Pepsico fined as dead insects seen in Mirinda bottle

Insects in bottle : Consumer Forum asks Bisleri to pay up

Observing that “it should have been serious and concerned about manufacturing of hygienic consumable commodity”, Bisleri International Pvt Ltd has been directed by the Consumer Forum to pay a compensation of Rs. 15,000 to a retailer who found insects in a packaged water bottle he had purchased for sale at his store.

‘Human life at peril’

The District Consumer Disputes Redressal Forum said that though the contents of the bottle were not consumed by anyone, human life was put at risk and directed the company to pay the compensation to the complainant towards harassment and litigation expenses.

“Admittedly the bottle was not consumed by anyone but obviously it contained foreign particulars and the human life was at peril. The O.P-2 (Bisleri International) should have been serious and concerned about manufacturing of hygienic consumable commodity. The complainant suffered mental agony and litigation expenses for which he needs to be adequately compensated,” said the Forum.

Properly sealed bottle

“We are of the opinion that the ends of justice would be met, if the complainant is awarded for a sum of Rs. 15,000 as compensation towards harassment and litigation expenses,” it ordered. The case dates back to 2013.

The complainant in this case ran a small store at Boulward road. In June, 2013, he purchased 10 boxes of Bisleri bottles from an authorised dealer of Bisleri for sale at his store.

On checking the bottles, he found insects and worms in one of the bottles which was properly sealed. He then approached the dealer who did not pay any heed forcing him to approach the company.

Visit by executive

The complainant then filed a complaint before the District Forum. Bisleri appeared before the Forum and said one of its executives had visited the complainant asking him to give the water bottle in question for sample analysis and tests. It said the complainant refused to hand over the bottle and demanded heavy compensation.

The company also told the Forum that it has come to know of the duplicacy of the water bottles in its brand name and is in the process of lodging a complaint against the offenders.

ALSO WATCH  VIDEO NEWS OF SIMILAR CASE BEFORE  :

Tv9 Gujarat – Insect found inside Bisleri water bottle : Mumbai

பன்னீர் சோடாவில் தவளை : ரூ.12 ஆயிரம் நஷ்டஈடு

கடலுார்:

தவளை இறந்து கிடந்த பன்னீர் சோடாவை குடித்த சிறுமிக்கு, நஷ்ட ஈடாக, 12 ஆயிரம் ரூபாய் வழங்க, நுகர்வோர் கோர்ட் உத்தரவிட்டு உள்ளது.
கடலுார், திருப்பாதிரிப்புலியூரைச் சேர்ந்த, சுமதியின் மகள் சூர்யா, 12. கடந்த 2014 ஜூலை, 22ல், போடிசெட்டி தெருவில் உள்ள கடையில், பன்னீர் சோடா வாங்கிக் குடித்தார். சோடா துர்நாற்றம் வீசியதால், பாட்டிலை பார்த்த போது, தவளை குஞ்சு இறந்து கிடந்ததை கண்டு, வாந்தி எடுத்து மயங்கி விழுந்தார். பின், கடலுார் அரசு மருத்துவமனையில் சிகிச்சை பெற்றார்.
இதை தொடர்ந்து, சிறுமி குடித்த சோடாவை தயாரித்த சோடா கம்பெனியை, உணவு பாதுகாப்பு அதிகாரிகள் ஆய்வு செய்து, கம்பெனி உரிமையாளருக்கு, ‘நோட்டீஸ்’ வழங்கினர்.
மேலும், சிறுமியின் தாய் சுமதி, கடலுார் நுகர்வோர் கோர்ட்டில் வழக்கு தொடர்ந்தார். வழக்கை விசாரித்த நீதிபதி மோனி, உறுப்பினர் எழிலரசி ஆகியோர், ‘தவளை இறந்து கிடந்த சோடாவை குடித்து, பாதிக்கப்பட்ட சிறுமிக்கு ஏற்பட்ட மன உளைச்சலுக்காக, 10 ஆயிரம் ரூபாய், வழக்கு செலவிற்கு, 2,000 ரூபாயை, சோடா கம்பெனி உரிமையாளர், இரு மாதங்களில் வழங்க வேண்டும்’ என உத்தரவிட்டனர்.

NCRC – Hotel ordered to pay compensation for charging more than MRP

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI

REVISION PETITION NO. 550 OF 2006

(Against the order dated 09.01.2006 in Appeal No. 974 of 2005 of the

Gujarat State Commission, Ahmedabad) 

Hotel Nyay Mandir

National Highway No.8

Zadeshwar Road

Bharuch                                                       … Petitioner/Opp. Party No.1

 

Versus

 

Ishwar Lal Jinabhai Desai

79, Ami Adarsh Society

Athwa Lanes

Surat                                                           …  Respondent/Complainant

 

 

BEFORE:

 HON’BLE MR. JUSTICE B.N.P. SINGH, PRESIDING MEMBER

HON’BLE MR. S.K. NAIK, MEMBER

For Petitioner/Opp. Party No.1             :         Mr. B.S. Supehia, Advocate

                                                                   Mr. K.K. Shukla, Advocate

                                                                   Mr. Vikas Upadhyay, Adv.

For Respondent/Complainant      :         Nemo

Pronounced on 14th December, 2010

ORDER

Per S.K. Naik, Member

This revision petition has been filed by Hotel Nyay Mandir, the opposite party no.1 before the District Consumer Disputes Redressal Forum, Bharuch (District Forum for short) against the order dated 09.01.2006 passed by the Gujarat State Consumer Disputes Redressal Commission, Ahmedabad (State Commission for short), vide which the State Commission while dismissing their appeal and also imposing a cost of Rs.6000/- on them, has upheld the finding recorded by the District Forum.  The District Forum vide its order dated 18.08.2005 had allowed the complaint of the respondent/complainant and directed the petitioner/opposite party no.1 to refund the amount of Rs.22/- being the excess amount charged towards cold drinks served to the complainant and also pay Rs.5000/- and Rs.1000/- as compensation for mental agony and cost of litigation respectively.  Besides, the District Forum had also directed the petitioner/opposite party no.1 to pay a sum of Rs.1,50,000/- to be deposited in a Consumer Welfare Fund within a period of 30 days.  

Brief facts of the case, as alleged by the complainant, are that on 14.05.2003 he purchased four bottles of cold drink ‘MIRINDA’ for which the petitioner/opposite party no.1 charged excessive amount of Rs.72/- whereas the actual cost of one bottle was Rs.12.50 ps.  The complainant alleged that the petitioner/opposite party no.1 ought to have charged Rs.12.50/- per bottle as it was the actual price appearing on the label of the bottle butit had charged Rs.18/- per bottle.  Taking this sole ground and pleading deficiency in service the respondent filed a consumer complaint before the District Forum praying for (i) refund of Rs.22/- charged in excess from him; (ii) call for the figures of sale of cold drinks for the last three years at the place of petitioner hotel and direct them to deposit the differential amount as donation with any consumer association; (iii) 12% interest on the amount of refund; and (iv) Rs.5000/- as compensation.  The respondent/complainant had also impleaded Pepsico India Holdings Pvt. Ltd. as opposite party no.2 in the array of the complaint filed by him but no relief was claimed against them.  The District Forum after hearing the arguments of the parties allowed the complaint in the manner referred to above. 

The petitioner/opposite party no.1 not satisfied with the order of the District Forum filed an appeal before the State Commission, who too did not find any merit in the same and dismissed it with a cost of Rs.6000/-.

Hence, this revision petition by the petitioner/opposite party no.1. 

While Mr. B.S. Supehia, Advocate, Mr. K.K. Shukla, Advocate and Mr. Vikas Upadhyay, Advocate have appeared on behalf of the petitioner/opposite party no.1, the respondent/complainant has filed an affidavit in response to the revision petition and further in response to the notice dated 12th of August, 2009 issued by the Registry for his appearance, in which he has regretted his inability to appear before this Commission because of his “bad health and advance age”.  We have accordingly heard the learned counsel for the petitioner and have perused the affidavit filed by the respondent/complainant in response to the revision petition.

Learned counsel for the petitioner has assailed the order of the State Commission both on facts and law.  On the facts, while he does not dispute that the respondent/complainant had purchased four bottles of soft drink on 14th of May, 2003, but the drink sold was FANTA and not MIRINDA as claimed by the complainant.  He further contends that the cost of each bottle of FANTA was Rs.15/- and the petitioner had charged an additional amount of Rs.3/- per bottle as service charges for the facilities which the hotel extended to the consumers.  According to him, the cost each bottle of the soft drink including the service charges was prominently displayed on either side of the wall to the entry of the hotel.  He, therefore, submits that the respondent/complainant having full knowledge of the price to be paid including the service charges could not turn around and allege deficiency in service on part of the petitioner.  This contention of the leaned counsel can straightaway be rejected as the petitioner has not advanced this plea before the State Commission as would be evident from the memorandum of appeal which is at page 16 of the paper-book.  No new ground can be permitted to be taken at the stage of revision.  Besides, the District Forum in its order has clearly held that the computerized bill issued to the respondent/complainant made no mention of any service charges separately.  It has also held that the consumer had produced the cold drink labels of MIRINDA which remained unrebutted.

On the point of law, learned counsel for the petitioner has raised the same contention which was raised before the State Commission.  It has been contended that the complaint filed by the respondent/complainant was under Section 2(1)(b)(iv) of the Consumer Protection Act, 1986 as would be evident from his narration that he has filed the same for and on behalf of numerous consumers having the same interest.  It was, therefore, necessary for him to have obtained prior permission of the District Forum before filing of the complaint as mandated under Section 12(1)(c) of the Act.  Further, as per Section 13(6) of the Act, the provision of Rule 8, Order I of the Code of Civil Procedure, 1908 was applicable and, therefore, the complaint being under Section 2(1)(b)(iv) of the Act could not be entertained without the permission of the District Forum and without following the provision of Rule 8, Order I of the Code of Civil Procedure.  We have considered this submission, painstakingly argued by the learned counsel for the petitioner.  Suffice it to say that these very arguments were raised before the State Commission, who in its order dated 9th of January, 2006 has very elaborately discussed the same from para 7 to para 12 of its order.  We are in agreement with the view expressed by the State Commission that provision of Rule 8, Order I of the Code of Civil Procedure applies to cases where there are large number of specified persons who can be identified and who can have their claim canvassed against other parties or defence set up against suitor, while after the amendment of the Consumer Protection Act (Act of 2002) which came into force on 15th of March, 2003, Section 14 of the Act says that if the District Forum is satisfied that the goods complained against suffer from any of the defects specified in the complaint or that any of the allegations contained in the complaint about the services are proved, it shall issue an order to the opposite party to do one or more things that have been specified in Clauses (a) to (i).  Clause (hb) has been introduced by the aforesaid amendment act which reads “to pay such sum as may be determined by it, if it is of the opinion that loss or injury has been suffered by a large number of consumers who are not identifiable conveniently.  The State Commission has rightly distinguished the present complaint as a class action maintainable under the provisions of Section 14 of the Act and would not attract the provisions of Rule 8, Order I of the Code of Civil Procedure.  Thus, even on the point of law, we do not find any infirmity with the order passed by the State Commission.  Reliance by the learned counsel for the petitioner on the judgment of the Hon’ble Apex Court in the case of Godfrey Phillips India Ltd. Vs. Ajay Kumar [(2008) 4 SCC 504] is misplaced, inasmuch as in that case the complainant had pleaded that he was filing a petition in public interest and had made no allegation with regard to any loss suffered by him whereas in the case in hand the complainant has made out a case of unfair trade practice resulting in not only loss to him but loss to a large number of unidentifiable consumers.

Learned counsel for the petitioner submits that amount of Rs.6000/- has already been paid to the respondent/complainant.  If that is so, the petitioner is directed to comply with the rest of the order passed by the State Commission within a period of two months from the date of receipt of the order.

The revision petition is accordingly dismissed with no order as to costs.

Sd/-

(B.N.P. SINGH, J.)

PRESIDING MEMBER

Sd/-

(S.K. NAIK)

MEMBER

 

Maggi noodles row: Govt drags Nestle India to consumer court over unfair trade practice

maggi noodles ban

Clamping down further on Nestle over Maggi issue, government has dragged it to the National Consumer Disputes Redressal Commission (NCDRC) for “unfair trade practices and misleading advertisements” and may seek financial penalties among other actions.

The development comes amidst the Indian unit of the Swiss multinational withdrawing Maggi from the markets after several states banned the famous ‘2-minute’ instant food brand as tests showed them containing taste enhancer MSG (Mono Sodium Glutamate) and lead in excess of the permissible limits.

Besides, central food safety regulator FSSAI has ordered recall of all variants of Maggi noodles from the market, terming them “unsafe and hazardous for human consumption”.

“On behalf of the Indian consumers, the Department of Consumer Affairs has now filed a petition in the NCDRC. It is based on the order of FSSAI saying that Nestle indulged in unfair trade practices and misleading advertisements,” a source told PTI.

The source further said: “We have sought Additional Solicitor General’s advice in this matter and he will appear on behalf of the government in NCDRC.”

When asked if the government is also seeking monetary damages, the source said: “If NCDRC finds the firm was on the wrong side, it has the power to impose financial penalty.”

Last week, the government had filed a complaint on its own with the NCDRC, using a provision for the first time from the nearly three-decade-old Consumer Protection Act.

Describing the alleged lapses related to food safety standards in Maggi noodles as a “serious issue”, Food and Consumer Affairs Minister Ram Vilas Paswan had also said the NCDRC will investigate the matter and take appropriate action.

Delhi, Maharashtra, Punjab, Assam, Bihar, Madhya Pradesh, Tamil Nadu, Jammu and Kashmir, Gujarat, Uttarakhand and Goa are the states that have banned Maggi noodles amid mounting food safety concerns and several laboratory tests reporting excessive lead in it.

FE-070515

Maggi Row: CAIT Demands Action Against Amitabh, Madhuri, Preity

Noting that the Food Safety and Standards Authority of India (FSSAI) has commenced proceedings against Maggi noodles, the Confederation of All India Traders (CAIT) on Sunday demanded action against its brand ambassadors and the officials, too, who approved the product.

In a communication to union Consumer Affairs Minister Ram Vilas Paswan and Health Minister J.P. Nadda, the CAIT said: “When proceedings against Maggi are launched by the FSSAI, why is no action being taken against its brand ambassadors and the chain of officials who approved the product despite it having either deficiencies or exaggerated claims.”

In a press release here, the CAIT said it is worried as lakhs of traders across the country dealing in fast moving consumer goods (FMCG) products are suffering losses due to the Maggi controversy since it has damaged the confidence of consumers and the traders as well.

“The brand ambassadors of Maggi have violated section 24 of the Food Safety and Standards Act, 2006 and, therefore, proceedings must be initiated against them also besided taking action against the manufacturer,” CAIT national president B.C. Bhartia and secretary general Praveen Khandelwal told the ministers, according to the release.

They urged Paswan and Nadda to take immediate cognizance of the issue and issue appropriate directions to the authorities concerned.

Maggi brand ambassadors include Bollywood actors Amitabh Bachchan, Madhuri Dixit and Preity Zinta.

Maggi noodles — manufactured by the multinational Nestle — is facing flak after its samples were found to contain excessive lead higher than permissible limits. A number of states in India have banned the product while others are awaiting results of laboratory tests.

IE

Consumer court case – Labeling defects -Barista Vs Anu Bhandari – 5.9.2014

 

First Appeal No.

248 of 2014

Date of Institution

27.06.2014

Date of Decision

05.09.2014

  1. The Barista Coffee Company Limited (Lavazza), SCF No.36, Sector 11D, Chandigarh.

  2. The Barista Coffee Company Limited, F-1/9, Okhla Phase I, New Delhi 110020 (India) through its Chairman/Director/Chief Managing Director or Authorized Officer.

  3. Lavazza Coffee Company C/o The Barista Coffee Company Limited, F-1/9, Okhla Phase I, New Delhi 110020 (India) through its Chairman/Director/Chief Managing Director or Authorized Officer.

..Appellants/Opposite Parties No.1, 2 & 4.

Versus

Ms. Anu Bhandari, daughter of Shri K. C. Azad, Advocate, Resident of House No.53-B, Model Town, Phagwara.

…Respondent/Complainant.

Appeal under Section 15 of the Consumer Protection Act, 1986.

BEFORE: JUSTICE SHAM SUNDER (RETD.), PRESIDENT

SH. DEV RAJ, MEMBER

MRS. PADMA PANDEY, MEMBER

Argued by:Sh. Jahan Singh Dhaliwal, Advocate for the appellants.

Sh. Gourave Bhayyia Gilhotra, Advocate for the

respondent.

PER DEV RAJ, MEMBER

This appeal is directed against the order dated 21.05.2014, rendered by the District Consumer Disputes Redressal Forum-II, UT, Chandigarh (hereinafter to be called as the District Forum only) vide which it allowed the complaint filed by the complainant against Opposite Parties No.1, 2 and 4 only and directed them, as under:-

13. .We, therefore, finding certain merit in the present consumer complaint, allow the same against the answering OPs No.1, 2 & 4, jointly and severally and direct them to;

[a] To pay a consolidated amount Rs.15,000/- to the Complainant on account of deficiency in service and mental agony and harassment;

[b] To pay Rs.5,000/- as cost of litigation;

14. The above said order shall be complied within 45 days of its receipt by the Opposite Parties 1, 2 & 4; thereafter, they shall be liable for an interest @18% per annum on the amount mentioned in sub-para [a] & [b] of para 13 above, apart from cost of litigation of Rs.5,000/-, from the date of institution of this complaint, till it is paid.

However, the complaint against Opposite Party No.3 was dismissed by the District Forum.

2. The facts, in brief, are that complainant alongwith her Counsel went to Barista Coffee Company on 7.8.2013 in Sector 11, Chandigarh, wherefrom purchase of two cups Coffee and one Cucumber-Tomato-Tramezzino (Veg.Sandwich) was made. The plastic cover/wrapper of the sandwich costing Rs.75/- and the cash memo of the above said Sandwich are Annexures C-1 and C-2. It was stated that the Sandwich purchased by the complainant was misbranded, and the wrapper thereof was misleading as there was no detailed address/contact of the Manufacturer of the product, which was in contravention of Sections 2(19), and 2(9)(h) of the Prevention of Food Adulteration Act, 1954, as also Section 23 of the Food Safety and Standards Act, 2006. It was further stated that under the Consumer Protection Act, 1986 (hereinafter to be referred to as the Act), the complainant was entitled to have complete knowledge about the manufacturer of the product which she was buying. The details of Cake Tree Company and their official address downloaded from the internet and the details of Lavazza Company situated in Italy, were annexed by the complainant, as Annexure C-3 and C-4 with the complaint. It was further stated that the product cover neither contained any information regarding the expiry date of the product, nor the days within which the product was to expire, nor in how many days the product was required to be consumed. It was further stated that simply the date 7.8.2013 was mentioned, which amounted to misbranding and violation of the Prevention of Food Adulteration Act, as well as the Act. It was further stated that even the official standing, on the counter, did not have any information regarding the address, contact or the factum of manufacturing date, expiry date or in how many days it was to expire and whether the product sold to the complainant had already expired or not, which according to her (complainant) amounted to gross misuse and misleading selling of product and also infringing the rights of the complainant.

3. 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 Act, was filed, seeking directions to the Opposite Parties to pay an amount of Rs.1,00,000/- as costs; Rs.22,000/- as legal cost and Rs.2,00,000/- as damages for misleading and cheating by selling a misbranded product to the complainant.

4. Opposite Parties No.1, 2 and 4, in their joint written statement, stated that the complaint was not maintainable, before the District Forum on the ground that the allegations made by the complainant pertained to violation/breach of the provisions of Food Safety and Standards Act, 2006, along with allied Rules and Regulations and also the Prevention of Food Adulteration Act, 1954. It was further stated that the provisions of the Food Safety and Standards Act, 2006 along with allied Rules and Regulations were applicable to the case of pre-packaged products only, and not to the products prepared, processed or served to the customers at a hotel, restaurant, cafe etc. It was further stated that the products being sold by the answering Opposite Parties, were not pre-packaged products, requiring compliance of the said Statute. It was further stated that a specific specialized authority/department had been constituted and established under the Food Safety and Standards Act, 2006, to investigate and verify any violation and breach of the provisions of the said Act and Specific Food Analyst and Laboratories had been authorized to investigate and verify the violation and breach. It was further stated that the business of the answering Opposite Parties, was akin to a confectionary shop, selling fast food items and no pre-packaged products were sold to the customer. It was further stated that the products were prepared/processed only after obtaining order from the customers, and were served for immediate consumption. Only on specific request of the customer the products were given in take-away form. It was further stated that the answering Opposite Parties were exempted under Section 26 of the Legal Metrology (Packaged Commodities) Rules, 2011, which provided specific exemption to the kind of business they (Opposite Parties) were doing. It was further stated that Regulation 2.6.1(4) of the Food Safety and Standards (Packaging & Labelling) Regulation, 2011, provided a specific exemption to the answering Opposite Parties from making declaration as to the date of manufacturing. It was further stated that the complainant herself, in Paragraph 5 of the complaint, had admitted that date of 7.8.2013 was mentioned on the label. It was further stated that a declaration pertaining to use by date was also provided on the label of the Sandwich and, therefore, no offence/violation was committed by the answering Opposite Parties. It was further stated that no right of the complainant was infringed. It was further stated that Opposite Parties No.1, 2 and 4 were neither deficient, in rendering service nor did they indulge into unfair trade practice. The remaining averrments, made in the complaint, were denied.

5. Despite service, nobody appeared on behalf of Opposite Party No.3, therefore, it was proceeded against ex-parte by the District Forum vide order dated 04.11.2013.

6. The complainant filed replication, wherein she reiterated all the averrments, contained in the complaint, and repudiated those, contained in the written version of Opposite Parties No.1, 2 and 4.

7. The Parties led evidence, in support of their case.

8. After hearing the Counsel for the parties, and, on going through the evidence, and record of the case, the District Forum, allowed the complaint, as stated, in the opening para of the instant order.

9. Feeling aggrieved, the instant appeal, has been filed by the appellants/Opposite Parties No.1, 2 and 4.

10. We have heard the Counsel for the parties, and have gone through the evidence, and record of the case carefully as also the written submissions of the respondent/complainant.

11. The Counsel for the appellants/Opposite Parties No.1, 2 and 4, submitted that appellant No.1/Opposite Party No.1 is a self-operated and self-owned Espresso Bar/Caf outlet in Sector 11, Chandigarh belonging to appellant No.2/Opposite Party No.2 and is being managed/controlled and operated by appellant No.2/Opposite Party No.2. It was further submitted that the District Forum wrongly and erroneously, without appreciating the evidence, on record, and without assessment of any actual damage, suffered by the respondent/complainant, allowed the complaint holding that the appellants indulged in a wrong business practice by selling a food item not prepared at their own premises but procured from some other manufacturer the identity whereof was not disclosed in a proper manner by them (appellants/Opposite Parties No.1, 2 & 4) and directed them to pay to the respondent/complainant a consolidated amount of Rs.15,000/- on account of deficiency in service, mental agony and harassment and Rs.5,000/- as cost of litigation. It was further submitted that it was clear from Annexure C-2 that the appellants charged an amount of Rs.75/- for the food item viz. Cucumber-Tomato-Tramezzino (Veg. Sandwich) whereas Annexure C-1 indicated the price for Cucumber-Tomato-Tramezzino as Rs.110/-. It was further submitted that when the bill was for Rs.75/-, the purported wrapper indicating the price of Rs.110/- was not relevant. It was further submitted that the appellants/Opposite Parties No.1, 2 & 4 are operating a confectionary shop/fast food restaurant and as per Annexure R-2, Cucumber-Tomato-Tramezzino is a sandwich priced at Rs.75/- and, accordingly, the same price was indicated in the bill. It was further submitted that such an item was served in a plate and on the request of the respondent/complainant, the same was put in a temporary package, and there was no question of giving the details of manufacturing. It was further submitted that the provisions of the Food Safety and Standards Act, 2006 were not applicable to the instant case, as the violation thereof could be in respect of food item, which was pre-packed and not to the one, which was served in a plate. The Counsel further submitted that, as per Section 26(b) under Chapter V of the exemptions of the Legal Metrology (Packaged Commodities) Rules 2011, among other items, any package containing fast food items packed by the restaurant or hotel and the like was exempted. It was further submitted that a separate authority is prescribed under the Food Safety and Standards Act, 2006, for enforcement of the Act. It was further submitted that when specific Act and the authorities to enforce the same were in place, the District Forum did not have the jurisdiction. It was further submitted that the prayer in the complaint for misleading and cheating the respondent/complainant by selling a misbranded product, which was having misleading information regarding the expiry of food product, was not correct. It was further submitted that Opposite Party No.3 viz. Cake Tree was not connected with Barista Coffee. It was further submitted that Cake Tree, Chandigarh was not made a party and the respondent/complainant did not claim any loss or damage from Cake Tree, Chandigarh. The Counsel relying on the judgment of Honble Supreme Court of India in State of Maharashtra and others Vs. Raj Marketing and another, (2011) 15 Supreme Court Cases 525, further submitted that a package used merely for protection during conveyance or safety would not be pre-packed commodity for the purpose of the Act and the Rules.

12. The Counsel for the respondent/complainant submitted that she was provided a pre-packed item, which contained no expiry date and when the person at the counter was questioned regarding the same, he had no answer. It was further submitted that the respondent/complainant was a consumer. It was also submitted that the appellants closed their unlicenced food manufacturing unit in Kishangarh, U.T., It was further submitted that the food sold by the appellants was not only misbranded but the same was manufactured by an inferior manufacturer, which even did not have licence to manufacture food and did not comply with the provisions of the Prevention of Food Adulteration Act, 1954. It was further submitted that the District Forum dealt with all the legal aspects and its order, being just and correct, was liable to be upheld.

13. The first question, which falls for consideration, is, as to whether, for violation of Food Safety and Standards Act, 2006 and Prevention of Food Adulteration Act, 1954, the provisions of the Consumer Protection Act, 1986 could be invoked. The answer to this question, is in negative. The respondent/complainant has alleged violation of the Food Safety and Standards Act, 2006 and Prevention of Food Adulteration Act, 1954. The respondent/complainant has neither adduced any evidence to prove as to how there was violation of the Food Safety and Standards Act 2006 and the Prevention of Food Adulteration Act, 1954 nor as to under which provision of the Act, her grievance was redressable. The averment of the respondent/complainant, in Para 6 of the complaint, that Barista Cafeteria Company was buying this food product from a manufacturer having no licence to manufacture such food products, is also not supported by any cogent evidence. The contention of the respondent/complainant that as per Annexure C-5, M/s Cake Tree, Kishangarh was not having the valid licence, is also not correct. Serial No.5 of Annexure C-5 is extracted hereunder:-

Sr. No.

Question

Answer

5

Whether any company by the name of Cake tree and or any person had ever been granted licence of production or manufacturing under the name of the style of (CAKE TREE) by your department, if yes, kindly provide details and address.

YesM/s Cake Tree, Plot No.1026, Kishangarh, Chandigarh has applied for licence on 11-09-2013 which is under consideration.

The first part of the answer viz. Yes indicates that Company in the name and style of Cake Tree was granted licence. Second part of answer indicated that M/s Cake Tree, Plot No.1026, Kishangarh had applied for the licence on 11.09.2013, which was under consideration. Since the incident relates to 07.08.2013, it cannot be accepted on the basis of Annexure C-5, that on 07.08.2013, M/s Cake Tree, Kishangarh was not having the licence.

14. There is also substance in the contention of the appellants/Opposite Parties No.1, 2 and 4 that the complaint, on the ground of violation of provisions of aforesaid Statutes, was not maintainable before the District Forum. Undoubtedly, the proper procedure is laid down in the aforesaid Statues to deal with such situations. Section 29 of Food Safety and Standards Act, 2006, which prescribes the authorities for enforcement of the Act, is extracted hereunder:-

29. Authorities responsible for enforcement of Act.-

The Food Authority and the State Food Safety Authorities shall be responsible for the enforcement of this Act.

The Food Authority and the State Food Safety Authorities shall monitor and verify that the relevant requirements of law are fulfilled by food business operators at all stages of food business.

The authorities shall maintain a system of control and other activities as appropriate to the circumstances, including public communication on food safety and risk, food safety surveillance and other monitoring activities covering all stages of food business.

The Food Safety Officers shall enforce and execute within their area the provisions of this Act with respect to which the duty is not imposed expressly or by necessary implication on some other authority.

The regulations under this Act shall specify which of the Food Safety Officers are to enforce and execute them, either generally or in relation to cases of a particular description or a particular area, and any such regulations or orders may provide for the giving of assistance and information, by any authority concerned in the administration of the regulations or orders, or of any provisions of this Act, to any other authority so concerned, for the purposes of their respective duties under them.

The Commissioner of Food Safety and Designated Officer shall exercise the same powers as are conferred on the Food Safety Officer and follow the same procedure specified in this Act.

15. The second question, which falls for consideration, is, as to whether there was any deficiency, in rendering service or indulgence into any unfair trade practice, on the part of the appellants/Opposite Parties No.1, 2 and 4. As is evident from copy of the Retail Invoice No.547 dated 7.8.2013, the respondent/complainant alongwith other eatables, placed an order for Cucumber-Tomato-Tramezzino (Veg. Sandwich) and the order type was ‘TAKE AWAY’. The case of the appellants/Opposite Parties No.1, 2 and 4 is that the same was prepared in the restaurant of Opposite Party No.1 itself. The respondent/complainant herself in Para No.5 of the complaint, admitted that date 7.8.2013 was mentioned on the label. The appellants have contended that Regulation 2.6.1 (4) of the Food Safety and Standards (Packing and Labelling) Regulation, 2011 provides for a specific exemption from making any declaration as to the date of manufacturing for food items with a shelf life of not more than seven days and that Use by date was required to be mentioned only on such food items which was mentioned. It was categorically denied by the appellants that they were buying the aforesaid product from an unlicenced manufacturer. The appellants/Opposite Parties No.1, 2 and 4 have also specifically averred that that the provisions of the Food Safety and Standards Act, 2006 and the Prevention of Food Adulteration Act, 1954, aforesaid, were applicable only in the case of pre-packed products and not to the products, which are prepared, processed or served to the customers in the restaurants/hotels etc. This contention of the appellants finds support from Section 26(b) of the Legal Metrology (Packaged Commodities) Rules, 2011, which is extracted hereunder:-

26. Exemption in respect of certain packages.-Nothing contained in these rules shall apply

to any package containing a commodity if

(a)xxxxx

(b)any package containing fast food items packed by restaurant or hotel and the like;

16. In State of Maharashtra Vs. Raj Marketing and another, (2011) 15 Supreme Court Cases 525, the Honble Supreme Court, in Paras 11 and 12, inter-alia, held as under:-

11. In order to attract violation of the Rules referred above, the package seized must fall within the expression wholesale package. A package used merely for protection during conveyance or safety would not be pre-packed commodity for the purpose of the Act and the Rules. As rightly observed by the High Court that for the package to be treated as a wholesale package, the package must not be a secondary package. In that event, we have to find out whether the secondary package is only for safety, convenience or the like.

12. As demonstrated before the High Court, the counsel appearing for the first respondent placed all the above mentioned products before us i.e. both the wholesale package as well as the retail package. The Departments only contention was that the secondary package in which the wholesale package was packed does not contain the said information. In the light of the provisions which we have referred above and on verification of the products which were shown to us, we are of the view that the secondary outer packing for transportation or for safety of the goods being transported or delivered cannot be described as a wholesale package.

17. It is not the case of the respondent/complainant that the quality of product was not good or she suffered any loss on account of food items purchased by her. The District Forum, thus, erred in holding in Para 11 of its order that the appellants/Opposite Parties No.1, 2 and 4 wrongly sold the food item to the complainant as they did not qualify for exemption of mentioning the name of the manufacturer and its manufacturing date nor the Opposite Parties were qualified to procure a food item sourced from some other unlicenced entity.

18. There was, however, a mistake on the part of the appellants/Opposite Parties No.1, 2 and 4 in packing the food item in a wrapper of Cake Tree. This mistake evidently created the whole confusion and apprehension in the mind of the respondent/complainant that the product was misbranded as the expiry date thereof was not mentioned. There was deficiency in rendering service and indulgence into unfair trade practice, on the part of the appellants/Opposite Parties No.1, 2 and 4 by wrapping the sandwich, freshly prepared in their restaurant, in a wrapper of the Company namely Cake Tree, to which, it did not belong. Thus, the complainant was misled on account of the wrapper of a wrong Company, in which, the sandwich was wrapped. The compensation in the sum of Rs.15,000/- as also the cost of litigation to the tune of Rs.5,000/-, awarded by the District Forum, are on the higher side, and the same need to be reduced commensurating with the limited deficiency of the appellants. In our considered opinion, compensation in the sum of Rs.10,000/- and cost of litigation in the sum of Rs.4,000/- shall be adequate to meet the ends of justice. The interest @18% per annum awarded by the District Forum, in default of compliance of the impugned order within the stipulated period, is also on the higher side. The same is reduced to 12% per annum. The order impugned, therefore, needs to be modified to the extent indicated above.

19. No other point, was urged, by the Counsel for the parties.

20. For the reasons recorded above, the appeal filed by the appellants/Opposite Parties No.1, 2 and 4, is partly accepted with no order as to costs, and the impugned order passed by the District Forum, is modified, to the extent, indicated hereunder;

(i) The appellants/Opposite Parties No.1, 2 and 4 are directed to pay an amount of Rs.10,000/- (Rupees Ten Thousand Only) to the respondent/complainant, as consolidated compensation for mental agony and physical harassment suffered by her as also deficiency in rendering service and indulgence into unfair trade practice by them (Opposite Parties No.1, 2 & 4), instead of Rs.15,000/- awarded by the District Forum.

(ii) The appellants/Opposite Parties No.1, 2 and 4 are also directed to pay an amount of Rs.4,000/- to the respondent/complainant towards cost of litigation, instead of Rs.5,000/- awarded by the District Forum.

(iii) The appellants/Opposite Parties No.1, 2 and 4 shall pay the amount mentioned in Clause (i) above, to the respondent/complainant, within a period of 30 days, from the date of receipt of a certified copy of this order, failing which, the same shall carry interest @12% per annum, instead of 18% per annum, from the date of filing the complaint i.e.27.08.2013, till realization, besides payment of costs of litigation aforesaid.

21. Certified Copies of this order be sent to the parties, free of charge.

22. The file be consigned to Record Room, after completion.

Pronounced.

September 05, 2014.

Sd/-

[JUSTICE SHAM SUNDER (RETD.)]

PRESIDENT

Sd/-

[DEV RAJ]

MEMBER

Sd/-

[PADMA PANDEY]

MEMBER

AP State Consumer Disputes Redressal Commission – Rat problems in Grapes export carton – M/s.Shobha … vs M/s.Gubba Cold Storage Limited, … on 5 February, 2010

BEFORE THE ADDITIONAL BENCH OF
A.P STATE CONSUMER DISPUTES REDRESSAL COMMISSION AT HYDERABAD. 

C.D.No.60 OF 2007 

Between: 

M/s.Shobha
Agritech, Represented by its Proprietor, 

P.Upender Reddy, 
S/o.P.Amrutha Reddy, Aged 50 years, 
R/o.H.No.480, Plot,No.2, 
Behind D.B.R.Mills,Lower Tank Bund Road, 
Hyderabad.   Complainant 

And
1.

M/s.Gubba Cold Storage Limited, Reptd. By its Managing Director, Plot Nos.109 to 111 and 115, I.D.A. Medchal, Ranga Reddy District. 

2. Sri Gubba Nagender Rao, s/o.not known to the complainant, Aged:Major, Managing Director of M/s.Gubba Cold Storage Limited, Reptd. By its Managing Director, Plot Nos.109 to 111 and 115, I.D.A. Medchal, Ranga Reddy District.

Also at H.No.3-6-305/43/1, Avanthinagar, Basheerbagh, Hyderabad. Opposite parties   Counsel for the Complainant: M/s.K.Ravinder Reddi   Counsel for the Opposite parties:Mr.Chintala Ramesh   QUORUM: SMT.M.SHREESHA, MEMBER & SRI.K.SATYANAND, MEMBER   FRIDAY, THE FIFTH DAY OF FEBRUARY, TWO THOUSAND TEN   Oral Order(Per Smt.M.Shreesha, Honble Member) ***   The brief facts as set out in the complaint are that the complainant, an exporter of fresh table grapes to foreign countries i.e. United Kingdom and European Union is registered with the Agricultural & Processed Food Products Export Development Authority, Department of Commerce, Government of India (for short APEDA) and also with Ministry of Commerce for import and export. The complainant was exporting grapes to European Union/United Kingdom for the past 5 years. The complainant had an agreement with M/s.Griffin & Brand (European) Ltd., U.K. for export of table grapes for the agricultural season ending in March and April, 2007. The table grapes were grown for export by complying criteria as per the specifications of EUREP GAP and natures choice for exporting to European Union/United Kingdom. The complainant got fresh table grapes packed and stored which are meant for export, from the period 1-3-2007 to 2-4-2007 in the premises of opposite parties, who are recognized by the APEDA for packing and storing of fresh fruits and vegetables for export and guided and regulated by the specifications and regulations prescribed by APEDA which are mandatory. The complainant submitted that the packed cartons/pallets were stuffed in the refrigerated containers in the premises of the opposite parties upto 2-4-2007. Five containers of table grapes packed in cartons/pallets of the said containers reached European Union/United Kingdom upto 4-5-2007. The said containers were sealed by the Liners and the Customs authorities after they were stuffed at the premises of opposite parties. The containers after reaching U.K. were opened by the importer and in one of the container some cartons in a pallet were found torn open and a presence of rat was felt by rat faeces and rat gnawings indicating infestation by rats, thereby, M/s.Griffin & Brand (European) Ltd., have referred the same to local health authorities and the authorities of Ashfort Borough Council, U.K. declared the said consignment of table grapes not fit for human consumption and the same was ordered to be destroyed at the expense of the complainant. The said container consisted of 1535 cartons of 9 K.G. each of table grapes and the value of the same was 23,025 British Pounds equivalent to Rs.19,34,100/- as per the then existing rate. The physical condition of the torn open pallets and rat faeces were photographed by the importers and authorities in U.K. The complainant submitted that the opposite parties are bound to observe the mandatory specifications and regulations prescribed by the APEDA and bound to take steps for rodent proofing and to maintain international food safety and hygiene standards in their pack house and see that no foreign matters enters the premises. The complainant submitted that because of the gross negligence and failure on the part of the opposite parties, a rat got into one of the pallets and damaged the packed table grapes which resulted in the rejection of the entire container and thereby the complainant was made to pay the dumping charges amounting to 4,618.20 British pounds equivalent to Indian Rs.3,87,928-80 to the buyer towards the same.

The complainant further submitted that the exported table grapes were of high quality and the complainant would have got best price for the same and because of the negligent manner of the opposite parties in maintaining their cold storage, the complainant was put to loss. The complainant submitted that the opposite parties collected Rs.2,76,580/- for keeping the packed grapes in their premises and the same was also acknowledged by them and therefore the complainant got issued a legal notice on 12-7-2007 demanding them to pay the damages i.e. value of the grapes, expenses incurred by the complainant and the damages as follows:

i) cost of the grapes :

Rs.19,34,100-00

ii)Expenditure incurred by the complainant :

Rs. 3,87,928-80

iii)Damages :

Rs. 8,00,000-00

————————-

Total Rs.31,22,028.80 ============= for which the opposite parties 1 and 2 got issued a reply dated 14-8-2007. Hence the complainant approached this Commission for a direction to the opposite parties 1 and 2 to joint and severally pay Rs.31,22,028.80 ps.

Opposite parties filed counter denying the facts stated in the complaint and stated that they are not aware whether the complainant is a grape grower and exporter of fresh table grapes to foreign countries for the last 5 years and recognized by APEDA for packing and storing of fresh fruits and vegetables for export and is guided and regulated by the specifications and regulations prescribed the APEDA and also not aware of the complainant having an agreement with M/s Griffin & Brand (European) Ltd. U.K for the export of table grapes by complying the specifications of EUREP GAP and natures choice for exporting to European Union/United Kingdom. They admitted that from 1-3-2007 to 2-4-2007 the table grapes of the complainant were packed and stored with their cold storage and the packed cartons/pallets were stuffed in the refrigerated containers upto the period 2-4-2007. They further submit that they are not aware whether the five containers stuffed with table grapes and packed in cartons/pallets of said containers reached European Union/U.K. upto 4-5-2007. Opposite parties denied the allegation of the complainant that the said containers were sealed by the Liners and the customs authorities after they were stuffed at their premises.

They denied the allegation of the complainant that after reaching U.K., the containers were opened by the importer and that in one of the containers some cartons in a pallet were found torn open and presence of a rat was felt by rat faeces and rat gnawings indicating infestation by rats and for the said reason M/s Griffin & Brand have referred the same to local authorities and the authorities of Ashfort Borough Council, U.K. declared the said consignment of table grapes not fit for human consumption and the same were ordered to be destroyed at the expense of the complainant.

Opposite parties further submitted that as per APEDA specifications and regulation, they have taken all precautions and steps including rodent proofing (rat traps) and maintain international food safety and hygiene standards in their cold storage. They submitted that there is no scope for entering any foreign matter into the cold storage and that there is no negligence on their part in maintaining the cold storage. They denied the allegation of the complainant that a rat entered into one of the pallets and damaged the packed table grapes which resulted in rejection of the entire container of the complainant. They submitted that there is no possibility for a rat entering into one of the carton and damaging the packed grapes with the cold storage unit of the opposite parties. They submitted that they are not aware whether the complainant paid dumping charges amounting to 4,610-20 British pounds equivalent to Indian Rs.2,87,928.80 to the buyer of the complainant towards the same and whether the grapes were of high quality and the complainant would have got best price for the same. They submitted that they observed mandatory specifications and regulation prescribed by the APEDA and also have taken steps for rodent proofing and maintained internal food safety and hygiene standards in their cold storage unit. They further submitted that the APEDA authorities inspected their cold storage unit and were satisfied with regard to the precaution and steps taken by the opposite parties and issued a certificate to that effect. They admitted that the complainant paid Rs.2,76,580/- for keeping the packed grapes in their cold storage premises and submitted that there was no negligence on their behalf in maintaining the cold storage and it was maintained as per the mandatory specifications and regulations of APEDA. They further submitted that to the legal notice dated 12-7-2007 of the complainant they issued a reply dated 14-8-2007 and submitted that they are not liable to pay Rs.31,33,028-80 ps as claimed by the complainant.

Opposite parties submitted that the claim of the complainant requires a detailed enquiry which cannot be decided summarily and that the dispute also does not fall within the ambit of Consumer Protection Act, 1986 and therefore the complainant has to file a case in civil court. They further submitted that there was no correspondence by the complainant till 12-7-2007 of the alleged rat problem and this theory of rat is an afterthought by the complainant. They submitted that they regularly clean the chambers and at no point of time found any insects like cockroaches etc. in their cold storage unit. They submit that they take utmost care in hygiene, clean the environment and also follow pest control measures at regular intervals and maintain the temperature of ) degrees to 2 degree and keep the doors closed and infact the chamber doors are tight and only opened and closed during the operations. During the period of stuffing/loading of fruits in the container, surveyor check the temperature, quality and other important parameters of the fruit at random from all the pallets of the container and even customs and central Excise people came to opposite parties and inspect the stuffing process and the representatives of the complainant are also present every time during the stuffing of the containers and therefore there is no chance of a rat entering into the pallet in the cold storage. Opposite parties submitted that their cold storage unit was established in the year 1987 and has a good reputation in Andhra Pradesh as well as in Indian Cold Storage Units and have been successfully handling many customers for export of fresh fruits since a decade and submitted that there is no negligence on their behalf and prayed for dismissal of the complaint.

In support of its case the complainant got filed the affidavit of its proprietor reiterating the facts stated in the complaint and relied upon documents marked as Exs.A1 to A21. Ex.A1 is the copy of Registration-cum-Membership certificate issued by APEDA to the complainant dated 27-2-2007. Ex.A2 is the copy of certificate of importer-exporter code (IEC) by Ministry of Commerce, Govt. of India dated 22-2-2007. Ex.A3 is the copy of agreement of trading terms between the complainant and Griffin & Brand Ltd., Ex.A4 is the bill of lading issued by Maersk Line dated 10-4-2007. Ex.A5 is the xerox copy of invoice dated 2-4-2007. Ex.A6 is the copy of Phytosanitary certificate issued by Government of India, Ministry of Agriculture dated 16-4-2007. Ex.A7 is the copy of Generalized system of preference certificate of origin dated 13-4-2007. Ex.A8 is the receipt issued by Gubba Cold storage Limited dated 2-4-2007. Ex.A9 is the copy of shipping bill for export of goods under duty entitlement pass book (DEPB) scheme dated 2-4-2007. Ex.A10 is the copy of voluntary surrender certificate of unsound food issued by Ashford Borough Council, U.K dated 4-5-2007.

Ex.A11 is the statement issued by Griffin & Brand (European) Ltd., dated 16-5-2007 Ex.A12 is the certificate issued by Griffin & Brand (European) Ltd., dated 26-4-2007. Ex.A13 is the Xerox copy of the certificate issued by APEDA to opposite party No.1 dated 16-2-2007. Ex.A14 is Xerox copy of EUREP GAP certificate dated 28-6-2007. Ex.A15 is Xerox copy of photographs from website of opposite parties dated 30-6-2007. Ex.A16 is Xerox copy of procedure for grant of recognition certificate by APEDA. Ex.A17 is photographs of pallets. EX.A18 is compact disk containing photgraphs of pallets. Ex.A19 is office copy of the legal notice dated 12-7-2007. Ex.A20 are two postal acknowledgements. Ex.A21 is reply notice issued by the opposite party No.1 dated 14-8-2007.

The opposite parties on the other hand got filed the affidavit of the Director of its company reiterating the facts stated in the counter and also an affidavit of a third party i.e. Mr.K.Niranjan Kumar, Managing Director of M/s.Garc Bio Sciences Private Limited certifying that M/s.Gubba Cold Storage Ltd., strictly follows the norms of APEDA and maintain their cold storage unit with hygiene manner and regularly clean the chambers and that he visited the unit number of times and there is no possibility of any rat entering the cold storage. They relied upon documents marked as Exs.B1 to B18. Ex.B1 is the original notice issued by the complainant dated 12-7-2007. Ex.B2 is the office of reply notice dated 14-8-2007. Ex.B3 and B4 are postal acknowledgements. Ex.B5 is the copy of certificate for permanent registration issued by Dept. of Industries to opposite party dated 30-7-1987. Ex.B6 is the copy of certificate issued by APEDA to opposite party dated 16-2-2007. Ex.B7 is the copy of registration issued by ISO. Ex.B8 to B15 are the copies of the letters addressed to opposite party No.1 by various companies. Ex.B16 is the Pest Management Service letter dated 24-4-2007. Ex.B17 is the Pest Management letter to opposite party No.1 dated 30-3-2006. Ex.B18 are photos.

The brief point that falls for consideration is whether the complainant established any deficiency on behalf of the opposite party and if the complainant is entitled for the relief sought for in the complaint?

Heard both sides. Both parties also filed written arguments. It is the case of the complainant that they entered into an agreement with M/s.Griffin & Brand (European) Ltd., for the export of table grapes for the Agricultural season ending in March and April, 2007. The complainant got fresh table grapes for export and stored them for the period 1-3-2007 to 2-4-2007 in the premises of opposite party No.1. Five containers were stuffed with table grapes and sent to U.K. on 4-5-2007 and after reaching U.K., they were opened by the importer and in a container bearing No. PONU 492549-4, some cartons in a pallet were found torn open and there is presence of rat faeces and rat gnawing because of which the importer referred the same to the local health authorities who declared that the consignment is not fit for human consumption and the same was destroyed in U.K. at the expense of complainant because of which the complainant incurred a loss of Rs.19,34,100/- towards cost of grapes apart from other expenditure.

The learned counsel for the opposite parties submitted that from 1-3-2007 to 2-4-2007 the table grapes of the complainant were packed and stored with the opposite parties cold storage and from there they were stuffed in refrigerated containers in the premises of the opposite parties up to the period 2-4-2007, as such the responsibility of the opposite parties came to an end on that day. The learned counsel for the opposite parties contend that as per the bill of lading for ocean transport field by the complainant, the container was received at Mumbai by the complainants agent and the same was transported through Maersk India Pvt. Ltd., and no complaint was made at that point of time. We find this contention unsustainable on the ground that the complainants agent at Mumbai would not open the containers for inspection nor is he authorized to state that the goods were infested. The learned counsel for the opposite parties further relied upon Ex.A6 filed by the complainant which is dated 16-4-2007 issued by the Government of India, Ministry of Agriculture which states that plants or plant products have been inspected according to appropriate procedures and have considered to be free from quarantine pests and other injurious pests and are considered to confirm that there was no complaint made till 14-7-2007.

It is the contention of the complainant that opposite party No.1 was bound to observe the specifications and regulations prescribed by APEDA which is mandatory once the table grapes were stored in the premises of opposite party No.1, it is their duty to keep it safe and away from pests including rodents. In fact APEDA prescribes steps for rodent proofing and maintaining international food safety and hygiene standards. It is the opposite parties case that they have taken all precautions and steps including rodent proofing and there is no scope for the entry of any rat into the cold storage unit. The APEDA authorities inspected the cold storage unit of the opposite parties and issued a certificate which is Ex.A13 filed by the complainant and this certificate is valid upto 15-2-2009. The learned counsel for the opposite parties contended that even Customs and Central Excise officials have inspected the cold storage and the stuffing process and even the Supervisor of the complainant never made any complaint of presence of rats.

He relied on Exs.A6 and A8 and contended that as per these two exhibits, the goods were in perfect condition as on 2-4-2007. Ex.A6 is the Phytosanitary certificate issued by the Joint Director of Horticulture which only states the name of the Exporter, the address of the consignee and that there was a disinfection treatment done on 13-3-2007 and this was issued on 16-4-2007 at Hyderabad. This certificate does not establish the case of the opposite parties that rat could not have entered into the carton. The description and number of package is written as 1535 boxes each weighing 9 kgs. and packed in 20 pallets. It is also evidenced in Ex.A7 which is dated 11/13-4-2007 and this certificate of a consignment of goods by the complainant to M/s.Griffin & Brand (European) Ltd., The date of the invoice is 2-4-2007 and Ex.A8 which the opposite parties are relying is only a receipt dated 2-4-2007 stating that 1535 boxes of 9 kgs. each is being sent through container PONU 492549-4 and is signed . This receipt does not state anywhere that the goods were in perfect condition and also does not have any terms and conditions printed overleaf which state that the complainant have to necessarily register a complaint or check the goods prior to accepting such a receipt. We are of the considered view that Ex.A8 does not establish the case of the opposite parties at all.

The learned counsel for the opposite parties also explained vide Ex.A16 the procedure for granting Registration Certificate in which certain important conditions are as follows:

2.1: In case the application is in order, the Fresh Fruit and Vegetable Division of APEDA at its headquarters will forward a copy of the documentation to the Packhouse Recognition Committee authorized for the purpose, for carrying out inspection of the packhouse.

2.3: The Packhouse Recognition Committee constituted by APEDA shall carry out physical inspection of the Packhouse and its manual and procedures.

3.1: In case the Recognition Committee is satisfied that the pack house conforms to the levels stated in the scheme, it will recommend to APEDA to issue the packhouse recognition certificate. The same shall be issued by APEDA in Form-IV.

There is an elaborate procedure for granting of registration certificate by APEDA. This itself does not absolve the opposite parties from proving that there was proper rodent proofing done in their cold storage when the goods were packed and stored in their premises, it is their duty to explain as to how a rat entered into the cartons.

It is an admitted fact that an amount of Rs.2,76,580/- was paid to the opposite parties on 2-4-2007. Ex.A9 is the PMV value of 1535 boxes of 9 Kgs. each of an amount of rs.10,34,757 and the FOB value is Rs.9,40,630/-. Ex.A10 is the VOLUNTARY SURRENDER CERTIFICATE OF UNSOUND FOOD dated 4-5-2007 issued by Ashford Borough Council under the Food Safety Act, 1990 and Food Hygiene Regulations 2006. This certificate states as follows:

This is to certify that James Tamen Designation Technologist of Griffin brand European Ltd., Leacon Road, Ashford Kent TN 23 4TU has undertaken to dipose of the following foods which upon examination were found to be unsafe by consigning them to a registered carrier.

The disposal shall be under the supervision of Environmental Health Staff.

The foods have/have not/will be stained Thomson Seedless table grapes container No.PONU492449-4 1535 x 9kg.

Grower:Shobha Agritech, Hyderabad.

——————-

13,815.15kg.  Date 4-5-07 sd/- 

This is to certify that I, the undersigned hereby voluntary surrender the above named unsound food for the purpose of having it destroyed or disposed of as to prevent it from being used for human consumption. 

Dated 4-5-2007 sd/-

Ex.A12 is a certificate issued by the Managing Director of Griffin & Brand (European) Ltd., and is dated 26-4-2007 that is the date of arrival of consignment in U.K. which states as follows:

TO WHOM IT MAY CONCERN The above consignment was delivered to G+B premises on 27-4-07, after unloading the initial first pallets rat droppings were noticed. On further inspection of the pallets carton damage conducive with rat gnawing was seen. Within cartons evidence of rat nesting was found. Pallets were placed back in the container, the doors re-sealed and the health authorities notified. On inspection by the health authorities it was agreed that rat infestation had occurred and that would dump the fruit under controlled conditions. This was done on the 4/5/07.

As for the market rate at the time it was 14.40-

15.00 per 9 kg carton.

There has at this time been no settlement for losses that we have incurred.

The aforementioned document i.e. Ex.A12 clearly establishes the case of the complainant that the consignment was delivered to the premises of M/s.Griffin & Brand (European) Ltd., on 27-4-2007 and on opening of the cartons, rat faecus were found. Ex.A10 further establishes that 13,815 kgs. were ordered to be destroyed since they were unfit for human consumption. When it is an admitted fact that the table grapes were packed and stored in the premises of opposite party No.1 and as per APEDA rules, it is their duty to maintain hygienic standards as per international food safety rules, and it is also established by the complainant that the goods which were exported to M/s.Griffin & Brand (European) Ltd., were rejected and the health authority of U.K. has branded them as unfit for human consumption vide Ex.A10, we are of the considered view that once the pallets were stored in the premises of opposite party No.1 and also packed and sealed there, it is their duty to take precautions in rodent proofing. It is evident from the record that the opposite parties have failed to perform their duty of maintaining international food and safety standards and hence there is deficiency of service on their behalf for which we direct them to pay an amount of Rs.9,41,630/- which is the FOB value of 1535 boxes weighing 9 Kgs. each together with Rs.4,00,000/- towards loss sustained and expenditure towards dumping charges etc. 4618 British pounds evidenced under Ex.A11 incurred by the complainant on account of rejection of the said consignment. The complainant did not also specifically pray for the refund of storage expenses. The rest of the amounts prayed for by the complainant is not substantiated by any documentary evidence except for the aforesaid amounts which are being allowed together with interest at 9% p.a. from 4-5-2007 i.e. the date on which the grapes were destroyed till the date of realization together with costs of Rs.5,000/-. Time for compliance four weeks.

In the result this complaint is allowed directing the opposite parties to jointly and severally to pay Rs.9,41,630/- towards cost of grapes, Rs.4,00,000/- towards loss and expenditure incurred by the complainant including dumping charges etc. together with interest @ 9% p.a. from 4-5-2007 till the date of realization. We also award costs of Rs.5,000/-. Time for compliance four weeks.

 

Sd/-MEMBER.

 Sd/-MEMBER.

JM Dt. 05-02-2010 //APPENDIX OF EVIDENCE// Witnesses examined for   Complainant Opposite parties Affidavit of Mr.P.Upender Affidavit of Mr. Gubba Kiran, Director of Reddy, Proprietor of complainant M/s/Gubba Cold Storage Limited filed.

filed.

Affidavit of Mr.K.Niranjan Kumar, Mg.Director of M/s.Garc.Bio Sciences Pvt. Ltd., filed. 

Exhibits marked on behalf of the Complainant : 

Ex.A1-Copy of Registration-cum-Membership certificate issued by APEDA to the complainant dated 27-2-2007.

Ex.A2-Copy of certificate of importer-exporter code (IEC) by Ministry of Commerce, Govt. of India dated 22-2-2007.

Ex.A3-Copy of agreement of trading terms between the complainant and Griffin & Brand Ltd.,   Ex.A4-Bill of lading issued by Maersk Line dated 10-4-2007. 

Ex.A5-Xerox copy of invoice dated 2-4-2007.   

Ex.A6-Copy of Phytosanitary certificate issued by Government of India, Ministry of Agriculture dated 16-4-2007.

Ex.A7-Copy of Generalized system of preference certificate of origin dated 13-4-2007.

Ex.A8-Receipt issued by Gubba Cold storage Limited dated 2-4-2007.

Ex.A9-Copy of shipping bill for export of goods under duty entitlement pass book (DEPB) scheme dated 2-4-2007.

Ex.A10-Copy of voluntary surrender certificate of unsound food issued by Ashford Borough Council, U.K dated 4-5-2007.

Ex.A11-Statement issued by Griffin & Brand (European) Ltd., dt. 16-5-2007.

Ex.A12-Certificate issued by Griffin & Brand (European) Ltd., dt. 26-4-2007.

Ex.A13-Xerox copy of the certificate issued by APEDA to opposite party No.1 dated 16-2-2007.

Ex.A14-Xerox copy of EUREP GAP certificate dated 28-6-2007.

Ex.A15-Xerox copy of photographs from website of opposite parties dated 30-6-2007.

Ex.A16-Xerox copy of procedure for grant of recognition certificate by APEDA.

Ex.A17-Photographs of pallets.

EX.A18-Compact disk containing photgraphs of pallets.

Ex.A19-Office copy of the legal notice dated 12-7-2007.

Ex.A20-Two postal acknowledgements.

Ex.A21-Reply notice issued by the opposite party No.1 dated 14-8-2007.

Exhibits marked on behalf of the opposite parties:

Ex.B1-Original notice issued by the complainant dated 12-7-2007. 

Ex.B2-Office of reply notice dated 14-8-2007.

Ex.B3 & B4 are postal acknowledgements.

Ex.B5-Copy of certificate for permanent registration issued by Dept. of Industries to opposite party dated 30-7-1987.

Ex.B6-Copy of certificate issued by APEDA to opposite party dt 16-2-2007.

Ex.B7-Copy of registration issued by ISO.

Ex.B8 to B15 are the copies of the letters addressed to opposite party No.1 by various companies.

Ex.B16-Pest Management Service letter dated 24-4-2007.

Ex.B17-Pest Management letter to opposite party No.1 dated 30-3-2006.

Ex.B18 are photos.  

Sd/-MEMBER 

Sd/-MEMBER. JM Dt. 05-02-2010