CC Filed on 16.12.2009
Disposed on 08.12.2010
BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, KOLAR.
Dated: 08th day of December 2010
PRESENT:
Sri. G.V.HEGDE, President.
Sri. T.NAGARAJA, Member.
Smt. K.G.SHANTALA, Member.
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Consumer Complaint No. 192/2009
Between:
Tholarasamma, W/o. Rajanna, HugenahalliVillage and Post, Kasaba Hobli, Malur Taluk, Kolar District. (By Advocate Sri. V. Venkatachala Gowda) | ….Complainant |
V/S 1. Basaveswara Enterprises, Hosur Bangalore Road, Malur – 563 130. 2. Hindustan Coca-Cola Beverages Private Limited, Manufacturers of Fanta, Plot No. 18, Bidadi Industrial Area, Bangalore – 562 109. Karnataka. (By Advocate Sri. M. Munegowda) | ….Opposite Parties |
ORDERS
This is a complaint filed under section 12 of the Consumer Protection Act, 1986 praying for awarding compensation of Rs.1,00,000/- towards loss of business in selling the cool drinks with costs and interest etc.,
2. At the outset it may be stated that complainant has never worried for drafting a precise, clear and meaningful complaint. It appears initially the complaint is prepared only against OP.1, thereafter OP.2 is added without effecting the consequential changes and the required averments in the original complaint. Therefore the complaint does not convey proper meaning.
One may infer that following are the material averments made in the complaint. That the complainant has a petty shop at her native place since long and she has been selling the cool drinks from last three yeas including the cool drink with brand name Fanta. Further that OP.1 was regularly supplying the cool drinks including Fanta and often OP.1 failed to supply the genuine cool drinks bottles and because of which many customers were disgusted to use the cool drinks including Fanta. The complainant has cautioned OP.1 regarding the supply of sub-standard cool drinks. Inspite of it OP.1 supplied Fanta bottles out of which in one bottle some worms were found and the complainant brought it to the knowledge of OP.1 but OP.1 has not taken any action in this regard. The complainant estimated the loss of business at Rs.1,00,000/-. The complainant had further stated that she received two cases of cool drinks from OP.1 on 22.11.2009 by paying Rs.340/- and out of these bottles one bottle was having worms and the complainant has produced the bottle for inspection before this Forum. It is alleged that the Fanta bottle in question was packed on 08.07.2009 per 200 ml.
It is not specifically made clear what allegations were made against OP.2. It appears OP.2 is added as a party thinking that it manufactures the cool drinks with brand name Fanta and that the bottle in question must have been manufactured by OP.2. Therefore the complainant filed the present complaint.
3. Notice sent to OP.1 by this Forum returned unserved stating that OP.1 was not found for 7 days during the delivery time. Hence the service of notice on OP.1 is taken as sufficient. OP.1 remained absent and did not file any version. OP.2 appeared through Counsel and contested the case. The material part of the averments made in the version of OP.2 is as follows: That the complainant is not a ‘Consumer’ as she purchased the cool drinks bottles for resale and to gain profit, thereby the complaint is not maintainable. It is denied that the cool drink bottle in question produced before this Forum was the product manufactured by OP.2. Further that the product in question is spurious or tampered product produced by someone else. It is contended that OP.2 takes all precautionary measures at every stage of the manufacturing process and that the bottles are filled and crowned through fully atomized machines at a very high speed which completely rules out any possibility of any fungus developing in the bottle at the time of filling and crowning. Further that after filling and crowning operation the filled bottles are conveyed through coding stations where coding is done on the crowns for retail price, date and time and this operation is in line with the product traceability programme. In case of any complaint the product can be identified by production batch and time and also the carbonation contents of the particular batch. Further it is contended that OP.2 had sent Mr. Dayanand the Sale Executive to have a visual inspection of the alleged bottle and the complainant with malafide intention did not permit the Sale Executive to have a visual inspection evenafter repeated request. It is contended that the complaint against OP.2 is filed with malafide intention. Therefore OP.2 prayed for dismissal of complaint against it.
4. The parties filed affidavits in support of their contentions. They also filed certain documents. We heard the arguments of complainant. OP.2 filed written arguments.
5. The following points arise for our consideration:
Point No.1: Whether complainant proves deficiency in service
on the part of OP.2?
Point No.2: Whether complainant proves deficiency in service
on the part of OP.1?
Point No.3: To what order?
6. After considering the records and the submissions of parties our findings on the above points are as follows:
Point No.1: The complainant has to prove that the Fanta bottle in question is the product manufactured by OP.2. Then only OP.2 can be held liable for the contents in the bottle in question. OP.2 has specifically denied that the product in the bottle in question is the product manufactured and bottled by it. We think that verification can be done only by examining the product in question by expert with that of the genuine product of the same batch. The complainant has not taken any steps to obtain such expert opinion. OP.2 has contended that it had sent its Sale Representative for inspection of bottle but the complainant refused to show the bottle. This fact is not denied by the complainant in her affidavit. It is not unusual that the products of reputed companies are being spuriously packed and sold in many places. Therefore we hold that complainant failed to prove that the product in question is manufactured by OP.2.
The complainant stated that she has a petty shop at her residential locality where she also sells cool drinks bottles, but she has not stated either in the complaint or in her affidavit that she does business in cool drinks for the purpose of earning her livelihood by means of self-employment. In the absence of such averment the complainant cannot be construed as a ‘Consumer’ within the meaning of Sec- 2 (1) (d) of the C.P. Act 1986. However we take a liberal view that even in the absence of that averment in the facts of the present case, one can infer that she does the business herself for her livelihood. Therefore she may be treated as a ‘Consumer’ within the meaning of Sec – 2 (1) (d) of C.P. Act. For the above reasons point No.1 is held in negative.
Point No2: OP.1 remained absent. The complainant has proved that the bottle in question was purchased from OP.1. Admittedly the contents in this bottle exhibit a dead fly, thereby one can say that it was not properly filled and packed. Hence point No.2 is held in affirmative.
Point No.3: We think compensation of Rs.5,000/- may be awarded to complainant payable by OP.1. Hence we pass the following:
O R D E R
The complaint is allowed with costs of Rs.500/-. OP.1 shall pay a compensation of Rs.5,000/- to complainant apart from paying the costs of this proceedings, within one month from the date of this order.
The complaint against OP.2 is dismissed.
Dictated to the Stenographer, corrected and pronounced in open Forum this the 08th day of December 2010.
MEMBER MEMBER PRESIDENT