Punjab

Patiala

CC/15/300

Mukesh Kumar - Complainant(s)

Versus

Ashwani Confectionery - Opp.Party(s)

Sh Viplan Sharma

23 Dec 2015

ORDER

Mukesh Kumar vs Ashwani Convectionary CC/15/300

Complaint No. CC/15/300 of 11/12/2015

Decided on 23/12/2015

23/12/2015 Present: Sh. Vipin Sharma counsel for the complainant.

1. It is alleged by the complainant that he had purchased a cold drink make Mountain Dew of 600 ML from OP no.1 for serving to his guests at his shop. When the complainant was about to open the bottle that he saw some ant like insects and other impurities floating inside the bottle. The complainant had to face a great embarracement. It is alleged that no cash memo/ bill receipt was issued by OP no.1 regarding the sale of said bottle of cold drink because small time shop keeper do not issue any bills for such like petty purchasers.

2. Complainant approached OP no.1 and requested to replace the bottle of the cold drink but who made refusal. Then complainant approached OP no.2, who is the distributor of the product namely OP no.3 and who advised the complainant to contact the manufacturer. Thereafter, the complainant sent an email on 17/05/2015 from his email ID

“(a) Batch no. 5335C26C15

(b) Date of manufacturing: 26.3.2015

(c) Time of manufacturing: 00:18

(d) Name of manufacturing plant: SMV Beverages Pvt. Ltd., A-28, MIDC Industrial Area, Saoner District Nagpur-441107, Maharashtra. CDV- 5335.”

Thereafter, complainant failed to get any response from OP no.3. Complainant sent another reminder in continuation of his earlier emails. After a gap of few days, a male representative of OP no.3 met the complainant at Patran and threatened the complainant not to open his mouth and keep sitting mum and not to report the matter to the media but the complainant made a refusal.

3. The complainant got the OPs served with a legal notice dt. 9/7/2015 asking for an unconditional written appology and the payment of Rs.3 lac on account of unfair trade practice, harassment and mental agony experienced by him and Rs.21000/- towards the cost of the notice but to no effect and hence this complaint u/s 12 of the Consumer Protection Act 1986 (for short the act).

4. The complainant has produced on file the reply annexure C-14 dt. 18/08/2015 got sent by OP no.3 in response to the legal notice dt. 09/07/2015 to Sh. Vipin Sharma, the counsel for the complainant, in which it was categorically averred in para no.2, “Without prejudice, to any submission that we would like to make on the merits of your client's contention, we wish to submit that bottling of Mountain Dew is carried out by various authorized bottlers under license from the brand name owners. It is further submitted that PepsiCo India Holdings Pvt. Ltd. does not manufacture, distribute or sell any kind of beverages within your client's jurisdiction. It is pertinent to mention that every bottle bears the mark of the manufacturer.”

5. Today counsel for the complainant produced the bottle of cold drink make Mountain Dew in question and the same is shown to have manufactured by : SMV Beverages Pvt. Ltd., A-28, MIDC Industrial Area, Saoner District Nagpur-441107, Maharashtra. CDV- 5335. Apparently the cold dring bottle is not manufactured in Punjab. Therefore, it was very much obligatory on the part of the complainant to have produced the bill/ receipt regarding the purchase of the cold drink bottle make Mountain Dew made from OP no.1, to have been manufactured by OP no.3 because in the reply annexure C-14, it is categorically disclosed that PepsiCo India Holdings Pvt. Ltd. does not manufacture, distribute or sell any kind of beverages within the jurisdiction of the complainant i.e. in Punjab. We even suggested the ld. counsel for the complainant that the complainant could produce any other bottle of the cold drink make Mountain Dew purchased from the OP no.1 or any other retailer in Punjab in order to show that said product is available at Patran (Punjab) but he stated that he has already tried for the same but the same is not available.

6. In the absence of any bill/ receipt to have been produced by the complainant regarding the purchase of the cold drink make Mountain Dew, it can not be said that complainant is a consumer as defined u/s 2 (1) (d) (1) of the Act which provides:-

“(d) “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; or”

7. It is very much interesting to note that complainant has not disclosed the price of the cold drink for which the same was purchased by him from OP no.1 and this would go to show that he is not the consumer of the product for a consideration. The complainant has also not produced any affidavit of OP no.1 with regard to OP no.1 having sold the bottle of the cold drink in favour of the complainant in the absence of which we are of the prima facie view that complainant can not be said to be a consumer.

8. It is also important to note that the bottle of the cold drink make Mountain Dew, as per the information provided on the same would go to show that it was best before three months from manufacturing and the date of the manufacture has been given as 26/03/2015, going to show that it was best before 25/06/2015 but the complainant kept the bottle with him for a period of five months and 16 days after which he brought the complaint on 11/12/2015, during which period we can understand that the contents of the bottle would have under gone drastic changes after the expiry of the validity period. The complainant should have brought the complaint immediately on purchase of the bottle or in any case within a reasonable time of 15 days from the date of purchase. The purchase was made on 15/5/2015 but the complainant brought this complaint on 11/12/2015. Therefore, by virtue of his own act and conduct complainant is estopped in filling such like complaint. The complaint is hereby dismissed being not maintainable. Copy of the order be supplied to the complainant free of cost. The bottle of the cold drink in question be returned to the counsel for the complainant. File be consigned to record room.

Dated:23/12/2015.

Sonia Bansal Neelam Gupta D. R. Arora

Member Member President