DR. TARUN RAY vs MANAGING DIRECTOR, PEERLESS INN

Challenge in this revision petition under section 21 (b) of the Consumer Protection Act (in short "the Act") is to the order dated ----18.9.2015 in First Appeal No.1489 of 2014 passed by State Consumer Disputes Redressal Commission, West Bengal, Kolkata (in short "the State Commission"). By the impugned order, the State Commission allowed the Appeal preferred by M/s. Peerless Inn and set aside the order of the District Forum, thereby dismissing the Complaint.

The brief facts as set out in the Complaint are that the Complainant had booked a dinner to celebrate the Wedding Reception of Chiranjib and Nilanjana on 19 Feb., 2014 at the Opposite th Party''s Banquet Hall for 115 members and out of which 50 members became seriously ill after consuming the food provided by the Opposite Party''s Hotel. It is averred that unhygienic food

provided at the dinner was not fit for human consumption leading to health issues to the people who fell ill. The Complainant informed the Environmental Health Department to investigate the matter. The Complainant issued a letter dated 28 May, 2014 stating that there was deficiency of th service in providing unhygienic food to the guests. The Complainant received a letter from the Opposite Party on 16.6.2014 stating that his complaint was baseless. Despite several requests, the Complainant did not hear from the Opposite Party. Hence, the Complaint seeking direction to the Opposite Party to pay Rs. 50,000/- with interest towards compensation, Rs. 10,000/- for mental agony and Rs. 1,000/- towards costs.

The Opposite Party filed their written version admitting that the Complainant had booked the Banquet Hall on the occasion of Wedding Reception of Chiranjib and Nilanjana and the number of expected guests were 100 and the rate of each dish was agreed to Rs. 850/- +taxes and other charges, totalling to Rs. 1152/- per head. Subsequently the number of guests exceeded totalling to 115. The Complainant and his guests enjoyed the food and the altercation was only on account of the food supplied for the extra 15 guests. They denied that 50 members had fallen ill and pleaded that the Complainant had furnished only 8 prescriptions two days after the date of reception and they were treated by one Dr. T.K. Ghosh, who is a Homeopath. It is pleaded that the alleged sick persons, who have supposed to have taken food on 20 & 21 February, 2014, i.e. two days th st after the reception might have taken unhygienic food on these two days, stomach infection could have occurred on account of the food taken after the reception date. There are no pathological test reports filed and the vomiting and loose motions are not proved. The Opposite Party intimated the Complainant vide their letter dated 11.6.2014 that the Complainant''s allegations are baseless.

The District Forum based on the evidence adduced, allowed the Complaint directing the Opposite Party to pay Rs. 30,000/- as compensation within 15 days from the date of order alongwith litigation costs of Rs. 10,000/-, failing which penal interest @ Rs. 200/- per day shall be assessed till full satisfaction of the decree. While allowing the Complaint, the District Forum observed as follows: "But truth is that complainant has proved that after taking the said meal supplied by the OP complainant''s invitees suffered from similar sufferings and they were treated by different doctors on different places but fact remains invariably there was some food as supplied were unhygienic in nature and for which the participants in the dinner suffered from diarrhoea and also vomiting etc. When that is the fact then invariably in the present case complainant has been able to prove the deficiency of service on the party of OP beyond any manner of doubt and it is also proved beyond any manner of doubt that for supplying unhygienic food by the OP the guests who participated in the said dinner suffered from diarrhoea and nausa including loose motion and that is proved by so many doctors'' prescriptions issued by different doctors. Most interesting factor is that OP has admitted the sufferings of the guests of the complainant but they only claimed that the pathological test of sodas of stool and vomiting conformity is not produced but it is not required in the eye of law when so many persons suffered from same symptoms after taking same meal on the very date of wedding reception held in the Senate Hall ? I of the OP and considering that fact we are convinced to hold that there was deficiency, negligence on the part of the OP when entire amount of the said dishes was paid by the complainant and most interesting factor is that the price of per plate was Rs.1,152/-. So, invariably the complainant cannot expect that after taking such dishes renowned, prestigious guests shall have to suffer from similar type of diseases like vomiting, loose motion etc. In view of the above reasons it is simply proved that the dishes supplied by the OP was completely below the standard and

was unhygienic food for which the guests of the complainant suffered in such a fashion. In fact, there is no material on record that these guests and invitees who attended in the said wedding receptions ceremony were all suffering from gastroenteritis problem prior to taking such meal. In view of the above facts and circumstances and also considering the present defence of the OP and also the materials on record we are convinced to hold that unhygienic food were supplied by the OP intentionally even after tasting on 19-021-2014 on night hours to the guests of the complainant only to make profit without considering health hazard of the attended guests.

No doubt the OP has tried to convince that there was previous friction with the OP regarding 15 plates and non-payment of the bill as alleged by the OP is a false story because OP has failed to prove that story whatsoever. No doubt, OP has tried to prove that the complaint was filed with a purpose of defaming the present OP and his concern who are well-known in the market for their such sort of business. Fact remains at least 8 persons suffered from vomiting, loose motion etc. after taking the meal and this factor simply proves that due to unhygienic food those sufferings occurred which is no doubt negligent and deficient manner of service and no doubt for such they suffered pain and sufferings and for the above reasons complainant is entitled to get compensation because after spending huge money for such dishes to the OP, OP did not supply habitable food to the guests for which the complainant has suffered mentally and also lost huge money only for the negligent and deficient manner of service of the OP and there is no defence of the OP that complainant has not yet paid any amount and in the above circumstances, the allegation as made by the complainant is proved beyond any manner of doubt against OP.

In the result, the case succeeds".

Aggrieved by the said order, the Opposite Party preferred an Appeal before the State Commission and the State Commission set aside the order of the District Forum observing as follows: " There is no dispute that the Respondent/Complainant booked a dinner arrangement at the hotel of the Appellant/OP where 115 guests participated. Though there was no adverse remark about or instant impact of the food served by the Appellant at the time of dinner , the Respondent /Complainant on the very next day i.e., 20 February 2014 sent an e-mail to the Appellant/OP saying that 28 guests ''fell ill with severe gastroenteritis with nausea, vomiting and loose motion needing urgent medical attention and medication''. Subsequently, he informed that another 22 guests suffered from same problem. He also added in his e-mail that at the dinner he had a couple of ''chicken drums of heaven'' and ''did not touch any item of the main course''. Such statement of the Respondent/Complainant would certainly lead to the inference that his own case of vomiting and loose motion as noted in his self-made prescription dated 21.02.2014 was because of consumption of a couple of chicken drums of heaven as provided in the buffet menu details (Appeal Page-67 ). Another inference crops up that the item of chicken drums alone might be responsible for causing loose motion and vomiting in respect of the Complainant himself, while other items of the menu were not unhygienic. But it is hard to belief that consumption of a ''couple'' of chicken drums only made the Respondent/Complainant suffer from vomiting and loose motion at and interval of about 2 days, as the illness of the Respondent / Complainant was put on record in his self-written prescription dated 21.02.14 .

It is striking to note that as per statement of the Respondent / Complainant, 50 guests fell ill between 19 th February and 22 February, though names and other particulars of such guests were not placed on record in his petition of complaint. If 50 individual persons had really reported about food infection , he must have been aware about identity of those persons and it would be convincing, had the particulars of those persons been provided in the petition of complaint. It is at the same time found that out of 8 prescriptions including the self-written prescription of the Respondent/Complainant, as rightly pointed out by the Ld. Advocate appearing for the Appellant/OP, nothing has been mentioned about the cause and effect relationship between the alleged unhygienic food served at the dinner and the ailment reported to have been suffered by the said persons".

Dis-satisfied by the said order, the Opposite Party preferred this Revision Petition.

Heard both sides at length.

The Petitioner, who was present in person submitted that the State Commission had unduly stressed on ''self-made prescriptions'', whereas the Petitioner is a registered Medical Practitioner of West Bengal Medical Council and can certainly prescribed for him and other patients. The Petitioner in person contended that one need not consume a massive amount of unhygienic and contaminated food to fall a victim as the causative organism multiplies in the victim''s digestive system leading to signs and symptoms of vomiting and diarrhoea. As regards two days interval, there is incubation period, which is the time required by the causative agent to multiply in the body. The affected members were suffering from diarrhoea and vomitting leading to dehydration and therefore, the affidavit of all the other members, who were affected in the dinner, could not be taken. If the Petitioner could pay for 100 number of guests, he argued that an extra 15 number of guests is expected and there was no altercation regarding the number. As regards 8 nos. of prescriptions, the Petitioner submitted that they were all Registered Medical Practitioners. An unhygienic and contaminated food may taste good at the time of consumption but does not absolve the supplier of serving unhygienic food. If only 50 guests had fallen ill, it has to be construed that some people are resistant to certain infections while others are not and also that only these guests had consumed any particular item which was unhygienic.

Learned counsel for the Respondent submitted that most of the prescriptions belonged to the Ray family and that there is no evidence on record to establish that the food supplied in the dinner on the subject date was contaminated. He further stated that the bride''s mother had signed that the food was tasty.

It is an admitted fact that there was a dinner in the Respondent''s Hotel on 19 Feb., 2014 th for a party of 100 guests, which was held to celebrate the wedding reception of Chiranjib and Nilanjana. It is the contention of the Revision Petitioner that after consuming the food on that day, out of 115 guests, 28 guests fell ill with severe gastroenteritis with nausea, vomiting and loose motions needing urgent medical attention and medication. Thereafter, he was informed that 22 more guests had fallen ill. The contention of the Respondent that altercation was because of the billing of the 15 extra guests is totally unsustainable. There is force in the contention of the

Revision Petitioner herein that having paid for 100 guests at Rs. 1150/- per head, there is always a margin for extra number of guests. There is no evidence on record that there was any such disagreement.

The State Commission had allowed the Appeal on the ground that the Complainant had given a self-written prescription for himself and there was no evidence on record to establish that the food was contaminated and also that the copies of prescription did not given any relevant facts about the affected guests. A brief perusal of the prescriptions shows that apart from the prescription given by the Revision Petitioner herein, there are also prescriptions by Dr. T.K. Ghosh and Dr. D. Sinha dated 20 Feb., 2014, 20 Feb., 2014 and 22 Feb., 2014 and in the th th nd prescriptions by Dr. T.K. Ghosh and Dr. D. Sinha, it is clearly stated that the patient had attended the wedding reception and suffered thereafter with vomitings and diarrhea, with tremendous weakness and vertigo. Even in the prescription of Dr. D. Sinha, it is stated that the patient had severe vomiting following the dinner in the reception party. These prescriptions evidence that there was some food, which was contaminated on that day on the consumption of which, few of the guests had fallen ill. Though the affidavit of each and every member guest who had fallen ill has not been furnished, equally the Respondent/Opposite Party has also wrongly presumed that if there was any food adulteration all 115 persons would have been become victims which is the only point of denial even in the legal notice dated 11.6.2014. There is force in the contention of the Petitioners that the causative agent of the sickness was in a few contaminated items. Therefore, it cannot be construed that all the guests had eaten all the items of food. Therefore, all ought to have been sick.

Having regard to the fact that it was a marriage reception party and even if prescription of 8 persons were furnished, these 8 prescriptions evidence that a few guests had suffered from vomitings and diarrhoea after attending the reception.

Taking into consideration the facts and circumstances of the instant case wherein the Hotel''s contract prevents any leftover food to be taken outside the hotel premises; the food item is perishable; the knowledge of the guests having fallen ill was received after the Reception; the contention of the Opposite Party that the sample of the food was not sent for testing, is unsustainable. The material on record evidences that there was some contaminated food served on the wedding reception party organized by the Petitioner which was consumed by a few of the guests and I find it a fit case to allow the Revision Petition and set aside the order of the State Commission. The order of the District Forum is modified to the extent of penal damages only. The compensation of Rs. 30,000/- awarded by the District Forum is confirmed together with costs of Rs. 10,000/- However, the penalty clause of Rs. 200/- per day is set aside. The compensation and costs are directed to be paid within four weeks from the date of receipt of the order failing which the amount would attract interest @ 9% p.a. from the date of filing of the Complaint till the date of realization.