DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, PATIALA.
Complaint No. CC/14/242 of 09.09.2014.
Decided on: 18.02.2015.
Amit Bansal, aged 33 years son of Sh. Raj Kumar Bansal, resident of Model Road, Street No.1, House No.2, Nabha, Tehsil Nabha, District Patiala.
Complainant
Versus
- M/S. Modern Bakers, Ghas Mandi, Nabha, District Patiala-147201, through its Prop.
- Dhillon Kool Drinks & Beverages Pvt. Ltd., G.T. Road, Phillaur, District Jallandhar, Punjab-144410, CDV:946, through its Manager.
- Pepsico India Holdings Pvt. Ltd., 3B, DLF Corporate Block, S-Block, Quatab Enclave, DLF Phase-III, Gurgaon-122002 (Haryana).
Opposite parties
Complaint under Section 12 of the Consumer Protection Act.
QUORUM
Sh. D.R. Arora, President.
Smt. Neelam Arora, Member.
Smt. Sonia Bansal, Member.
Present: Sh. Yogesh Khatri counsel for the complainant.
Sh.Sanjay Bharaj counsel for opposite party no.2.
ORDER
D.R. ARORA:
1. It is the case of the complainant that he had purchased the goods from O.P no.1 on 10.07.2014 vide bill No.1013 for Rs.562/- and the items purchased by him were 5 packets of Good Day biscuits, each packet worth Rs.30/-, 5 packets of Lays chips, each packet for being Rs.20/-, 24 soft drinks contained in glass bottles each having cost Rs.13/-, 12 bottles being of Pepsi cold drink, 6 bottles of Lemon Mirinda and 6 bottles of Orange Mirinda. The complainant had purchased the said goods in connection with the celebration of birthday of his child.
2. After the celebration of birthday of his child, it was noticed by the complainant that one bottle of soft drink make Lemon Mirinda contained an iron metal i.e. nut bolt. The said bottle was manufactured by O.P no.2 on 20.03.2014 and was having batch no.L2-B221 as printed on the neck of the bottle. The complainant informed O.P no.1 about the said condition of the cold drink bottle but he advised him to approach O.Ps no.2 and 3, the manufacturer and marketing agency of the cold drink respectively. The complainant informed O.Ps no.2 and 3 about the said position of the bottle of cold drink but they did not bother about the same.
3. It is further averred that the presence of iron metal i.e. nut bolt in the bottle of the cold drink is said to be an act of the negligence as also deficiency of service on the part of O.Ps no.2 and 3. The said iron metal could be harmful and dangerous to the human life. The complainant suffered the harassment as also the mental agony on account of said negligence and deficiency of service on the part of O.Ps no.2 and 3. The complainant got the O.Ps served with a legal notice dated 19.08.2013 through Sh. Yogesh Khatri Advocate, Patiala. Whereas O.P no.1 received the legal notice, O.P no.2 refused to accept the same. O.P no.1 replied the notice but O.P no.3 failed to reply the same.
4. It is alleged that the O.Ps are liable to pay the complainant with a compensation in a sum of Rs.11 Lacs on account of harassment and Rs.1 Lac on account of the mental agony experienced by him and Rs.22,000/- towards cost of the complaint to be assessed by the Forum. Accordingly, the complainant approached this Forum through the present complaint brought under Section 12 of the Consumer Protection Act, 1986 (for short the Act) for claiming the said relief.
5. Here it may be noted that the cognizance of the complaint was taken against O.P no.2 only, who on appearance filed the written version. The O.P has raised certain preliminary objections, interalia, that the complainant is not a consumer of the O.P under the Act; that the complaint brought by the complainant is false, frivolous and vexatious in order to jeopardize the reputation of the O.P and to have wrongful gain illegally and that the complaint is bad for mis-joinder and non-joinder of necessary parties. As regards the facts of the complaint, the O.P has denied the complainant having purchased the bottle of soft drink in question from O.P no.1. The complainant has procured the fabricated bill in connivance with O.P no.1, who is not the authorized agent of O.P no.2 and there is no relationship between O.P no.1 and 2.
6. It is denied by the O.P that the bottle of the soft drink make Lemon Mirinda in question was manufactured by the O.P. The said bottle is readily available in the market. The cork of the bottle can easily be removed and refitted and therefore same does not ensure the genuineness of the product, to have been manufactured by the O.P. The complaint has been brought by the complainant in connivance O.P no.1. It is denied that the complainant ever approached the O.P.
7. It is further the plea of the O.P that the beverages are bottled by O.P no.2 and process of bottling is fully automatic and sophisticated machinery is being used for washing, filling and crowning of the bottles and at no stage the product is being touched by the human hands, which itself ensures a very high standard of hygiene and cleanliness with strict quality checks-rechecks ruling out any possibility of any inferior material to be there in the bottle. The liquid is tested at the laboratory and then sent for being filled in the bottles and therefore, there was no question of negligence.
8. It is further averred by the O.P that the bottle in question allegedly containing the nut bolt had not been consumed by the complainant and therefore, no injury or loss was suffered by the complainant but even then the complainant has claimed heavy compensation in order to cause threat to the reputation of the multinational company and to enrich himself, which is against the spirit of the Act. The complaint is liable to be dismissed with costs of Rs.25,000/- under Section 26 of the Act. There was no deficiency of service or negligence much less unfair trade practice on the part of the O.P. After denouncing the other averments of the complaint, going against the O.P, it was prayed to dismiss the complaint.
9. In support of his complaint, the complainant produced in evidence Ex. CA, his sworn affidavit along with documents Ex. C1 to Ex. C12 and his counsel closed the evidence. On the other hand, on behalf of O.P no.2, its counsel tendered in evidence Ex. OPA, the sworn affidavit of Sh. M.L. Mehta, authorized signatory of the O.P, Ex. OPB, the sworn affidavit of Sh. Hari Om Sharma, Production Supervisor of the O.P along with documents Ex. OP1 to Ex. OP9 and closed its evidence.
10. The parties filed written arguments. We have examined the same, heard learned counsel for the parties and gone through evidence on record.
11. Ex. C1 is the bill no.1013 dated 10.07.2014 issued by O.P no.1 in favour of the complainant Amit Bansal regarding the sale of the items as per the detail given in the complaint including 12 bottles of soft drink make Pepsi, 6 bottles of Lemon Mirinda and 6 bottles of Orange Mirinda of 300 ml each. Ex. C12 is the original bottle of the cold drink make Mirinda. On the neck of the bottle there is printed the price Rs.14/- with other particulars i.e. L2 B221. The same contains an iron material called as nut bolt and the rusting of the same is visible in the bottle as particles of rust have started floating in the bottle.
12. The contesting O.P namely Dhillon Cool Drinks & Beverages has denied the bottle to have been manufactured by it. In this regard, the O.P has just placed the reliance upon the affidavit Ex. OPB of Sh. Hari Om Sharma, Plant Supervisor of the O.P. It is deposed to by the deponent that the bottle of Lemon Mirinda cold drink, which is the basis of present complaint, is not manufactured by the O.P. The complainant has filed the complaint by procuring or using spuriously filled drink, which is readily available in the market or the alleged bottle is tampered with. It is also stated in the deposition that the condition of the crown cap of bottle seems to be very old and rusted and rest of the information is not visible being wrapped with paper and as per record of the plant of the O.P batch no.221 dated 20.03.2014 was filled with M-Orange and not Lemon Mirinda as would appear from Ex. OP9.
13. It was submitted by Sh. Sanjay Bharaj, the learned counsel for the O.P that Ex. OP9 is the very document prepared under the signatures of Chemist, Quality General Manager and Shift Manager certifying the date of the product, name of the product, batch number, unit size, tank number, start-up time, constituents of the cold drink like sugar, theoretical, sugar extra, D.E. precoat, D.E. boysfeed, a carbon etc. and only thereafter the product is prepared and bottled in the plant. As per Ex. OP9 batch no.221 pertained to M-Orange prepared on 20.03.2014 and the same does not pertain to Lemon Mirinda.
14. It was also submitted by Sh. Sanjay Bharaj that the empty bottles of the cold drink manufactured by the O.P are readily available in the market and anybody can after removing the crown add anything and recap the crown. It was also submitted by Sh. Bharaj that many a people in the market are indulging in fabricating cold drink of renowned companies. In this regard he referred to the news clippings Ex. OP1 to Ex. OP8.
15. Then it was submitted by Sh. Bharaj that admittedly, the complainant has not made use of the bottle of cold drink in question and therefore, one fails to understand as to how the complainant has claimed a fantastic compensation amount of Rs.11 Lacs, there being no evidence with regard to any harm to the health of the complainant and his children, by the simple view of the cold drink containing an iron metal. He also placed reliance upon the citations The Managing Director M/S. Hamdard Wakf Laboratories (India) and others Vs Vijay Kumar and another 1994(2) C.P.J. (N.C.) 19 and P.A. Pouran Vs Mcdowell & Co. & another I (1992) CPJ 300 (NC).
16. On the other hand, it was simply submitted by the learned counsel for the complainant that the negligence on the part of O.P no.2 in manufacturing the bottle of cold drink appears very much glaring in as much as it contained a foreign matter i.e. an iron nut bolt which, if consumed by human being, is bound to affect the health adversely and therefore the complainant is entitled to the compensation.
17. We have considered the submissions. The O.P has not led any cogent and convincing evidence that the bottle of cold drink in question had not been manufactured by it. The O.P has not got the bottle in question examined from the manufacturer of the same so as to opine that the same had not been manufactured by it. Similarly, the O.P. has not led any evidence that the crown affixed on the bottle in question is not original crown and was not got manufactured by the O.P from the company from whom they get the same manufactured. O.P. cannot be said to have discharged its onus of proving the bottle in question to be forged/fake bottle, which could easily be discharged by getting the bottle in question compared with the help of any original bottle from any expert. Similarly, the O.P has not taken any steps to get the cold drink contained in the bottle in question examined by any laboratory so as to prove that the constituents of the cold drink are not the same which are manufactured by them for being marketed.
18. There is no evidence to have been led by the O.P that any FIR was lodged against any person having manufactured the fake bottles of the cold drink make Mirinda and that any such bottles were recovered from his possession. The O.P has simply produced in evidence Ex. OP1 to Ex. OP8, the clippings of the different newspapers with regard to certain raids having been conducted on persons having indulged in forging cold drinks of renowned companies and the FIRs having been registered against those persons but the O.P has failed to lead any evidence that the bottle in question Ex. C12 is not manufactured by it as per discussion made above.
19. Now the question arises as to whether the complainant can seek any damages from O.P no.2 on the ground there existed a foreign matter in the bottle of the cold drink in question. Admittedly, the complainant or any member of his family had not made a use of the bottle of the cold drink and therefore, the question of the complainant or any member of his family having suffered adversely in respect of their health does not arise. For a consumer to be entitled to seek any compensation on account of the negligence on the part of the manufacturer of the goods, has to allege and prove the loss or injury suffered by him in compliance with Section 14 (1) (d) of the Act. The complainant has failed to allege any loss or injury suffered by him because of the negligence on the part of the O.P.
20. It is also important to note that the complainant never approached O.P no.1 for the return/replacement of the bottle or refund of the price thereof and therefore, it cannot be said that there was any deficiency of service on the part of the seller of the product.
21. The two citations relied upon by the learned counsel for the O.P have got no resemblance of the facts of the case in as much as in the case of citation The Managing Director M/S. Hamdard Wakf Laboratories (India) and others Vs Vijay Kumar and another (Supra), the complainant had purchased 2 bottles of Roohafza Sherbat and that on consumption of one of the bottles he had fallen ill. He got himself checked up from his doctor who opined that the use of the sherbet was not quite fit for health. The complainant saw something like lizard type animal in the other bottle and which was floating on the surface of the bottle. The complaint filed by the complainant was accepted by the District Forum and the complainant was awarded a compensation in a sum of Rs.500/-. A direction was also given to O.P no.4, the retailer to replace the contaminated bottle with 3 good ones and the manufacturers were burdened with the liability to pay a compensation in a sum of Rs.500/-. In the appeal preferred by the complainant, the compensation was enhanced to Rs.5000/-. In the revision preferred by the manufacturer before the Hon’ble National Consumer Disputes Redressal Commission, New Delhi, the plea of the complainant was not relied upon and the revision was accepted and the complaint was ordered to be dismissed. Therefore, on the basis of the facts of the citation, the same cannot be applied to the facts of the present complaint. Similarly, in the case of the other citation P.A. Pouran vs. McDowell and company and another (Supra), brought before the Hon’ble National Consumer Disputes Redressal Commission, New Delhi, the petitioner had purchased one bottle of “McDowell’s Soda” from the hotel of second respondent on 3rd September 1987 but found some foreign solid body floating inside the bottle. The petitioner had carried the bottle away with him so that he could make a representation to the appropriate authorities in due course. However, it was only after a period of more than five months that he, for the first time, got his grievance published through the columns of a news paper by name “Madhyam”. The Hon’ble National Commission observed, “We are unable to believe the case put forward by the complainant that he had purchased a bottle of soda water from the second respondent’s hotel and that it contained any foreign matter inside it. On the other hand, we are inclined to think that this is a totally misconceived approach to this National Commission for the purpose of ventilating some private grievance that the petitioner may have against the second respondent……” The citation cannot be applied by any stretch of imagination to the facts of the complaint.
22. As an upshot of our aforesaid discussion, it would appear that the complainant has utterly failed to show that he suffered any loss or injury because of the presence of foreign body i.e. iron nut bolt in the bottle of the cold drink in question and we are really surprised to note that a fantastic amount of compensation is claimed by the complainant without having suffered any loss or injury. Simply viewing the bottle of cold drink containing an iron nut bolt does not affect mental condition of a person qua any nausea. The complainant purchased 24 bottles of cold drink and we can suppose that he consumed 23 bottles and he did not make a use of bottle in question because he was very much aware about the presence of foreign body i.e. nut bolt in the same. Instead of approaching the seller of said bottle for getting the same replaced, the complainant opted to approach this Forum without alleging any loss or injury to have been suffered by him. He was expected to approach the seller of cold drink for replacement of the same and only in case the seller of the product failed to replace the same, he could approach the Forum for seeking the compensation on account of deficiency of service but in view of the present set of the facts, no case is made out for granting any compensation to the complainant against the O.P and consequently, the complaint is hereby dismissed.
Pronounced.
Dated: 18.02.2015.
Sonia Bansal Neelam Arora D.R. Arora
Member Member President
