BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SIRSA.
Consumer Complaint no. 45 of 2017
Date of Institution : 28.2.2017
Date of Decision : 26.3.2018.
Sachin aged about 25 years son of Bhushan Parvej, resident of Kanganpur, Tehsil & District Sirsa.
……Complainant.
Versus.
1 24 Citi Shop, Hissar road, Huda Chowk, Sirsa through its partner/Prop.
2 M.R. Enterprises, Gali Beri Wali Sirsa through its Prop./Partner-Dealer.
3 Canadian Edible Oil Pvt. Ltd. Plot No.16, Sector 82, Industrial Area, Mohali(Punjab)-160055
...…Opposite parties.
Complaint under Section 12 of the Consumer Protection Act,1986.
Before: SH. R.L.AHUJA…………………………PRESIDENT
SH. MOHINDER PAUL RATHEE …… MEMBER.
Present: Complainant with counsel Sh. Sandeep Midha, Advocate.
Sh. Sanjeev Babbar, Advocate for opposite party No.2.
Opposite parties no.1&3 exparte.
ORDER
The case of the complainant in brief is that complainant purchased one Bottle Canola Oil 2 liter from opposite party no.1 against the cash price of Rs.350/- and op no.1 issued the cash Bill no.4,443 dated 19.11.2016 to complainant. After purchasing above said bottle complainant came to home and he was shocked when he saw one Makhi (Fly) in the above said bottle and then complainant went to op no.1. OP no.1 assured complainant to convey the company in this regard. It is further averred that op no.1 being clever person instead of taking any action, put off complainant by simply saying that do not worry about this and he assured complainant that he will himself convey the company, but that day never came to complainant and always with such like buttering assurance, the op no.1 lingered on the complaint of complainant. When op no.1 kept on putting complainant with one pretext or the other inspite of regular complainants of complainant in this regard, complainant again went to the shop of op no.1 alongwith some respectable persons of the area and in their presence also ops repeated the same buttering assurances, but on protest of complainant and respectable, op no.1 stated that within few days he will definitely do something, but again op no.1 did not take any action. After some time complainant again went to op but op no.1 stated to do whatever he wants. The complainant also got served a legal notice on 9.12.2016 but to no effect. It is further averred that complainant also moved an application to Food and Supply office Sirsa, but all in vain. The complainant has suffered money loss as well as also suffered mental tension, agony and pain. If complainant would have consumed the said oil then it could affect his life and health. Hence, this complaint.
2. On notice, opposite party no.1 did not appear and was proceeded against exparte. Initially op no.3 appeared and when case was fixed for filing written statement with last opportunity none has appeared on behalf of op no.3 and was proceeded exparte.
3. Opposite party no.2 appeared and filed written statement taking certain preliminary objections regarding maintainability, cause of action, jurisdiction and suppression of true and material facts and estoppal. It is submitted that answering op is the Whole Sale Dealer/distributor of Canadian Edible Oil Private Limited, Mohali (manufacturer of Canola Oil). The answering op purchased the Canola Oil bottles from op no.3 and has sold the same in the same packed condition to the retailer and as such the answering op is not liable for any deficiency in service or compensation at all. The alleged bottle of Canola Oil is a spurious bottle which has not been manufactured by the op no.3. The op is having a full proof system of filling up the bottles and every bottle is passed through scanned technology which does not allow any foreign material in the filled up bottle. It is further submitted that it has come to the notice of answering op that locally filled up bottles are being sold under the name and brand of Canola Oil. The alleged bottle has not been consumed and no loss or damage has been caused to the complainant, so as to entitle him for any compensation. It is further submitted that the complainant has not got tested the bottle in question from the Lab so as to ascertain its genuineness and in the absence of the same, the bottle as well as its cap and seals put on the cap is not admitted. The complainant is in active collusion with the op no.1. Remaining contents of complaint are also denied.
3. The complainant produced his affidavit Ex.CW1/A, the alleged bill of op no.1 (which has been completely faded and only like a white paper), photographs Ex.C2, Ex.C2/A, copy of legal notice Ex.C3, copies of postal receipts Ex.C4 to Ex.C6, registered letter Ex.C7, acknowledgments Ex.C8 to Ex.C10, copy of application moved to District Food and Supply Department, Sirsa Ex.C11, postal receipt Ex.C12. On the other hand, op no.2 produced affidavit Ex.R1 and copy of invoice Ex.R2.
4. We have heard learned counsel for the parties and have perused the case file carefully.
5. The complainant in order to prove his case has furnished his affidavit Ex.CW1/A in which he has reiterated all the averments made in his complaint. There is no denial of the fact that complainant did not purchase the said bottle of Canola Oil from opposite party no.1 as opposite party no.1 did not appear despite notice and opted to be proceeded against exparte. The complainant has also placed on file photographs of the said bottle of oil as Ex.C2 and Ex.C2/A and the photograph Ex.C2 clearly shows that there is some dead fly in the bottle of oil. During the course of arguments, learned counsel for op no.2 contended that seal of the bottle is broken which creates a doubt on the complainant. However, at the time of arguments, the complainant was present with the bottle in question and same was shown to the learned counsel for op no.2 who independently inspected the bottle in question and admitted that seal of the bottle is intact and not broken. We also confirmed the said fact and found that seal of the bottle in question is intact and was containing a dead fly which is evident from the naked eyes. The opposite party no.2 who is the whole sale dealer/ distributor of Canadian Edible Oil Private Limited, Mohali i.e. op no.3 has alleged in the written statement that complainant has not got tested the bottle in question from the laboratory so as to ascertain its genuineness and in the absence of same, the bottle as well as its cap and seals put on the cap is not admitted. On the other hand, Sh. Rakesh Kumar, Proprietor of op no.2 in the affidavit Ex.R1 has taken an altogether different stand. He has stated that complainant has not filed on record any bill issued by answering op and on account of some misconception, the op no.2 has filed the written statement admitting that op no.2 is the whole seller/ distributor of said Canola Oil and that at the time of evidence, it has come to the notice of op no.2 that said admission was made under a misconception. As a matter of fact the Canola oil is distributed by another firm namely Shiv Shakti Sale run by its proprietor Mrs. Reeta Arora widow of Shri Rajender Kuamr Arora. He has further stated that it is a fact that op no.2 is not whole seller/ distributor of the said Canola Oil. He has further stated that op no.1 has not appeared in the present case and no bill regarding the purchase of bottle in question through op no.2 has been produced on record and the answering op is not linked in any way. The opposite party no.2 has also placed on record copy of invoice dated 18.1.2016 as Ex.R2 which is issued by JSM Proteins Pvt. Ltd. SCO-7, Super Market, Purani Mandi, Karnal in the name of Shiv Shakti Sales, Sirsa but we are of the considered view that op no.2 is misleading the Forum to avoid its liability because on the bottle it is mentioned that imported, packed and marketed by Canadian Edible Oil Pvt. Ltd. Plot No.16, Sector 82, Industrial Area, Mohali, Punjab i.e. opposite party no.3 and not by JSM Proteins Pvt. Ltd. and therefore, the contents on the bottle in question regarding manufacturer and contents of invoice Ex.R2 regarding its company do not match with each other and are not related. In so far as plea of opposite party no.2 that complainant has not got tested the bottle in question from the laboratory so as to ascertain its genuineness is concerned, it may be mentioned here that the manufacturer of the Canola oil has not appeared before this Forum. The manufacturer was the best person to say that alleged bottle is not manufactured by it and that bottle in question is a duplicate and not genuine and that it is locally filled in but manufacturer has failed to do so and has opted to be proceeded against exparte. So the above said plea is not available to op no.2 and is hereby repelled. Moreover, the op no.2 in the written statement admitted the fact that answering op is the whole sale dealer/ distributor of Canadian Edible Oil Private Limited, Mohali and that answering op purchased the Canola Oil bottles from op no.3 and has sold the same in the same packed condition to the retailer and then has turned from its admission in the affidavit by simply saying that said admission was made under a misconception which cannot be believed at all and appears to be an afterthought version to avoid from liability. The contention of the complainant regarding purchase of the bottle in question from opposite party no.1 is unchallenged and unrebutted as op no.1 has failed to appear before this Forum and opted to be proceeded against exparte. Hence, the plea of complainant for purchase of said bottle from op no.1 for Rs.350/- is admissible. Although, the bill is not readable as ink of bill vanished by virtue of time, yet name of retailer is slightly visible. Thus, the complainant has proved his case against opposite parties. It is well proved that bottle in question of Canola oil is containing a dead fly.
6. In view of the above, we allow the present complaint and direct the opposite party no.1 to replace the bottle in question with a new one of Canola oil of same company without any cost to the complainant or to refund the amount of Rs.350/- actually charged by him from the complainant as claimed by complainant. We further direct the ops no.1 to 3 to pay a sum of Rs.3000/- as composite compensation and litigation expenses jointly and severally to the complainant. The complainant will hand over the bottle in question to the opposite party no.1 under proper receipt who will destroy the same so that it cannot be sold further to any other consumer. The ops no.1 to 3 are jointly and severally liable to comply with this order within a period of 30 days from the date of receipt of copy of this order, failing which the above said amount of Rs.3000/- will carry interest @9% per annum from the date of order till actual payment. A copy of this order be supplied to the parties free of costs. File be consigned to the record room.
Announced in open Forum. President,
Dated:26.03.2018. Member District Consumer Disputes
Redressal Forum, Sirsa.
