State Consumer Disputes Redressal Commission
M/S Heinz India (P) Ltd., vs Jose Lawrence on 13 September, 2012
Daily Order
Kerala State Consumer Disputes Redressal Commission Vazhuthacaud,Thiruvananthapuram First Appeal No. A/11/396 (Arisen out of Order Dated 22/02/2009 in Case No. CC/09/86 of District Ernakulam) 1. HEINZ PVT INDIA LTD 7TH FLOOR,DSHIVA SAGAR,WORLI MUMBAI MAHARASHTRA ...........Appellant(s) Versus 1. JOSE LAWRENCE HOUSE,OLANADU,VARAPUZHA,KOCHI,VEVUKKAT ERNAKULAM KERALA ...........Respondent(s) BEFORE: SRI.M.K.ABDULLA SONA PRESIDING MEMBER PRESENT: ORDER
KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION VAZHUTHACAD, THIRUVANANTHAPURAM
APPEAL 396/11
JUDGMENT DATED:13.9.12
PRESENT
SRI.M.K.ABDULLA SONA : HON.ACTING PRESIDENT
M/s Heinz India (P) Ltd., : APPELLANT
7th Floor, D.Shivsagar,
Worli, Mumbai - 400018.,
(By Adv.Bechu Kurian Thomas)
Vs.
1.Jose Lawrence, : RESPONDENTS S/o Late Josep.V.M., Vevukkatt House, Olanadu, Varapuzha.P.O., Kochi - 683517. (By Adv.George Cherian Karippaparambil) 2. Varghese Ambalathinkal, Franchisee, 4th floor, 82, Margin Free Super Market(P) Ltd., Market Junction, Varapuzha, Cochin - 683517. JUDGMENT SRI.M.K.ABDULLA SONA : HON.ACTING PRESIDENT
This appeal prefers from the order passed by the CDRF,Ernakulam in CC.No.86/09 dated 22nd February 2011. The appellant is the 1st opposite party and the respondent is the complainant and 2nd respondent is the Margin Free Super Market (2nd opposite party). They prefers this appeal from the direction of the Forum below that' 1) the 1st opposite party shall pay Rs.25000/- to the complainant as damages 2) the 2nd opposite party shall pay Rs.5000/- to the complainant as damages 3) The 2nd opposite party also shall pay a litigation cost of Rs.1000/- to the complainant.
2. In brief the complainant who purchasedone packet of complan containing 500gms for his children from the 2nd opposite party store on 31.01.09. His children alleged to consumed the food supplement in milk on 1.2.09 and due to the consumption, the children and their dear ones found to their astonishment that the beverage contained worms and insects in it. The children developed stomach pain and vomiting tendency. Later they were taken to a hospital for proper treatment. When the representatives of the 1st opposite party were intimated, they visited his house and collected samples from the packet. In this background the complaint was filed alleging unfair trade practice and deficiency in service and also prays for compensation to the tune of Rs.95000/- and cost of Rs.3000/-.
3. In the version 1st and 2nd opposite party denied the allegation alleged in the complaint. Both of them agreed that there was purchase of the product. But what has been purchased was complan with chocolate flavour also. They hold the view that the packet indicated 01/2009 as the best before date. It is quite natural that the product was deteriorate and decompose after the expiry date. The story of discomfort stomach pain and the vomiting tendency only a cooked up one. Eventhough the representatives of 1st opposite party visited the home of the complainant; he was not allowed to take any sample for testing. The children were taken to the hospital only after 7 days from the event. Hence it is prayed by them to dismiss the complaint as it is devoid of any merit.
4. The evidence consisted of the oral testimony of PW1(the complainant) and marked Exts. A1 to A6. The 1st and 2nd opposite party filed their separate version but they did not adduce both oral and documentary evidence. Chemical analysis report was marked as Ext.C1 report. There are four points raised by the Forum below for consideration.
1) Whehter the product was conductive for human consumption when it was used?
2) Whether the analysis report is acceptable or not?
3) Whether the opposite parties are liable for deficiency in service and unfair trade practice in the transaction?
4) What are the reliefs if any?
5. The Forum below discussed the entire points on strength of the evidence and in detail argument from both sides. The Forum below taken a view that the complaint pertains to the purchase and consumption of an item of food stuff named complan. According to the complainant when his 2 children took it with milk the next day, worms and insects were found in the food stuff. The children developed stomach pain and vomiting tendency which persisted for some time. Later, they were taken to the hospital. On other hand the opposite parties contention is that there is no merit in the complaint and whole story has been framed to extort money from the opposite parties. Regarding the examination report of the analytical Laboratory the opposite parties are of the view that it cannot be relied upon as the testing has been conducted much after the expiry of the best before date. This complainant stands out from others in as much as the opposite parties are rebutting every aspects of the complaint commencing with the identification of the product that had been purchased. The main plank of challenge of the opposite parties is that what was purchased from the shop was not made the subject matter of the complaint and another pack was sent for chemical examination. To elaborate their stand that say that according to Ext.A1 cash bill, items that was bought from the outlet along with other articles was complan pack of chocolate flavour where as the complaint is concerned with complan with mango flavour.
6. The Forum below taken a view that in the instant case the purchase was made on the last date of best use, keeping that pack in view that it is virtually impossible to have the samples tested before the last date of best use in the present case. The Forum below found on the basis of the facts circumstance and evidence adduced by the complainant and the chemical analysis report are marked as Ext.C1. The opposite parties are deficient in service and that practice unfair trade practice accordance with provisions of the Consumer Protection Act. The opposite parties failed to adduce any oral or documentary evidence to support their versions respectively.
7. On this day this appeal came before this Commission for final hearing both the counsel for the appellant and respondent/complainant are present and they argued their cases in detail respectively accordance with the provisions of law and evidence. The counsel for the appellant argued the appeal vehemently on the basis of the grounds of appeal memorandum that they are not directly related with the sale of the food stuffs mentioned in the complaint and also no further consequences. According to the appellant the entire thing was done by the 2nd respondent/opposite party and this appellant is not liable to answer any deficiency if any sustained by the complainant. The counsel for the appellant submitted that the 2nd opposite party who sold the expire food to the complainant. His another contention is that as per the averments in the complaint the children of the complainant who was admitted in the hospital after so may days even they alleged to consumed the mixture. The counsel for the appellant argued that the complainant did not came forward to prove that the food stuff was contained decomposed portion of the snail etc. The 2nd opposite party is not present he did not prefer any appeal from the impugned order passed by the Forum below. The counsel for the respondent argued that Ext.C1 report is a chemical analysis which provided by the statutory authority and they are functioning under the government of Kerala. It is a notified laboratory for analysis in the food stuff as per the provisions of the Consumer Protection Act. Unless the appellant was having any difference of opinion about the contents of the Ext.C1 report. It is definitely a conclusive report as per the provisions of the evidence act. The counsel for the appellant prays to allow this appeal and also to set aside the impugned order passed by the Forum below. Heard in detail this Commission perused the entire evidence adduced by the respondent/complainant and the respondent/complainant proved her case by the supporting evidence. The Commission did not seeing any apparent error in the order passed by the Forum below. The Forum below passed the order in accordance with the provisions of law and evidence it is legally sustainable. This Commission uphold the order passed by the Forum below. If the appellant is innocent they can be produced the concerned document related with the supply and sale of this food stuff to the 2nd opposite party and they can prove easily that they did not supply this food stuff to the 2nd opposite party and the 2nd opposite party sold it without the consent and connivance of the appellant.
In the result this appeal is dismissed and confirmed the order passed by the Forum below. The Forum below showed their commitment to the interest of the right of the consumers even though the CDRF is a fact finding body which constituted as per the socially benefited legislature "Consumer Protection Act". The points in the appeal discussed one by one and answered accordingly. No cost ordered.
SRI.M.K.ABDULLA SONA : HON.ACTING PRESIDENT
ps
[ SRI.M.K.ABDULLA SONA] PRESIDING MEMBER