O R D E R
R.SUBBIAH J., PRESIDENT
This appeal has been filed under Section 41 of the Consumer Protection Act, 2019 as against the order rendered by the District Consumer Disputes Redressal Commission, Salem in C.C. No.1 of 2021 dated 04.07.2022, allowing the complaint filed by the respondent, in part.
2. The case of the complainant, as given in the complaint filed before the District Commission, is as follows :-
The opposite party is a company engaged in a chain of organized retail business of selling grocery, food, non-food, general merchandise, apparel and other household essentials under the trade name of 'DMart'. They have multiple retail stores in various cities across the country and one among them is situated at Salem. In the store of the opposite party various food articles, manufactured by various brands and their own, like Atta Wheat, Maida etc., are being sold for human consumption. The general public are propelled by their tagline "Daily Discounts Daily Savings' coupled with a promise of "good and best products at greater value". Whileso, on 27.10.2020 the complainant visited their store at Salem intending to purchase food and non-food items for his own consumption. At that time, it was found to have been displayed that loose Atta Wheat are being sold at a rate of Rs.24/- per kg. Inspired and buoyed by the said punch line and allude being strolled by the opposite party, the complainant bought the loose Atta Wheat in two packs, one weighing 2.916 kg and the other of 1.990 kg., totalling 4.906 kg, for a total price of Rs.117.76 inclusive of GST. At the same time he also purchased some other food and non-food items against the Bill Nos.630110001-006885 and Vou.No.S147001-0076 for a grand total of Rs.443/-. After a few days of purchase of the Atta wheat, when chapathi was prepared using the Atta purchased from the opposite party shop, the said chapathi turned out hardened, unbending and toughened like gelatinous cake, rendering it inedible and unwholesome, to the utter shock of the complainant. The said chapattis were even felt to be unsavoury and later indigestible upon consumption by the complainant and his family members. The loose Atta wheat was so hazardous to life and the said food item has been sold in utter disregard to the provisions of Food Safety and Standards Act, 2006, Food Safety and Standards (Food Products Standards and Food Additives) Regulations, 2011, which prescribe quality parameters of the said food item, which should be strictly adhered to. It shall be lawfully deemed by virtue of the proviso to Section 26(2)(v)(4) of the Food Safety and Standards Act, 2006. The invoice issued by the opposite party for having bought the loose Atta wheat on 27.10.2020, has guaranteed the food product sold by the opposite party as safe for human consumption. Rather, the one actually sold by them to the complainant being found to be substandard and unsafe for human consumption, the guarantee attached with the invoice is obviously breached and literally revoked. Hence, the complainant caused a legal notice dated 06.11.2020 and served the same upon the opposite party highlighting the dispute that was raised with regard to the defects in the food item sold by them to him. The same was received by them on 11.11.2020 and they caused a reply notice dated 02.12.2020 contending untenable, unsustainable, defamatory, derogatory and denigrating contentions and allegations. Hence, the complainant filed the complaint before the District Commission alleging deficiency in service on the part of the opposite party and for the following reliefs:
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To return to him a sum of Rs.117.76 being the price of the food item they sold to him, with interest at commercial rate worked out from the date of its payment to its actual return; a.
To pay a sum of Rs.3,00,000/- as compensation for having caused him to suffer from injury apart from granting punitive damages;
b.
To pay him such amount as compensation in product liability action;c.
To discontinue the unfair trade practice and not to repeat them;d.
Not to offer unsafe food items for sale; ande.
To provide adequate costs to him.f.
3. Resisting the case of the complainant, the opposite party has filed a version. The sum and substance of the version is that the consumer complaint is not maintainable on law and facts. Along with the reply notice sent by them, the opposite party had given the details of the lab report dated 23.10.2020 bearing report No.CR003879 which conforms to the standards as per the Food Safety and Standards (Food Products Standards & Food Additives) Regulation 2011 and have also enclosed the laboratory report to the complainant. But, ignoring the laboratory report sent along with the reply notice, the complaint has been filed. The complainant had purchased the alleged product loose Atta Wheat on 27.10.2020, through Bill No.630110001-006885 by cash. The very allegation of the complainant is that when chapathi was prepared using the loose Atta Wheat, it did not give him the quality of chapathi, which relates to preparation of chapathi. The New Act was enacted by the Government of India on 09.08.2019. The objective behind the new Act was to overcome the shortcoming of the old law and to cope with the technological advancements. One of the key changes introduced in the Act is in its definition of "goods" under Section 2(20) which has included "food" under its jurisdiction, which was not so earlier. The definition of "food" has been borrowed from Food Safety and Standards Act, 2006. This makes it important for food business operators to be aware of the rights of its consumers under both the legislations and comply with its obligations. Further, Section 100 of the Consumer Protection Act 2019 states that the provisions of this Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force. The statutory organisation namely, the FSSAI lays down science based standards for articles of food and regulates their manufacture, storage, distribution, sale and import to ensure availability of sale and wholesome food for human consumption. FSSAI was established in 2008 with the passing of the landmark Food Safety and Standards Act, 2006 which consolidated several legacy acts and orders related to food by Government, Ministries and Departments under a single legislation. The Food Safety and Standards Act also protect consumers from unsafe food through formulation of science based standards and their enforcement through analysis of food and market surveillance. Hence, without complying for a laboratory analysis of the food, the complainant has no locus standi to file the complaint. Further, the averments made in the complaint are blank denied over the allegations such as the defect in the goods, purchase of goods and use of the goods for consumption, proper storage of goods, resultant injury and the proof for injury. The complainant had purchased the loose Atta with open eyes, checked the merchantability or fitness of the goods and had purchased the goods on the first thought and before concluding his purchase again purchased the second weighment on his own. The tagline "Daily Discounts Daily Savings" of the opposite party is promo for the store for most of the goods, which cannot be countenanced to any deception and there is no pleading to the effect as to how the tagline led the complainant to purchase of loose Atta. Further the complainant has not pleaded that he exercised reasonable care and diligence in storing the loose Atta. The loose Atta is prone to moisture and the moisture content of flour is very important regarding shelf life. Moisture is an important factor in controlling grain infestation, fungi and other micro organisms. Consumer Protection Act confers jurisdiction upon this Commission to compensate only when it reaches to the conclusion that the loss or injury has been suffered. Hence, the complainant is required to prove that he has suffered loss or injury due to consumption of the product purchased from the opposite party. But the complainant has not led any evidence or even plausible pleading to this effect and hence denying the case of the complainant, the opposite party sought for dismissal of the complaint.
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4. In order to prove the case, on the side of the complainant along with proof affidavit, 3 documents were produced and the same were marked as Ex.A1 to Ex.A3, along with MO-1, the sample of Atta Wheat. On the side of the opposite party, 2 documents were filed and the same were marked as Ex.B1 and Ex.B2, along with C-1, the Certificate of Analysis issued by the Food Analysis Laboratory of the Tamil Nadu Food Safety and Drugs Administration Department.
5. The District Forum, after analyzing the entire materials placed on record had observed that though the opposite party produced an undated report supporting their claim that the food product was in good condition, the said laboratory does not come under the purview of 'appropriate laboratory, as defined under Section 2(2) of the Consumer Protection Act, 2019. Hence, rejected the said report. Thereafter, reliance was placed on the report of the Government Approved Analyst, marked as Ex.C1, as it is in conformity with the Consumer Protection Act, 2019 and had come to the conclusion that the opposite party had sold sub- standard food product to the complainant. Further, the District Commission had also stated that though objection was raised by the opposite party to the report of the Government Approved Analyst contending that the analysis was done by the Government Laboratory after expiry of the food product, the opposite party has not rebutted the averments of the complainant with valid material documents. Thus, the District Commission rejected the objections raised by the opposite party and directed the opposite party to refund the sum of Rs.117.76 to the complainant and to pay a sum of Rs.50,000/- as compensation within two months from the date of receipt of the order in default to pay interest @ 6% p.a. from the date of the order till realization and also pay a sum of Rs.15,000/- towards costs. Aggrieved by the said order, the present appeal has been filed by the complainant.
6. Assailing the said finding of the District Commission, learned counsel for the appellant/opposite party submitted that according to the respondent/complainant he has purchased the loose Atta Wheat on 27.10.2020 from the opposite party's retail store at Salem. The complainant had alleged that few days after purchase of the loose Atta Wheat, he had used the Atta to prepare chapathi but it turned out hardened, unbending and toughened like gelatinous cake rendering it inedible. But, in order to prove the said allegation, the respondent/complainant has not produced any tangible evidence though the product was sent for lab test. But the District Commission placing reliance on Ex.C1 i.e., Certificate of Analysis issued by the Tamil Nadu Food Safety and Drugs Administration Department dated 31.03.2021 has come to the conclusion that the loose Atta Wheat sold by the opposite party is a substandard one. In this regard, counsel for the appellant/ opposite party submitted that the shelf life of the product is only three months. But the District Commission has referred the product to the lab test only on 15.03.2021, much after the shelf life period, which caused the lab test result of the product as substandard food product, vide the report dated 31.03.2021. The District Commission ought not to have placed reliance on the said report since the sample was not analysed as per the Food Safety and Standards Act, 2006 and the Consumer Protection Act, 2019. The District Commission has failed to consider the lab report of the manufacturer issued by E.K.Sons Agro Foods which analysed the product before the product expiry period. The entire testing of the report was done as per the standard prescribed under the Food Safety and Standards Act, 2006. The respondent/complainant is duty bound under Section 13 of the Consumer Protection Act, 2019 to make an immediate application for the product to be sent to the appropriate laboratory for testing. However, the respondent/ complainant failed to do so. The complainant was filed on 09.12.2020 but the product was sent for testing only on 15.03.2021, much after the date of expiry of the product, which caused the lab test result to the product as substandard food product. The appellant/opposite party filed a detailed objection to the report dated 31.03.2021. However, none of the contentions raised by the appellant/opposite party in the written version as well as the written argument have been considered by the District Commission. But relying on the said report marked by the respondent/complainant as Ex.C1, the District Commission has erroneously fixed the liability on the part of the opposite party. Thus, the order of the District Commission is liable to be set aside.
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7. Per contra, learned counsel for the respondent/ complainant made his submission adverting to the averments made in the complaint. He also submitted that the Certificate of Analysis filed as Ex.C1, issued by the Government Laboratory states that the loose Atta does not conform to standards prescribed for Atta specified under Regulation 2.4.1 of Food Safety and Standards (Food Production Standards and Food Additives) Regulation 2011, since the Alcoholic Acidity is more than the prescribed standard. Hence, the loose Atta sold to the respondent/complainant, having greater level of alcoholic acidity cannot be fed even to livestock. Therefore, the order passed by the District Commission based on the Certificate of Analysis issued by the Tamil Nadu Food Safety and Drugs Administration Department needs no interference and hence sought to confirm the order of the District Commission.
8. Keeping in mind the submissions made by the learned counsel for the appellant/opposite party and the respondent/ complainant, I have carefully gone through the entire material available on records.
9. Though very many contentions have been raised by the appellant/opposite party and the respondent/complainant, what is germane alone has to be discussed hereunder.
10. It is the case of the respondent/complainant that the opposite party had sold substandard loose Atta Wheat to him on 27.10.2020. But this was denied by the appellant/opposite party stating that the product sold by them is of good marketable quality. Immediately on receipt of the complaint from the complainant, they have sent the product to M/s.E.K.Sons Agro Foods for testing. On testing the product, M/s.E.K.Sons Agro Foods issued a report stating that the date of manufacture of the product was 23.10.2020 and that the product is of good, edible and marketable quality. But the District Commission has rejected the said document marked as Ex.B2. On the other hand, the District Commission had relied upon the report of the Food Analysis Laboratory of the Tamil Nadu Food Safety and Drugs Administration Department and had placed the liability on the part of the appellant/ opposite party. But this Commission finds that as contended by the counsel for the appellant/ opposite party, the shelf life of the product is only three month. In the instant case, the respondent/ complainant had purchased the product on 27.10.2020, the product was sent to laboratory for analysis on 15.03.2021 and the certificate of analysis was prepared on 31.03.2021, which is well beyond the shelf life period. When it is beyond the shelf life period, the District Commission ought not to have placed reliance on the said document to fix the liability on the part of the appellant/ opposite party. Therefore, the order passed by the District Commission based on the report which was prepared after the shelf life period of the product, is not correct and the same is liable to be set aside. `
11. In the result, the Appeal is allowed and the order dated 04.07.2022 passed in C.C. No.1 of 2021 by the District Consumer Disputes Redressal Commission, Salem, is set aside. Consequently, the complaint is dismissed. No costs.
R.SUBBIAH
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PRESIDENT
Index : Yes/ No AVR/SCDRC/Chennai/Orders/June/2024
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