TARUN AGGARWAL vs MANAGING DIRECTOR, INDIAN TOBACCO CO. LTD.

AT the very threshold this complaint stands virtually concluded against the complainant by the recent binding observations of the National Commission in I (1993) CPJ 45 (NC) ''Anup Kumar @ Kailash Sharma v. S.M. Kanwar & Others''. Perhaps all that survives is that whether the complainant should be mulcated with penal costs as in the said case.

IN view of the above and for the limited purpose of disposing of the preliminary objections, it is unnecessary to delve too deeply into the facts. The complainant is a practicing advocate at Chandigarh and the somewhat curious case set up is that a bottle of real Gold Super-refined Mustard Oil was Purchased by him on the 18th of December, 1991 from Deepak Departmental Store for Rs. 44/- vide bill No. 941 which contained a fly which could be seen by a naked eye. It is then vaguely alleged that the complainant has been a consumer of the product ''Super refined Mustard Oil'' manufactured by M/s. INdian Tobacco Co. Ltd.. and sold in retail by opposite parties No. 4 and 5. It is then the case that for the past few months the complainant had not been keeping good health and has been suffering from abdominal pain and the medical opinion was that it could be due to some contaminated food stuff like mustard oil. The specific medical opinion of Dr. B.R. Verma vide C-1 however, is in the following terms : The trouble (abdominal problem) could be due to abdominal infection or due to some dietetic infection. It is also the case that after recovering from abdominal infection, the complainant served a notice on the Indian Tobacco Company Limited and its officials and retailers on the 24th of June, 1992, but no satisfactory reply or explanation was offered by the opposite parties. Consequently, the complaint was filed seeking a direction that the further production of the mustard oil by the present machine lying in the factory of the I.T.C. may be ordered to be stopped and that the bottle containing the fly/insect in possession of the complainant maybe ordered to be examined by an independent agency (on the 11th of January, 1993 the complainant produced before this Commission a sealed bottle of real Gold Super-refined Mustard Oil for safe custody). A tall claim of compensation to the tune of Rs. 2,13,500/- was raised.

In the written statement filed on behalf of the opposite parties, a number of preliminary objections have been raised which have been strenuously pressed at the very threshold. It is first glaringly pointed out that the Indian Tobacco Company Ltd. has not been impleaded at a 11 as an opposite party and obviously the Managing Director or the Sales Manager or other officials of the said Company can in no way be personally held responsible. Significantly, it is averred that the complaint is wholly belated having been curiously filed after a year of the alleged purchase of the bottle of Mustard Oil on the 18th of December, 1991. What is next highlighted is the admitted fact that the alleged contaminated bottle of Mustard Oil had admittedly not been consumed by the complainant and all allegations of abdominal pain etc. are consequently purely conjectural. It is then pointedly raised that the complainant has not cared even to locate the batch number, the date of manufacture or the other relevant details for his tall claim that the massive commercial production of the Mustard Oil by the opposite parties be halted in its tracks. The pleas of non-jointer of the particular manufacturing concern of Asha Refinery Private Limited has also been raised.

ON merits the opposite parties No. 4 and 5 have taken up the plea that infact the complainant was asking for a ransom amount of Rs. 50,000/- and wanted to black-mail them in the event of the failure to pay the amount. It was the case that the aforesaid figure was named as the price for the return of the bottle containing the insect and meanwhile evidence of ill health was fabricated to support the case. On behalf of the complainant detailed replication to the written statements have been filed. However, no averments to meet the fatal flaws in the complaint have been made at all. 6-A. Mr. Hemant Sarin and Mrs. Alka Sarin on behalf of Opposite Parties No. 1 to 3 have forcefully projected the threshold objections that in the very absence of the M/s Indian Tobacco Company Limited as an opposite party, not the least personal liability can fall on the said opposite parties and there is not even a hint of averment in the complaint to so hold them liable. It is pointed out that even the personnel in-cumbent of the offices of the Managing Director and the Sales Manager have not been remotely indicated nor is there any hint and suggestion as to who may have held those offices when the alleged contaminated mustard oil bottle or the batch number thereof was manufactured, produced and packed by M/s Asha Refinery Pvt. Ltd. and later marketed by the opposite parties.

THERE is patent merit in the aforesaid preliminary objection. THERE is not a hint of an allegation even in the complaint to foist any liability personally on opposite parties No. 1 to 3. Faced with the said situation Mr. Deepak Sibal, the learned Counsel for the complainant had fairly conceded that the Indian Tobacco Company Limited was obviously a necessary and indeed a primal party. Once that is so the Complaint must founder on that score alone. What is worthy of notice is the point that the complainant himself is a practicing advocate and the complaint had been then presented by his two learned advocates and even after objections were raised on this score, no attempt to firmly implead the Indian Tobacco Company has been made till the end. This basic preliminary objection has, therefore, to be inevitably upheld. However, what further concludes the matters are the categoric observations of the National Commission in ''Anup Kumar @ Kailash Sharma v. S.M. Kanwar & Ors'' (supra). The identity of the facts and of the legal situation are manifest from reading the order therein. It suffices to mention that therein also a similar complaint was sought to be raised on the basis of a contaminated medicine, bottle containing a fly must had not been consumed, but allegations of consequential disease were raised and tall claim of compensation projected. Rejecting the same, as vexatious litigation, the National Commission concluded as follows : "We share the observations made by the State Commission that the appellant/complainant had grossly inflated his claim for compensation viz. Rs. 20.75 lacs which he reduced to Rs. 3 lacs before the State Commission and this was patently an abuse of the machinery provided under the Consumer Protection Act for redressal of bonafide consumer complaints regarding defective goods or deficient services. As the contents of the contaminated bottle were not administered to the child, it became all the more essential for the appellant/complainant to prove that the other bottles of the same batch were also contaminated. Such proof cannot be based on mere inference from the fact that a fly was found in one bottle of batch No. 561 purchased on 18th April, 1989. More importantly it was also essential for him to lead the evidence to show that the diseases from which the child suffered and has been suffering are the direct consequence of the defective Onto-calcium B-12 Syrup in the bottles of batch No. 561 purchased, if any by him. The appellant-complainant has miserably failed to do so and has persisted in vexatious litigation. In these circumstances, we are constrained to order that the appellant shall pay Rs. 5,000/- as costs of this appeal, to the respondent."

It is somewhat manifest that the aforesaid observations cover the case in favour of the opposite parties on all fours. It is unnecessary to labour the obvious, because herein also the alleged contaminated bottle has admittedly not even been consumed and remains sealed. The batch number of the production and its approximate period during which the complainant may have purchased other bottles is not remotely indicated. Mr. Deepak Sibal on behalf of the complainant conceded that because of the difficulty of securing such information, the complainant had been unable to discover the batch number or the date or period of the relevant manufacture and packing etc. Learned Counsel for the complainant further had himself stated that the complainant suffered from a sensitive stomach from childhood congenitally. The alleged nexus of abdominal infection with the particular or and of the Mustard Oil is thus purely conjectural and incapable of proof.

IN view of the above, the preliminary objections are upheld and the complaint is dismissed. IN view of the observations of the National Commission, the opposite parties had strenuously pressed for imposition of penal costs, but taking a somewhat indulgent view, we decline to burden the consumer therewith. Complaint dismissed.