The concept of negligence in the context of restaurants was established by the case of Donoghue vs Stevenson in 1932 in the UK. The House of Lords in this case decided in favor of the girl who found a dead snail floating in her soup. The house ruled that the restaurant had been negligent and had failed to abide by its duty of care.
A US citizen recently sued a restaurant claiming that their food made him obese; a Portuguese woman sued a restaurant because she felt that the restaurant staff neglected her as she was out to dine alone on Valentine's Day; and in an instance similar to mine, a man once sued a restaurant after finding a strand of hair in his food. These incidents show that the issue of food is delicate.
I decided to study Nepali legislation in this regard. We have a Consumer Protection Act, Food Act and few other laws on consumer rights. These legislations aim to safeguard consumer rights by maintaining high-quality goods and services.
Nepali law forbids production, storage, selling or distribution of food that may harm consumer health. Victims even have the right to compensation and are assured hearing by appropriate authorities on consumer protection. Manufacturers providing services that hamper health, according to Consumer Protection Act, are liable to up to five years of imprisonment and/or Rs 300,000 in fines. Further, the Act provides that in case the service causes permanent damage to any part of the body, the perpetrator is liable to up to 10 years of prison and/or up to Rs 500,000 in fines. And in case of serious hazard to life, the perpetrator is liable to imprisonment of up to 14 years and/or fine up to Rs 500,000.
On the other hand, the Food Act awards relatively lesser punishments for these wrongdoings. Food adulterers face punishments of Rs 5,000 to Rs 10,000 and/or one to two years of prison. In case of permanent damage due to consumption of adulterated food, the perpetrator is penalized with Rs 10,000 to Rs 20,000 and/or imprisonment for a term not exceeding three years. Additionally, the perpetrator is liable to compensate a sum from Rs 25,000 to Rs 100,000 to the victim or (the victim's heir in case of their death) due to consumption of adulterated food.
The Food Act and Consumer Protection Act have different punishments for the same offence. This exposes gaps in our legal system. Unlike the Consumer Protection Act, Food Act in Nepal has a more liberal approach to punishing offenders. This could be because the Food Act is a lot older than the Consumer Protection Act and authorities are yet to make necessary amendments to bring uniformity in our laws.
But I could not find any effective legal remedy for the incident I had to go through. Even if there are laws the level of consumer awareness is low. Most people don't even know that they can file a complaint against restaurants messing with their food. Generally, the most common way of resolving tension caused due to presence of foreign inedible substance in restaurant foods is by giving free foods to the victimized customer.
Legal redress, in the context of consumer rights violation, is made only if the consequences are grave: i.e., if the customer faces any health issues due to consumption of such food. People spend their hard-earned money to eat out and even pay additional service tax. Shouldn't they at least be given hygienic food in return? Restaurants should never be off guard as their small negligence may cause serious harm to someone.
Even existing consumer laws are not being enforced. First, people facing situations like mine are oblivious about legal remedies. Second, they are unwilling to complain because of the impression they have of justice system in Nepal which tends to unnecessarily lengthen justice delivery. I myself gave up on the idea of complaining due the second reason. Third, and most importantly, the government has failed to impart knowledge regarding consumer rights and is not serious about implementing existing laws.
Rather than restaurants apologizing and trying to compensate their victimized customers out of courtesy, the law of tort should be introduced so that people can claim for negligent (not necessarily criminal) behavior of such restaurants. Tort is a civil wrong that leads to someone's suffering, resulting in legal liability for the person who commits the tortious act. If the provision of claim under negligent tort is introduced in Nepal people can easily claim compensation when they are wronged and restaurants will also be more alert. Along with this, the government should focus on making consumers aware of their rights and implementing existing laws.
The author is pursuing a Masters degree in Law at Nepal Law Campus,Tribhuvan University iishasubedi@gmail.com
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