Food poisoning: Sample not needed

Pushpa Girimaji

Last month, I took my family out for dinner to a restaurant that promised seating as per social distancing norms for Covid-19. After dinner, I ordered rasmalai. By the time I ate it and realised it was stale, my two children had already consumed them. Both had to be subsequently treated for food poisoning. I want the restaurant to pay for the suffering caused to my children, but do not have any sample of the rasmalai for testing in a laboratory. What do I do?

In cases like this, a consumer cannot be expected to have a sample of the stale food for testing. Just prepare an affidavit stating the facts of the case and attach a certificate from the doctor who treated your children as evidence of food poisoning suffered by them. You can also attach a copy of the cash receipt issued at the restaurant. This should suffice for your complaint before the consumer court.

I must mention here that in Yum Restaurants (India) Private Limited Vs Kishan Hedge (Revision Petition No 156 of 2020), the National Consumer Disputes Redressal Commission has clearly ruled out the need for getting the restaurant food tested to prove its poor quality, saying that such a requirement is impractical, inconvenient and a costly exercise. In fact, this is an extremely important ruling on the ‘Burden of Proof’ required in such cases. Or to put it differently, the apex consumer court has, in this case, defined and simplified the evidence required to be provided by a consumer while filing complaints of defective food in restaurants.

Can you give details of this case?

The order of the National Commission in this case has its origin in the complaint filed against Yum Restaurants, Manipal, Karnataka, for serving stale food to the complainant on December 23, 2014. In response to his complaint, the consumer court at the district level awarded a compensation of Rs10,000, costs of Rs4,000, besides the cost of food, which was Rs382.

While upholding this award, Justice VK Jain, Presiding Member, in an oral order agreed with the restaurant that the initial onus of proving that the food served was defective, would be on the complainant.

“However, the burden of proof so placed upon the customer cannot be so high that an ordinary customer visiting a restaurant is unable to discharge the same. In my opinion, if a customer files an affidavit in the consumer complaint instituted by him stating therein that the food served to him was rotten/stale/inferior in quality, such an affidavit will be sufficient to discharge the initial onus placed upon the customer, unless it is shown that the complaint is motivated or was actuated by extraneous considerations,” Justice Jain said.

Justice Jain also took cognisance of the practical difficulties a consumer would face in getting a sample of food served at a restaurant, tested in a laboratory. “It would be difficult for me to accept the submission that a customer is expected to collect the stale/rotten/inferior food served to him in the restaurant and then send it to a laboratory for its analysis. In fact, the restaurant where such a complaint is made by the customer in respect of the food will not even allow them to carry the food with them. If a customer aggrieved on account of such food is required to collect the food and then approach a laboratory for its analysis, (he) will just give up in frustration, instead of undertaking such an impractical, inconvenient and costly exercise. He will have no option but to suffer, despite the loss and indignity suffered by him,” Justice Jain pointed out.

He observed further: “Moreover, when such food is duly packed and preserved, it can always be claimed by the hotel/restaurant that the food had become stale/rotten due to improper packing and for want of preservatives, even if the food is analysed and found to be defective.”

In this case, the complainant had given an affidavit about the stale food served to him and also a letter from a doctor who had certified that he suffered food poisoning and was under treatment with him for a few days. That was sufficient evidence, the Commission held, thereby clarifying the nature of proof required to be presented by consumers in such cases.

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