DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,<br /> BATHINDA (PUNJAB)<br /> <br /> CC. No. 282 of 03-10-2008<br /> Decided on : 25-06-2009 <br /> <br /> Deepk Kumar aged about 25 years S/o Ramesh Kumar R/o 4332, Gali Singh Sabha Gurudwara, Bathinda.<br /> .... Complainant<br /> Versus<br /> <br /> 1.Asianlak Health Foods Limited, Ludhiana – Chandigarh Road, V & P.O. Jandiala, Distt. Ludhiana (Punjab).<br /> 2.Bhagwati Traders, 5713 Mohalla Telian Wala, Bathinda, through its Prop./Partner<br /> <br /> ... Opposite parties<br /> <br /> Complaint under Section 12 of the Consumer Protection<br /> Act, 1986.<br /> <br /> QUORUM <br /> <br /> Sh. George, President<br /> Dr. Phulinder Preet, Member<br /> Sh. Amarjeet Paul, Member<br /> <br /> For the Complainant : Sh. Sanjay Goyal, Advocate.<br /> For the Opposite parties : Sh. Naveen Goyal, Advocate, counsel for opposite party No. 1. <br /> Sh. Rajdeep Goyal, Advocate counsel for opposite paty No. 2<br /> <br /> O R D E R<br /> <br /> GEORGE, PRESIDENT<br /> <br /> 1. Sh. Deepak Kumar, complainant has filed the present complaint under Section 12 of the Consumer Protection Act, 1986 (here-in-after referred to as 'Act') with the allegations that on 11-09-2008, he purchased bottles of mineral water from opposite party No. 2 manufactured by opposite party No. 1 vide cash memo No. 3161. He opened some bottles and served the same to his guests and also consumed himself. After consumption of the same, he fell ill due to severe pain in his abdomen and his guests also suffered with the similar problem. The complainant checked the remaining bottles of mineral water and noticed some insect type thing in one of the sealed bottle bearing batch No. 8404/7:32. He faced very awkward situation before his guests as the mineral water served to them was unhygienic. The complainant approached the opposite party No. 2 many a times and requested him to take back the bottles of mineral water and compensate him for harassment, but to no effect. The act and conduct of the opposite parties is illegal, unjustified, malafide, against the principles of natural justice and amounts to deficiency in service and unfair trade practice. The complainant, thus seeks direction from this Forum that opposite parties may be directed to pay him an amount of Rs. 50,000/- as compensation and damages on account of losses, harassment and mental tension meted out by him besides cost of the complaint.<br /> 2. The opposite party No. 1 contested the claim of the complaint by taking legal objections that; opposite party No. 1 has been wrongly made party to the complaint as the product in question is not its product and it has no concern with the same; opposite party No. 2 is not its authorised dealer; complaint is not consumer as per its definition given in the 'Act' and complaint has been filed on wrong facts just to harass the opposite parties. On merits, opposite party No. 1 pleaded that the product in question is not its product and opposite party No. 2 has intentionally and wrongly sold the poor product of some other company by showing the same to be of opposite party No. 1.<br /> 3. The opposite party No. 2 filed separate reply taking legal objections that; complaint is not maintainable in the present form; complainant has no locus standi or cause of action to file it; intricate questions of law and facts are involved which cannot be adjudicated by this Forum in summary manner and only civil court is competent to decide the same and the complainant has not come to this Forum with clean hands. On merits, it has been stated that opposite party No. 2 had received a sealed box of bottles of mineral water from opposite party No. 1 and sold the same to the complainant in the same sealed condition. They deny that there is any insect in the bottle of the mineral water. However, it is submitted that if there is any insect in the mineral water bottle, the same is due to the negligence on the part of opposite party No. 1 and it has nothing to do with it. <br /> 4. Both the parties to prove their assertions, have led their respective evidence.<br /> 5. The complainant brought in evidence his own affidavit Ex. C-1, bill dated 11-09-2008 Ex. C-2 and one bottle of 'Bisleri' mineral water in a sealed condition Ex. C-3.<br /> 6. To controvert the evidence of the complainant, opposite parties brought in evidence two affidavits of S/Sh. V K Sharma, authorised signatory on behalf of opposite party No. 1 and Ravitash Bansal, Proprietor of opposite party No. 2 Ex. R-1 & Ex. R-2 respectively.<br /> 7. We have heard the learned counsel for the parties and gone through the entire record of the case very carefully.<br /> 8. Learned counsel appearing on behalf of the complainant vehementally contended that as per bill Ex. C-2, the complainant purchased bottles of mineral water 'Bisleri' from opposite party No. 2 manufactured by opposite party No. 1. The complainant consumed some of the bottles resultantly, he fell ill and sustained severe abdomen pain. Similar complaints were made by some of his guests as well. When he checked the mineral water bottles, he noticed that out of the remaining bottles, one found containing some insect type object/contamination in sealed condition of the bottle. He urged that this insect type object is clearly visible by naked eye as well. The mineral water thus purchased by the complainant from opposite party No. 2 which is manufactured by opposite party No. 1 is apparently unhygienic as well as un-consumable. He urged that he approached opposite party No. 2 and requested to exchange the mineral water bottle but opposite party No. 2 flatly refused to accede to his request. The act on the part of opposite party No. 2 as well as opposite party No. 1 falls within the meaning of deficiency in service as contained in Section 2(1)(g) of the Act. He urged that the complainant has undergone the trauma of not only physical suffering but also mental tension, agony and inconvenience and he had to cut a sorry figure before his guests for which he is not only entitled for the cost of mineral water bottle, but also entitled for punitive damages from both the opposite parties. He has also claimed reasonable expenses for incurring cost of forced litigation for the redressal of his grievances.<br /> 9. Learned counsel appearing on behalf of opposite party No. 1 urged that the mineral water bottle Ex. C-3 does not belong to opposite party No. 1. The opposite party No. 2 is not its authorised dealer or distributor and there is no nexus of any contractual obligation between opposite party No. 1 and the complainant. The opposite party No. 2 has intentionally and wrongly sold the poor product of some other company by showing the same to be of opposite party No. 1. He urged that since opposite party No. 1 has not authorised opposite party No. 2 to sell its products, opposite party No. 1 is not liable to pay any damages to the complainant on any count.<br /> 10. Learned counsel appearing on behalf of opposite party No. 2 while raising legal objections regarding maintainability, locus standi, suppression of material facts etc., urged that he purchased the bottle of mineral water 'Bisleri' in sealed condition from the manufacturer i.e. opposite party No. 1 and if there is any insect in the bottle, the same is due to the negligence of the manufacturer of the said bottle and therefore, the opposite party No. 1 is liable for negligence or deficiency in service and not opposite party No. 2.<br /> 11. We have considered the rival contentions raised by the learned counsel for the parties as referred to herein above after taking into consideration the entire record of the case.<br /> 12. It is proved on the record that bottle Ex. C-3 was purchased by the complainant from opposite party No. 2 vide bill dated 11-09-2008 Ex. C-2 as this fact has been admitted by opposite party No. 2 in para No. 9 of his reply wherein he has stated that “the replying opposite party who under the bonafide impression sold only packed and sealed bottles of mineral water manufactured by the opposite party No. 1 which are being purchased by opposite party No. 2 from opposite party No. 1 through different bills”. The opposite party No. 2 has not denied the sale of bottle Ex. C-3 vide bill Ex. C-2 on 11-09-2008 to the complainant for consideration. The only stand taken by opposite party No. 2 is that he purchased the sealed bottles from opposite party no. 1 who is manufacturer of the mineral water bottles, in sealed and packed condition and sold the same to the complainant in the same position and therefore, if there is any unhygienic contents or insect like object is found to be floating in the mineral water bottle, it is not on account of his negligence rather the same is only due to negligence on the part of opposite party No. 1. <br /> 13. The record also reveals that opposite party No. 1 tried to escape its liability by pleading that opposite party No. 2 has intentionally and wrongly sold the poor product of some other company by showing the same to be of opposite party No. 1 whereas bottle Ex. C-3 is not the product of opposite party No. 1. Opposite party No. 2 is not authorised to sell the products of opposite party No. 1. It appears from the stand taken by the opposite parties that both of them are raising an accusing fingre against each other by taking contradictory stand, as to who, is in fact, responsible for selling unhygienic and unconsumable mineral water to the complainant who is under all circumstances is a consumer and has acquired mineral water bottle Ex. C-3 against payment vide bill Ex. C-2 from opposite party No. 2 which was infact purchased by opposite party No. 2 from opposite party No. 1 in sealed and packed condition.<br /> 14. It also appears from the record that the stand taken by opposite party No. 1 that mineral water bottle Ex. C-3 is not its product, appears to be totally untenable for the reason that the complainant has specifically pleaded in the complaint that one sealed bottle bearing Batch No. 8404/7:32 was purchased and this figure found mentioned just closed to the bottom of the bottle. The bottle also bears the wrapper which bears the details of manufacturer i.e. opposite party No. 1. The cap of the bottle also bears the seal and symbol with words 'Bisleri'. We have inspected the bottle carefully. It is properly in sealed condition. The seal has not been tampered with in any manner. The wrapper is also properly intact. The bottom of the bottle bears the batch number of the product and also the date of manufacture i.e. 04-04-2008. The stand taken by opposite party No. 1 that it is not 'Bisleri' product rather is the product of some other poor manufacturer is accordingly untenable and without any merit. <br /> 15. As far as unhygienic and unconsumable position of the product is concerned, an insect like object is seen floating with naked eye in the mineral water bottle and no human being can consume it after seeing the insect like object floating in the bottle. It is automatically assumed not only unconsumable product but also highly unhygienic for human consumption.<br /> 16. The contention raised on behalf of opposite party No. 2 that he is not responsible for selling Ex. C-3 against bill Ex. C-2 to the complainant, also appears to be unsustainable simply because bottle Ex. C-3 was sold in sealed condition will not absolve him in selling unhygienic and unconsumable product which itself visible through naked eye and despite the fact that complainant approached him for redressal of his grievance but opposite party No 2 did not care to replace the bottle or return the price rather he is dealt with the complainant in a shabby manner. Otherwise also when once the defect has been brought to the notice of opposite party No. 2, he did not make any effort to rectify grievance of the complainant. Thus he also has to bear the responsibility of selling a defective product for consideration vide bill Ex. C-2, to the complainant which is unconsumable and unhygienic.<br /> 17. The contention raised on behalf of the opposite parties that complainant is not consumer and therefore, the complaint is not maintainable appears to be without any force for the reason that opposite party No. 1 is the manufacturer and opposite party No. 2 is the agent of opposite party No. 1 for selling its product in the open market to the general public and the complainant as a member of general public being consumer purchased the bottle of 'Bisleri' mineral water Ex. C-3 on payment vide bill Ex. C-2. <br /> 18. The contention of opposite party No. 1 that it never authorised opposite party No. 2 to sell its products as a authorised dealer or distributor also appears to be without any force in view of the clear admission made by opposite party No. 2 that he purchased bottles of 'Bisleri' mineral water from opposite party No. 1 in sealed and packed condition against various bills and this fact is not controverted in any manner by opposite party No. 1. Otherwise also the inspection of bottle Ex. C-3 speaks for itself that product is of none else but belongs to opposite party No. 1 for which elaborate reasons have already been given herein above. Once the product is floated in the market for consumption of general public, the defects, if any in such product, whether it causes any injury or not or it is sold through a dealer or authorised distributor or not will not absolve the liability of opposite party No. 1 who is the manufacturer of the product i.e. 'Bisleri' mineral water. <br /> 19. Any article manufactured, sealed and brought in the market by any manufacturer for sale for the general public with patent or latent defect, it is for the manufacturer and seller to ensure that product made available for sale is without any such latent or patent defect which makes the product unconsumable. The defect as pointed out is apparently visible through naked eye which makes the product of opposite party No. 1 unhygienic and unconsumable and therefore, neither opposite party No. 1 nor opposite party No. 2 can escape their liability for selling the same in the open market for human consumption.<br /> 20. The Hon'ble Supreme Court in the case titled as Jose Philip Mampillil vs. Premider Automobiles 2004 CTJ 205 (SC)(CP), in which case a car sold by the respondent was found to be defective causing immense loss to the complainant and the manufacturing company denied its liability, remarked that “it is shameful that a defective car was sought to be sold as a brand new car. It is further held that the Premier Automobiles instead of acknowledging the defect chose to deny its liability.”<br /> The Hon'ble National Consumer Disputes Redressal Commission by following the law laid down by the Supreme Court in the above case held in Ashok Khan Vs. Abdul Karim & Ors. 2005 CTJ 1207 (CP) (where a defective power tiller was sold to the complainant) that “both the dealer and the manufacturer of the machine, having defects in it, are jointly and severally liable to the purchaser because he knows only the dealer from whom he purchased that machine not its manufacturer.”<br /> In a recent case reported as Charisma Goldwheels (P) Vs. Dr. B K Arora 2008 CTJ 1127 (CP) Hyundai Motors, the manufacturer of Santro car sold by its dealer to the complainant and found to be defective, denied its liability on the ground that 'dealings between it and its dealer is on principal to principal basis and as such omission/commission if any, committed while retailing/servicing the cars to its customers was the sold responsibility of the dealer.” The Hon'ble Himachal Pradesh State Consumer Disputes Redressal Commission has repelled this contention in its order dated 9th May, 2008 and observed that 'in fact the dealer is the frontman or the face of the manufacturer for the sale/marketing its manufactured products, therefore, both of them cannot escape from liability and are jointly and severally liable.' <br /> In the light of above discussion, the consumer are well advised to make both the manufacturer and the dealer as parties to the dispute in an action for malfunctioning of a product purchased by them as the law makes them jointly liable.<br /> 21. No other points were raised or contended before us.<br /> 22. Taking into consideration totality of the facts and circumstances as has been referred to herein above, we are of the considered view that both the opposite parties are guilty of floating a defective product in the market for sale which is in fact unconsumable and thus, they are not only deficient in service but also grossly negligent in selling the defective product in the open market. Therefore, only the replacement of the defective product in this particular case, will not meet the ends of justice. This case requires an examplary, adequate, reasonable and punitive damages, which we, keeping in view the facts and circumstances of the case, assess at Rs. 20,000/- In addition to this, as the complainant due to adamant conduct of the opposite parties had to file complaint before this Forum for his redressal, is also entitled for adequate and reasonable litigation expenses which we assess as Rs. 2,000/-<br /> 1. In the result, complaint is accepted and both the opposite parties are held jointly and severally liable to compensate the complainant damages to the tune of Rs.20,000/-. The opposite parties are also liable to pay to the complainant a sum of Rs. 2,000/- as litigation expenses. <br /> 2. We direct that this order be complied with by the opposite parties within 45 days from the date of receipt of copy of this order.<br /> <br /> Copy of this order be sent to the parties concerned free of cost and file be consigned.<br /> Pronounced :<br /> 25-06-2009 <br /> <br /> (George)<br /> President<br /> <br /> <br /> (Dr. Phulinder Preet)<br /> Member <br /> <br /> (Amarjeet Paul) Member