DISTRICT CONSUMER DISPUTES REDRESSAL FOR`UM, BATHINDA.

CC.No.326 of 12-07-2012

Decided on 30-10-2012

Parminder Singh s/o Avtar Singh, Proprietor Vikas Variety Store, 7056, Mohalla Guru Nankpura, Bathinda.

........Complainant

Versus

1.Amritsar Crown Caps Pvt Ltd., GT Road, Jandiala Guru, Amritsar; through its Managing Director.

2.Rajesh Col Drinks, Distributors: Coca Cola, Limca, Thumbs Up, Dr.Mela Ram Road, Gali No.3, Bathinda; through its proprietor.

.......Opposite parties.

Complaint under Section 12 of the Consumer Protection Act, 1986.

QUORUM

Smt. Vikramjit Kaur Soni, President.

Sh.Amarjeet Paul, Member.

Smt. Sukhwinder Kaur, Member.

Present:-

For the Complainant: Sh.R.K Bhukal, counsel for the complainant.

For Opposite parties: Sh.Vikas Singla, counsel for opposite parties.

ORDER

VIKRAMJIT KAUR SONI, PRESIDENT:-

1. The complainant has filed the present complaint under section 12 of the Consumer Protection Act, 1986 as amended upto date (Here-in-after referred to as an 'Act'). The brief facts of the complaint are that the complainant has been buying the cold drinks from the opposite parties for selling to its customer alongwith other things to earn livelihood for himself and his family. On 6.6.2012, the complainant has purchased a case of Coca Cola cold drinks of 200 ml bottles against the cash payment of Rs.168/- vide receipt No.791 dated 6.6.2012 for selling the same to his customers. On 6.7.2012, one customer came to the shop of the complainant and asked for a cold drink Coca Cola 200 ml bottle and he picked up one bottle of 200 ml for giving the same to the customer but to his utter surprise he found the bottle containing white coloured fungus on the top of the liquid and on careful perusal it was found that there is more fungus material at the bottom of the bottle. The complainant offered to give another bottle of cold drink to the customer but seeing the fungus, he refused to buy it and thereafter he stopped visiting his shop for making purchases. The complainant alleged that the said customer informed the occurrence to the other customers and asked them to avoid making purchases from his shop on the ground that he sells substandard goods. Thereafter, the complainant brought this fact to the notice of the opposite party No.2 but they refused to entertain him on the ground that they have not sold substandard cold drink to him. The complainant is a consumer under the opposite parties as they had provided services to him against monetary consideration. The opposite party No.1 is the manufacturer of the abovesaid cold drink and the opposite party No.2 is its distributor therefore both are liable. The opposite parties have rendered the deficient services to the complainant by selling substandard cold drink and for this reason he and his shop have lost their goodwill among the customers. Hence the complainant has filed the present complaint for seeking the directions of this Forum to the opposite parties to replace the abovesaid substandard cold drink with a fresh bottle alongwith cost and compensation.

2. The notice was sent to the opposite parties. The opposite parties after appearing before this Forum have filed their joint written statement and pleaded that the complainant is not a consumer to the opposite parties as defined under section 2 (i) (d) (ii) of the 'Act' as the complainant has availed the services of the opposite parties for commercial purposes and he is not running the business only for earning his livelihood. The complainant himself has admitted in the complaint that he has been purchasing the bottles of cold drinks for further selling the same to the customers in retail. There was no fungus in the bottle of the said cold drink. The opposite party No.1 is preparing the lot containing thousands of bottles at a time and there cannot be any chance of any alleged fungus in any one bottle out of the total lot. The product of the opposite party No.1 has been duly approved by the government to be free from all health hazards which are filled with due precautions and care with latest technology machines and are minutely checked before supplying the same in the market for the sale. The relations between the complainant and the opposite parties are fiduciary in nature based upon the trust and he has no right to file the present complaint. The opposite parties even provide the replacement to the retailers for expired, damaged and if fungus found in the bottles. The complainant has never lodged any such complaint with the opposite party No.2. The opposite parties admitted that the opposite party No.1 is the manufacturer and the opposite party No.2 is the distributor of the opposite party No.1 but the complainant was purchasing the cold drinks to sell in retail and there is no liability of the opposite parties towards him.

3. The parties have led their evidence in support of their respective pleadings.

4. Arguments heard. The record alongwith written submissions submitted by the parties perused.

5. The submissions of the complainant are that the complainant is running a variety store under the name & style of Vikas Variety Store to earn his livelihood. The complainant has been buying the cold drinks from the opposite parties for selling the same to his customer among other things. The complainant has purchased a case of Coca Cola cold drinks 200 ml bottles against the cash payment of Rs.168/- vide receipt No.791 dated 6.6.2012. On 6.7.2012 when the complainant picked up one bottle of cold drink of Coca Cola 200 ml to sell it to one of his customers he saw that the bottle containing white coloured fungus and there was more fungus material at the bottom of the bottle. The complainant offered another bottle of cold drink to his said customer but seeing the fungus, he refused to buy it from him and thereafter he stopped visiting his shop for making purchases from him on the ground that he sells substandard goods and also tried to stop his other costomers. The complainant brought this fact to the notice of the opposite party No.2 but they refused to entertain him on the ground that they have not sold him substandard cold drink.

6. The opposite parties on the other hand submitted that the complainant is not running the business for earning his livelihood or for self employment as he has been purchasing the bottles of cold drinks for further selling the same to the customers in retail, as such he cannot invoke the jurisdiction of this Forum and does not fall under the definition of 'Consumer' as provided under the 'Act'. The opposite parties denied that there was any fungus in the bottle of the said cold drink. The opposite party No.1 is preparing the lot containing thousands bottles at a time and there cannot be any chance of any alleged fungus in any one bottle out of the total lot. The product of the opposite party No.1 has been duly approved by the government to be free from all health hazards. The bottles are filled with due precautions and care with latest technology, machines and minutely checked before supplying the same in the market for sale. The relations between the complainant and the opposite parties are fiduciary in nature based upon the trust and he has no right to file the present complaint. The opposite parties also provide replacement to the retailers for expired, damaged stock or if there is fungus in the bottles. If there was any fungus in the bottle, the complainant was well within his right to get the replacement of the same. The complainant has never lodged any complaint with the opposite party No.2.

7. The complainant in the very first two paras of his complaint has mentioned that he had brought the cold drinks for selling the same to his customers alongwith other things to eke his and his family's livelihod. When the complainant was about to sell one of the bottle from the crate of Coca Cola bottles of cold drink 200 ml to one of his customer he saw fungus in the said bottle. The complaint itself speaks that the complainant has been running a variety store and has been selling the cold drinks alongwith other things to the various person. The complainant is purchasing the cold drinks to re-sell the same to his customers, meaning thereby he is availing the services of the opposite parties for the commercial purpose and not for self employment or eking his and his family's livelihood. Thus the complainant is not 'consumer' under section 2 (i) (d) of the Consumer Protection Act, 1986. The relevant portion of 2 (i) (d) of 'Act' is reproduced as under:-

“Consumer” means any person who -

(i) buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose;

(ii) hires or avails of any services for a consideration which has been paid or promised or partly paid and partly promised, or under system of deferred payment and includes any beneficiary of such services other than the person who hires or avails of the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed or with the approval of the first mentioned person but does not include a person who avails of such services for any commercial purposes.

Explanation – For the purposes of this clause “Commercial purpose” does not include use by a person of goods bought and used by him and services availed by him exclusively for the purposes of earning his livelihood by means of self-employment.”

8. As discussed above, the complainant is not a consumer as he is running the variety shop to earn the huge profit and has been buying the cold drinks from the opposite parties to re-sell those to his customers.

9. Therefore in view of what has been discussed above this complaint is not maintainable and is hereby dismissed without any order as to cost.

10. The complainant is at liberty to approach the appropriate authority/court/ for the redressal of his grievances if so permitted and advised by law.

11. A copy of this order be sent to the parties concerned free of cost and file be consigned to the record room.

Pronounced in open Forum:-

30-10-2012

(Vikramjit Kaur Soni)

President

(Amarjeet Paul)

Member

(Sukhwinder Kaur)

Member