It is safe to say that every person eats at least one meal from a restaurant or hotel in a week and it is also safe to say that no one really knows the standards of hygiene maintained and quality of ingredients used by the hotel/restaurant. So, when we are constantly indulging ourselves in rich and delicious food from multiple eateries that serve varied cuisines, we are bound to fall sick at some point of time. Food poisoning is an illness caused by eating contaminated food and more often than not it is triggered by unclean and low quality hotel food .[i] However, when this discomfort is caused through no fault of our own but because of some carelessness or ignorance of the hotel staff or management, is there any remedy available?
Rights of a Consumer
With the introduction of the Consumer Protection Act, 1986, there was a movement from Caveat Emptor (“buyer beware”) to Caveat Venditor (“seller beware”) and this was coupled with a realization of the need for consumer rights. A consumer is any person who “buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose.”[ii] In simpler words, a consumer is any person who buys a good or avails a service for his own use and not for resale or commercial purposes. When someone purchases a product or avails a service, he gains certain rights in case the product is defective or the service is deficient and through the Consumer Protection Act, 1986, these rights can be enforced. According to the Act, sellers, producers and service providers have a responsibility to ensure that their products/goods and services meet the set standards and are of good quality. If the goods and services are not in line with the standards required by law, consumers who are affected by it can represent themselves and approach the Consumer Forums to seek relief.
Food and the Consumer Protection Act
The term ‘food’ is defined under the Food Safety and Standards Act, 2006 as “any substance, whether processed, partially processed or unprocessed, which is intended for human consumption and includes primary food, genetically modified or engineered food or food containing such ingredients, infant food, packaged drinking water, alcoholic drink, chewing gum and any substance including water during its manufacture, preparation or treatment.”[iii] Using this definition, one can classify any item intended for human consumption as food. The phrase “human consumption” indicates that food items enter our body so they must be of a certain standard in order to ensure that they do not cause any infections or diseases to the person who consumes them and this places a huge responsibility on those who own or manage hotels or restaurants. Providing food is a service and according to the Consumer Protection Act, anyone who provides a service can be held liable in case the service is deficient – “any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any law in force at that time.”[iv]
Remedy for Food poisoning under Consumer Protection Act, 1986
The Consumer Protection Act aims to provide speedy redressal to the affected party and to do this, the Act has set up Consumer Forums at the District (jurisdiction for cases only up to ₹20 Lakhs), State (jurisdiction for cases from ₹20 Lakhs to ₹1 Crore) and National Level (jurisdiction for cases above ₹1 Crore). If a person is affected by food poisoning after consuming food from a certain hotel/restaurant, they can file a complaint in the respective forum depending on the jurisdiction. However, to bring a successful complaint, it is not enough to prove that the food was of an unsatisfactory standards as this does not necessarily imply an injury to the party who consumed the food. The affected party must prove that food poisoning was caused by the hotel/restaurant food that he has consumed but this is often difficult to prove as it may be hard to figure out the exact cause of the illness.[v] This causal relationship becomes especially difficult to prove in cases of food poisoning as there is a delay in the consumption of food and the onset of the illness.
As the Consumer Protection Act is a welfare legislation and it seeks to protect the interests of the consumers the claimant only needs to create a possibility of a causal relationship in the minds of the judges. To establish a possibility that the food poisoning was caused by the hotel’s food, he can use medical records, a stool sample confirming the infection, investigation findings on the hygiene in the hotel’s kitchen or/and expert advice.[vi] In response to this, the defendant can produce evidence of other potential causes of the illness, hygiene and standard reports that are in the hotel’s favour or/and a delay in the consumption of food and onset of illness.
In a recent case (2019) brought before the Tamil Nadu State Consumer Redressal Commission, the complainant claimed that he had contracted food poisoning after consuming food from the well-known South Indian restaurant chain ‘Saravana Bhavan’. The Redressal Forum took into consideration the evidence provided by the complainant and awarded ₹1.1 Lakhs compensation to be paid by the restaurant for causing physical and mental agony.[vii]
In another case with similar facts, the Delhi State Consumer Redressal Commission awarded ₹24,606 compensation to the complainant after he proved that consuming Coca-Cola had given him food poisoning.[viii]
The case of Satish Chandra v Air India Ltd[ix] shows that this responsibility on the distributors of food is not limited to hotels and restaurants. In this case, a complaint was filed before the Delhi State Consumer Redressal Commission against Air India on account of contaminated and infectious food served to a passenger aboard the aircraft. The Commission ordered payment of compensation to the aggrieved party, by Air India.
Liability for negligence under tort law in case of food poisoning
Under Tort Law, manufacturers, retailers and suppliers owe a duty to those who might be affected by their carelessness or negligence. When this duty is breached, they can be held liable if the claimant can establish a failure to provide suitable hygiene conditions, failure to inform about the presence of an allergen or failure to combat an outbreak.[x] In the famous case of Donoghue v Stevenson[xi] the court held that manufacturers have a duty of care to their customers and if this duty of care is breached, they can be held liable for the tort of negligence. This is a universal precedent followed by most common law countries, including India. Therefore, a remedy under the law of torts is also available to consumers through the civil courts.
Conclusion
Although it is difficult to prove a causal relationship between food poisoning and the consumption of food from a certain restaurant, there is no shortage of remedies available. A consumer can file a complaint under the Consumer Protection Act, 1986 and represent himself at the Consumer Forums or he can engage a lawyer and file a civil suit for negligence. The advantage of going under the Consumer Protection Act is that there is wider scope for compensation and since it is a welfare legislation, the court seeks to fulfil the best interest of the consumer. There is also an upside to representing oneself as it brings down the cost of having to hire a lawyer and pay legal fees.
The rise in consumerism has paved the way for consumers to enforce their rights and with the advent of special legislations and the rise of awareness, it has become easier to ensure consumer justice.
Edited by Pragash Boopal
Approved & Published – Sakshi Raje
Reference
[i] Food Safety, Centre for Disease Control and Prevention, (August 2, 2019, 7:16 PM), https://www.cdc.gov/foodsafety/symptoms.html.
[ii] The Consumer Protection Act, 1986, No. 68, Acts of Parliament, 1986 (India).
[iii] Food Safety and Standards Act, 2006, No. 34, Acts of Parliament, 2006 (India).
[iv] The Consumer Protection Act, 1986, No. 68, Acts of Parliament, 1986 (India).
[v] FindLaw, Food Poisoning and the Law, Thomson Reuters, (August 2, 2019, 7:20 PM), https://injury.findlaw.com/product-liability/food-poisoning-and-the-law.html.
[vi] Berrymans Lace Mawer, Food Poisoning and Allergies, Food Poisoning Disease Guide, (November 2018).
[vii] Sivapriyan, Saravana Bhavan to pay Rs. 1.1 L for ‘Food Poisoning’, Deccan Herald, August 2, 2019 https://www.deccanherald.com/national/south/saravana-bhavan-to-pay-rs-11-l-for-food-poisoning-751475.html.
[viii] Sneha Agarwal, Delhi Doctor Awarded Rs 25,000 after getting food poisoning from fungus in Coke, India Today, March 27, 2018 https://www.indiatoday.in/mail-today/story/delhi-doctor-awarded-rs-25-000-after-getting-food-poisoning-from-fungus-in-coke-1198563-2018-03-27.
[ix] Satish Chandra v Air India Ltd, (2007), State Consumer Redressal Commission
[x] Berrymans Lace Mawer, Food Poisoning and Allergies, Food Poisoning Disease Guide, (November 2018).
[xi] Donoghue v Stevenson (1932) A.C. 562 (26 May 1932).
