State Consumer Disputes Redressal Commission
Kamayam Sivasakthi Food Product (P) ... vs S.Radhakrishnan, Theni District on 16 December, 2010
BEFORE THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI BEFORE THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI Present Hon'ble Thiru Justice M. THANIKACHALAM PRESIDENT Tmt.Vasugi Ramanan, M.A., B.L., MEMBER I Thiru.S.Sambandam, B.Sc., MEMBER II F.A.271/2007 [Against order in C.C.No.18/2005 on the file of the DCDRF, THENI] DATED THIS THE 16th DAY OF DECEMBER 2010 1.
Kamayam Sivasakthi Food Product (P) Ltd., | rep. by its Director R.S. Prakash, | Kama Goundampatti. | |
2. R. Kumarasan, | Praja Wholsale Agent, | Appellants / Opposite Parties Boodinayakkanur, | Theni District. | |
3. A. Kamaraj, | Proprietor, | Arun Cool Drinks, | Boodinayakkanur, | Theni District. | Vs.
1. S.Radhakrishnan, | Respondent / Complainant S/o.Sethu Nayakkar, | 54, Preyandavar Kulathu Street, | Boodinayakkanur, | Theni District. | The Respondent as complainant filed a complaint before the District Forum against the Appellants/opposite parties praying for the direction to the opposite parties to pay a sum of Rs.86,000/- towards mental agony, monetary loss, physical strain. The District Forum allowed the complaint, against the said order, this appeal is preferred praying to set aside the order of the District Forum dt.14.12.2006 in C.C.18/2005.
This appeal coming before us for hearing finally on 29.10.2010, upon hearing the arguments of the either counsels and perused the documents, as well as the order of the District Forum, this commission made the following order:
Counsel for the Appellants /O.Ps.
: M/s.P.Tamilavel, Advocate.
Counsel for the Respondent/Complainant : M/s.R.Govindaraj, Advocate.
M. THANIKACHALAM J, PRESIDENT
1. The opposite parties are the appellants.
2. The Respondent/complainant has filed a case before the District Forum, claiming a sum of Rs.86,400/- as compensation, alleging negligent as well as deficiency act against the opposite parties, as if, the first opposite party produced a Cool Drink, which contained insect, which was sold by the second opposite party, through the third opposite party, causing inconvenience to the complainant, when he had consumed the same on 18.4.2003, resulting vomiting and other problems, for which, he was compelled to take treatment, being an inpatient in the hospital, spending a sum of Rs.7,500/-, thereby causing mental agony, suffering etc.,
3. The opposite parties, disputing the entire averments in the complaint, resisted the case on the grounds, with among other grounds that the first opposite party is preparing fruit juice through mechanical process, in which, there is no chance for insects to come in, that only in order to extract money, a false case has been filed, against them, thereby praying for the dismissal of the complaint.
4. The District Forum accepting the case of the complainant, as if, it is an unadulterated truth, finding fault with the opposite parties, slapped an order, directing the first and second opposite parties alone, to pay a sum of Rs.10,000/- towards medical expenses and for mental agony, in addition to, a sum of Rs.2,500/- as cost, as per the order dated 14.12.2006, which is under challenge.
5. The first opposite party/first appellant, is producing fruit juice and marketing the same through the second opposite party. The third opposite party is the seller through his Shop. It is the specific case of the complainant, as seen from Para 3 that on 18.4.2003, he had consumed a cool drink, produced by the first opposite party namely Praja Cool Drinks, which was purchased by him through one Suresh, who is the Servant maid of one Saravanakumar.
It is the further case of the complainant, that when he consumed the drink, he felt in the throat some obstruction and when he spit the same, has seen a dead insect. It is the further case of the complainant, that because of the insect in the cool drink, which he consumed, his health was affected, resulting treatment also. Thus alleging more or less manufacturing defect or defective cool drink, as well deficiency in service, a complaint came to be filed. Except the fact that the first opposite party, is the producer of fruit juice/cool drinks, no other averments are admitted. Therefore, it is for the complainant to prove not only he had purchased the produce of the first opposite party, from the third opposite party, but also it contained insect, causing vomiting, and other psychological problem due to poison.
6. No document has been filed, to prove the purchase and of course as rightly pointed out by the District Forum, for this kind of purchase, we cannot expect any receipt. But the person, who had purchased, should say that on behalf of the complainant or at the request of his master, he had purchased the cool drink from the third opposite party, which was consumed by the complainant, resulting vomiting and other problems due to insect. No affidavit of Suresh has been filed and he has also not been examined.
7. Admittedly, neither the bottle nor the remaining contents with the bottle was produced, before the District Forum. If that had been produced, subjected to chemical analysis, would have revealed the availability of the insects or poisonous nature, leading to vomiting and other physical discomfort. In the absence of the material objects, since it is not the case of the complainant, that he consumed the entire cool drink, it is our considered opinion, that the District Forum has committed an error, as if, the first opposite party, had produced the cool drink, which contained insects, which was sold by the third opposite party, supplied by the agent namely the second opposite party.
8. The District Forum appears to have relied on Ex.A1, a letter said to have been given by third opposite party, admitting the insect available in the cool drink. A perusal of Ex.A1 and the defence taken by the third opposite party along, with first and second opposite parties, would make it clear that the averments in Ex.A1, cannot be taken as admission. It is the specific case of the complainant, as reported that he himself came to know, about the insect when he consumed the drink and not by seeing the bottle. But Ex.A1 reads, as if, he had seen a dead insect in the bottle and the same was shown to him and the relevant portion in Tamil reads gho xU tL brJljJ,. mij vl fhäjhf. After consuming even the dead insects alone, according to the complainant, he vomited, if so there would not have been any possibility for the third opposite party, to see the insect in the bottle and give Ex.A1. If really Ex.A1 had been given voluntarily by the third opposite party, he should have supported the case of the complainant, whereas, he opposed the case of the complainant, by filing joint Written Version, disputing the case of the complainant. Therefore, based upon Ex.A1, it is impossible to conclude in the absence of the bottle, and remaining contents that the first opposite party had produced defective cool drink, causing physical discomfort to the complainant by consuming the same.
9. Even as rightly pointed out on behalf of the appellants, who had purchased the cool drink; who had paid the amount also, there is a discrepancy.
In the complaint, it is said, that one Saravanakumar sent his man Suresh to purchase a cool drink, for that he paid a sum of Rs.10/-. But, as seen from Ex.A3 notice, Saravanakumar alone had purchased the cool drink through Suresh and it is not the case of the complainant, in the notice that he paid the amount. It is highly unbelievable, for the vomiting and other discomfort, the complainant was admitted as inpatient and took treatment from 18.4.2003 to 23.04.2003, though some medical certificate has been produced belatedly, not along with the complaint. The Doctor, who treated the complainant, has not filed any affidavit, informing that due to consumption of the insect cool drink, the complainant had problems, for which, he was given treatment. If the complainant had taken treatment, as inpatient in the hospital of one Dr.Parthasarathy, there should be inpatient record, history of treatment given, including the nature of report by the complainant also. For the reasons best known to the doctor, as well as the complainant, they have not produced any inpatient record, except Ex.A6, which appears to be concocted documents. Ex.A6 does not disclose, what kind of treatment, the complainant was given; what are the medicines prescribed to him, but it refer insects, thereby indicating some suspicious circumstances. In the absence of production of Praja Grape Juice Cool drink with the bottle, and in the absence of proof regarding the insect in the bottle, on the basis of the presumption and conjecture, the District Forum had passed an order, which we are unable to endorse. For the above said reasons, the appeal deserves acceptance.
10. In the result, the appeal is allowed, the order of the District Forum in OP No.18/2005, dt. 14.12.2006 is set aside, and the complaint is dismissed. Considering the facts and circumstances of the case, there will be no order as to cost, throughout.
11. The Registry is directed to handover the Fixed Deposit Receipt, made towards the mandatory deposit, to the appellants/opposite parties duly discharged, since appellants succeeded, and there is no need to retain the FDR.
S. SAMBANDAM VASUGI RAMANAN M.THANIKACHALAM MEMBER II MEMBER I PRESIDENT INDEX : YES / NO Ns/mtj/Misc.