KANHIYA LAL RADHEY SHAM vs URMILA RANI

THE aforesaid two appeals arise from impugned order dated 28.1.2000 passed by the District Forum and, therefore, shall stand decided by this single order. C

THE appellants M/s. Kanhiya Lal Radhey Sham is a shop-keeper from whom the respondent purchased one sealed tin of mustard oil manufactured by appellant M/s. Parivar Agro Industries which on consumption resulted in Dropsy disease. On account of having sold adulterated mustard oil, resulting in Dropsy disease, both the appellants have been held jointly and severally liable for having sold a defective and adulterated article and directed to pay Rs. 2,75,000 as compensation. Feeling aggrieved, they have preferred this appeal.

The case of the respondent/complainant before the District Forum in brief was as under: That respondent purchased a sealed tin of mustard oil for Rs. 760 on or about 6.8.1998 from M/s Kanhiya Lal Radhey Sham whose proprietor/partner is Mr. Kanhiya Lal. This tin bore the lable of Agmark, Parivar, Kachi Ghani Mustard oil manufactured by M/s. Parivar Agro Inds., B-8, Sector 7, NOIDA. The shop-keeper represented at that time that the tin contained genuine Kachi Ghani Mustard Oil of ''Parivar Brand''. She consumed the oil quite a few times during the period 6.8.1998 upto the first week of September, 1998 by cooking vegetables and frying pakoras in it and by also putting some of its in the Mango Achar. This caused serious problems to her inter alia, like loose motions, swelling/oedema of legs and feet and pain therein, fever, haziness in sight which was sometimes of a very high order, reddening of eyes and severe pain therein at short intervals. She also felt too weak to walk and her legs trembled whenever she tried to walk. Occasionally she also felt chest pain. Learning that the said symptoms could be caused by consumption of adulterated Mustard Oil containing argemone oil. She on 7.9.1998, applied to the Director, Directorate of Prevention of Food Adulteration, Food Laboratory, Government of NCT of Delhi at A-20, Lawrence Road Industrial Area, Delhi-35 for testing of the sample of mustard oil which she had taken out of the said tin of ''Parivar Brand''. She also deposited the requisite fee of Rs. 20 with the said Directorate, for the purpose. After testing, the Directorate of Prevention of Food Adulteration, Food Laboratory, Govt. of NCT of Delhi gave her their report No. PA/Lab/98/421 dated 8.9.1998 that the analysis of oil sample showed presence of argemone oil.

FURTHER case of the respondent was that due to swelling/oedema of her legs, feet, extreme weakness in walking, fever, loose motions, reddening and pain in eyes and haziness of sight/dramatical reduction in her eyesight she performed her duties with extreme difficulty and anxiety and took leave from 7.9.1998 to 10.9.1998 and from 12.9.1998 to 25.9.1998 and even thereafter exhausted her valuable leaves. The doctors at Aruna Asaf Ali Government Hospital, Rajpur Road, Delhi diagnosed her to be a patient of ''Oil Dropsy''. She has been under constant medical treatment since then and even upto this date, her legs are not completely free from swelling and suffer pain, difficulty and extreme weakness while walking. Her eyes are still aching in spite of her all efforts and treatment for protecting her eyesight/avoiding blindness. She spent a huge amount of money on treatment, medicines, special diet and conveyance due to suffering from oil dropsy besides suffering from physical torture, agony and anxiety about her health and eyesight and life expectancy due to oil dropsy. According to the respondent, all this was the result of hazardous/poisonous adulterated mustard oil of ''Parivar'' brand purchased by her from M/s. Kanhiya Lal Radhey Sham. The affidavit of the respondent showed presence of the argemone oil which she got tested and report proves beyond all reasonable doubts that tin of mustard oil purchased by her on 6.8.1998 was adulterated and contained argemone oil.

AS was expected the appellant Kanhiya lal Radhey Sham straightaway denied the allegations of respondent having purchased any brand of oil from him and so much so, he also took the plea that he had no business transactions with the appellant M/s. Parivar Agro Inds. Ltd. Similarly, the appellant-M/s. Parivar Agro Inds. Ltd. took the plea that there was no privity of contract either with the appellant M/s. Kanhiya Lal Radhey Sham or with the respondent and further that the respondent has failed to produce any document to show that alleged tin was either manufactured by them or sold by them. It is pertinent to mention at the outset that the respondent was holding a high position of Additional Session Judge at the relevant time and she had filed an affidavit about the purchase of the said oil from the shop of the appellant M/s. Kanhiya Lal Radhey Sham on which the details of the appellant M/s. Parivar Agro Inds. Ltd. as manufacturer are mentioned. Photocopy of the details was produced before the District Forum. Thus, the plea of the appellant M/s. Kanihya Lal Radhey Sham that said tin of mustard oil was not purchased from him stands falsified. Now the question arises, whether the article/goods in question i.e., the oil was hazardous and because of the consumption of that oil, the respondent in fact developed oil dropsy. The report of the Directorate of Prevention of Food Adulteration, Government of NCT of Delhi was also produced by the respondent before the District Forum which was duly proved. During the course of arguments, the learned Counsel for the appellant M/s. Parivar Agro Inds. Ltd. vehemently challenged the veracity of the report mainly on the premise that such report was admissible only if it is obtained in terms of Sections 13(1)(c), (d), (g) of the Consumer Protection Act, 1986 which is as follows: "Section 13(1)(c)-Where the complainant alleges a defect in the goods which cannot be determined without proper analysis or test of the goods, the District Forum shall obtain a sample of the goods from the complainant, seat it and authenticate it in the manner prescribed and refer the sample so sealed to the appropriate laboratory along with a direction that such laboratory make an analysis or test, whichever may be necessary with a view to find out whether such goods suffer from any defect alleged in the Complaint or from any other defect and to report its findings thereon to the District Forum within a period of fifty-five days of the receipt of the reference or within such extended period as may be granted by the District Forum;

(d) before any sample of the goods is referred to any appropriate laboratory under Clause (c) the District Forum may require the complainant to be in relation to the goods in question; (g) the District Forum shall thereafter give a reasonable opportunity to the complainant as well as the opposite party of being heard as to the correctness or otherwise of the report made by the appropriate laboratory and also as to the objection made in relation thereto under Clause (f) and issue an appropriate order under Section 14.

AT the same time, the Counsel for the appellant M/s. Parivar Agro Inds. Ltd. has also contended that even the report produced by the respondent was not subjected to cross-examination nor was the appellant allowed or permitted to cross-examine the author of the report. Record shows that no such application was moved by the appellant before the District Forum seeking permission to cross-examine the author of the report in order to find out the correctness or otherwise. In this regard, the Counsel for the appellant referred and relied upon Sub-clause (g) of Section 13 (1) of the Consumer Protection Act, 1986. According to this clause as and when the District Forum obtains a sample of the goods from the complainant and refers the sample to the appropriate laboratory and receives the report, and any of the parties disputes the correctness of the findings of the appropriate laboratory or disputing the correctness of the methods of analysis or test adopted by the appropriate laboratory, the District Forum shall require the opposite party or the complainant to submit in writing his objections in regard to the report made by the appropriate laboratory and the District Forum shall give reasonable opportunity to the complainant and the O.P. of being heard as to the correctness of the report.

IN our view, report produced by the respondent before the District Forum was deemed by the District Forum as a report obtained in terms of Section 13(1)(c) of the Consumer Protection Act, 1986 and since the appellant did not dispute the correctness of the finding of the said report, the question of giving reasonable opportunity to the appellant for cross-examination of the author of the report as to the correctness or otherwise of the report did not arise. It is not case which remained uncontested. The claim and allegations of the respondent were not only contested but several pleas were taken including the plea as to the correctness of the report or the violation of the provisions of Section 13(1) of the Act and so much so the appellant M/s. Parivar Agro Inds. Ltd. took the plea that there was no privity of contract either between it or appellant, M/s. Kanhiya Lal Radhey Sham and the respondent/complainant.

In this regard, reference to the affidavit filed by the respondent is of significance. In this affidavit, the respondent has given an option to the appellant that if they wanted to get the same tested again, they may do so but the appellant did not exercise this option. The appellant had waived its right to invoke the provision of Section 13 of the Consumer Protection Act, 1986. Even otherwise, no flow or fault has been pointed out in the report of Government laboratory.

PLEA of the appellant that there was no privity of contract is false, specious and unavailable in terms of Sub-section (6) of Section 2 as unfair trade practice by the manufacturer who manufactures spurious goods makes him liable qua the consumer. Any person who for the purpose of promoting sale, use or supply of any goods falsely represents that the goods are of a particular standard, quality, grade, composition, style or model is guilty of unfair trade practice. Clause (6) of Sub-section 3(1) which holds the manufacturer of spurious goods or otherwise such goods having sold or adopt deceptive practice for the provision of services is liable for prosecution under the Consumer Protection Act, 1986. Finding no infirmity in the finding returned by the District Forum coupled with the aforesaid reasons provided by us as to the quality of the article manufactured by appellant-M/s. Parivar Agro Inds. Ltd., we do not find any merit in the appeal so far as the article having been manufactured by the appellant being hazardous is concerned. From the report we find that the respondent had not only suffered mental and physical harassment for days together but also incurred expenses for medical treatment supported by documents. In terms of Section 14(1) of the Consumer Protection Act, 1986, the consumer is entitled to the loss or injury suffered by him or her due to the negligence of the opposite party or unfair trade practice. It is not a case that requires removal of defects, it was the ailment known as ''dropsy'' that resulted in the mental as well as physical injury. As regards the liability of appellant M/s. Kanhiya Lal Radhey Sham, the fact remains that he had sold the article in sealed condition and, therefore, the defence of having sold the article in the same condition as was received or purchased by him comes to his rescue. He cannot be held guilty of indulging in unfair trade practice. However, taking overall view of the matter, we modify the impugned order qua the appellant M/s. Parivar Agro Inds. Ltd. by scaling down the amount of compensation to Rs. 2 lacs and award Rs. 10,000 towards the cost of litigation.

APPEAL of M/s. Parivar Agro Inds. Ltd. is partly allowed to the aforesaid extent whereas the appeal of M/s. Kanihya Lal Radhey Sham is allowed as he cannot be held severally and jointly liable because the article was sold in a sealed tin as received by him from the manufacturer as in such cases, only the manufacturer is liable. Bank Guarantee/FDR, if any, deposited by the appellant be returned to the appellant forthwith under proper receipt. A copy of this order, as per the statutory requirements be forwarded to the parties, free of charge and also to the concerned District Forum and thereafter the file be consigned to the Record Room. Appeal No. A-516 of 2000 partly allowed. Appeal No. A-240 of 2000 allowed.