IN THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI

BEFORE :       Hon’ble Thiru Justice R. SUBBIAH               PRESIDENT

                        Tmt  Dr. S.M.LATHA MAHESWARI                 MEMBER

F.A.NO.337/2014

(Against order in CC.NO.36/2010 on the file of the DCDRC, Thiruvallur)

      DATED THIS THE 4^th DAY OF OCTOBER 2021        

PepsiCo India Holdings Pvt. Ltd.,

Rep. by its Consent Officer

Having office at No.6, GST Road                                     M/s. M. Kandasamy

Mamandur, Madurantagam Taluk                                          Counsel for

Kancheepuram District                                              Appellant / 2^nd Opposite party

                                                         Vs.

1. Arun Kumar

Chekkadi StreetServed, called absent

Tiruvallur Taluk & District1^st Respondent/ Complainant

2. The Samundeeswari Stores

Rep. by its Proprietor

Having shop at No.3/3, Perumal StreetGiven up

          The 1^st Respondent as complainant filed a complaint before the District Commission against the opposite parties praying for certain direction. The District Commission allowed the complaint. Against the said order, this appeal is preferred praying to set aside the order passed in by the District Commission dt.12.8.2014 in CC.No.36/2010.

          This appeal coming before us for hearing finally today, 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 in the open court:

ORDER

JUSTICE R. SUBBIAH,  PRESIDENT  (Open court)

1.       This appeal has been filed by the appellant/ 2^nd opposite party as against the order dt.12.8.2014 in CC.No.36/2010 passed by the District Consumer Disputes Redressal Commission, Thiruvallur, by directing the opposite parties herein to pay a sum of Rs.10000/- towards compensation alongwith cost of Rs.3000/-, on the ground that there is deficiency in service on the part of the opposite parties.    

2.       The brief facts which are necessary to decide the appeal is as follows:

           The complainant had purchased two 200 ml Nimbooz bottles on 10.8.2010 from the 1^st opposite party, who is the retail seller.  The said bottle was purchased by him to serve the cool drinks to his guests. But to his shock, the complainant found an external particle floating inside in one of the 200 ml bottles of Nimbooz cool drink.  Hence the complainant approached the 1^st opposite party and complained about the same.  The 1^st opposite party had stated that the appellant/ 2^nd opposite party is the manufacturer, and he has nothing to do with the same.  Hence the complainant caused lawyer’s notice on 13.9.2010 to both the opposite parties and they have received the same.  But there was no response from them.  Hence he has filed the present complaint alleging deficiency in service on the part of the opposite parties by claiming a sum of Rs.50000/- towards loss of reputation in front of the guests, and Rs.25000/- towards mental agony alongwith cost of Rs.2000/-. 

3.       Though notice was served the 2^nd Respondent/ 1^st opposite party   remained absent, and was set exparte before the District Commission.

4. The appellant/ 2^nd opposite party had filed their version stating that the complaint has been filed only with a view to enrich themselves in an undue manner by claiming exorbitant amount, without any cause of action.  The certificate of analysis dt.30.3.2011 issued by King Institute, does not disclose the name of the manufacturer of the said bottle.  Therefore the certificate issued by King Institute cannot be relied upon.  Further the complainant has not stated any single word about the loss he suffered for claiming such a huge compensation.  Thus he sought for dismissal of the complaint. 

5. In order to prove their respective case, proof affidavits were filed alongwith documents, which were marked as Ex.A1 to A4 on the side of the complainant and the analysis report was marked as Ex.C1.  There was no document filed on the side of the opposite parties. 

6. On filing the complaint, the complainant prayed for sending the bottle for   chemical analysis by filing a petition.  The District Commission had allowed the said petition and sent the cool drink bottle to King Institute for analysis.  After hearing the arguments of both parties, and by virtue of the analysis report, the complaint was allowed by the District Commission, by holding that there is deficiency in service on the part of the opposite parties, and directed the opposite parties to pay a sum of Rs.10000/- towards compensation for mental agony alongwith cost of Rs.3000/-.  Aggrieved over the order impugned, the 2^nd opposite party alone had filed this appeal. 

7. The 1^st Respondent/ Complainant though served, remained absent before this commission.  Hence we have heard the learned counsel appearing for the appellant/ 2^nd opposite party and passed the following order.  The 2^nd Respondent/1^st opposite party has given up in this appeal. 

8. A perusal of Ex.C1 Analysis Report it is stated as follows: 

          Based on the above report, the District Commission had allowed the complaint.  Now it is the contention of the appellant/ opposite party that in the said report the name of the manufacturer was not mentioned.   Therefore the District Commission ought not to have relied upon the said document. 

9. On consideration of the materials available on record we are not inclined to accept the submission because the bottle was produced before the District Commission, and on an application it was sent for Food analysis by the District Commission.  Therefore, for the mere reason that the name of the manufacturer was not available in the report, the complaint cannot be dismissed.  The name of the drink was clearly mentioned as Nimbooz.  The registered brand name cannot be used by anyother manufacturer.  Therefore, the appellant cannot seek shelter by raising worthless defence.  In fact as observed by the District Commission, the opposite parties had not produced any contra evidence to disprove the observations made in the Food analysis report of the King Institute.  Therefore, we find no infirmity in the order passed by the District Commission, warranting this commission to make an interference.   Accordingly, the appeal is liable to be dismissed.

10. In the result, the appeal is dismissed by confirming the order of the District Commission in CC.No.36/2010 dt.12.8.2014.  There is no order as to cost in this appeal.

  S.M.LATHAMAHESWARI                                                             R. SUBBIAH

               MEMBER                                                                               PRESIDENT