Dated : 18/09/2015 PER: - HONBLE JUSTICE SHRI R.S. SHARMA, PRESIDENT This order will govern disposal of Appeal No. FA/14/481 as well as Appeal No. FA/14/489, which have been preferred respectively by the O.P.No.1 & O.P.No.3 and O.P.No.4 of Complaint Case No.1057/2011 against the order dated 09.06.2014, passed by District Consumer Disputes Redressal Forum, Raipur (C.G.) (henceforth District Forum), whereby the complaint filed by the complainant Punit Parikh, has been partly allowed, and learned District Forum has directed the OPs to pay within a period of one month from the date of order jointly and severally a sum of Rs.120/- which is price of the juice. The OPs have further been directed to pay a sum of Rs.50,000/- towards compensation for mental agony, Rs.10,000/- towards compensation for pain, and Rs.10,000/- towards advocate fees and cost of litigation to the complainant. // 3 //
2. The O.P.No.1 & 3 have filed Appeal No. FA/14/481 and O.P.No.4 has filed Appeal No.FA/14/489 for setting aside the impugned order passed by the learned District Forum. The original of this order be retained in the file of Appeal No.FA/14/481 and it's copy be placed in the file of Appeal No.FA/14/489.
3. Briefly stated the facts of the case of the complainant are that the complainant visited Big Baazar, Branch City Center Mall, Devendra Nagar, Raipur (C.G.) on 11.09.2011 at about 17.00 hrs. and purchase some items including two packed saint juice (apple juice) of 01 Liter each . at that time the sale scheme / offer price is Rs.60/- each (approx.), M.R.P. Rs.80/- (approx.) available on each pack. The complainant get 02 pack of saint juice of 01 Liter each. The bill No.0176974 was issued and paid by the complainant. Before leaving the Mall, the complainant planned to purchase one more pack and he saw that saint juice (apple juice) has expired / best before use has passed and still then they were selling the juice. So the complainant immediately checked his purchased juice which were already expired, and best before use date has elapsed. The complainant got surprised and shocked that how the branded shop were selling the defective goods to the customers which comes in unfair trade practice and is hazardous to health. The saint juice (apple juice) which the complainant purchased was of Lot No.A-001, Manufacture/Packed dated 04.01.2011 and best before use / expiry date 03.09.2011 mentioned in the // 4 // juice packet. They were selling the goods to the customers by this way "the Big Baazar" is intentionally playing with the health of children and customers, the above descripted goods suffer from the defect and hazardous to life of customers and directly are contravention the law and OPs have adopted the unfair trade practice to sell the product to the customer by offering discounted price on the expired goods. After getting the knowledge, the complainant went to the counter and said to the OPs about the defect and expiry date/best before use. But, the complainant surprised and shocked that the person refused to take back, replace the juice, refund the price and behave rudely, harshly and replied no return/exchange/refund will be done and the OPs have to take the juice with themselves and do what you can do. Then the complainant reported the matter to the City Centre Mall Administrator / Incharge / Receptionist and they replied why they are taking the matter so seriously leave it and forget it you have not drink the juice till now, the price of the juice is very less don't make it any issued and no action of any type was taken by the Mall Authority by this way they have joined hands with the Big Bazaar for their unfair trade practice. the complainant informed and submitted the written complaint on the same day in Police Station, Devendra Nagar, Raipur dated 11.09.2011. If after drinking the expiry dated juice the chemical reaction take place and the juice is not fit for consumption and converts into poison, then the situation can go beyond the control and imagination and severe food poisoning and digestive related problems can // 5 // take place and medical bill and expenses are too high now-a-days. By selling the saint juice/fresh apple juice after expiry date/best before us the branch office, Raipur, head office the future group, Mumbai, and the manufacturer Parle Agro Pvt. Ltd. Mumbai violated and contravened the Food Safety and Standard Act, 2006, Consumer Protection Act, 1986 and Indian Penal Code. Hence the complainant filed consumer complaint before the District Forum and prayed for granting reliefs as mentioned in the complaint.
4. The O.P.No.1 filed its written version and averred that the O.P.No.1 is a well known and respectable company which purchased products from the different well known outlets. O.P.No.1 is known for it's quality and customer friendly services. O.P.No.1 is successfully running its several outlets/shops in the various cities of India. The administrative and quality control wing/staff of the O.P.No.1 always keep an eye on the expiry/best before use date of various products available at the outlet/shop and removes expired products from display without failure. The complainant has not produced any proof or document which shows that what items complainant purchased or which juice was purchased by the complainant on 11.09.2011. The bill no.0176974 which complainant mentioned in the compliant does not belong to complainant and never ever given to complainant. The complainant has not produced any details regarding the batch number, lot number, manufacturing date or any other details of the aforesaid juice, which creates sufficient doubt that whether complainant // 6 // really purchased the aforesaid juice or not ? The bill no.0176974 which was not produced by the complainant before the District Forum does not give any information regarding the expiry / best before date of the aforesaid juice. The complainant lodged a false and baseless complaint at the Police Station Devendra Nagar, Raipur on which police has not taken any action so far. The complainant has malafide intention against the O.P.No.1 and has not come with clean hands before the District Forum. The complaint is liable to be dismissed.
5. The O.P.No.2 filed its written statement and averred that the O.P.No.2 is engaged in the business of Infrastructure and is smoothly running the Mall namely Chhattisgarh City Center Mall, situated at Mahalaxmi Cloth Market, Devendra Nagar, Pandri, Raipur. The O.P.No.2 is nowhere concerned with the business which the license holdrs / shop owners are doing in the said Mall. The O.P.No.2 is engaged with regard to recovery of License fees, Electricity Consumption Charges, Water Charges, Common Area Maintenance Charges etc. from the license holders and shop owners who are running their business / shops at their respective premises. There is no relationship between the complainant and O.P.No.2 and the present dispute is only between the complainant and other OPs except O.P.No.2. The complainant had purchased the product from the O.P.No.1 and it is foremost duty of the buyer / complainant to check the product details at the time of purchase and if there is any doubt in regard to any product the complainant should verify the same with seller / // 7 // O.P.No.1. The O.P.No.2 is no way concerned with the complaint filed by the complainant as it is the duty of the complainant to take precautions at the time of purchase of any food product. There is no substance in the complaint and on this ground, the complaint filed by the complainant is liable to be dismissed. The O.P.No.2 further averred that on 11.09.2011 it was Sunday and on each and every Sunday there is no working and the office of the Mall Authority is being kept as closed towards weekly off. On 11.09.2011, the office of the O.P.No.2 was closed and there was nobody present. The allegations made by the complainant against the O.P.No.2 are totally false, frivolous and concocted and therefore, denied in toto. The O.P.No.2 is no way concerned with the sell and purchase dealings between the complainant and other OPs. The complainant just to harass the O.P.No.2 had unnecessarily dragged the O.P.No.2 in the complaint. The complaint is liable to be dismissed.
6. Before the District Forum, inspite of service of notice through registered post, the O.P.No.3 did not appear and did not file written statement and documents, therefore, O.P.No.3 was proceeded ex-parte.
7. The O.P.No.4 filed it written statement and raised preliminary objections and averred that the present complaint nowhere discloses any cause of action for filing of the present complaint against the OPs, much less the O.P.No.4. The present complaint is baseless, false, fabricated and frivolous and all the allegations made against the OPs are far from truth // 8 // and are in nature of conjectures and surmises and devoid of any truth and as such the present complaint is an abuse of process of law. Hence the present complaint deserves to be dismissed in limine with cost. The complainant had failed to establish that he is the consumer of the product allegedly manufactured and marketed by the O.P.No.No.4, as the O.P.No.4 has not sold the product in question to the complainant, as such there is no nexus or relationship of buyer and seller between the complainant and O.P.No.4 and thus there is no privity of contract between the complainant and O.P.No.4. The complainant has not furnished the copy of the Bill No.0176974 relating to the products viz 2 Nos. Saint Juice of 1 Liter each allegedly purchased from O.P.No.1 The complainant is not a consumer within the meaning of Section 2(1)(d) of the Consumer Protection Act, 1986 as amended and therefore, the complaint deserves to be dismissed with cost. The O.P.No.4 has verified its own records and also made inquiries with the O.P.No.1 and the O.P.No.4 has been informed that as per the business practice and procedures, the O.P.No.1 removes the near expiry stock of the product from the shelf at least 15 days before the expiry of the product and therefore, the allegations leveled by the complainant that the O.P.No.1 has sold the impugned product is false and the allegations are totally false and fabricated and seems to have been made with malafide intention and ulterior motive. he Lot No.A-001 and the date of manufacture of product has been manufactured at the O.P.No.4's Patendcheru Plant in Medak District (A.P.) and was supplied to the // 9 // O.P.No.1 through the Distributor. The products were sold and delivered to O.P.No.1 through the Distribution Network of the O.P.No.4 and after the supply of the products to the O.P.No.1 the ownership in the said product was transferred to O.P.No.1 upon the acceptance of the delivery of the said product. The complaint is totally based on false, fabricated and concocted story and the complainant the District Forum with unclean hands with malafide intention and ulterior motive not only to defame and tarnish the reputation of OPs . The complaint is liable to be dismissed.
8. Learned District Forum, after having considered the material placed before it by the parties has allowed the complaint and directed the OPs to pay compensation to the complainant, as mentioned in the complaint.
9. In Appeal No.FA/14/481, the O.P.No.No.1 & O.P.No.3 (Appellants of FA/14/481) have filed an application under Order 41 Rule 27 CPC along with a document containing details of receipts issued on 11.09.2011
10. We have heard the parties on application filed by the O.P.No.1 & O.P.No.3 (Appellants of Appeal No.FA/14/481) under Order 41 Rule 27 CPC.
11. The O.P.No.1 & O.P.No.3 sought permission to file document containing details of receipts issued on 11.09.2011, at the appellate stage as additional evidence. // 10 //
12. Looking to the facts and circumstances of the case, it appears that the aforesaid document, is essential for proper adjudication of the case. If the said application is allowed and above document is taken on record as additional evidence at the appellate stage, then it will appropriate to give proper opportunity to the complainant and O.P.No.2 & O.P.No.4 to file documents in rebuttal of the above document and the matter will be required to send back to the District Forum for reconsideration.
13. Looking to the facts and circumstances of the case, the application filed by the O.P.No.1 & 3 (Appellants of Appeal No.FA/14/481) under Order 41 Rule 27 CPC, is allowed and the above document filed by the O.P.No.1 & 3 at the appellate stage, is taken on record as additional evidence.
14. In view of aforesaid discussion, we deem it appropriate to set aside the impugned order dated 09.06.2014, passed by the District Forum by allowing both the appeals i.e. Appeal No.FA/14/481 filed by O.P.No.1 & O.P. No.3 and Appeal No.FA/14/489 filed by O.P.No.4.
15. Hence, the Appeal No.FA/14/481 filed by the O.P.No.1 & O.P.No.3, is allowed subject to payment of cost of Rs.5,000/- (Rupees Five Thousand Only) to the complainant and Appeal No.FA/14/489, is also allowed and the impugned order dated 09.06.2014, passed by the District Forum, is set aside. The matter is remanded back to the District Forum, // 11 // with a direction to provide opportunity to the complainant and O.P.No.2 & 4 to file documents in rebuttal of the document filed by the O.P.No.1 &
3 (appellants of Appeal No.FA/14/481) at the appellate stage and after hearing the parties to decide the matter afresh on its merits. The District Forum will take into consideration the document, which has been filed by the O.P.No.1 & O.P.No.3 as additional evidence before us. It is also made clear that only after deposit of the amount of cost by the O.P.No.1 & O.P.No.3 before the District Forum, the District Forum will take into consideration the document, which has been filed by the O.P.No.1 and O.P.No.3 as additional evidence before us, otherwise the District Forum, will decide the matter without taking into consideration the said document. Office of this Commission is directed to send the record of the complaint to the District Forum immediately, along with the copy of the document filed by the O.P.No.1 & O.P.No.3 before us at the appellate stage as additional evidence. Parties are directed to appear before the learned District Forum on 07.10.2015. No order as to the cost of these appeals. (Justice R.S. Sharma) (Ms. Heena Thakkar) (D.K. Poddar) (NarendraGupta) President Member Member Member /09/2015 /09/2015 /09/2015 /09/2015