State Consumer Disputes Redressal Commission
Pramod Kaviya vs Mahaveer Sharma Pro Ganpati ... on 2 February, 2023
REPORTABLE
BEFORE THE RAJASTHAN STATE CONSUMER
DISPUTES REDRESSAL COMMISSION, JAIPUR
FIRST APPEAL NO: 206/2022
Pramod Kaviya S/o Mr. Sambaldaan Kaviya, R/o A-111
Tara Nagar, Jhotwara, Jaipur, Rajasthan.
...Appellant/Complainant
Vs.
1. Mahaveer Sharma, Proprietor of Ganpati
Departmental Store, Shop no. 1, Tara Nagar-A,
Jhotwara, Jaipur, Rajasthan.
2. Marketing by Parle Biscuit Pvt. Ltd. North Level
Crossing, Vile Parle, East Mumbai- 400057.
3. Manufactured by Kushal Foods Pvt. Ltd. 848,
Fatehpur Roshnai, Vidhayakpur, Kalp Road, NH-2,
Raniya, Kanpur Dehaat U.P. - 208001.
...Respondents/Non-complainants
Date of Order : 02.02.2023
Before:
Hon'ble Mr. Atul Kumar Chatterjee-Member Judicial
Hon'ble Mrs. Shobha Singh-Member
Present:
Mr. Sunil Kumar Chaubey learned counsel for the appellant/complainant 2 Mr. Divesh Sharma & Yashika Gupta for the respondent/non-complainant no. 2 Mr. J.P. Yadav & Mr. Ravindra Singh Arora for the respondent/non-complainant no. 3 BY THE STATE COMMISSION (PER HON'BLE MR.
ATUL KUMAR CHATTERJEE, MEMBER JUDICIAL):
This appeal has been preferred by the appellant/complainant against judgment dated 31.03.2022 passed by learned District Consumer Disputes Redressal Commission Jaipur-I in its complaint no. 884/2012 whereby the complaint of the appellant/complainant was partly allowed against the respondent/non-complainant no. 1 and was dismissed to the extent of respondents/non-complainants no. 2 & 3.
In this matter the appellant/complainant had filed a complaint under section 12 of Consumer Protection Act, 1986 on 23.7.2012 stating therein that the complainant had purchased from respondent/non-complainant no. 1 ten Parle biscuits valuing Rs. 20/- alongwith other articles paying total amount of Rs. 185/- on 13.07.2012. As per complainant while the complainant was eating the biscuit after unwrapping the packet an iron ring touched to the palate of the complainant and it started bleeding. When the complainant took the biscuit out he found that there was an iron ring inside the biscuit. It caused 3 grave mental agony to complainant and he had to rush to the nearby situated dental hospital and consulted Dr. Rohit Saraswat after paying the visiting fee of Rs. 50/-. He took the treatment as per his advice and had to incur Rs. 114.22/- on treatment. Alleging unfair trade practice against the non-complainants the complainant prayed for granting relief of Rs. 164/- incurred on medicines and visiting fee, Rs. 15 lakhs as compensation in lieu of mental agony and Rs. 11,000/- as cost of litigation.
The respondent/non-complainant no. 1 in his reply had admitted that he did sale on 13.7.2012 of parle biscuits along with other articles. He also admitted that an iron ring was lying inside the biscuit and it hurt the mouth of the complainant. According to him complainant had shown the iron ring and made an oral complaint in this regard whereupon he conveyed that since the packed biscuit belong to Parle Co. as such the company was responsible for the defect. He had also admitted that injury was caused inside the mouth of the complainant.
Respondents/non-complainants no. 2 & 3 marketing agency and manufacturer of the biscuit respectively had in their separate replies averred that the respondent had only submitted a hand written bill on a simple piece of paper without revealing the details viz. from where and when the goods were purchased. Besides this the name of the vendor shop or its 4 address was also not revealed and that the complainant had not produced the said iron ring which was alleged to have been found inside the biscuit. Both the respondents/non-complainants have also stated that no report of any expert whatsoever has been submitted by the complainant as such alleging the entire action of complainant to have been manipulated to shift the liability on both the respondents/non-complainants no. 2 & 3. They have prayed for dismissing the complaint with costs.
For appellant/complainant the hand written receipt, Rs. 50 doctor's fee receipt, prescription of Dr. Rohit Saraswat dated 13.7.2012, invoice of medi plus, photograph of biscuit and other documents as stated in para 6 of impugned judgment were adduced. For respondents/non-complainants no documentary evidence was adduced. The learned DCC Jaipur- I passed the impugned judgment dated 31.3.2022 on the basis of the pleadings of all the parties and the evidence of appellant/complainant and has fixed the liability on the respondent/non-complainant no. 1, vendor and had dismissed the complaint to the extent of respondents/non-complainants no.
2 & 3.
During the course of argument in this appeal the learned counsel for the appellant/complainant had more or less reiterated the facts contained in the memo of appeal whereas for 5 respondent/non-complainant no. 1, vendor, Mahaveer Sharma proprietor, Ganpati Departmental Store, Jhotwara, Jaipur none remained present before this commission despite service of notices of appeal. Respondents/non-complainants no. 2 & 3, who happened to be marketing agency and manufacturer of the biscuit respectively, have been represented by their counsels. For respondent/non-complainant no. 2 written arguments of appeal have been submitted which are more or less in the shape of reply of the memo of appeal. For respondent/non- complainant no. 3, manufacturer the learned counsel has argued orally. Both the learned counsels have vehemently opposed the contentions of the learned counsel for the appellant/complainant and have supported the impugned judgment dated 31.3.2022 of the learned DCC Jaipur-I as being perfect factually and legally. According to them there is no ground to interfere in the impugned judgment.
We have pondered upon the contentions advanced by the learned counsels, appellant/complainant as well as respondents no. 2 & 3 and have gone through the entire record.
It is more or less undisputed that appellant/complainant had not filed any printed invoice/bill in respect of the packet of parle biscuit which was containing the biscuit comprising of an iron ring inside it and which caused injury inside the mouth of 6 the appellant/complainant. The learned DCC Jaipur-I has rightly, after elaborately discussing the averments and evidence of all the parties stated that there is a conspicuous lack of link which would suggest that the disputed packet of parle biscuit ,which allegedly contained biscuits with iron ring inside, was manufactured or marketed by respondent/non-complainant no. 3 & 2.
Report of laboratory dated 19.11.2014 is available on record which shows that no iron ring was found inside the sample of biscuit forwarded for examination. The learned District Commission has in para no. 7 of the impugned judgment mentioned that from the correspondence which took place between the District Commission and the laboratory would reveal that there was a lack of co-ordination between the two because no reply to the letter of the food analyst dated 18.3.2014 was given by the District Commission and subsequently vide order dated 18.11.2014 another sample of biscuit was forwarded to the laboratory in respect of which the above mentioned report of 19.11.2014 was submitted. The learned DCC has in the same paragraph mentioned that since the existence of iron ring was very clear from the photographs submitted by the appellant/complainant and this fact was more or less literally/completely admitted by respondent/non-complainant 7 no. 1, the vendor therefore as per learned District Commission so far as non-respondent/non-complainant no. 1 the vendor is concerned no further evidence was required.
So far as respondents/non-complainants no. 2 & 3 are concerned the learned District Commission in para no. 15 of the impugned judgment has clearly mentioned that as against respondents/non-complainants no. 2 & 3 the averments as well as evidences adduced by the appellant/complainant was grossly insufficient to establish the fact of biscuits marketing and/or manufacturing. We are completely in agreement with the view taken by the learned District Commission regarding the liability of respondents/non-complainants no. 2 & 3.
During the course of arguments in appeal the learned counsel for the appellant/complainant had laid emphasis on the fact that since admittedly the packet of biscuit belong to Parle Co. as such without going into the technicalities the liability must have been fastened upon the Parle Co. and the manufacturer too. We are unable to adhere to the above contention of the learned counsel for the appellant/complainant. In our humble view under Consumer Protection Act 1986 a consumer has to clearly establish relation between him and the non-complainants as complainant and service providers and since admittedly except the hand written receipt of Rs. 185/- 8 according to which the one packet of parle biscuit was procured alongwith other items from respondent/non-complainant no. 1 and no further evidence whatsoever was adduced to establish that how the disputed packet of parle biscuit was the same which was manufactured by respondent/non-complainant no. 3 and was eventually marketed by respondent/non-complainant no. 2 and had ultimately passed to the hands of respondent/non- complainant no. 1, the vendor and in these circumstances lack of substantial links in establishing the relation of consumer and service provider between appellant/complainant on one hand and the respondents no. 2 & 3 on the other hand the complainant had utterly failed. In the given circumstances on the basis of the averments and evidence of appellant/complainant and particularly the admission of the respondent/non- complainant no. 1, the vendor, the relation of consumer and service provider is clearly established between appellant/complainant & respondent/non-complainant no. 1. In this way the learned District Commission has rightly fixed liability over respondent/non-complainant no. 1 who was admittedly the vendor of the disputed biscuit packet.
On the basis of above discussion we arrive at a conclusion that so far as respondents/non-complainants no. 2 & 3 who are the marketing agency and the manufacturer of the biscuit 9 respectively, the case of complainant is not at all established and/ or proved but the same is established as well as proved against respondent/non-complainant no. 1, the vendor and in our humble view the learned District Commission has rightly awarded compensation against him alone.
In our humble view the grounds on which the appeal has been filed by the appellant/complainant to grant relief against respondents/non-complainants no. 2 & 3 does not deserve to be allowed. As such the appeal is held to be devoid of merits hence, the same is hereby dismissed. No costs.
(Shobha Singh) (A.K.Chatterjee) Member Member Judicial