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Ram Swaroop v. State Commission U.P. - WRIT - C No. 6132 of 1992  RD-AH 7301 (11 December 2005)
CIVIL MISC. WRIT PETITION NO.6132 OF 1992
Ram Swaroop and another ....Petitioners
State Commission Uttar Pradesh Consumer
Protection Act & others ...Respondents
Hon'ble Bharati Sapru, J.
This writ petition has been filed against two orders passed by District Forum Consumer Protection, Bareilly under the Consumer Protection Act, 1986 and the State Commission, U.P. Consumer Protection Act under the aforesaid Forum. The dates of the orders are 8.10.90 and 24.12.91. The facts of the case are that the respondent No.3 instituted a complaint before respondent No.2 alleging that he is consumer and that petitioners were dealing with the business of selling oil. Respondent No.3 claims that he purchased mustard oil from the petitioner on 10th of November, 1989 which was used by the respondent along with his family members and due to adulteration in the said oil, his family members suffered illness of Dropsy. One of his sons also died on 19.12.89 due to Dropsy which the respondent No.3 stated also was caused by consuming the said adulterated oil. The oil was allegedly purchased on 10.11.89 and thereafter, the family of the respondent No.3 fell sick and, therefore, he filed a complaint on 11.12.89, after a period of one month. A sample of the said adulterated oil was also taken from his premises by the Food Inspector and sent to the Food Analyst.
Learned counsel for the petitioner has contended and stated in the writ petition that he was not a seller of mustard oil and he was not dealing in the business of selling mustard oil. The Petitioner's father had an expeller installed at his place of business which was an ''atta chakki' and there, persons used to come to get their oil expelled. The
petitioners states that they had not sold the alleged adulterated mustered oil to the respondent No.3 or his family and they have been falsely implicated. The petitioners
states that the respondent No.3 in fact was not a ''consumer' as defined under Section 2 D of the Act in as much as he did not buy the oil from the petitioners and no consideration had been paid by the petitioner for purchase of any oil.
I have heard learned counsel for both the parties at length and have also perused both the orders impugned. Learned counsel for the petitioner has argued that there is no direct evidence to show that the alleged adultered oil was sold by the petitioner to respondent No.3. This contention of the petitioners is sound because finding has been given by the District Consumer Forum which states that it has reached its finding on the basis of a "probability". There is no evidence on the record to show that this conclusion was reached on the basis of any receipt of sale of the said oil by the petitioner to the respondent No.3. This finding as recorded by the District Forum in this respect is, liable to be set aside.
The second argument of the petitioner is that under the provisions of Section 13 of the Act, certain procedures are to be adopted while sending an item to the Public Analyst for submitting a report. In the present case itself, the contention of the petitioner that the sample, which was taken to the Food Analyst was not taken from his premises and in fact a sample was taken from the premises of the respondent No.3 after a period of one month from the alleged date of purchase. Any edible oil has a limited shelf life and, therefore, the sample should have been taken immediately and that too, from the place of sale. There is no evidence on record to show that any sample has been taken from the premises of the petitioner or that he was selling any much less adulterated oil.
The District Consumer Forum has recorded that a Photostat copy of the report of the Public Analyst was placed
before the District Forum and it shows that the oil was containing adulteration of a substance called Argemon which has caused the disease of Dropsy. The judgment of the District Forum does not say as to where the original report was filed. From the finding as recorded by the District Forum with regard to the report of the Analyst is concerned also, documents clearly shows that indeed
the procedure which is laid down in Section 13 of the Act was not followed in this case. Therefore, the second argument of the petitioner is also well founded and is accepted by the Court.
The learned counsel for the respondent vehemently argued that against the two orders, the petitioner had an adequate alternative remedy of going to the National Consumer Forum under Section 21 of the Act. This argument of the learned counsel for the respondent is not well founded because Section 21 is to be read with the provisions of Section 19 of the Act and the learned counsel for the petitioner has rightly contended that under the Scheme of the Act, no Second Appeal is provided and it is on the basis of pecuniary jurisdiction that the original suits and appeals are to be filed. The pecuniary jurisdiction in the present case would not have been taken the matter to the National Consumer Forum.
On merits, the respondent has also argued that the report of the Food Analyst clearly stated that the oil was contaminated with Argemon which caused the decease. He has also argued that even the doctors found that the disease was caused by contamination found in the oil. Learned counsel for the petitioner has brought to my notice an annexure filed along with the rejoinder affidavit which is an order of the Chief Judicial Magistrate dated 20.1.94 by which the petitioner was exonerated in proceedings under Section 7/17 of the Food Adulteration Act.
Thus, from the facts and circumstances stated above, it is clear that both the orders which are concurrent, were
based on the basis of conclusions reached on the basis of probability and without following the procedures provided under the Act. Impugned orders dated 8.10.90 passed by the respondent No.2 and the order dated 24.12.91 (Annexure-2) are hereby set aside. The matter is remanded to the respondent No.1 to consider the matter afresh after giving proper opportunity of hearing to the petitioner as well as respondent and after following the procedure provided under the provisions of Section 13 of the Act.
In view of the fact that the matter is very old, the Tribunal is requested to deal with this matter at an early date, if possible
within a period of three months from the date of filing this order before the Tribunal.
The petition is allowed. No costs.
Dated : 11.11.05
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