HON?BLE M. THANIKACHALAM J, PRESIDENT.
1. The opposite parties 2 to 4 in OP.No.105/2004 on the file of the District Forum, Chennai (South) are the appellants.
2. The parties are referred in this judgment, as ranked before the District Forum.
3. The complainant on 20.5.2003, purchased a baby food called Pediasure, from the 1st opposite party, which was manufactured by the opposite parties 2 to 4, by paying a sum of Rs.249/-. The complainant gave one dose of pediasure to her child, Master Aryan, aged about 3 years, on 20.5.2003 mid-night. Later, when the second dose was fed on 21.5.2003 the child refused completely and felt uneasy and nausea and started developing diarrhea and vomiting. When the baby food was tested, it emanated bad smell and suspected to be insect infected, though the expiry date is mentioned as 20.8.2005. The baby was immediately rushed to Deepa Healthcare Centre and treated immediately, worse was prevented.
4. The complainant?s father, on 22.5.2003, approached the 1st opposite party and questioned the callous indifferent manner, for which there was no proper reply. Therefore, an advocate notice was issued on 7.7.2003, for which there was a reply. One of the representative of the company viz. Mr. Ganesh, approached the complainant, who explained that the contents of the tin of Pediasure might have turned rancid due to exposure to air or water/moisture as a result of the tin being left uncovered for a few hours. The proposal through Mr.Ganesh, to conduct a test is yet to see the light. Despite notice, no reply. Therefore, the complainant is constrained to file this complaint, claiming an exemplary damage of Rs.10 lakhs.
5. The 1st opposite party, in his written version, alleged that he sold the baby food within the expiry period, and he has nothing to do with the baby food, and if at all, the other parties, being manufacturers alone are liable for defect if any, requesting to relieve him from the case.
6. The 2nd and 3rd opposite parties, in their common written version, admitting that the baby food was manufactured by the 4th opposite party, would contend that the manufacturer was taking atmost care in manufacturing baby milk powder, conducting quality control test, that there is no deficiency of service, and that the baby food was not infected during the manufacturing, they are not liable to pay any compensation, thereby prayed for the dismissal of the case.
7. On the basis of the above pleadings, exhibiting Ex.A1 to A7 and B1 to B3, as well as Ex.C1, the District Forum conducted an enquiry, which brought to surface, that the baby food manufactured by the opposite parties 2 to 4, was unfit for use, since it emanated unpleasant smell as well as it contained lumps, not readily dissolved in water, based upon the analyst report, which is marked as Ex.C1. It is the further conclusion of the District Forum, that the act of the opposite parties 2 to 4 comes under the definition of unfair trade practice, thus concluding, dismissing the claim against the 1st opposite party and allowing against the opposite parties 2 to 4 passed an order, directing them to pay jointly and severally, a sum of Rs.2 lakhs, as compensation for causing vomiting and diarrhea to the child, who consumed the milk powder.
8. Aggrieved by the above order, and challenging the findings of the District Forum, the opposite parties 2 to 4, questioned the same before us on various grounds as enumerated in the appeal memorandum.
9. Heard the learned counsel appearing for appellants and respondents, perused the documents as well as the order of the District Forum.
10. The learned counsel for the opposite parties 2 to 4, would submit that there is no evidence of any kind to show that the child suffered diarrhea, vomitting and the cause was due to consumption of baby food called Pediasure, that there is no evidence to show that the instructions printed in the tin were adhered, that there is no evidence to show that the child was admitted in the hospital for taking the baby food, which caused vomiting or diarrhea as the case may be, that there is no explanation for the delay, that the District Forum has grossly committed an error in placing verymuch reliance upon the analysis report, since there is no evidence to show that the preservatives were used to keep the sample in the same state, as it was sold or as it was administered to the child and unfortunately the District Forum, without analyzing the above points, which are very essential to fix the compensation at Rs.2 lakhs, without any basis, which requires to be set aside.
11. Opposing the above submissions, the learned counsel for the complainant would submit that only after the baby food was administered to the baby viz. the child of the complainant, the symptoms of diarrhea and vomiting took place, for which immediate treatment was given, thereby the child was saved, and that for selling or manufacturing such kind of infected food, the company should be dealt with properly, as rightly held by the District Forum, which deserves acceptance.
12. Admittedly, and as proved by Ex.A1 also, the complainant purchased Pediasure tin from the first party, for Rs.249/- on 20.5.2003. It is the specific case of the complainant that she fed one dose to her child on 20.5.2003 mid-night, and the second dose on 21.5.2003 morning. It is not the case of the complainant that on 20.5.2003, or till the second dose of baby food was administered on 21.5.2003, there was symptom of diarrhea or vomiting. In this view, it could be safely concluded, that there was no problem for the child till 21.5.2003 morning. It is the further specific case of the complainant, that when complainant attempted to administer the second dose to her child, child refused and started feeling nausea, then started vomiting and developed diarrhea. It is the further case of the complainant, that immediate attention was given taking the child to hospital and saved. Therefore, as rightly submitted by the learned counsel for appellant, the best piece of evidence, must be the treatment given by the complainant or her mother, as the case may be. To prove that vomiting and diarrhea was caused only due to the consumption of Pediasure on 21.5.2003, for the reasons best known to the complainant, which was also taken note of by the District Forum, they have not produced any medical certificate or anyother form of evidence. In this context we have to see the pleadings once again as well as the affidavit filed in support of pleadings.
13. The child was aged about 3 years. It is not the case of the complainant that on 20.5.2003 till mid-night, the child had not taken anyother food, except Pediasure. It is also not the specific case of the complainant either in the complaint, or in the affidavit that on 21.5.2003 also the child had not taken any food, except Pediasure. It is the common knowledge, certain foods are allergic to certain children. Even sometimes, if the milk is given, if it is not acceptable to the child at that time, for some reason, there used to be vomiting and diarrhea. Therefore, if the complainant wants to succeed in the complaint, they should have pleaded that except Pediasure, no other food was given or taken by the child. Even in the pre-claim notice also, there is no plea, that the child had not taken anyother food and because of taking Pediasure alone, vomiting and diarrhea had taken place, thereby fixing the responsibility or the cause for diarrhea and vomiting in this food.
14. After taking the child to the hospital, being the educated family as claimed, they should have tested the motion, vomiting etc., to find out the cause for diarrhea as well as to find out what are the food taken by the child. If that report is available, it may discloses the fact that, no other external matters were available as undigested food, then certainly we can fix the cause for diarrhea upon the Pediasure, and not otherwise. The District Forum, though record the finding ?No medical certificate is produced in support of medical treatment, given to the baby by the doctor? , has failed to take any adverse inference. Except the interested affidavit filed by the mother of the baby viz. the complainant, no other affidavit also has been filed, such as the doctor, who had treated the baby, what kind of treatment has been given, what was the medicine prescribed to save the child from the diarrhea and vomiting, etc. Having the chance to prove this aspect, the complainant utterly failed and this being the admitted position, we are unable to understand how the Forum has fixed the liability upon the opposite parties, as if they have committed unfair trade practice, since admittedly a well branded baby food was sold by the 1st opposite party, within the expiry period.
15. There is batch number also for the product. It is not the case of anybody including the complainant, that there was any complaint, against this product, having this batch, causing any problems. In this way also it can be said, in the manufacturing process, there would not have been any defect and this should follow, taking the Pediasure may not be the direct cause for vomiting and diarrhea for the child.
16. As averred in the complaint, they have suspected that the baby food may be the cause for this infection. Immediately as a prudent mother, having a doctor grandmother, they should have taken the sample, from the Pediasure tin and tested the same for insect if any, which is described as the cause for diarrhea and vomiting, at present. This opportunity, though available, had not utilized. It is the bounden duty of the complainant to prove that the Pediasure alone was the cause for the vomiting and diarrhea, thereby causing mental agony, suffering etc.
17. Admittedly, Pediasure is not fed directly as it is. There is a process to mix it, as instructed in the ?instructions for use?, thereby showing that they have to use, mixing vessel, sppon water, etc. Then it should be fed through feeding bottle or glass, as the case may be. No pleadings that non-contaminated or sterilized vessels were used to feed the child, mixing Pediasure, as seen from the pleadings as well as from the affidavit. Therefore, there was every possibility of contamination also, while preparing the Pediasure, to administer to the child, though it is not the case of the opposite party, before the District Forum. It is for the complainant to prove, that they have used sterilized bottles, vessels etc., and despite the fact, there was insect or something like that causing, vomiting, diarrhea. In the absence of plea and proof, for the above aspect also, it is humanly impossible, to conclude that the company is responsible for the diarrhea caused to the child and even we can say the bottle may be cause, or the vessels used may be the cause or someother food, which the child might have consumed may be the cause. In the absence of ruling out possibility, then fixing the responsibility upon the Pediasure alone, we are unable to brand the manufacturer, as if they had practiced unfair trade practice in selling their product.
18. The District Forum, in our considered opinion, unfortunately very much relied upon the unjust report, marked as Ex.C1, wherein it is opined that,
? The sample is found to be in lumps and has unpleasant rancid odour and taste and the sample does not dissolve readily when reconstituted. Hence as such the sample is not found to be for use?.
True, the report could be relied on, provided the test has been conducted immediately, without causing external disturbance to the baby food, within the time stipulated therein. As noted by the District Forum, the tin contains warning, which reads ?Opened cans should be stored in a cool, dry place but not refrigerated. Once opened, use contents within three weeks. Reconstituted Pediasureshould be used promptly or covered, refrigerated and used within 24 hours?, thereby impliedly showing that, if it is not used within three weeks, then there is every possibility to say that the baby food is unfit for consumption. In the case on hand, admittedly, the Pediasure was purchased on 20.5.2003, and the tin was opened on the same day. We have no evidence, that the tin was tightly closed, not allowing any moisture or external substance to get into the tin etc.
19. Sec.13 (1) (c ) of the Consumer Protection Act contemplates, ?sending the goods for analysis report, where the defect in the goods cannot be determined without proper analysis or test of the goods as the case may be?. On the basis of the above section, either at the request of the District Forum or at the request of the complainant, the Pediasure tin was subjected to analysis, only on 19.5.2004 exactly after one year from the date of purchase. Warning itself says that the contents should be used within three weeks. This being the admitted position, no useful purpose would be served, if the contents of the tin viz the baby food, was tested after one year as did by the District Forum, in this case. Therefore, the report of the analyst, as if there were small lumps and the food is not readily absolved in water etc., may not be useful and helpful to arrive at a positive conclusion, as if the food was bad, from its inception or at the time of the opening immediately after the purchase. Nowhere in the complaint or in the affidavit, it is pleaded that on opening also insects were found, etc.
20. The fact one Mr. Ganesh approached the complainant or her father, and assured to take action in this case, failed to advance the case of the complainant. Even assuming, as contended by the complainant, that Mr.Ganesh had taken some sample from the tin, that sample also would not reflect, the actual position whether the tin was closed properly etc. Mere taking sample, without preservatives then tested, that also would not serve the purpose. Therefore, for non-testing of the sample said to have been taken by Mr.Ganesh, and its report, on behalf of the manufacturer, this Commission cannot take any adverse inference.
21. As pointed out by the learned counsel for appellant, there was delay in issuing notice also. As clai
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med, the complainant was of the opinion that the child suffered only due to taking the baby food. Immediately they should have issued notice also accusing the opposite parties. It is not done in this case. When the sample was taken, or when the food itself sent after opening, it is the common knowledge that preservatives should be added to keep the food intact, as it was on the date of packing. Here admittedly, no preservatives added to the tin food, which might have caused deterioration, as noted by the analyst in the report. Unfortunately, the District Forum, without analyzing the case from proper angle, in our considered opinion, weighed by the personalities alone and, has come to an erroneous conclusion, as if the opposite parties had committed unfair trade practice, warranting the application of the CP Act, which is liable to be set aside. For the foregoing reasons, the appeal deserves acceptance, in order to set aside the illegal order of the District Forum. 22. In the result, the appeal is allowed with cost, setting aside the order of the District Forum in OP.No.105/2004 dt.6.11.2007, and the complaint is dismissed without cost. The 1st respondent / complainant is directed to pay a sum of Rs.2500/- to the appellants / 2 to 4 opposite parties, towards cost in the appeal. Since the appeal is allowed, there is no necessity to keep the Mandatory Deposit, in the custody of the Commission. Hence, the Registry is directed to handover the Fixed Deposit Receipt, deposited by way of Mandatory Deposit, to the appellants/ 2 to 4 opposite parties, duly discharged.