DHARAM RAJ vs DELHI CONSUMER"S CO-OP. WHOLESALE STORE LTD. & ANR

This appeal has been filed by the appellant against the order dated 10.03.2015 passed by the learned State Consumer Disputes Redressal Commission, Delhi (in short, ''the State Commission'') in Consumer Complaint No. 597/2014 - Dharam Raj Vs. Delhi Consumer''s Co-op. Wholesale Store Ltd. & Anr. by which, complaint was dismissed.

Brief facts of the case are that complainant/appellant purchased four bottles of ''Hunter Extra Strong Premium Beer'' from OP No. 1/Respondent No. 1 which was manufactured by OP No. 2/Respondent No. 2 @ Rs.85/- per bottle. It was further submitted that complainant along with his two friends consumed three bottles and fourth bottle remained unconsumed. After consuming beer

all of them felt uneasy and one of the friends suffered severe pain in his stomach and was admitted to hospital and doctors diagnosed severe stomach infection due to consumption of contaminated and unhygienic beer. Alleging deficiency on the part of OP, complainant filed complaint for refund of Rs.340/- and compensation of Rs.50,00,000/- for physical and mental agony suffered by complainant and his friends and Rs.30,00,000/- for charging higher price than maximum retail price and Rs.4,00,000/- as cost of litigation. Learned State Commission after hearing complainant dismissed complaint against which, this appeal has been filed along with application for condonation of delay.

Heard learned Counsel for the appellant and perused record.

Appellant has filed application for condonation of delay for condoning delay of 5 days in filing appeal. For the reasons mentioned in the application, the application for condonation of delay is allowed and the delay is condoned.

Learned Counsel for the appellant submitted that learned State Commission has committed error in dismissing complaint on the basis of suppression of filing previous complaint which was withdrawn though mentioned in the complaint, hence, appeal be allowed and matter may be remanded back to State Commission.

Learned State Commission observed in its order that complainant has suppressed fact of filing previous complaint on the same cause of action and withdrawal of complaint, but perusal of complaint reveals that complainant has mentioned this fact in para 15 of the complaint and thus learned State Commission committed error in observing that complainant has suppressed this fact.

Admittedly, complainant filed complaint before State Commission and has withdrawn that complaint with liberty to approach appropriate forum in accordance with law. In such circumstances, second complaint before the same State Commission on the same cause of action was not maintainable and learned State Commission has not committed any error in dismissing appeal on this ground. Learned Counsel for the appellant submitted that complainant has withdrawn complaint on the misconception that State Commission Madhya Pradesh has jurisdiction whereas complaint was filed before State Commission, Delhi, but he has not placed any application on record by which it can be presumed that on account of misconception regarding territorial jurisdiction, complaint was withdrawn and in such circumstances it cannot be presumed that for want of territorial jurisdiction complaint was withdrawn. Perusal of complaint further reveals that complainant has claimed Rs.30,00,000/- for charging more than maximum retail price of beer, but I do not find any averment in the complaint about what was maximum retail price of beer. In such circumstances, claim for Rs.30,00,000/- was prima facie not maintainable.

As far compensation of Rs.50,00,000/- is concerned, as per complaint, complainant''s friend suffered severe pain in his stomach and was admitted to hospital, complainant''s friend''s name has not been disclosed in the complaint and his name has not been shown as complainant. In such circumstances, complainant cannot prima facie claim Rs.50,00,000/- for physical and mental agony.

Complaint can be entertained by State Commission only when compensation claimed is Rs.20,00,000/- or more and prima facie complainant cannot claim compensation more than Rs.20,00,000/- and in such circumstances, learned State Commission has not committed any error in dismissing complaint and appeal is liable to be dismissed.

Consequently, appeal filed by the complainant is dismissed at admission stage with no order as to costs.