RESERVED

State Consumer Dispute Redressal Commission,

Uttar Pradesh, Lucknow.

Appeal No. 1935 of 2014

Pepsico India Holdings Ltd.,                                                       

(A company incorporated under the

Indian Companies Act, having its registered office)

At  3-B, DLF Corporate Park, S-Block,

Qutub Enclave, Phase -3, Gurgaon, Haryana

Through its CEO

                                                                                                            …..….Appellant

                                                         Versus

1. Anil Singh, adult s/o Late Ragunath Prasad

      R/o  SA 6/186, B-21, Sri Nagar Colony, Paharia,

      Varanasi.

2. Prince Bakers & General Stores,

Varuna Bridge, Near Hotel Radisson,

Varanasi, through its proprietor.                        

                                                                                                                  ……Respondents

Present:

1.  Sri Raj Kamal Gupta, Presiding Member
2.  Sri Mahesh Chand, Member

1. Sri VikasSingh,  Advocate for the  Appellant
2. None    for the Respondent No.1 & 2 

  Dated:   2.11.2018                                               

                                                         Judgement

(Delivered by Hon’ble Member Sri Mahesh Chand)

This appeal under section 15 of Consumer Protection Act, 1986, has been filed against the impugned order dated 20.09.2014   passed by  District Consumer

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Dispute Redressal Forum, Varanasi, in  complaint No  243 of 2008,  Anil Singh, versus Pepsico India Holdings Ltd.

       Briefly,  the facts of this case are that  the Respondent No 1-Complainant had purchased 5 bottles of Pepsi, and 3 bottles of  Spice, cold drinks each of 300 ml from the Respondent No 2-Opposite party No 2 on dated 18.7.2008.The Appellant-Opposite Party No 1 is the manufacturer and distributor of aerated and non-aerated soft drink, beverages under the trade mark PEPSI, 7UP, ORANGE, MIRINDA LEMON, SLICE etc. The respondent No 2-Opposite Party No.2.  is the retailer of the goods supplied by Appellant-Opposite Party No 1. After purchasing the aforesaid bottles, the respondent No 1-Complainant took them to his house and opened two bottles of Pepsi and one bottle of Slice for consumption. He noticed that there was some hard substance in his mouth while drinking the Pepsi soft drink and it was a piece of Pan Masala. The son of the complainant also felt that there was a hard substance in his mouth while drinking the soft drink Slice. It was also the pan masala. The complainan was  surprised to note a wrapper of pan masala floating in the Slice bottle. After consuming the Slice soft drink the complainant’s son started vomiting. He was given first aid immediately,  and he recovered. The complainant contacted the opposite party no 2 and made a complaint to him about the said contamination in the aforesaid soft drinks. The opposite party no. 2 told him that he is selling the product as he received from the opposite party no. 1. According to the complainant, after consuming the said soft drinks, he felt pain in his knees. He consulted Dr S. N. Yadav who advised him to get done  the X-ray of the knees and take certain medicines for 7 days. He had never any knee problem before 19.7.2008. Being aggrieved with the alleged  contamination in the aforesaid products of soft drinks, the complainant filed

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the complaint before the District Consumer Forum, Varanasi, whereby so many allegations have been made in the complaint and sought the following reliefs: -

1. By an order of the Hon’ble Forum, the opposite party no.1 Company be directed to pay Rs 19,50,000/- as compensation to the complainant.
2. By an order of the Hon’ble Forum, the opposite party no.1 Company be restrained not to bottle, supply the soft drinks manufactured by it to its dealers, retailers etc. of the city of Varanasi for distribution and sale.
3. By an order of the Hon’ble Forum, the opposite party no.1 Company be directed to pay Rs 50/- as value of the product to the applicant.
4. By an order of the Hon’ble Forum, the opposite party no.1 Company be directed to pay interest on the amount awarded.
5. Cost of the petition.
6. Such other and further relief in addition to the relief claimed.

                 The notices were issued to the opposite parties by the District Forum. The opposite parties contested the case and denied the averments of the complaint. The evidences were filed by the parties. After hearing the parties and perusing the record on file the learned District Forum passed the following impugned order dated 20.9.2014:-

“परिवादी अनिल सिंह का परिवाद स्‍वीकार किया जाता है। विपक्षीगण को संयुक्‍त एवं एकाकी रूप से आदेशित किया जाता है कि वे इस आदेश की तिथि से एक माह में क्षतिपूर्ति के रूप में रू0 50,000/- परिवादी को अदा करें, अन्‍यथा अवधि बीत जाने पर धनराशि पर 08 प्रतिशत वार्षिक ब्‍याज परिवाद प्रस्‍तुत करने की तिथि से भुगतान की तिथि तक देय होगा। इसके अतिरिक्‍त परिवादी द्वारा मांगा गया शेष अनुतोष अंश रू0 19,50,000/- का निरस्‍त किया जाता है। ‘’

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      Being aggrieved with the above order impugned  this appeal has been filed on the grounds that the learned District Forum erred in placing reliance on the receipt issued by the respondent no-2/opposite party no 2, and which does not bear the name of the respondent no 1-complainant. It does not have mention of the sale of the 5 bottles of Pepsi 300 ml and 2 bottles of Slice 300 ml and no other receipt has been produced in support of this paper. Hence the complainant- respondent no 1 is not the consumer of the appellant under section 2(1) (d) of Consumer Protection Act, 1986. The alleged bottles were not got tested by the “Appropriate Laboratory” within the meaning of  section 2(a) read with section 13(c) of Consumer Protection Act, 1986. In the absence of any Public Analyst report, the learned District Forum erred in arriving at a conclusion that the said bottles were manufactured by the Appellant-Opposite Party no 1. It has also been stated in the grounds of Appeal that there is no evidence to prove that bottles in question were actually manufactured by the Appellant-Opposite party no 1. It has also been stated in the grounds of Appeal that the raw materials used for manufacturing the soft drink products is of highest grade and quality. The  product is manufactured in the modern sophisticated plants under very high standards of hygiene and cleanliness and involves strict quality checks. The complainant did not provide any proof with regard to his claim of Rs 19,50,000/- as compensation. The learned District Forum awarded compensation of Rs. 50,000/- to the complainant on the basis of surmises and conjectures. On these grounds the appellant filed this appeal to set aside the impugned order and dismiss the complaint.

              The notices were issued the to respondents and the service upon them was deemed sufficient vide order dated 20.2.2018.

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The appeal was put up before this bench for hearing. Mr Vikas Singh, the learned counsel for the Appellant appeared. None appeared for the respondents. We heard the arguments of the learned counsel of the Appellant and perused the documents available on the file.

                It is evident that the complainant purchased 3 bottles of Pepsi and 2 bottles of Slice from Prince Bakers on dated 18.7.2008. But there is no evidence that the supply of these bottles was genuinely got by Prince Bakers from the Appellant-Pepsico India Holdings Ltd.  It is also evident that the alleged contamination could not be analyzed by the Public Analyst. The learned District forum arrived on the conclusion of the product being contaminated only on the basis of allegations made. Lot of literature has been submitted before the District Forum. It is useless in the absence of the Public Analyst report. Lot of  edifications ( talk of moral teachings) have been made in the impugned order as well as in the complaint that what should be done and what  should not be done etc. but no concrete evidence was produced that the said product of soft drinks was contaminated and was out of the supplies made by the appellant. There is no evidence of developing pain in the knees of the complainant after drinking the said cold drink. No medical examination report is on the file on this account. Similarly, there is no evidence to prove that the incidence of the vomiting by the son of the complainant occurred only by drinking the said product. The medical papers submitted by the complaint do not indicate that the aforesaid medical problems occurred to the complainant due to consumption of the said soft drinks. According to the complainant he developed knee joint pain after consumption of the drink while his son had vomiting. There is no nexus between the two problems. If there were any contamination in the product, then there should have been the problem of food poisoning to both of them and not of the knee joint pain. It appears to be total concocted story.  The

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learned District Forum has erred in arriving at the conclusion without any analytical report that said soft drinks were contaminated and passing the impugned order which is liable to be set aside.  

Order

 The Appeal is allowed.  The impugned order is set aside.  The Complaint  is dismissed. No orders to costs.

Let the copy of this order issue to the parties concerned as per rules.

(Raj Kamal Gupta)                                                         (Mahesh Chand)

Presiding Member                                                                  Member

P.K.M/st. c-3