State Consumer Disputes Redressal Commission
M/S Parkash Chand Anchal Kumar vs Gurpreet Singh & Anr. on 2 April, 2014
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, DAKSHIN MARG, SECTOR-37A, CHANDIGARH
FIRST APPEAL NO. 2068 OF 2010
Date of Institution: 06.12.2010
Date of Decision: 02.04.2014
M/s Parkash Chand Anchal Kumar, Main Bazar, Barnala, Tehsil and
District Barnala through its Proprietor Anchal Kumar son of
Sh.Parkash Chand.
.....Appellant/Opposite Party No.2
VERSUS
1. Gurpreet Singh son of Darshan Singh, resident of Pakho Kalan,
Tehsil Tapa, District Barnala.
.....Respondent/Complainant
2. Proprietor/Producer Darshan Gera, Gram Udyog Samiti, Regd.,
Plot No.27, Kotkapura Road, Near Mai Godri Gurudwara,
Faridkot, District Faridkot.
.....Respondent/Opposite Party No.1
FIRST APPEAL NO. 2075 of 2010
Date of Institution: 07.12.2010
Date of Decision: 02.04.2014
Darshan Gera Gram Udyog Samiti, Regd., Plot No.27, Kot Kapura
Road, Near Mai Godri Gurudwara, Faridkot, District Faridkot through
its Secretary Vinod Kumar.
.....Appellant/Opposite Party 2
VERSUS
1. Gurpreet Singh son of Darshan Singh, resident of Pakho Kalan,
Tehsil Tapa, District Barnala.
.....Respondent/Complainant
2. M/s Parkash Chand Anchal Kumar, Main Bazar, Barnala,
Tehsil and District Barnala.
.....Respondent/Opposite Party No.1
First Appeals against the order
dated 28.10.2010 passed by the
District Consumer Disputes
Redressal Forum, Barnala.
First Appeal No.2068 of 2010 Page 2 of 9
&
First Appeal No.2075 of 2010
Quorum:
Hon'ble Mr.Justice Gurdev Singh, President
Sh.Baldev Singh Sekhon, Member
Smt.Surinder Pal Kaur, Member Present in First Appeal No.2068 of 2010:
For the appellant : Sh.Tribhuwan Singla, Advocate For respondent No.1 : Sh.Sarwinder Goyal, Advocate For respondent No.2 : Sh.Ashish Gupta, Advocate BALDEV SINGH SEKHON, MEMBER This order shall dispose of above referred two appeals which have been preferred against the order dated 28.10.2010 passed by the District Consumer Disputes Redressal Forum, Barnala (in short "District Forum"), vide which the complaint filed by the complainant, Gurpreet Singh, was allowed and the opposite parties were directed jointly and severely to pay Rs.25,000/- as punitive compensation to him alongwith Rs.5,000/- as litigation expenses.
2. The facts, as stated in the complaint, are that the complainant purchased 1 KG jar/container of "Gera Special Amla Moraba", manufactured by opposite party No.1 i.e. Darshan Gera Gram Udyog Samiti, from opposite party No.2 i.e. M/s Parkash Chand Anchal Kumar on 15.3.2010 for a sum of Rs.80/-. He demanded bill/cash memo for the same but opposite party No.2 refused to issue the same on the plea that opposite party No.1 had not issued any bill at the time of sale of the same to it. On reaching his house when he tried to open the jar, all of a sudden he noticed presence of some dark black substance in the sealed jar, in question, and on detailed checking, he was shocked to find dead insect in the said container. It was only then that he came to know that this product was manufactured by opposite party No.1 and its weight was given as 1 KG. The container was First Appeal No.2068 of 2010 Page 3 of 9 & First Appeal No.2075 of 2010 sealed one and extra slip, showing the date of manufacture as October, 2009, was pasted on it. Apparently, the container was containing adulterated Amla Moraba which was not fit for human consumption. Had he consumed the same, he must have fallen sick. Thus, opposite party No.1 was guilty of manufacturing and packing substandard material and opposite party No.2 was guilty of selling the same to people at large and the complainant in particular because the consumption of the said adulterated Moraba would have been injurious to his health. Alleging that the opposite parties indulged in the sale of adulterated product and adopted unfair trade practice, the complainant filed complaint before the District Forum seeking compensation to the tune of Rs.50,000/- for the said acts on the part of the opposite parties alongwith Rs.10,000/- as litigation expenses.
3. Upon notice, opposite party No.1, in its written reply, pleaded that the complainant has unnecessarily dragged it into unwarranted litigation. In an application filed before the District Forum on 28.5.2010, he requested to inspect the alleged 1 KG jar which was lying in the custody of the District Forum and when the same was inspected in the presence of the parties and their counsel no material, as alleged in the complaint, was found in it. No batch number/date of manufacture and date of expiry was mentioned on the label. In fact batch number, date of manufacture and date of expiry is always printed on the label of every product manufactured by it and no extra slip is pasted on any of the product. The said complaint was filed against the facts with the malafide intention just to harass and pressurize it. It was specifically denied that the complainant First Appeal No.2068 of 2010 Page 4 of 9 & First Appeal No.2075 of 2010 purchased the said container containing 1 KG Gera Special Amla Moraba manufactured by it from M/s Parkash Chand Anchal Kumar, Main Bazar, Barnala on 15.3.2010 for a sum of Rs.80/-. The presence of any insect in the jar, as alleged by the complainant, or the product being unfit for human consumption was denied. Dismissal of the complaint was prayed.
4. Opposite party No.2 filed separate written reply pleading therein that the complainant was estopped from filing the complaint by his own act and conduct. The averments made in the complaint are false and frivolous and the complainant filed the present complaint with malafide intention just to blackmail it with the intention of securing unjust enrichment. It was a case of total mis-conceived approach of the complainant and gross abuse of the process of law. It was specifically denied that the complainant had purchased 1 KG jar/container of Gera Special Amla Moraba manufactured by opposite party No.1 from it on 15.3.2010. It pleaded that the complainant fabricated a false story of purchase of the product. It never purchased or further sold the aforesaid product at any point of time. So the question of purchasing the same by the complainant from it did not arise at all. Denying all other allegations, dismissal of the complaint was prayed.
5. The parties led their evidence by way of affidavits and documents.
6. The learned District Forum, after going through the pleadings of the parties and evidence on the record, allowed the complaint in the aforesaid terms.
First Appeal No.2068 of 2010 Page 5 of 9
& First Appeal No.2075 of 2010
7. Aggrieved by the order, opposite party No.1 has preferred First Appeal No.2075 of 2010 on the ground that inspection of the questioned jar/container of the Moraba was carried out before the District Forum in the presence of both the parties and their counsel but no such foreign material, as alleged in the complaint, was found in the said jar. Since the said black material/dead insect was not found present, thus the complaint cannot be said to be bonafide. The District Forum has passed the impugned order by merely relying upon the sole evidence of the complainant himself by way of affidavit which cannot be said to be cogent and reliable evidence. Since the complainant did not consume the said Moraba, therefore, no loss can be said to have occurred to him and the compensation awarded was merely on the ground of assumption and presumption. The report of the Public Analyst was relied upon by the District Forum which stated that the said Moraba was adulterated and unfit for the consumption but the said report is not based on true facts. The said Moraba was purchased by the complainant on 15.3.2010 whereas the perusal of the said report shows that sample for testing was received by the public analyst on 18.8.2010 i.e. after the expiry of five months. Moraba is a sweet item and the possibility of cropping up of any dead insect during the said period of five months cannot be ruled out. Moreover, the said report was not in consonance with the physical check up of the said container before the District Forum. Moreover M/s Parkash Chand Anchal Kumar was not their authorised agent, as has been alleged by the complainant, therefore, the question of having sold the First Appeal No.2068 of 2010 Page 6 of 9 & First Appeal No.2075 of 2010 said product to the complainant through it did not arise. Acceptance of the appeal and setting aside of the impugned order was prayed.
8. In the First Appeal No.2068 of 2010, preferred by opposite party No.2, it was submitted that the complainant had merely made an oral statement that he purchased the product from it without production on record any bill or evidence in this regard. When the complainant was cross-examined before the District Forum, he even could not point out the location of the shop of opposite party No.2 which clearly showed that he had never visited their shop. Moreover, opposite party No.1 has also categorically stated that opposite party No.2 is not their authorised dealer. Hence the question of purchasing the same from them and selling it to the complainant did not arise. The affidavit of Sh.Ram Lal (RW2/A), the affidavit of Sh.Anchal Kumar, Proprietor of opposite party No.2 (Ex.RW3/A), affidavit of Accountant, Sh.Surinder Kumar RW4/A and affidavits of Sh.Sita Ram, Ashok Kumar and Gurmail Singh RW5/A, RW6/A and RW7/A, respectively prove the factum that they are not selling the Amla Moraba produced by Darshan Gera Gram Udyog Samiti, Faridkot. In fact they are selling only the Amla Moraba, which is purchased from Ram Saran and Sons, Amritsar. The complainant is habitual of filing false complaints and had earlier filed one similar complaint dated 22.4.2010 against Janta Bakery House, Barnala and in that complaint also he represented a similar story. Acceptance of the appeal and setting aside of the impugned order was prayed.
9. We have thoroughly gone through the pleadings of the parties and have carefully perused the evidence on record. First Appeal No.2068 of 2010 Page 7 of 9
& First Appeal No.2075 of 2010
10. There is no admitted fact in this case. As per the version of the complainant, he purchased 1 KG of Gera Special Amla Moraba, manufactured by opposite party No.1 through opposite party No.2 on 15.3.2010 for a sum of Rs.80/-. No receipt was issued by opposite party No.2 inspite of his insistence. This fact has been categorically denied by opposite party No.2. However, the said jar containing Moraba was produced before the District Forum on 5.5.2010. Counsel for opposite party No.1 moved an application on 28.5.2010 for inspection of the container before filing of their written reply. Accordingly, the jar was opened in the District Forum in the presence of the learned counsel for the respective parties and it was observed that the seals of the pack were intact and were not tampered with. The reader of the District Forum was directed to reseal the pack and keep it in safe custody. On 16.7.2010, the cover of the jar was removed and the jar was properly watched from outside to exactly know whether any insect was inside the jar or not but the Forum was unable to come to any final conclusion and it was ordered to be sent to the laboratory at Sector 11, Chandigarh to ascertain the facts. In the report of the Govt. lab (Ex.C-Z), it is concluded as under:-
"The total Soluble solid of the contents of the sample is 56.1% against the prescribed minimum standard of 65.0%. The contents also contain body parts of dead insects. Hence adulterated and unfit for human consumption."
11. It is, thus, evident that the jar containing Moraba, tendered before the District Forum, was adulterated one and unfit for human consumption. Even though its purchase by the complainant from First Appeal No.2068 of 2010 Page 8 of 9 & First Appeal No.2075 of 2010 opposite party No.2 is not fully established but the fact remains that the said jar of Moraba had a label on it which clearly showed that the same was packed and manufactured by opposite party No.1. Moreover, when the jar containing Moraba was inspected by the District Forum, it was not disputed that the product of jar was manufactured by opposite party No.2. They are, therefore, held responsible for selling substandard product by adopting unfair trade practice.
12. The complainant has not been able to establish that he had actually purchased the jar of Moraba from opposite party No.2 as no bill was proved on record. Moreover the complainant, during his cross-examination before District Forum, could not specify the location of the shop of opposite party No.2 from where he reportedly bought the product. It proves that he might not have actually bought the Moraba from the shop of opposite party No.2. Opposite party No.2 is, therefore, absolved of the liability for the sale of the substandard product.
13. In view of the above discussion and findings, First Appeal No.2068 and 2010, filed by the opposite party No.2 is accepted and the complaint is dismissed qua it. However, First Appeal No.2075 of 2010, filed by opposite party No.1, is dismissed and the impugned order dated 28.10.2010 is affirmed and upheld and the amount awarded by the District Forum is ordered to be paid by opposite party No.1 only. No order as to costs.
14. Appellant/opposite party No.2 in First Appeal No.2068 of 2010 deposited an amount of Rs.15,000/- with this Commission at the time First Appeal No.2068 of 2010 Page 9 of 9 & First Appeal No.2075 of 2010 of filing of the appeal. This amount alongwith interest which has accrued thereon, if any, be remitted by the registry to appellant/opposite party No.2, by way of a crossed cheque/demand draft, after the expiry of 45 days under intimation to the learned District Forum.
15. Appellant/opposite party No.1 in First Appeal No.2075 of 2010 deposited an amount of Rs.15,000/- with this Commission at the time of filing of the appeal. This amount alongwith interest which has accrued thereon, if any, be remitted by the registry to respondent No.1/complainant, by way of a crossed cheque/demand draft, after the expiry of 45 days under intimation to the learned District Forum.
16. The arguments in these appeals were heard on 27.3.2014 and the orders were reserved. Now, the orders be communicated to the parties.
17. The appeals could not be decided within the statutory period because of the heavy pendency of the court cases.
18. Copy of this order be placed in First Appeal No.2075 of 2010 (Darshan Gera Gram Udyog Samiti V/s Gurpreet Singh & anr.).
(JUSTICE GURDEV SINGH) PRESIDENT (BALDEV SINGH SEKHON) MEMBER (SURINDER PAL KAUR) MEMBER April 02, 2014 VINAY