1. MR. R.K. Gupta, learned Counsel for the appellants has been heard at length. None appeared on behalf of the respondent. The entire record has been examined.
2. THE complainant alleged that on 1.5.1993 he purchased two bottles of cold drink Limca from the agent/retailer of opposite party No. 2 which was produced by opposite party No. 1. One bottle was taken to his house and the other was consumed by him. After some time he started vomiting, loose motions and pain in stomach followed. He went to the District Hospital for treatment on 3.5.1993 where treatment was administered to him by Dr. K.L. Anand. Dr. Anand admitted the complainant as an out-door patient vide registration No. 34336. When the other bottle which was carried by him was examined, it was found that some dirty foreign material was existing inside that bottle. He, therefore, moved an application before the District Officer on 3.5.1993 for inquiry. He remained absent from his duty for several days and according to the complainant a sum of Rs. 3,000/- was spent by him for curing the ailment. THE complainant gave notice of all these facts to the opposite parties claiming compensation etc.
The District Forum was approached by the complainant through appropriate complaint which has been disposed of by the Forum vide impugned order dated 17.9.1993 directing payment of Rs. 5,000/- by the opposite parties to the complainant along with Rs. 200/- as cost. Interest has also been fixed as payable at the rate of 12% per annum on the said amount of Rs. 5,000/-.
Mr. R.K. Gupta, learned Counsel for the appellant has been heard. Entire record has been examined as stated above. It is not disputed that the complainant did purchase two bottles of Lima cold drinks. The District Forum has held that the very fact that the complainant served notice on to the opposite parties on 3.5.1993 itself went a long way to corroborate the version stated by him. It further held that the out-door patient entries have been proved by the complainant coupled with the leave certificate produced by him suggesting that he was suffering from vomiting, loose motions and pain in stomach which was sufficient confirmation and corroboration of the allegation that the complainant fell ill on consuming one bottle of the said cold drink purchased by him from the opposite party''s agent/retailer.
3. MR. R.K. Gupta states that the complainant did not and could not produce the original bottle. He, therefore, contended that the second bottle which was produced would not have replaced the first bottle which was consumed. He vehemently argued that the contents of one bottle cannot prove the contents of the other bottle and that the two bottles might have been put in market by some other dealer. Therefore, the allegation of the bottle having been sold by the appellant should have been negatived. There is a point in the above argument advanced.
The District Forum has proceeded only on the basis that since the notice contained the allegations of the complainant made in his complaint, which was served on the opposite party on 3.5.1993, by sending no reply to the said notice, the burden of proof shifted after service of the notice on the opposite parties. It was thus in the view of the Forum not permissible to argue that the bottles did not belong to them. It was, therefore, argued here that since no affidavit was filed by the complainant before the District Forum, there was no evidence in the case. It is true that there is no mention in the judgment that any affidavit was in fact filed or any receipt was produced which may have indicated that the bottles with alleged contaminated foreign material were purchased from the opposite parties.
4. IT was next contended that the District Forum could not have made itself an expert and opined about the contents to be damaging the digestive system of the complainant as no expert evidence has been produced by the complainant.
After giving anxious consideration to the arguments advanced and examining the record, there appears to be enough force in the argument that there was no affidavit. Further, there is no evidence on record indicating that the allegations made by the complainant were correct. As far as the evidence of the notice by the complainant sent to the opposite parties/appellants is concerned, it may be pointed out that from the very beginning, the opposite parties have denied receiving such notice. The Forum has passed the judgment relying on the alleged service of the notice on the opposite parties. This is a dangerous proposition. There being no proof that the actual contamination was found in the bottles said to have been consumed by the complainant, there being no proof that the two bottles were actually sold by the parties to the complainant, there being no proof that the complainant had not taken any other diet on that evening, there being no material to suggest that the other bottle had such contamination, it must be held that the complainant has failed to prove his case.
In view of the above, the appeal succeeds and is allowed. The judgment and order of the District Forum is set aside.
5. IF any amount has been deposited by the appellants in pursuance of the orders of the learned District Forum, it shall be refunded to the appellants. Parties to bear cost. Let copy be made available to the parties as per rules. Appeal allowed.
