adhered as per these declarations.
You will very well appreciate that the responsibility for making mandatory declarations lies with the Importers. You are our esteemed customer and we are keen to get your concerns addressed. Therefore, we have forwarded your mails to the importer as well as the supplier who have assured to look into your concerns and respond suitably. We also assure you from your end that we shall keep a close follow up with both the importer as well as supplier on this matter.
Should you like to address your concerns directly to them, we are providing hereunder their address for your convenience.
1. Name of the Importer: Dr. T. Thirunarayanan Pacificphyto Products Pvt. Ltd., 250, R. K. Mutt Road, R. A. Puram Chennai 600 028 [email protected]
2. Name of the Supplier: Mr. Rajanandam, R. B. Traders, 38 (1/23) Philomina Nagar, Thanjavur - 613 006 [email protected] (Illegible) We once again thank you for your audience. We shall do our best to address your concerns as already indicated and confirm that we had assured you only of our best and sincere efforts to sort out your concern during our meeting on 21/05/2003.
Please do not hesitate to write to us in case of any clarifications.
Thanking you and assuring you the best of service always.
Yours Sincerely For FOODWORLD SUPERMARKETS LIMITED Sd/-
MALA MORRIS Head - Marketing, Customer Insight & Private Label"
23. A perusal of the same would indicate that the Appellants have cooperated with the Complainants informing them about the concerns expressed by the Complainant to be looked into by the importer and the supplier, even though the complaint seems to have been made after almost ten days on 20/21.05.2003. We find that the distinction between the roles of the Appellants and the importers and suppliers seems to have been not correctly appreciated. The Respondent Nos. 3 and 4 suppliers and the importers, even though notices were served on them remained absent and were proceeded ex-parte vide order dated 29.03.2011. They have not also preferred any Appeal before this Commission and the Respondent No. 4, Supplier was proceeded ex parte vide order dated 07.01.2015.
24. Apart from this the consequences alleged by the Complainant could not be proved by him by production of any documents regarding his hospitalisation in the Apollo Hospital and spending money for his treatment. The Complainant had admittedly consumed a heavy dose of German marketed wet dates as he admits having consumed 8 - 10 dates after almost one month of its purchase. It is not known as to under what conditions the dates were kept by the Complainant and the manner in which the said dates were allegedly packed in a transparent boxes for being sent to the Analyst. There is no material either produced or even discussed regarding the actual treatment of the complainant no. 2 which he alleges to have undertaken at the Apollo Hospital, Chennai. No supporting material has been brought forth to demonstrate that there was any pathological or any other examination to confirm the cause of the gastroenteritis trouble due to the consumption of dates or the presence of any such adulterated or contaminated material found inside the stomach of the complainant no. 2 to establish that the same was the cause for his hospitalisation that occurred almost one month after the purchase of the dates. The probable diagnosis or its confirmation or any such material in the shape of a medical report is not available. Consequently we cannot assume that the consequence of hospitalisation was only on account of consumption of the said dates.
25. There is however one argument of the Appellant which we cannot accept namely the liability of the Appellants in case of the deficiency being established. We may point out that this principle of a liability whether of the retailer or the manufacturer has been settled long back in a discussion which is generally a subject matter of student learning at the initial stage in the law of Torts. The same are the common law principles that have been enunciated by the Law Lords, including Lord Macmillan, of the House of Lords in England in the case of Donoghue versus Stevenson [1932] UKHL 100. This decision is a celebrated English decision to understand the aforesaid principles of tortious liability and has been quoted with approval in a large number of judgments. The principle therefore remains unshaken even today even today and very lately we have also followed the same in the case of Balaji Wafers Private Limited and Anr. Versus Sourabh Jain in Revision Petition No. 3017 of 2024 decided on 17.12.2024 where it has been observed as follows:
Issues were framed and the District Commission after assessing all the facts while recording findings in paragraph 12, observed as follows:
"(12) The documents submitted by Opponent No. 1 and 2 in reply show the machine used for making chips, which is not in dispute. The only dispute is how much time the company took to pack the chips after manufacturing them and where the chips were kept safe after manufacturing. Opponent No. 1 and 2 have not given any explanation in this regard, they have only described their manufacturing method as excellent, which is not as important for resolving this issue as paying attention to the packaging of the manufactured chips. After opening the packet, it can be seen with the naked eye that dead and roasted ants are stuck to the chips, which the Opponent No. 1 and 2 accept in a low voice, but take the defence that it is a masala, while Opponent No. 1 and 2 say that when the chips are manufactured, they separate all the other black and other coloured substances from it using separate nets. If this was the case, then how would the ants come on the chips in the packed packet? In this way, the answer given by the opposite parties No. 1 and 2 raises questions on them that while packing the manufactured chips, they did not notice that there were ants on it and after packing it was sent to the market for sale. In the coloured photographs of the packets of chips taken by the complainant, it is clearly visible and can be seen with the naked eye. That there are ants on the chips and also inside the packing, which can be seen with the naked eye, it is not appropriate for the District Consumer Commission to get any separate investigation done for this.
It is found that ants are also visible in the packets of wafers presented, which cannot be denied. In such a situation, it is a proven fact that the wafers with bad and ants were packed by the opposite parties 1 and 2, which were not fit for human consumption and it is a serious blow to the vegetarian vow of a vegetarian person and he must have felt disgusted by eating such chips, which proves the physical and mental damage. Selling such food items in the open market also comes under the category of crime and the service provider has to take full responsibility of the product manufactured by him, which has not been taken by the opposite parties 1 and 2 and they have neglected their duty. In this case, the District Collector has also punished this company for misbranding, but that is a separate matter, it cannot be seen in connection with this case, but it is enough to reveal the conduct of the opposite party company."
With regard to the issue relating to the presence of ants, the District Commission has further recorded its findings in paragraph 13 as follows:
"(13) During the arguments on behalf of the opposite party, attention was drawn to the judgment of the Hon'ble Supreme Court which is the computer print of 2021 SCC Online Supreme Court 879, on perusal of which it appears that it was held by the Hon'ble Supreme Court that the complainant should prove his case himself and the burden of proof lies on the complainant. The said judgment is appropriate in its place. In this case, the packet of Balaji Wafers purchased by the complainant has been presented, its photographs have been taken and voice recording has also been made by talking to the salesman of Balaji Wafers, which has proved well that this was the second complaint heard in the tomato flavored chips of Balaji Wafers. The sample of wafers submitted before the court has been opened in front of both the parties and we find that there are remains of dead ants along with the wafers and the packet in which it is kept also has dead ants in it, whose colour photographs are Exhibit P-4 and Exhibit P-5. This confirms with the naked eye that there were ants in the wafers sold which were found with potato chips in an air tile pack packet. There was no need to get it tested by any analyst and both the parties have also not taken any initiative to get it tested before this District Consumer Commission and the ants can be seen with the naked eye."
The matter travelled up before the SCDRC, Madhya Pradesh and vide order dated 05.09.2024 in FA/357/2023, the State Commission recorded its finding in paragraph 7 and 8 as follows:
"7. As we go through the evidence available on record, we find that the coloured photographs of the potato chips manufactured by the Balaji Wafers are there for perusal. The District Commission has rightly observed that fried and roasted ants are clearly visible or the potato chips. The complainant / respondent no.1 has also alleged that when he had called the salesman of the appellant, he was informed that the complaint regarding ants on the potato chips has been received earlier as well. So far as the liability of opposite par y no.3 - Wood Café Canteen is concerned, we find that the District Commission has rightly held that he had sold the potato chips before the date of expiry. Also, there are no allegations to the effect that the said packet of the potato chips was opened and was not kept in sealed, air tight manner. In such circumstances the District Commission has rightly exenorated the Wood Café Canteen.
8. Considering the evidence available on record it is not in doubt that ants were there in potato chips which were taken out from the packet.
The salesman of the appellant has admitted of receiving the complaint regarding presence of ants on potato chips on earlier occasion also. The complainant / respondent no 1 alleged that he was operated upon for 'Appendicitis' arid after eating the chips infested with ants, he experienced vomiting. Which led to abdominal pain. We therefore reach a conclusion that the District Commission has not committed any error in holding the Balaji Wafers deficient in service on account of not taking required care during packaging of the edible item."
Learned Counsel for the Petitioner has urged that the orders of the Commission below are non-speaking orders and scientifically the presence of the fried ants was an impossibility as such the findings are perverse. To the contrary in paragraph 12 of the Revision Petition it has been stated that the Complainant/Respondent tried to blackmail the Appellant by inserting the dead ants and was attempting to take undue advantage of the fact by incorrect means.
We have considered the submissions raised and we do not find any infirmity in the findings recorded by the Commissions below pertaining to the presence of the dead ants inside the packet.
Learned Counsel urged that the entire frying and packing of the chips takes hardly six minutes on the assembly line and there was no scope for any ant entering into the packets. The District Commission found that there is no necessity of getting any separate examination or investigation with regard to the same as the factum of the presence of the ants was duly proved with the material that was there on record.
The fact that the chips and its packing were done by the Petitioner is not disputed. The dead ants were found in the packed consignment. The packets from the manufacturer were directed to delivered to the Consumer without any evidence of intervention at any stage.
Needless to remind ourselves that the present is a case where the liability on the manufacturer can be saddled in the light of the celebrated English decision in the case of Donoghue Vs. Stevenson [1932] UKHL 100. Lord Macmillan while authoring his path breaking jurisprudence on the subject opined as follows:
"The law takes no cognisance of carelessness in the abstract. It concerns itself with carelessness only where there is a duty to take care and where failure in that duty has caused damage. In such circumstances carelessness assumes the legal quality of negligence and entails the consequences in law of negligence. What then are the circumstances which give rise to this duty to take care ? In the daily contacts of social and business life human beings are thrown into or place themselves in an infinite variety of relationships with their fellows and the law can refer only to the standards of the reasonable man in order to determine whether any particular relationship gives rise to a duty to take care as between those who stand in that relationship to each other. The grounds of action may be as various and manifold as human errancy and the conception of legal responsibility may develop in adaptation to altering social conditions and standards. The criterion of judgment must adjust and adapt itself to the changing circumstances of life. The categories of negligence are never closed. The cardinal principle of liability is that the party complained of should owe to the party complaining a duty to take care and that the party complaining should be able to prove that he has suffered damage in consequence of a breach of that duty. Where there is room for diversity of view is in determining what circumstances will establish such a relationship between the parties as to give rise on the one side to a duty to take care and on the other side to a right to have care taken To descend from these generalities to the circumstances of the present case I do not think that any reasonable man or any twelve reasonable men would hesitate to hold that if the appellant establishes her allegations the respondent has exhibited carelessness in the conduct of his business. For a manufacturer of aerated water to store his empty bottles in a place where snails can get access to them and to fill his bottles without taking any adequate precautions by inspection or otherwise to ensure that they contain no deleterious foreign matter may reasonably be characterised as carelessness without applying too exacting a standard. But, as I have pointed out, it is not enough to prove the respondent to be careless in (his process of manufacture. The question is, does he owe a duty to take care, and to whom does he owe that duty? Now I have no hesitation in affirming that a person who for gain engages in the business of manufacturing articles of food and drink intended for consumption by members of the public in the form in which he issues them is under a duty to take care in the manufacture of these articles. That duty, in my opinion, he owes to those whom he intends to consume his products. He manufactures his commodities for human consumption; he intends and contemplates that they shall be consumed. By reason of that very fact he places himself in a relationship with all the potential consumers of his commodities and that relationship which he assumes and desires for this own ends imposes upon him a duty to take care to avoid injuring them. He owes them a duty not to convert by his own carelessness an article which he issues to them as wholesome and innocent into an article which is dangerous to life and health. It is sometimes said that liability can only arise where a reasonable man would have foreseen and could have avoided the consequences of his act or omission. In the present case the respondent, when he manufactured his ginger beer, had directly in contemplation that it would be consumed by members of the public; can it be said that he could not be expected as a reasonable man to foresee that if lie conducted (his process of manufacture carelessly he might injure those whom he expected and desired to consume his ginger beer? The possibility of injury so arising seems to me in no sense so remote as to excuse him from foreseeing it. Suppose that a baker through carelessness allows a large quantity of arsenic to be mixed with a batch of his bread, with the result that those who subsequently eat it are poisoned, could he be heard to say that he owed no duty to the consumers of his bread to take care that it was free from poison, and that, as 'he did not know that any poison bad got into it, his only liability was for breach of warranty under his. contract of sale to those who actually bought the poisoned bread from him? Observe that I have said through carelessness and thus excluded the case of a pure accident such as may happen where every care is taken. I cannot believe, and I do not believe, that neither in the law of England nor in the law of Scotland is there redress for such a case. The state of facts I have figured might well give rise to a criminal charge and the civil consequence of such carelessness can scarcely be less wide than its criminal consequences. Yet the principle of the decision appealed from is that the manufacturer of food products intended by him for human consumption does not owe to the consumers whom he has in view any duty of care, not even the duty to take care that he does not poison them"
His lordship then pegs the liability on the manufacturer in the following words:
"But where as in the present case the article of consumption is so prepared as to be intended to reach the consumer in the condition in which it leaves the manufacturer and the manufacturer takes steps to ensure this by sealing or otherwise closing the container, so that the contents cannot be tampered with, I regard his control as remaining effective until the article reaches the consumer and the container is opened by him. The intervention of any exterior agency is intended to be excluded and was in fact in the present case excluded. It is doubtful whether in such a case there is any redress against the retailer ( Gordon v. McHardy , 1903, 6 F. 210)"
It deserves notice that the Law Lord has also doubted the liability of the retailer, and in the present case, the canteen owner has been therefore rightly absolved of any liability by the District Commission.
The observations made and conclusions drawn by Lord Macmilan are still considered to be an authority on the subject and the principles laid down therein are applicable on the facts of the present case.
The said judgment also delves on the issue of burden and proof and the onus required to be discharged. The opinion of Lord Macmillan in the penultimate paragraph of the judgment is extracted hereinunder:
"The burden of proof must always be upon the injured party to establish that the defect which caused the injury was present in the article when it left the hands of the party whom he sues, that the defect was occasioned by the carelessness of that party and that the circumstances are such as to cast upon the defender a duty to take care not to injure the pursuer. There is no presumption of negligence in such a case as the present, nor is there any justification for applying the maxim res ipsa loquitur . Negligence must be both averred and proved. The appellant accepts this burden of proof and in my opinion she is entitled to have an opportunity of discharging it if she can. I am accordingly of opinion that this appeal should be allowed, the judgment of the Second Division of the Court of Session reversed and the judgment of the Lord Ordinary restored."
The judgment of the House of Lords referred to above was again followed by the Privy Council in the case of Grant Vs. Australian Knitting Mills Ltd. & Ors Judicial Committee Reports 1935 page 85. Lord Wright who penned this decision on behalf of the Bench, which incidentally was comprised of other judges including Lord Macmillan, examined the claim of an alleged negligence of a garment manufacturing company stated to have used a chemical in the process of knitting underpants that caused the Appellant's skin to be infected with dermatitis. Once again, it is a classic exposition and a treat for the eyes to be read, understood and applied. This decision also brings home the ratio that in our opinion applies herein as well. To quote some of the excerpts, they are gainfully reproduced hereinunder:
"....Negligence is found as a matter of inference from the existence of the defects taken in connection with all the known circumstances: even if the manufacturers could by apt evidence have rebutted that inference they have not done so.
.....But this mere sequence of cause and effect is not enough in law to constitute a cause of action in negligence, which is a complex concept, involving a duty as between the parties to take care, as well as a breach of that duty and resulting damage."
While explaining the ratio of the decision in the case of Donoghue (Supra), the Privy Council proceeded to explain the ratio and the principles of law enunciated as follows:
"In Donoghue's case (1) the defendants were manufacturers of ginger- beer, which they bottled the pursuer had been given one of their bottles by a friend who had purchased it from a retailer who in turn had purchased from the defendants. There was no relationship between pursuer and defenders except that arising from the fact that she consumed the ginger-beer they had made and bottled. The bottle was opaque, so that it was impossible to see that it contained the decomposed remains of a snail: it was sealed and stoppered so that it could not be tampered with until it was opened in order that the contents should be drunk. The House of Lords held these facts established in law a duty to take care as between the defenders and the pursuer.
Their Lordships think that the principle of the decision is summed up in the words of Lord Atkin (2):
"A manufacturer of products, which he sells in such a form as to show that he intends them to reach the ultimate consumer in the form in which they left him with no reasonable possibility of intermediate examination, and with the knowledge that the absence of reasonable care in the preparation or putting up of the products will result in an injury to the consumer's life or property, owes a duty to the consumer to take that reasonable care."
This statement is in accord with the opinions expressed by Lord Thankerton and Lord Macmillan, who in principle agreed with Lord Atkin. In order to ascertain whether the principle applies to the present case, it is necessary to define what the decision involves, and consider the points of distinction relied upon before their Lordships.
It is clear that the decision treats negligence, where there is a duty to take care, as a specific tort in itself, and not simply as an element in some more complex relationship or in some specialized breach of duty, and still less as having any dependence on contract. All that is necessary as a step to establish the tort of actionable negligence is to define the precise relationship from which the duty to take care is to be deduced. It is, however, essential in English law that the duty should be established: the mere fact that a man is injured by another's act gives in itself no cause of action: if the act is deliberate, the party injured will have no claim in law even though the injury is intentional, so long as the other party is merely exercising a legal right if the act involves lack of due care, again no case of actionable negligence will arise unless the duty to be careful exists. In Donoghue's case (1) the duty was deduced simply from the facts relied on- namely, that the injured party was one of a class for whose use, in the contemplation and intention of the makers, the article was issued to the world, and the article was used by that party in the state in which it was prepared and issued without it being changed in any way and without there being any warning of, or means of detecting, the hidden danger: there was, it is true, no personal intercourse between the maker and the user; but though the duty is personal, because it is inter partes, it needs no interchange of words, spoken or written, or signs of offer or assent; it is thus different in character from any contractual relationship; no question of consideration between the parties is relevant for these reasons the use of the word "privity" in this connection is apt to mislead, because of the suggestion of some overt relationship like that in contract, and the word "proximity" is open to the same objection; if the term "proximity" is to be applied at all, it can only be in the sense that the want of care and the injury are in essence directly and intimately connected; though there may be intervening transactions of sale and purchase, and intervening handling between these two events, the events are themselves unaffected by what happened between them: "proximity" can only properly be used to exclude any element of remoteness, or of some interfering complication between the want of care and the injury, and like "privity" may mislead by introducing alien ideas. Equally also may the word "control" embarrass, though it is conveniently used in the opinions in Donoghue's case (1) to emphasize the essential factor that the consumer must use the article exactly as it left the maker, that is in all material features, and use it as it was intended to be used. In that sense the maker may be said to control the thing until it is used. But that again is an artificial use, because, in the natural sense of the word, the makers parted with all control when they sold the article and divested themselves of possession and property. An argument used in the present case based on the word "control" will be noticed later.
It is obvious that the principles thus laid down involve a duty based on the simple facts detailed above, a duty quite unaffected by any contracts dealing with the thing, for instance, of sale by maker to retailer, and again by retailer to consumer or to the consumer's friend.
It may be said that the duty is difficult to define, because when the act of negligence in manufacture occurs there was no specific person towards whom the duty could be said to exist: the thing might never be used it might be destroyed by accident, or it might be scrapped, or in many ways fail to come into use in the normal way in other words the duty cannot at the time of manufacture be other than potential or contingent, and only can become vested by the fact of actual use by a particular person. But the same theoretical difficulty has been disregarded in cases like Heaven v. Pender (1), or in the case of things dangerous per se or known to be dangerous, where third parties have been held entitled to recover on the principles explained in Dominion Natural Gas Co., Ld. v. Collins & Perkins. (2) In Donoghue's case (3) the thing was dangerous in fact, though the danger was hidden, and the thing was dangerous only because of want of care in making it; as Lord Atkin points out in Donoghue's case (3), the distinction between things inherently dangerous and things only dangerous because of negligent manufacture cannot be regarded as significant for the purpose of the questions here involved.
One further point may be noted. The principle of Donoghue's case (3) can only be applied where the defect is hidden and unknown to the consumer, otherwise the directness of cause and effect is absent the man who consumes or uses a thing which he knows to be noxious cannot complain in respect of whatever mischief follows, because it follows from his own conscious volition in choosing to incur the risk or certainty of mischance."
Applying the said principles in the present case, the District Commission has considered the united impact of all the circumstances and evidence put together where the duty to take care by the manufacturer was established by examining the packets and the contents thereof that were also opened in front of the District Commission as recorded by it and extracted hereinabove. The packed chips were therefore not fit for human consumption and it seems that during the manufacturing or packing processes something had gone wrong as a negligence on the part of the persons involved in the said process. The Commission has to strike a reasonable balance of probabilities and excluding the possibility of any other intervention. The Complainants had established their case but on the other hand the Petitioners also had an onus to discharge which they do not seem to have successfully executed.
The negligence in the manufacture and packing of the chips which contained dead ants therefore is a liability based on the negligence of the Petitioners and this deficiency and defect was evident as extensively recorded by the District Commission."
26. In view of the ratio of the decision quoted hereinabove the manufacturer is equally liable.
In the instant case as is evident from the facts on record the original importer namely, the respondent no. 3 and the supplier of the dates namely, the respondent no. 4, have not chosen to contest this matter. The appellant is the retailer. We do not find any reason or logic or any legal principles so as to segregate the liability of either of them, in the event there is a deficiency in the product resulting in any injury to the complainant. We have therefore examined the matter from the point of view of the appellants only who are the retailers as neither the importer nor the supplier have chosen to contest these proceedings.
27. Thus even though there may have been a liability on the Appellants for any such deficiency or unfair trade practice, yet on the facts of the present case and for the reasons given herein above we find that the Impugned Order of the State Commission dated 09.06.2014 cannot be sustained and is accordingly set aside. As noted above no one has appeared on behalf of the Respondent No.-1 and Respondent No.-2 to contest the Appeal and they have gone unrepresented for long.
In such circumstances the Appeal is accordingly allowed only in so far as the Appellants are concerned. This Order shall not be construed to record any findings in favour of Respondent No.-3 Importer and Respondent No.-4 Supplier. The amount deposited by the Appellant under the interim order dated 27.08.2014, if any before the State Commission shall be refunded to the Appellants together with any interest thereon.
..................J A. P. SAHI PRESIDENT ..................
BHARATKUMAR PANDYA MEMBER