State Consumer Disputes Redressal Commission
Varun Bhardwaj vs 1. Parle Agro Pvt. Ltd., on 11 February, 2014
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, U.T., CHANDIGARH First Appeal No. : 42 of 2014 Date of Institution : 05.02.2014 Date of Decision : 11.02.2014 Varun Bhardwaj s/o Sh.Arun Kumar, resident of House No.3220, Sector 37-D, Chandigarh. ..Appellant/complainant V e r s u s 1. Parle Agro Pvt. Ltd., through its Managing Director, Western Express Highway, Andheri (E), Mumbai 400099. 2. The Managing Director, Parle Agro Pvt. Ltd., Western Express Highway, Andheri (E), Mumbai 400099. 3. Arora Karyana & Confectioner, through Sh.Amar Lal, Booth No.8, Mini Market, Sector 37-D, Chandigarh. ....Respondents/Opposite Parties Appeal under Section 15 of the Consumer Protection Act, 1986. BEFORE: JUSTICE SHAM SUNDER (RETD.), PRESIDENT. MR. DEV RAJ, MEMBER.
MRS. PADMA PANDEY, MEMBER Argued by: Sh. Arun Kumar, Advocate for the applicant/appellant.
PER JUSTICE SHAM SUNDER (RETD.), PRESIDENT This appeal is directed against the order dated 30.10.2013, rendered by the District Consumer Disputes Redressal Forum-I, UT, Chandigarh (hereinafter to be called as the District Forum only) vide which, it accepted the complaint, filed by the complainant (now appellant) and directed Opposite Party No.3 (now respondent no.3), as under:-
For the reasons recorded above, we find merit in the complaint and the same is allowed only against OP No.3 because he sold a cold drink (Frooti) to the complainant, in which a black object was floating inside the bottle, due to which, it could not be consumed by the complainant and the deficiency in service on the part of OP No.3 is proved on this count. At the same time, in the absence of any chemical report, there is no definite evidence on the file to prove that the contents of the bottle were injurious to health. OP No.3 is accordingly directed to make payment of an amount of Rs.10,000/- to the complainant for harassment and mental agony and Rs.5,000/- towards litigation expenses. The complaint fails against OPs No.1 and 2.
This order shall be complied with by OP No.3 within one month from the date of receipt of its certified copy, failing which, OP No.3 shall be liable to refund the above said awarded amount to the complainant along with interest @ 12% p.a. from the date of filing of the present complaint, till its realization, besides costs of litigation, as mentioned above.
2. However, complaint qua Opposite Parties No.1 and 2 (now respondents no.1 and 2), was dismissed, by the District Forum.
3. The facts, in brief, are that the complainant, on 18.11.2012, purchased a frooti bottle of 1.5 litres, in the sum of Rs.65/-, one bread in the sum of Rs.26/- and 12 eggs, in the sum of Rs.48/-, from Opposite Party No.3, vide cash memo, copy whereof, is Annexure C-1. It was stated that the said bottle, as also its contents i.e. frooti, were manufactured by Opposite Parties No.1 and 2. After reaching home, the complainant found that some foreign elements were floating, in the sealed bottle, containing frooti. The video film (CD) of the foreign elements, floating in the said bottle, containing frooti was prepared. It was further stated that, in case, the complainant had consumed the contents of the said bottle, the same would have been hazardous to his life and health. The complainant approached Opposite Party No.3, with the original sealed bottle of frooti aforesaid, and brought the fact of existence of foreign elements therein to its notice, but it showed its inability to help him, in the matter. The complainant was asked to contact Opposite Parties No.1 and 2, being the manufacturer of the said bottle, as also its contents.
4. Thereafter, the complainant approached Opposite Parties No.1 and 2, on telephone, but nobody picked up the same. Legal notice dated 21.11.2012, through email Annexure C-2, was served upon Opposite Parties No.1 and 2, for settlement of the issue. The said email was duly received by Opposite Parties No.1 and 2, but they gave a vague reply, through email, on 22.11.2012, and failed to settle the matter amicably. They demanded various details, which were duly supplied to them, by the Counsel of the complainant, on 29.11.2012, vide email dated 29.11.2012-Annexure C-3. It was further stated that, nobody approached the complainant, for settling the issue, out of the District Forum, which caused great mental torture and harassment to him. Legal notice dated 04.01.2013 Annexure C-4, was also served upon the Opposite Parties, but to no avail. It was further stated that the aforesaid acts of the Opposite Parties, amounted to deficiency, in rendering service, as also indulgence 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, directing the Opposite Parties, to pay compensation, to the tune of Rs.2,00,000/-, for mental agony, physical harassment and damage caused to the reputation of the complainant, deficiency in rendering service; and cost of litigation, to the tune of Rs.50,000/-.
5. Opposite Parties No.1 and 2, in their joint written version, pleaded that there was no proof of purchase of the alleged bottle, containing frooti, from Opposite Party No.3, because the cash memo Annexure C-1, did not bear its (Opposite Party No.3) name, and, as such, the same (cash memo) could not be termed as a bill. It was denied that the said bottle and its contents were manufactured by Opposite Parties No.1 and 2. It was stated that Opposite Parties No.1 and 2, were only the trade mark owners of the name Frooti and had not manufactured the same (bottle or its contents). It was further stated that the said bottle, containing the alleged foreign elements, was kept by the complainant, from 18.11.2012, and despite an application filed by Opposite Parties No.1 and 2, to inspect the same (bottle), it was not produced by him. It was further stated that the complainant had failed to follow the mandatory procedure, prescribed under the Food Safety and Standards Act, 2006, and the Rules framed thereunder. It was further stated that, in the absence of any report of the approved Laboratory, about the quality and status of the said product, no presumption could be drawn, as to the nature of the same. It was further stated that, in the absence of the report, it also could not be determined, as to whether, the bottle was genuine and whether it contained any hazardous material/contents. It was further stated that, as per the details provided by the complainant, it appeared that Epicu Agro Products Pvt. Ltd. may be the manufacturer of the alleged product, and Opposite Parties No.1 and 2, being only the trade mark owners of the name Frooti were, in no manner, responsible for any alleged manufacturing defect, in the same (product). It was further stated that since the manufacturer of the said bottle, was not impleaded as a party, for the reasons best known to the complainant, as such, the complaint was bad for non-joinder of necessary party. It was further stated that neither there was any deficiency, in rendering service, on the part of Opposite Parties No.1 and 2, nor they indulged into unfair trade practice. The remaining averments, were denied, being wrong.
6. Initially, on 18.03.2013, Sh. Neeraj Sobti, Advocate, appeared on behalf of Opposite Party No.3, and filed his memo of appearance. Thereafter, the case was adjourned to 04.04.2013, for filing of vakalatnama, on behalf of Opposite Party No.3, reply and evidence, on behalf of the Opposite Parties. On 04.04.2013, none put in appearance, on behalf of Opposite Party No.3, as a result whereof, it was proceeded against exparte, by the District Forum.
7. The complainant and Opposite Parties No.1 and 2, led evidence, in support of their case.
8. After hearing the Counsel for the complainant, Opposite Parties No.1 and 2, and, on going through the evidence, and record of the case, the District Forum, accepted the complaint, in the manner, referred to, in the opening para of the instant order.
9. Feeling aggrieved, on account of non-grant of relief against respondents No.1 and 2/Opposite Parties No.1 and 2, the instant appeal, has been filed by the appellant/complainant.
10. Alongwith the appeal, an application under Section 5 of the Limitation Act, for condonation of delay of 55 days, was filed by the applicant/appellant, wherein, it was stated that certified copy of the order impugned dated 30.10.2013, was received, by hand, by him, on 12.11.2013. It was further stated that after going through the order impugned, it was decided to challenge the same, in this Commission, for which the case papers were handed over to the Counsel. It was further stated that, however, the said Counsel remained busy, in the treatment of his daughter, who was suffering from stone problem. It was further stated that, on account of this reason, there was delay in filing the appeal. It was further stated that delay, in filing the appeal, was neither intentional, nor deliberate. Accordingly, the prayer, referred to above, was made.
11. We have heard the Counsel for the applicant/appellant, on the application, for condonation of delay, as also, in the main appeal, at the preliminary stage, and have gone through the record of the case, carefully.
12. The Counsel for the appellant/complainant, submitted that since Opposite Parties No.1 and 2 were the manufacturer of drink, which was purchased by the complainant, they were squarely liable, for any defect, in the said product. He further submitted that the plea of Opposite Parties No.1 and 2, that they were only the trade mark owners of the name Frooti, did not absolve them of their liability. He further submitted that the District Forum was wrong, in coming to the conclusion, that Opposite Parties No.1 and 2 being merely the trade mark owners of the name Frooti, could not be held liable, as they could not be termed as manufacturers. He further submitted that the appeal be accepted and the relief claimed by the complainant, against Opposite Parties No.1 and 2, be granted.
13. The first question, that falls for consideration, is, as to whether, there is sufficient cause for condonation of delay of 55 days, in filing the appeal, under Section 15 of the Act or not. It was held in Smt.Tara Wanti Vs State of Haryana through the Collector, Kurukshetra AIR 1995 Punjab & Haryana 32, a case decided by a Full Bench of the Punjab and Haryana High Court, that sufficient cause, within the meaning of Section 5 of the Limitation Act, must be a cause, which is beyond the control of the party, invoking the aid of the Section, and the test to be applied, would be to see, as to whether, it was a bona-fide cause, in as much as, nothing could be considered to be bonafide, which is not done, with due care and attention. In New Bank of India Vs. M/s Marvels (India): 93 (2001) DLT 558, Delhi High Court, it was held as under:-
No doubt the words sufficient cause should receive liberal construction so as to advance substantial justice. However, when it is found that the applicants were most negligent in defending the case and their non-action and want of bonafides are clearly imputable, the Court would not help such a party. After all sufficient cause is an elastic expression for which no hard and fast guide-lines can be given and Court has to decide on the facts of each case as to whether, the defendant who has suffered ex-parte decree has been able to satisfactorily show sufficient cause for non- appearance and in examining this aspect, cumulative effect of all the relevant factors is to be seen.
14. In Oriental Insurance Co. Ltd. vs. Kailash Devi & Ors. AIR 19107 Punjab and Haryana 45, it was held as under:-
There is no denying the fact that the expression sufficient cause should normally be construed liberally so as to advance substantial justice, but that would be in a case where no negligence or inaction or want of bonafides is imputable to the applicant. The discretion to condone the delay is to be exercised judicially i.e. one is not to be swayed by sympathy or benevolence.
15. In R.B. Ramalingam Vs. R.B. Bhuvaneswari, 2009 (2) Scale 108, the Supreme Court observed as under:-
We hold that in each and every case the Court has to examine whether delay in filing the Special Leave Petitions stands properly explained. This is the basic test which needs to be applied. The true guide is whether the petitioner has acted with reasonable diligence in the prosecution of his appeal/petition.
16. In Balwant Singh Vs. Jagdish Singh and Ors, V (2010) SLT 790=III (2010) CLT 201 (SC), it was held as under:-
The party should show that besides acting bona fide, it had taken all possible steps within its power and control and had approached the Court without any unnecessary delay. The test is whether or not a cause is sufficient to see whether it could have been avoided by the party by the exercise of due care and attention. [Advanced Law Lexicon, P. Ramanatha Aiyar, 3rd Edition, 2005]
17. In Mahant Bikram Dass Chela Vs. Financial Commissioner and others, AIR 1977, S.C. 2221, it was held as under:-
Section 5 of the Limitation Act is a hard task-master and judicial interpretation has encased it within a narrow compass. A large measure of case-law has grown around Section 5, its highlights being that one ought not easily to take away a right which has accrued to a party by lapse of time and that therefore a litigation who is not vigilant about his rights must explain every days delay
18. In Ansul Aggarwal Vs. New Okhla Industrial Development Authority, 2012 (2) CPC 3 (SC) it was held as under:-
It is also apposite to observe that while deciding an application filed in such cases for condonation of delay, the Court has to keep in mind that the special period of limitation has been prescribed under the Consumer Protection Act, 1986, for filing appeals and revisions in Consumer matters and the object of expeditious adjudication of the Consumer disputes will get defeated, if this Court was to entertain highly belated petitions filed against the orders of the Consumer Foras
19. A bare reading of the first proviso, engrafted to Section 15 of the Act, makes it clear, that the material part of the language thereof, is pari-materia to Section 5 of the Limitation Act, 1963. In the instant case, the reason, stated in the application, is that, on receipt of the order impugned dated 30.10.2013, by the applicant/ appellant, on 12.11.2013, the same alongwith case papers, for filing an appeal, against the same (order impugned), were handed over to the Counsel, but since, he (Counsel) remained busy, in the treatment of his daughter, who was suffering from stone problem, he could not file the appeal within the normal period of 30 days, stipulated in the Act. It may be stated here that the bald assertion of the applicant that since the Counsel concerned was busy, in the treatment of his daughter, without substantiation, through any cogent material, is of no avail. No medical record, with regard to the treatment of the daughter of the Counsel concerned, who was to file the appeal, from 12.11.2013, when the applicant/appellant received the certified copy of the impugned order, by hand, until the filing of appeal, was produced by the applicant/appellant. Since, the applicant/appellant took a specific stand, as to why the delay occurred, in filing the appeal, it was incumbent upon him, to produce the medical record to substantiate his stand. Once the certified copy of the order, free-of-cost, was received by the applicant/ appellant, by hand, on 12.11.2013, it was his duty, to file the appeal, within the prescribed period of 30 days, but he failed to do so. No doubt, the application, is supported by the affidavit of the complainant, yet, no sufficient cause, is made out, from the averments, contained therein, as also in the application, for condoning the delay. It appears that after receiving the certified copy of the impugned order, the applicant/appellant, slept over the matter and, ultimately, woke up from his deep slumber, after about 55 days, when the instant appeal was filed. It could be said that the applicant/appellant was not diligent, in pursuing the matter. The prescribed period of limitation, as envisaged by Section 15 of the Act, for filing an appeal is 30 days, from the date of receipt of a certified copy of the order. The applicant/appellant did not act, with due diligence, resulting into delay of 55 days, in filing the appeal, which is about two times beyond the prescribed period of limitation. The cause, set up by the applicant/appellant, in the application, for condonation of delay, could not be said to be plausible. The mere fact that the applicant/appellant, acted in a leisure mood, without envisaging the consequences, which could ensue, on account of non-filing of an appeal, within the period prescribed, under Section 15 of the Act, does not mean that he could be shown undue indulgence. The delay, in filing the appeal was, thus, intentional, willful and deliberate. Since, no sufficient cause is constituted, from the averments, contained in the application, the delay of 55 days, cannot be condoned. The principle of law, laid down, in the aforesaid cases, is fully applicable to the facts of the instant case. The application is, thus, liable to be dismissed.
20. The next question, that arises, for consideration, is, as to whether, even if, sufficient cause is shown, it is obligatory, on the Commission, to condone the delay. The answer to this question, is in the negative. In Ram Lal and Ors. Vs. Rewa Coalfields Ltd., AIR 1962 Supreme Court 361, it was held as under:-
It is, however, necessary to emphasize that even after sufficient cause has been shown a party is not entitled to the condonation of delay in question as a matter of right. The proof of a sufficient cause is a discretionary jurisdiction vested in the Court by S.5. If sufficient cause is not proved nothing further has to be done; the application for condonation has to be dismissed on that ground alone. If sufficient cause is shown then the Court has to enquire whether in its discretion it should condone the delay. This aspect of the matter naturally introduces the consideration of all relevant facts and it is at this stage that diligence of the party or its bona fides may fall for consideration; but the scope of the enquiry while exercising the discretionary power after sufficient cause is shown would naturally be limited only to such facts as the Court may regard as relevant.
21. It is evident, from the principle of law, laid down in Ram Lal & Ors.s case (supra), that even if, sufficient cause is shown, then the Court has to enquire, whether, in its discretion, it should condone the delay. This aspect of the matter, requires the Commission, to take into consideration, all the relevant factors, and it is, at this stage, that diligence of the party(s) or its/their bonafides, may fall for consideration. In the instant case, as stated above, it was obligatory, on the part of the applicant/appellant to take immediate steps to ensure that the appeal was filed within the prescribed period, as envisaged by Section 15 of the Act. However, the applicant/appellant, just slept over the matter, and did not take the requisite steps to file the appeal, in time. It was, thus, a case of complete lack of bonafides and inaction, on the part of the applicant/appellant. The principle of law, laid down in Ram Lal & Others case(supra) is fully applicable to the instant case. This is, therefore, not a fit case, in which this Commission, should exercise its discretion, in favour of the applicant/appellant, in condoning the delay.
22. Even, on merits, the appeal is liable to be dismissed, at the preliminary stage, for the reasons, to be recorded hereinafter. The District Forum was right, in holding that the complainant purchased frooti bottle of 1.5 litres, alongwith one bread and 12 eggs, from Opposite Party No.3, on payment of Rs.139/-, on 18.11.2012, vide cash memo, copy whereof is Annexure C-1. When some foreign elements were found floating, in the sealed bottle, containing frooti, the complainant took the same, to Opposite Party No.3, which expressed its helplessness, in addressing his grievance, and asked him to approach the manufacturer. The District Forum was also right, in holding that the frooti bottle contained some small/black object. The question, that falls for consideration, is, as to whether, Opposite Parties No.1 and 2, were the manufacturers of the product, which was purchased by the complainant, from Opposite Party No.3. No document was produced, on the record, to prove that the frooti bottle, in question, or the contents thereof, were manufactured by Opposite Parties No.1 and 2. The bottle containing frooti, which was purchased by the complainant, from Opposite Party No.3, was produced before the District Forum, and it was found that the same was manufactured by Epicu Agro Products Pvt. Ltd., Village Mohra, Ambala 133001, Haryana under licence from Parle Agro Private Limited. Opposite Parties No.1 and 2, specifically stated, in their written version, that they were only the trade mark owners of the name Frooti and had not manufactured the bottle or its contents. This assertion of Opposite Parties No.1 and 2 was duly corroborated through the affidavit of Mr.Deep Chand, their Assistant Legal Manager. They also specifically pleaded that the complaint was bad for non-joinder of necessary party i.e. the manufacturer of the said bottle, as also the contents thereof. Had any evidence to the contrary been produced by the complainant, that Opposite Parties No.1 and 2 were actually the manufacturers of the bottle and its contents, the matter would have been different. The District Forum was, thus, right in holding that Opposite Parties No.1 and 2 were not the manufacturers of the bottle and its contents, but were only the trade mark owners of the name Frooti.
23. In M/s Sonal Food Products and others Vs. State through Food Inspector (PFA) Government of NCT of Delhi 2007(1) FAC 1, it was held by the Delhi High Court that the person, who is the owner of the brand name, need not be the manufacturer of the food articles, sold under the brand name, and, in case, there is no link between the owner of the brand name, and the manufacturer of the food article, then merely because the brand name had been permitted to be used by the manufacturer, the owner of the brand name could not be implicated. In the instant case also, Opposite Parties No.1 and 2, being only the trade mark owners of the name Frooti and not manufacturers of the bottle or contents thereof, could not be held liable, in any manner, to compensate the complainant.
24. The District Forum, was, thus, right, in holding that Opposite Parties No.1 and 2, were neither deficient, in rendering service, nor indulged into unfair trade practice, and, as such, they could not be fastened with any liability, regarding payment of compensation, to the complainant. The order of the District Forum, being legal and valid, is liable to be upheld.
25. For the reasons recorded above, the application for condonation of delay, is dismissed. Consequently, the appeal, filed by the appellant, is also dismissed, at the preliminary stage, being barred by time, as also on merits, with no order to costs.
26. Certified copies of this order, be sent to the parties, free of charge.
27. The file be consigned to Record Room, after completion Pronounced.
February 11, 2014 Sd/-
[JUSTICE SHAM SUNDER (RETD.)] PRESIDENT Sd/-
(DEV RAJ) MEMBER Sd/-
(PADMA PANDEY) MEMBER Rg