Tamil Nadu

StateCommission

A/276/2019

M/s.Hindustan Coca-Cola Beverages Pvt Ltd, Rep by its authorized Signatary, Mr.Dinesh Ratnam, 13, Abdul Fazal Road, Bengali Market, New Delhi 110 001. - Complainant(s)

Versus

1.K.Poornima, D/o Govindaraj, 8/239, C.M.C.Colony, V.H.Road, Coimbatore 641 001.And Another - Opp.Party(s)

M/s.Leela & Co

22 Feb 2023

ORDER

IN THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI

 

BEFORE :      Hon’ble Mr. Justice R. SUBBIAH                              PRESIDENT

                   Thiru R  VENKATESAPERUMAL                                MEMBER

                        

F.A.NO.276/2019

(Against order in CC.NO.102/2014 on the file of the DCDRC, Coimbatore)

 

DATED THIS THE 22^nd DAY OF FEBRUARY 2023

 

M/s. Hindustan Coca-Cola Beverages Pvt., Ltd.,

Rep. by its Authorized Signatory

Mr. Dinesh Ratnam                                                    M/s. Leela & Co.,

13, Abul Fazal Road, Bengali Market                              Counsel for

New Delhi – 110 001                                          Appellant /2^nd opposite party

 

                                                         Vs.

1.       K. Poornima

          D/o. Govindaraj                                                M/s. Godwin   

          8/239, C.M.C.Colony                                         Counsel for

          V.H.Road, Coimbatore-641 001                   Respondent / Complainant

 

2.       Jawahar Raj

          S/o. Ramasamy Nadar                                    

          Proprietor, J.J.Store, 292, V.H.Road               Served called absent

          Coimbatore- 641 001                              2^nd Respondent/1^st opposite party

 

          The 1^st Respondent as complainant filed a complaint before the District Commission against the opposite parties praying for certain direction. The District Commission had allowed the complaint. Against the said order, this appeal is preferred by the 2^nd opposite party praying to set aside the order of the District Commission dt.31.7.2019 in CC.No.102/2014.

 

          This appeal coming before us for hearing finally on 5.12.2022, upon hearing the arguments of the counsel appearing for appellant and on perusing the documents, lower court records, and the order passed by the District Commission, this commission made the following order:

 

ORDER

 

JUSTICE R. SUBBIAH,  PRESIDENT   

1.        This appeal has been preferred by the 2^nd opposite party as against the order dt.31.7.2019 passed by the District Commission, Coimbatore, in CC.No.102/2014, by allowing the complaint. 

2.       For the sake of convenience parties are referred as per ranking before the District Commission.

 

3.       The brief facts of the complaint before the District Commission are as follows:

           On 11.2.2014, the complainant purchased a coco-cola drink from the 1^st opposite party.  When he made an attempt to open the bottle, he saw a polythene paper floating inside the bottle, hence he approached the 1^st opposite party.  But he had not given any proper reply.  Hence he lodged a complaint before B8 police station.  Had the said drink been consumed, the health of the complainant would have been affected.  Therefore, there is deficiency of service on the part of the 2^nd opposite party, who is the manufacturer and as well as against the 1^st opposite party, who sold the said bottle.  Hence he filed a complaint before the District Commission, praying for a direction to the opposite parties to supply nutritious food to minimum 100 children staying near the complainant’s house, who lack in nutrition,  and a sum of Rs.2 lakhs towards compensation.

 

4.       The 1^st opposite party, filed their version stating that he is running a small petti shop and earning for his livelihood.  The 1^st opposite party is the retailer of the 2^nd opposite party.  On 11.2.2014, complainant’s father one Mr.Govindarajan had purchased a coco-cola 200 ml., bottle from the 1^st opposite party.  While selling the bottle, the 1^st opposite party found no polythene paper floating in the bottle.  On the same day, a news item has been published in the daily papers stating that some people were affected by consuming coco cola.  Probably on seeing the said news, the father of the complainant would have lodged the police complaint as well as this complaint, but this opposite party had not found any fault in the product which they sold, and absolutely there is no negligence and thus sought for the dismissal of the complaint. 

 

5.       The 2^nd opposite party had also filed their version stating that the 2^nd opposite party is the manufacturer of various kinds of carbonated beverages, fruit juice and drinking water for the past several years.  The opposite party is having its own goodwill and reputation for manufacturing hygienic and better quality products. This opposite party is getting good consumer feed backs from its customers.    The safety measures are being taken while manufacturing, bottling and distributing its products for keeping the standard of the opposite party. The opposite party exercises stringent quality and safety measures specifically designed to prevent the quality issues.  The products manufactured by this opposite party are subject to sophisticated and advanced inspection technology available.  The bottles were collected from various customers and transferred to the bottling plant for re-usage and the bottles were pre-washed in five stages with different chemicals and the temperature will be increased from the room temperature to 80 decree centigrade.  Hence any impurity found inside the bottle will be cleaned effectively.  Then the empty cleaned bottles were once again pre-washed by using the treated water.  Hence there is no chance of impurities.  The cleaning process will be taken for 20 minutes and later on the treated water will be sprayed on the bottles to clean it effectively and the bottles are moved to bottling the carbonated water.   The packed bottles will be processed in a conveyor and each and every bottle has to pass through the electronic processing machine and if any impurity is there in the packed carbonated bottles, automatically that bottle will be expelled out.  Therefore, there is no deficiency in service on their part.  Thus sought for dismissal of the complaint. 

 

6.       In order to prove the claim, proof affidavits were filed on eitherside, alongwith documents, which were marked as Ex.A1 to A4 on the side of the complainant.  There was no document filed on the side of the opposite party.  The coco-cola bottle was marked as MO1.

 

7.       The District Commission, after analysing the evidence had come to the conclusion that a perusal of MO1 shows that the cap of the bottle is intact, and the inside of the bottle is easily visible.  Therefore, the opposite parties could have easily noticed the polythene paper floating in the drink even with the naked eye, and could have avoided selling the same.  Therefore there is deficiency in service on their part.  Thus holding, had directed the 1^st opposite party to pay a sum of Rs.25000/-, and the 2^nd opposite party to pay a sum of Rs.75000/-, totalling Rs.1 lakh to an orphanage where helpless children are housed to be identified by the complainant and also to pay a sum of Rs.3000/- towards litigation charges to the complainant.  Aggrieved over the order impugned, the present appeal as been filed by the manufacturer viz. the 2^nd opposite party herein. 

8.       The learned counsel for the appellant/ 2^nd opposite party submitted that  the specific defence of the opposite party before the District Commission is that the material object would have been tampered by opening the cap, and after stuffing the polythene paper inside the drink, the cover would have been sealed. 

          To disprove the above contention, the complainant had not taken any steps to send MO1 for lab analysis as per Sec.13(1)(c) of the Consumer Protection Act 1986 to prove her contention.

          But the District Commission merely relying upon the statement of complainant and MO1, had allowed the complaint by assigning vague reasoning.  Thus prays to set aside the order. 

 

9.       In support of their contention, the learned counsel had submitted an order of the Hon’ble National Commission in the case of Hindustan Coca-Cola Beverages Pvt. Ltd., Vs. S.Subbiyyan and Ors reported in 2015 SCC Online NCDRC 3782.

 

10.     The Respondent/ complainant though appeared through counsel, remained absent before this commission to put forth the submissions.  Hence we have heard the learned counsel appearing for the appellant.

 

11.     Keeping the submissions in mind, we have carefully perused the materials placed on record. 

          It is the specific defence of the Appellant/ opposite party that they are taking all safety measures while manufacturing and distributing their products.  Therefore, there is no chance for the presence of the polythene paper inside the bottle drink.  The only possibility is that the cap of the bottle would have been tampered by the Respondent/ complainant himself, after inserting the paper for cheap publicity.  If not, the complainant would have taken steps to send the bottle to appropriate laboratory to test the material object which he had presented.  When it was not proved otherwise, the District Commission ought to have dismissed the complaint.

          In view of the above, the learned counsel also had drawn our attention of the order of the Hon’ble National Commission in the case of Hindustan Coca-Cola Beverages Pvt. Ltd., Vs. S.Subbiyyan and Ors reported in 2015 SCC Online NCDRC 3782, where in it has been held that

“the blade found inside the bottle containing aerated drink was a regular size blade.  It was demonstrated by the learned counsel for the petitioner that not only a full size blade cannot enter the bottle accidently, it is not even possible for someone to put it inside without first folding the blade.  It is therefore quite obvious that a full size blade could not have entered the bottle during the process of its packing by the bottler of the drink namely Hindustan Coco Cola Beverages Pvt. Ltd., The only way blade could have entered the bottle was by folding it and then inserting inside the bottle.  In our opinion, no manufacturer/bottler will itself put a blade inside the bottle containing aerated drink meant for human consumption since that it would be a suicidal act on the part of the manufacturer/ bottle. Without showing that it is the reputation of the manufacturer which would get tarnished in case a foreign element such a blade is found inside the bottle containing aerated drink meant for human consumption.  We are therefore satisfied there was no deficiency in the product when it came out of the factory of the petitioner company”. 

 

He had also produced another judgement of the Hon’ble National Commission in the case of Hindustan Coca-Cola Marketing Pvt. Ltd., and another Va. G.Jebaraj & Another reported in 2015 SCC Online NCDRC 2521 wherein it was held that

“I am in agreement with the learned counsel for the petitioner that unless the bottle produced before the District Forum and the State Commission is sent to a laboratory, to find out whether there was any tampering with the packing and/or whether the soft drink inside the bottle was a genuine product of opposite party No.2 & 3 or not, it will not be possible to say with a fair amount of certainty that the bottle purchased by the complainant had not been tampered and it contained a genuine product of the contesting respondents” 

 

 

12.     The fact and circumstances of the case, dealt with in the judgement cited above, is squarely applicable to the present case.  Without any valid analysis report, we cannot come to a conclusion that there was fault on the side of the manufacturer.   The District Commission ought to have taken into consideration the submission of the opposite parties that there was every possibility of tampering the bottle.  In such a situation the District Commission ought to have sent the beverage bottle to the laboratory for testing, to find out that the bottle produced by the complainant had not been tampered with and the drink contained therein is a genuine one, and also to find out whether the drink is consumable.  Therefore, because of the reason that the bottle/ MO1 produced by the complainant was intact with cap, we cannot presume that the opposite party had sent the bottle for sale, without even verifying that it contains a polythene paper inside.  Therefore, merely because the bottle/MO1 produced was intact, we cannot presume that there is deficiency in service on the part of the opposite parties.   Therefore, we are of the considered opinion that the complainant had not proved the case in a manner known to law.  Accordingly, the order passed by the District Commission based on some hypothetical and frivolous reasons, deserves to be set aside.

 

 

13.     In the result, the appeal is allowed, by setting aside the order of the District Commission in CC.No.102/2014 dt.31.7.2019, and the complaint is dismissed.  There is no order as to cost throughout.

          Registry is directed to discharge the mandatory deposit alongwith accrued interest in favour of the appellant/ 2^nd opposite party. 

 

 

 

  R  VENKATESAPERUMAL                                     R. SUBBIAH

                      MEMBER                                                     PRESIDENT