mumbai there are times when an item is evidently defective but it is unclear who or what is responsible for such defect or damage under such circumstances one cannot presume it to be a manufacturing defect background sanivbhai shah purchased a packet of cadburys raisins from harisons department store on january 14 2004 for his children the chocolate was inside a sealed polythene pack with an outer paper box the manufacturing date was may 2003 while the expiry date was may 2004 when the box was opened shah noticed insects inside the sealed pack he immediately contacted cadburys which sent its representatives to inspect the chocolate shah was told that he will be contacted again after a consultation with the technical department the company also arranged for its local distributor to send a full box of another type of chocolate but shah refused to accept it with the help of grahak parishad of surat shah filed a complaint before the district forum against cadbury india ltd the complaint alleged that cadburys chocolates were injurious to peoples health life and safety cadburys contested the complaint the company pointed out that neither was harison department store made a party to the dispute nor was any bill or document produced regarding the purchase of the chocolate the company claimed that insects can grow in chocolates in 45 days and die within 3 to 4 days the insects may have developed in the shop due to improper storage the company contended there was nothing to pinpoint any manufacturing defect and so the complaint should be dismissed the forum overruled the companys objections it held the company liable to pay a compensation of rs 25000 to shah along with costs of rs 10000 as well as deposit an amount of rs 50000 in the consumers welfare fund cadburys appealed to the gujarat state commission which upheld the forums order and awarded shah further costs of rs 5000 cadburys then filed a revision before the national commission neither shah nor the grahak parishad bothered to appear the main thrust of cadburys argument was that the complaint ought to have been dismissed as the seller had not been made a party to the dispute nor had any documentary proof been filed in respect of the purchase of the chocolate the national commission accepted this argument it noted that chocolates could be infected by fungus if not kept at a controlled temperature the commission drew an adverse inference on production of the bill for purchase of the chocolate saying it might either not have been purchased from harisons or that shah himself might have kept it for a long time under unsuitable conditions before opening the pack the commission further observed the seller could have been held liable if the chocolate had not been stored by him at proper controlled temperature however since the seller was not made a party to the complaint there was nothing on record to show the conditions under which the chocolate was stored