Rajanesh R Swamy vs CADBURY INDIA LIMITED

THE complainants have filed this complaint claiming compensation of Rs. 9,60,415 with interest at 15% per annum under Section 17 of the Consumer Protection Act.

THE facts in this case are as follows: The complainants purchased ''Cadbury Chocolates'' from opposite party (for short, ''O.P.'') No. 2, which is a Retailer of Cadbury Chocolates manufactured by O.P. No. 1 on 1.11.2000. According to the complainants, when the Sachet/aluminium foil which had wrapped the Chocolate was cut opened, the complainants found the worms coming out of the chocolate bar. Complainant No. 2 having consumed the chocolate took ill and she had to be taken to a doctor for treatment. This necessitated the complainants to write a letter to the manufacturer of the Cadbury Chocolates at Mumbai enclosing documentary proof of either the adulteration or organic change on account of inherent vice in the food products itself. In addition, the complainants have also sent telegrams to O.P. No. 1. O.P. No. 1 had sent one Mr. G.N. Deepak, Sales Officer, who collected the worm infested Chocolates from the complainants assuring them that the same would be couriered to the company and a detailed report after the analysis of the Chocolates would be sent to the complainants. Thereafter, O.P. No 1 has sent a reply dated 1.12.2000 admitting the infestation. Thereafter, the complainants have also sent several letters to O.P. No. 1 demanding action and to stop flooding the market with ''n the rate food products which may have the potentiality of endangering the life of consumers. It is further averred in the complaint that the complainants obtained a Report and got it confirmed that the Cadbury Chocolates purchased by them were infested and consumption of such Chocolates is dangerous to the human life. Hence, the complainants have filed this complaint claiming compensation from the O.Ps. O.P. No. 2 which is a Retailer has filed its version stating that if at all if there was any defect in the Chocolates, it was only O.P. No. 1 which is liable, as the said Chocolates are being manufactured by O.P. No. 1. It is further stated by O.P. No. 2 that there is nothing to show in the complaint that the Chocolates found defective were purchased by the complainants from its shop. O.P. No. 2 in its version does not dispute the sale of chocolates in favour of the complainants.

O .P. No. 1, which is the manufacturer of Cadbury Chocolates denies the very purchase of the Chocolates on the ground that the Bill produced by the complainants does not show that the said product is manufactured by O.P. No. 1. According to O.P. No. 1, the complaint filed by the complainants is in the nature of a Public Interest Litigation and it has been filed only to bring a bad name to O.P. No. 1 and to get compensation. It is further averred by O.P. No. 1 that they have taken and continue to take all precautionary measures to protect the Cadbury Chocolates from any infestation and they have instructed all the Retail Dealers to preserve Cadbury Chocolates in such a manner not to get infested. In the version, O.P. No. 1 has elaborately described the procedure that would follow to pack the Cadbury Chocolates in such a manner not to get infested and also instructed all retail dealers to provide safety to the products manufactured by it till they are sold to the possible consumers.

ALL the parties have filed affidavits in support of their case by way of evidence. The complainants have produced documents, which are marked as Exhibits C -1 to C -23. O.P. No. 1 has also produced 8 documents. On the pleadings of the parties, the following points arise for consideration: (1) Whether the complainants prove that the Cadbury Chocolates purchased by them were infested with worms? (2) In the event if the complainants were to establish that the Cadbury Chocolates manufactured by O.P. No. 1 were infested, what is the quantum of compensation they are entitled? Point No. 1 :

THE complainants have produced the Bill issued by O.P. No. 2 having purchased the Cadbury Chocolates. The said bill is marked as Exhibit C -1. According to O.P. No. 1 the said bill does not disclose that the complainants have purchased the products manufactured by it. O.P. No. 2 has not disputed or denied the purchase of Cadbury Chocolates by the complainants from it. In the absence of any dispute by O.P. No. 2 regarding the purchase of Cadbury Chocolates, we hold that the complainants have established that they have purchased the Cadbury Chocolates as per the bill Exhibit C -1. The case of the complainants is that when they opened the sachet, the Cadbury Chocolates were found to contain live worms. The further case of the complainants is that the second complainant took ill and started vomiting and became psychologically disturbed when she consumed worm infested Cadbury Chocolates. This necessitated the treatment by the doctor. In proof of this statement, the complainants have produced the certificate issued by one Dr. J. Viswaradhya, which is marked as Exhibit C -2. The said certificate reads thus: ''This is to certify that Baby Shyamal R. Swamy aged about 4 years D/o Mr. Rajanesh R. Swamy was brought to my clinic with the history of vomiting and psychologically disturbed after consuming worm infested Cadburys Chocolate. Symptomatic treatment was given for the restoration of her health.''

There is no reason to disbelieve the treatment taken by complainant No. 2 as per Exhibit C -2. Immediately thereafter complainant No. 1 had sent a telegram to the General Manager of Cadbury India. A copy of the said Telegram is marked as Exhibit C -3. The contents of Exhibit C -3 are as follows: ''Second instance of worms found in Chocolate (.) Informed Area Sales Executive Mr. Deepak (.) No action taken (.) Matter will be released to Press if no immediate action (.)'' Another telegram was also sent to the Regional Manager, Cadbury India. The said telegram is marked as Exhibit C -4. The contents of Exhibit C -4 are similar to the contents in Exhibit C -3. One more telegram was sent by the first complainant to the Area Sales Manager, Cadbury India. This document is marked as Exhibit C -5. The contents of Exhibit C -5 are also the same as that of Exhibits C -3 and C -4. On Exhibit C -6, which is a Consumer Complaint Feedback, the Sales Officer of O.P. No. 1 has made the following endorsement: ''Another sample purchased by the party which is also infected is with the party.....''

O.P. No. 1 had written a letter dated 1.12.2000 to the first complainant. The said letter is marked as Exhibit C -7. From the said letter it is seen that the samples collected from the complainants were sent to the Laboratory for analysis and pursuant to that a Report was also obtained. The certificate of analysis was sent along with the said letter to the complainants. A copy of the said certificate is marked as Exhibit C -7(a). The contents of the said certificate read thus: ''Physical Examination : One opened bar was received and examined. Aluminium foil showed presence of holes indicating signs of external ingress. Bar also showed signs of ''webbings and insect attack. No live insects were found. Only one end of the bar showed infestation. Deductions/Conclusions : There is a possibility of insects ingress into the wrapping while stored at Retail. This has been brought to the notice of concerned people in sales for needful action.''

This certificate has been issued by the Laboratory of O.P. No. 1. From the said certificate it is seen that the Cadbury Chocolates purchased by the complainants and sent to O.P. No. 1 showed presence of holes indicating signs of external ingress. Chocolate Bar also showed signs of webbings and insect attack. The certificate also says that no live insects were found and that only one end of the bar showed infestation. The conclusion portion of the certificate says that there was a possibility of insects ingress into the wrapping while stored at Retail and that the same has been brought to the notice of the concerned people in sales for needful action. This certificate itself establishes the fact that the Cadbury Chocolates purchased by the complainants from O.P. No. 2 were infested. When the documents of O.P. No. 1 themselves establish that the Cadbury Chocolates purchased by the complainants were infested, then it is not open to O.P. No. 1 to say that the Chocolates manufactured by it and sold by O.P. No. 2 to the complainants were not infested. If O.P. No. 1 is of the view that the Cadbury Chocolates sent by the complainants to O.P. No. 1 are not its products, then there was no reason for O.P. No. 1 to refer the said Chocolates for the analysis to find out whether the said Chocolates were infested or not. In all probability there were no live insects because of passage of time from the date of purchase of the Chocolates till the date of analysis by the Laboratory. The complainants have also obtained the opinion of Lifeguard Laboratories regarding the Cadbury Chocolates purchased by them. A copy of the said report is marked as Exhibit C -8. The contents of Exhibit C -8 read thus: ''Physical appearance : Chocolate with above label and intact wrapper around on opening found lots of fine circular pin point holes. Impressions of insect bite were found on the surface of the chocolate. Deposits of inspect faecal matter with matted particles were found on the surface. 1 cm long off -while coloured larvas found creeping over the chocolate. Total viable count : Bacterial Isolation revealed opaque colonies with serrated margins indicating tipical bacillus sps. Total viable count was 1.44 x 10 colony forming units/gram of sample. However bacterial contamination has not exceeded the standard limit of X 10/gram of sample. Yeast and Mould count : Colonies of cottony growth were found indicating mucor Spp of Mould. Yeast and Mould Count : 2.01 x 10 Cfu/gram. The approximate range that is permissible in sugar and sugar products is X 10 -10 per gram of sample. Lava of Ephestia Spp : Ephestia cautella, Ephestia Kuhniela attack on dry fruits and processed food products.''

According to O.P. No. 1, the said report cannot be relied upon because the persons who have issued the said certificate are not authorised to issue such certificate regarding Cadbury Chocolates. M/s. Lifeguard Laboratories are of the opinion that there were impressions of insect bite on the surface of the chocolate. If Exhibit C -8 is considered along with Exhibit C -7(a), it cannot be said that there were no worms in the Cadbury Chocolates purchased by the complainants. From the photographs and the negatives thereof produced by the complainants which are marked as Exhibits C -15 and C -15(a), the Cadbury Chocolates purchased by the complainants were best for consumption till July 2001, whereas the chocolates were purchased by the complainants on 1.11.2000. If the Chocolates were infested even before the time prescribed for consumption, necessarily there is a defect in the manufacture of Chocolates itself at the factory level or at the retail shop due to the fact that the Retailer has not taken proper care in protecting the chocolates from any infestation.

THE complainants have produced a Product/Downloaded Literature from Web -site of Express India, which is marked as Exhibit C -22. The first para of the said document reads thus : ''Mumbai, October 4 : Cadbury chocolates had a bitter taste on Saturday after the food and drugs administration directed seizure of the popular brand of chocolates following complaints that some samples of the confectionery had been infested with worms.''

From the said Exhibit it is also seen that the Cadbury Chocolates reach out to 6,50,000 retailers directly and indirectly. From this it is seen that large number of consumers spread over the country are purchasing the Cadbury Chocolates manufactured by O.P. No. 1. The complainants have also produced newspapers in order to show worms in the Cadbury Chocolates. No doubt these paper publications cannot be treated as evidence. But if we read the news item along with the documents referred to above, it is clear that there were lot of complaints about the worms in the Cadbury Chocolates manufactured by O.P. No. 1. Thereafter, the complainants have also written another letter, which is marked as Exhibit C -27 bringing these facts to the notice of O.P. No. 1. From the documents produced by the complainants read with the opinion given by the Laboratory of O.P. No. 1, we are of the view that the complainants have established that the Cadbury Chocolates purchased by them from O.P. No. 2 were infested with worms and consumption of such worm infested Chocolates is a hazardous to the society. O.P. No. 1 no doubt has stated that they adopt an elaborate procedure and process not only in the manufacturing but also packing of the Chocolates. O.P. No. 1 has also stated both in the version and the affidavit that they have instructed all the retailers to follow the method suggested by it in order to protect the Chocolates manufactured by it from any infestation. But O.P. No. 1 has not brought to our notice any instance to show that they have taken action against any retailer for not following the instructions given by them. O.P. No. 1 also has not produced any material to show what action they have taken against O.P. No. 2 who sold infested Chocolates in favour of the complainants. Mere issuing instructions to the retailers itself, in our view, is not sufficient. When a manufacturer manufactures consumable goods and release the said goods to the market, it has to take all possible steps to see that all possible consumers should get the good quality of its products. If goods of good quality do not reach the consumers, then ultimately the manufacturer is liable for the damage that may be caused to the consumers. In the instant case, complainant No. 2 having consumed the Chocolates manufactured by O.P. No. 1 suffered illness, which ultimately required the treatment by the doctor. Therefore, the complainants are entitled for damages. Point No. 2 :

THIS is not the first instance as against O.P. No. 1. On an earlier occasion, one R. Balu Venkatraman filed a complaint in Complainant No. 726/2003 before the IV Additional District Forum, Bangalore Urban District, alleging defect in manufacture of Cadbury Chocolates. The said complaint was allowed by the District Forum by awarding compensation of Rs. 10,000 with interest at 12% per annum. Appeals were filed by the parties in Appeal Nos. 1263 and 1359/2003 before this Commission and this Commission disposed of the appeals on 6.8.2004 and enhanced the compensation from Rs. 10,000 to Rs. 25,000 payable to the complainant in the said case by recording a finding that there was ''Deficiency in Service'' on the part of M/s. Cadbury India. The order of this Commission was affirmed by the National Commission in Revision Petition No. 2603/2004 as per Order dated 24.2.2005. The paper reports also disclose that there were lot of complaints regarding the manufacturing defect in the Cadbury Chocolates. From the Product/Downloaded Literature from Web -site of Express India it is seen that the Chocolates manufactured by O.P. No. 1 were infested with worms, which resulted in seizure of the said Chocolates. Chocolate is a favourite confectionery for children. Therefore, there is a duty cast upon the manufacturer to supply good quality Chocolates to all possible consumers. From the Product/Downloaded Literature from Web -site of Express India (Exhibit ''C -22'') it is seen that Cadbury Chocolates reach out to 6,50,000 retailers directly and indirectly all over India. From this it is seen that several crores of people in our country purchase Cadbury Chocolates for consumption. If consumers were to be supplied with infested Chocolates, which is hazardous to the consumers, necessarily such sale of hazardous goods has to be prevented.

SINCE the complainants have established that the Cadbury Chocolates purchased by them are manufactured by O.P. No. 1 and they are hazardous goods which may result in danger to the human life, we hold that O.P. No. 1 is liable to pay Rs. 1,00,000 by way of damages under Section 14(1)(hb) of the Consumer Protection Act, 1986 (for short, the ''C.P. Act''). Since the possible consumers of Cadbury Chocolates are not identifiable, we hold that the said amount shall be paid to the ''Karnataka State Consumer Disputes Redressal Commission, Bangalore, S.B. Account No. 01150050269 in the State Bank of Mysore, Cunningham Road Branch, Bangalore - 560 052, in order to utilize the same for the purpose of providing infrastructure to the State Commission and District Forums and for the welfare of the consumers. Taking all these facts into consideration, we also direct O.P. No. 1 to pay Rs. 50,000 as punitive damages under Section 14(1)(d) of the C.P. Act payable to ''Karnataka State Consumer Disputes Redressal Commission, Bangalore, S.B. Account No. 01150050269 in the State Bank of Mysore, Cunningham Road Branch, Bangalore -560 -052.

SINCE the complainants have established that the Cadbury Chocolates purchased by them were infested and it has made the second complainant to suffer from illness, which ultimately made her to take treatment from the doctor, we are of the view that awarding a sum of Rs. 50,000 as compensation in favour of complainants would meet the ends of justice.

IN the result, we pass the following order: The complaint filed by the complainants is disposed of in the following terms : (1) O.P. No. 1 is directed to pay Rs. 50,000 as compensation to the complainants with interest at 12% per annum from the date of the complaint till realization; (2) O.P. No. 1 is also directed to pay Rs. 1,00,000 as damages under Section 14(1)(hb) of the C.P. Act payable to the ''Karnataka State Consumer Disputes Redressal Commission, Bangalore, S.B. Account No. 01150050269 in the State Bank of Mysore, Cunningham Road Branch, Bangalore -560 052. (3) O.P. No. 1 is further directed to pay Rs. 50,000 as punitive damages under Section 14(1)(d) of the C.P. Act to the Karnataka State Consumer Disputes Redressal Commission, Bangalore, S.B. Account No. 01150050269 in the State Bank of Mysore, Cunningham Road Branch, Bangalore - 560 052. (4) O.P. No. 1 is also directed to pay Rs. 10,000 as costs of the proceedings to the complainants. (5) O.P. No. 1 shall pay the amounts to the ''Karnataka State Consumer Disputes Redressal Commission, Bangalore, S.B. Account No. 01150050269 in the State Bank of Mysore, Cunningham Road Branch, Bangalore - 560 052, as ordered above within four weeks from today, failing which O.P. No. 1 is liable to pay interest on the said amounts at the rate of 12% per annum from the date of the complaint till payment.

Complaint disposed of.