State Consumer Disputes Redressal Commission
Ms.Nirupa Marwaha vs M/S Sindhi Sweets on 18 May, 2012
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, UNION TERRITORY, CHANDIGARH First Appeal No. 68 of 2012 Date of Institution 22.02.2012 Date of Decision 18.05.2012 Ms.Nirupa Marwaha, House No.120, Sector 11-A, Chandigarh. .Appellant/Complainant. Vs. M/s Sindhi Sweets, SCO 110-111, Sector 17-C, Chandigarh. . Respondent/Opposite Party BEFORE: JUSTICE SHAM SUNDER, PRESIDENT MRS. NEENA SANDHU, MEMBER
Argued by:
Appellant in person.
Sh.Munish Goel, Advocate for the respondent.
MRS. NEENA SANDHU, MEMBER
1. This appeal is directed against the order dated 03.01.2012, rendered by the District Consumer Disputes Redressal Forum-I, UT, Chandigarh (hereinafter to be called as the District Forum only) vide which it dismissed the complaint, filed by the complainant (now the appellant).
2. In nutshell, the facts are that the complainant visited the shop of the Opposite Party, on 07.04.2011, and ordered for its much publicized Vrat-ki-Thali for her Navratra Fast. The menu listed for that Thali included 1 piece alu tikki, 1 chila piece, sawon ke chawal, panir sabzi, alu sabzi, alu ka raita, sabudana kheer and fruit chat. It was stated that the complainant specifically told the Waiter to replace the chila with an alu tikki, as she could not take any risk, relating to its ingredients, as she was cautious enough regarding to the sanctity of her Fast. It was further stated that the waiter served Vrat ki thali, which included the dishes, as per the menu, except, alu ka raita. A round fried ball, in curd, was served in place of that. The complainant asked the Waiter to make sure that there was no mix-up, again emphasizing the sanctity of observing Fast. The Waiter assured that the ball was made of only potato and it was alu ka raita. But, when she put a small piece in her mouth, she found that it contained contents of dal by taste, as well as, from appearance. It was further stated that, thereafter, she again called the Waiter and expressed her anguish, and further asked him, to taste it. He refused to taste, on the ground, that he was also observing Fasts. Thereafter, the complainant reported the matter to the Manager of the Opposite Party, who called for a dry piece of potato ball, from their stock, and, on breaking it open, he started smelling it and denied the allegations. It was further stated that the complainant, being the Associate Professor, in Food & Nutrition Department of Govt. Home Science College, Sector 10, Chandigarh, asked the Manager of the Opposite Party, that the ingredients of cooked products, could be identified through sight, taste, smell, touch etc. It was further stated that the complainant asked him to taste it, but he also refused, on the pretext that he was observing Fast too. Further, the Manger of the Opposite Party offered to change the Vrat ki thali, but she refused to accept it, as she believed that food is Gods Gift and should not be wasted. It was further stated that the Opposite Party also sent a bill with three sticks of kulfi, as complimentary sweet dish, which she refused to accept. It was further stated that the complainant carried the pieces of the so-called potato ball to a senior colleague (Head of the Deptt. Of Foods and Nutrition, Govt. Home Science College, Sector 10, Chandigarh), who also observed, that the sample pieces either contained contents of arrowroot or bread and the potato ball was not, at all, of a plain potato. Thereafter the complainant made a written complaint, to the Manger of the Opposite Party, but to no effect. It was further stated that the Opposite Party was deficient, in rendering service, as also, indulged into unfair trade practice. When the grievance of the complainant was not redressed, left with no alternative, a complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter to be called as the Act only), was filed.
3. In its written reply, the Opposite Party, pleaded that earlier too a complaint, on the same allegations was filed by the complainant, which was dismissed in default, but instead of getting it restored, the instant complaint was filed, which was not maintainable. It was admitted that Vrat-ki-Thali was served to the complainant.
It was stated that, in fact, boiled, fried potatoes, in curd were served and in order to improve the taste, senda salt (namak) was added to it. It was further stated that even a request was made to the complainant to take the sample of the dish along, in order to identify anything unusual in it, but she refused. It was further stated that the Waiter could not be forced to taste any dish, served by him, because every person has his/her own way of performing rituals.
It was further stated that though the Opposite Party, tried its level best, to satisfy the complainant, regarding the ingredients used in the dishes of the said Thali, and also about the preparation, but to no effect. It was further stated that the complainant was also offered for the replacement of Thali, which was declined by her. It was further stated that, the Opposite Party was neither deficient, in rendering service nor indulged into unfair trade practice.
4. The Parties led evidence, in support of their case.
5. After hearing the complainant, in person, Counsel for the Opposite Party, and, on going through the evidence and record of the case, the District Forum, dismissed the complaint.
6. Feeling aggrieved, the instant appeal, has been filed by the appellant/complainant.
7. We have heard the appellant, in person, Counsel for the respondent, and, have gone through the evidence and record of the case, carefully.
8. The appellant/complainant submitted that when she put a small piece of potato ball in her mouth from the dish namely round fried ball, in curd, she found that it contained contents of Dal by taste and so she asked the waiter to taste the same but he refused to do so. Thereafter she complained to the Manager who denied the same by stating that there was no content of dal in it. The complainant further submitted that she requested the Manager that the ingredients of cooked products could be identified through sight, taste, smell, touch etc. It was further submitted that she carried the pieces of the potato ball, which was served to her, and shown to her Senior Colleague, who after examining the same, opined that the potato ball was not made of plain potatoes but it either contained the contents of arrowroot or bread in the same. The complainant further submitted that the District Forum by ignoring the affidavit of Mrs.Madhu Nanda, Associate Professor, Head of Department of Food and Nutrition, Govt. Home Science College, who is an expert in the field of sensory evaluation with 35 years of experience and by placing reliance upon the affidavit of Sh.Sanjay Jain dismissed the complaint. It was further submitted that the District Forum wrongly observed that no report from the Laboratory was produced, whereas, the appellant, being Associate Professor in the Department of Foods and Nutrition, categorically stated that the ingredients of cooked products could be identified through sight, taste, smell, touch etc. It was further submitted that the wine and tea tasting are highly paid jobs, in which the ingredients combinations/contents are assessed only through sensory evaluation and not through laboratory tests. It was further submitted that the report of the sensory evaluation of the sample produced by her, was an authentic document. The complainant drew our attention towards the invoices issued to her and Mr.Sanjay Jain and submitted that the District Forum ignored the fact that she visited M/s Sindhi Sweets at 18:27:47 on 07.04.2011, whereas, Mr.Sanjay Jain visited M/s Sindhi Sweets at 13:43:41 and it was not necessary that the waiter served the same dish which was served to her.
9. The Counsel for the respondent/Opposite Party submitted that, the complaint was not maintainable, in view of the specific objection taken by the Opposite Party in the written reply. He further submitted that, in fact, boiled, fried potatoes, in curd, were served to the complainant and in order to improve the taste, senda salt (namak) was added to it. He further submitted that even a request was made to the complainant to take the sample of the dish alongwith her, in order to identify anything unusual in it, for which she refused. He further submitted that the Waiter could not be forced to taste any dish, served by him. He further submitted that though the Opposite Party tried its level best, to satisfy the complainant, regarding the ingredients used, in the dishes of the said Thali and also about the preparation, but to no effect. He further submitted that the complainant was also offered the replacement of Thali, which was declined by her.
10. The first question that requires determination, is as to whether, a second complaint, on the same cause of action, was maintainable, especially when the first complaint relating to the same subject matter, was dismissed in default, and no application for restoration of the same was made. It may be stated here, that the Consumer Protection Act, 1986, is a self contained Code. The specific provisions of the Code of Civil Procedure, except those mentioned in Section 13(4) of the Act and the general principles of the said Code, are not applicable to the complaints, filed under the Act. There is no mention of Order IX Rule 9 of the Code of Civil Procedure, in Section 13(4) of the Act. Under these circumstances, an application under Order IX Rule 9 of the Code of Civil Procedure was not maintainable, for the restoration of the complaint dismissed, in default. The Consumer Foras are required to follow the principles of natural justice for adjudicating the consumer complaints. The Consumer Foras, have been set up to achieve the main objective of speedy, affordable and inexpensive redressal of the grievances of the consumers, without resorting to the technicalities, to ensure that the end product of justice, is not sacrified at the altar of procedural wrangles. Reliance was placed by the Counsel for the respondent on New India Assurance Co. Ltd. Vs. R.Sirinivasan, 2000(1) CPC 334 (SC) to support his contention that the second complaint, on the same cause of action, was not maintainable. The perusal of the ratio of law laid down in this case does not reveal that no second complaint, on the same cause of action, could be maintained, when the first complaint was dismissed, in default. The principle of law, laid down therein, is the other way round. No doubt, it was held in the aforesaid case that the tendency of filing the repeated complaints, on the same cause of action, by the complainant, could be discouraged by the Consumer Foras, if it found, that such an exercise was resorted to by the complainant, to harass the Opposite Party, unnecessarily, and defeat the ends of justice. In the instant case, the complainant, in the complaint, in so many words stated that in the earlier complaint filed by her, she could not appear before the Consumer Fora, on a particular date of hearing, as her 80 year old mother had a fall, as a result whereof, the same was dismissed, in default. This averment was duly corroborated by her, through the affidavit, filed by her, by way of evidence. Thus the bonafides of the appellant, in this regard, cannot be doubted. In the circumstances, summed up above, by no stretch of imagination, it could be said, that the complainant resorted to exercise, to harass the Opposite Party, by filing a second complaint. The second complaint, on the same cause of action, in the facts and circumstances of the case, was perfectly maintainable.
11. The perusal of the affidavit of Mrs.Madhu Nanda, Associate Professor, HOD, Department of Food and Nutrition, Govt. Home Science College, reveals that round fried ball, in curd, served to the complainant, contained either the ingredients of arrowroot or bread. The said affidavit of Mrs.Madhu Nanda, cannot be rejected outrightly, as she being the Head of Department of Food and Nutrition, Govt. Home Science College, Sector 10, Chandigarh has a vast experience of 35 years, in the field, regarding which the certificate dated 12.07.2011 of the Principal of the said college was placed on record. In this certificate, it was mentioned that Mrs.Madhu Nanda, Associate Professor had specialization in sensory identification and sensory evaluation of ingredients and foods. In our considered opinion, there was no need for laboratory test of the contents of the sample, as the same was only required to be conducted for evaluating the nutrient content of food i.e. protein, carbohydrate, fat etc., whereas, to identify the ingredients in any food article, assessment through sensory evaluation could be conclusively made. This job was responsibly performed by Mrs.Madhu Nanda, an expert, in the relevant field. Taking these facts into consideration, we are of the considered view that the affidavit, furnished by Mrs.Madhu Nanda constitutes the cogent and reliable evidence and cannot be ignored. As such, we do not concur with the observations of the District Forum, made in para No.7 of the impugned order, that mere bald assertions and sentiments of the complainant, could not be considered as cogent evidence.
12. No doubt, in the affidavit, submitted by Mr.Sanjay Jain, it was stated that Vrat-ki-Thali was strictly, in accordance with the listed items of menu including Alu Ka Raita and was served to all the customers as per the sanctity of observing fast. Mr.Sanjay Jain ordered for Vrat-ki-Thali at 13:43:41 on 07.04.2011, whereas, the complainant had ordered for Vrat-ki-Thali at 18:27:47 and alleged that there were ingredients of dal in round fried ball in curd. It is relevant to mention here that the complainant and Mr.Sanjay Jain, on whose affidavit, the Opposite Party placed reliance, went to the Opposite Party, at different times of the day, and, thus, the affidavit of Mr.Sanjay Jain is of no help to the Opposite Party. Even otherwise, Mr.Sanjay Jain is not an expert like Mrs.Madhu Nanda. In view of the above observations, we are of the considered opinion that due to the eating of round fried ball, in curd, served to the complainant, her Navratra fast was broken and her faith and sanctity of the said Fast were shattered. Therefore, it can be concluded without any hesitation, that the Opposite Party was deficient in rendering service.
13. The complainant is entitled to compensation on account of mental agony and physical harassment caused to her, by the Opposite Party, on account of the aforesaid reasons.
However, in our considered view, the compensation of Rs.10 lacs, as claimed by the complainant, on account of mental agony, physical harassment etc. is highly excessive and exaggerated. In Surendra Kumar Tyagi Vs. Jyoti Nursing and Hospital and Another, IV(2010) CPJ-199 (NC), it was held that the Consumer Foras are not meant to enrich the consumers, at the cost of service providers, by awarding unfair, unreasonable and highly excessive compensation. Keeping in view of the facts and circumstances of the case, we are of the considered view that the ends of justice, would be met, if the complainant is granted a sum of Rs.10,000/-, as compensation, on account of mental agony, and harassment suffered by her, at the hands of the Opposite Party.
14. The order of the District Forum, is not based on the correct appreciation of evidence and law, on the point. It suffers from illegality and perversity, warranting the interference of this Commission. The order of the District Forum is, thus, liable to be set aside.
15. For the reasons recorded above, the appeal is accepted with costs, and the order of the District Forum is set aside. The respondent/Opposite Party, is directed to pay:
i) A sum of Rs.10,000/-, to the appellant/complainant, on account of mental agony and physical harassment.
ii) Rs.5,000/- as costs of litigation, to the appellant/complainant.
16. This order shall be complied with, by the respondent/Opposite Party, within 45 days, from the date of receipt of a certified copy of the same, failing which, it shall be liable to pay the aforesaid payable amount, with penal interest @ 12% p.a., to the appellant/complainant, from the date of order till its realization, besides costs of litigation.
17. Certified Copies of this order, be sent to the parties, free of charge.
18. The file be consigned to Record Room, after completion.
Pronounced. Sd/-
May 18, 2012 [JUSTICE SHAM SUNDER] PRESIDENT Sd/- [NEENA SANDHU] MEMBER cmg APPEAL No.68 of 2012 Argued by: Appellant in person.
Sh.Munish Goel, Advocate for the respondent.
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Vide our detailed order of the even date recorded separately, the appeal is accepted with costs and the order of the District Forum is set aside as per the directions given therein 18.05.2012 (MEMBER) (PRESIDENT) cmg