THE FOOD SAFETY COMMISSIONER v. ANAND UNNIKRISHNAN

Store/Department Manager,3.

Food Bazar Retail Outlet, Nucleus Mall, Maradu, Cochin-682 034.

JUDGMENT

JUSTICE SHRI. P.Q. BARKATH ALI, PRESIDENT

This is an appeal filed by the 3^rdopposite party in CC.798/2012 on the file of Consumer Disputes Redressal Forum, Ernakulam challenging the order of the Forum dated March 31, 2014, directing the opposite parties 1 and 2 not to sell any substandard or unsafe food items to the public and to pay compensation of Rs.1,00,000/- to the complainant Forum has also directed the 3^rdopposite party to pay a compensation of Rs.5000/- and a cost of Rs.2000/-.

2. The case of the complainant as detailed in the complaint before the Forum in brief is this:-

Complainant used to purchase food articles like cereals, pulses, vegetables etc from the 2^ndopposite party which is the retail outlet of the first opposite party company. On June 09, 2011, July 06, 2011 and August 10, 2011 the cereals and pulses purchased from the 2^ndopposite party were found to be insect infested and the vegetables purchased were found to be rotten. Complainant and his family members consumed the said food articles and fell ill. Complainant had to undergo treatment for hepatitis-A at Ernakulam Medical Centre Hospital from September 20, 2011 to October 04, 2011. He had to spend Rs.48,300/- for treatment expenses. The act of offering/displaying contaminated and insect infested food for sale is violation of provisions of Food Safety and Standards Act, 2006 as well as Consumer Protection Act, 1986. The sale of contaminated food by first and 2^ndopposite parties amounts to deficiency of service and unfair trade practice. The 3^rdopposite party should have initiated legal action against the first and 2^ndopposite parties. Complainant filed the complaint claiming compensation. He also sought a direction restraining the first and 2^ndopposite parties from selling any contaminated food articles.

3. The first opposite party is M/s Pantaloon Retail India Limited and second opposite party is its retail outlet, M/s Food Bazar Retail Outlet, Nucleus Mall, Kochi. They in their version contended thus before the Forum: Second opposite party did not supply any contaminated or sub-standard food articles to the complainant or any other consumers. The goods supplied by the opposite parties conform to the strict standards in compliance of which Food Safety and Standards Acts, 2006. Hepatitis-A can be caused due to unhygienic living conditions. The complaint has been filed to malign the reputation of these opposite parties.

4. The third opposite party is Food Safety Commissioner, Trivandrum. He in his version contended thus

2

before the Forum:-

This opposite party is an unnecessary party to this proceedings. On getting the complaint from the complainant the officials of the Ernakulam Office of this opposite party conducted inspection of the shop of the 2^ndopposite party, took samples which on examination found to contain no hazardous content endangering human life. Complainant cannot claim any compensation from this opposite party.

5. On the side of the complainant Exts.A1 to A27 were marked and on the side of the opposite parties 1 and 2, DW1 was examined before the Forum. No evidence was adduced by the 3^rdopposite party before the Forum. On an appreciation of evidence the Forum found that there is deficiency of service on the part of the opposite party and allowed the complaint. Third opposite party has now come up in appeal challenging the said order of the Forum.

6. Heard the complainant who appeared in person and the counsel for the appellants.

7. The following points arise for consideration:-

Whether there was any deficiency of service on the part of the opposite parties?1. Whether the impugned order of the Forum can be sustained?2.

8. The first question to be considered is whether the Forum can pass a prohibitory order against the opposite parties 1 and 2. Sub-standard food and unsafe food are defined under section 3(1)(zx) and 3(1)(zz) respectively of the Food Safety and Standards Act, 2006. As defined under section 3(1)(zz) IX a food article infested with insects or worms is an unsafe food. The sale of sub-standard food or unsafe food is punishable under section 51 and 59 of the said act. Therefore Forum is perfectly justified in directing the opposite parties 1 and 2 not to sell or offers for sale any contaminated or sub-standard or infected food articles. The finding of the Forum on this point is confirmed.

9. Next question to be considered is whether the 2^ndopposite party sold any insect infested or contaminated food articles to the complainant. Ext.A7 the credit card account of the complainant and Exts.A1, A3. A5 and A6 the E-mail communications between the complainant and opposite parties 1 and 2 shows that complainant purchased allegedly contaminated food stuffs from the 2^ndopposite party on July 06, 2011 and August 10, 2011. Complainant has seen send several E-mails to the first and 2^ndopposite parties regarding the poor quality of the food articles supplied by them. In Ext.A2 series dated, 24.08.2011 opposite parties 1 and 2 admitted such an incident and requested unconditional apology.

10. That apart on the complaint of the complainant, officials of the 3^rdopposite party visited the shop of the 2^ndcomplainant and took samples on December 14, 2011. In their letter Ext.A14 dated February 27, 2012 they have admitted that the samples of food items taken from the 2^ndopposite party shop were seen insect infested. But the 3^rdopposite party did not produce the report of the Analyst to prove the same. It is clear from the above that the first opposite party through its retail outlet, 2^ndopposite party sold the contaminated food to the complainant.

11. It was next argued by the counsel for the appellants that it was not proved that complainant had hepatitis-A due to the consumption of the food articles purchased from the 2^ndopposite party. There is no substance in the above contention. Complainant purchased the food articles from the 2^ndopposite party on June 09, 2011, on July 06, 2011 and in August 10, 2011. Complainant underwent treatment at Ernakulam Medical Centre Hospital from September 20, 2011 to October 4, 2011 for acute hepatitis-A infection. Ext.A24 the medical certificate dated November 17, 2012 the doctor has certified that hepatitis-A is transmitted orally by taking contaminated food or water by Hepatitis A virus. It is clear from the above that it was after consuming the food articles purchased by the complainant from the 2^ndopposite party he was affected with Hepatitis-A. The finding of the Forum on this point is confirmed.

12. Counsel for the appellant, 3^rdopposite party argued that complaint is not maintainable against the 3^rd opposite party. There is no substance in the above contention. Inspite of the repeated request of the

3

complainant 3^rdopposite party did not take any action against the opposite parties 1 and 2. In the light of the principles laid down in Lucknow Development Authority Vs. M.K. Gupta 1994(1) CPJ-51 we are of the view that complaint is maintainable against the statutory authority. Therefore we confirm the finding of the Forum that complaint is maintainable against the 3^rdopposite party. As they did not take any action against the opposite parties 1 and 2, there is deficiency of service on their part. Therefore complainant is entitled to compensation from the 3^rdopposite party also.

13. The Forum has directed the opposite parties not sell or offers for sale any sub-standard food or contaminated food articles through their outlet. Forum has directed the opposite parties 1 and 2 to pay a compensation of Rs.1,00,000/- to the complainant. Forum has also directed the 3^rdopposite party to pay a compensation of Rs.5000/- and a cost of Rs.2000/-. We find no ground to interfere with the said finding of the Forum.

In the result we find no merit in this appeal and the same is hereby dismissed with a cost of Rs.5000/-.

JUSTICE P.Q. BARKATHALI: PRESIDENT

V.V. JOSE : MEMBER

VL.

4