Punjab

Fatehgarh Sahib

CC/68/2016

Savinder Verma - Complainant(s)

Versus

Bikaner Mithas Bhandar - Opp.Party(s)

Sh Bharpur Singh Dhaliwal

14 Jul 2017

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, FATEHGARH SAHIB.

Consumer Complaint No.68 of 2016

                                                     Date of institution : 19.07.2016               

                                           Date of decision    : 14.07.2017

Savinder Verma aged about 34 years son of Sh. Mohan Lal Verma resident of Ward No.10, Purani Anaj Mandi Amloh, Tehsil Amloh, District Fatehgarh Sahib.

……..Complainant

Versus

1. Bikaner Mithas Bhandar, Purani Anaj Mandi Amloh, Tehsil Amloh, District Fatehgarh Sahib through its Proprietor Sh. Dharminder Singh.
2. Kandhari Beverage Pvt. Ltd. Village Nabipur, Tehsil and District Fatehgarh Sahib through its Authorized Signatory.

 …..Opposite Parties

Complaint Under Sections 12 to 14 of the Consumer Protection Act.                                              

Quorum

Sh. Ajit Pal Singh Rajput, President.

Sh. Inder Jit, Member

 

Present :        Sh.B.S. Dhaliwal, Adv.Cl. for the complainant.               

                  Sh. A.S.Baghri, Adv.Cl. for the OPs.

 

 

 

ORDER

 

By Ajit Pal Singh Rajput, President

                      Complainant, Savinder Verma aged about 34 years son of Sh. Mohan Lal Verma resident of Ward No.10, Purani Anaj Mandi Amloh, Tehsil Amloh, District Fatehgarh Sahib, has filed this complaint against the Opposite Parties (hereinafter referred to as the OPs) under Sections 12 to 14 of the Consumer Protection Act. The brief facts of the complaint are as under:

2.           The complainant on 25.06.2016 purchased one bottle of cold drink i.e. Limca 300 ml. from OP No.1 for an amount of Rs.20/- for his personal use. The complainant demanded the bill regarding the purchase of said bottle from OP No.1 but OP No.1 did not issue the bill. Thereafter, the complainant so many times demanded the bill from OP No.1 but he remained putting off the matter on one pretext or the other and ultimately refused to issue the bill to the complainant. When the complainant tried to open the said bottle, he saw that the bottle is having "Ants" and "Gossamer/Jala" in it, which is clearly seen. The said bottle bears batch No. BN-121, L-3 and the date of manufacturing is 20.05.2016 and the expiry date is after two months from the said date of manufacturing. The OPs are duty bound to supply the best quality of material for the sake of good health and safety of life of the people. The complainant did not open the said bottle and disclosed the fact to OP No.1 but it could not satisfy the complainant nor taken any action in this regard. There is unfair trade practice, deficiency and negligence in service on the part of the OPs, which caused financial loss as well as physical and mental harassment and agony to the complainant. Hence, this complaint for giving directions to the OPs to pay Rs.4,50,000/- as damages/compensation for mental agony and harassment suffered by the complainant; Rs.21,000/- as litigation cost and to refund the price of the said bottle
3.           The complaint is contested by the OPs. In reply to the complaint, OP No.1 raised certain preliminary objections, inter alia, that the complainant has got no cause of action to file the present complaint; the complainant has not come to this Forum with clean hands and the present complaint is not maintainable. As regards the facts of the complaint, OP No.1 stated that the complainant neither purchased the bottle in question from OP No.1 nor any bill was demanded by him. It is further stated that their franchisee Kandhari Beverages has specifically instructed its dealer/distributor to satisfy the consumer first and in case of any complaint, the product should be exchanged and necessary action be taken to satisfy the consumer. The complainant had not disclosed anything about the bottle in question and OP No.1 has not seen the bottle till date. There is no negligence or deficiency in service on the part of OP No.1 as no such bottle was sold by it. After denying the other averments made in the complaint it prayed for dismissal of the complaint.
4.           In reply to complaint, OP No.2 raised certain preliminary objections, inter alia, that the present complaint is not maintainable and the complainant has got no cause of action to file this complaint; the complainant has not come to this Forum with clean hands and the present complaint is an abuse of process of law and the same is false, frivolous and vague. As regards the facts of the complaint, OP No. 2 stated that there is 100% chance of foreign articles in the bottle if such bottle is not filled in the authorized plant of OP No.2. The bottle is being filled by unauthorized beverage company and the same is spurious, counterfeit and tempered one also and the same is not filled by OP No.2 at their beverage plant. Moreover, the bottle was sent to CFSL lab without affording an opportunity to OP No.2 to inspect the bottle and to establish that bottle is spurious, fake and duplicate manufactured by small time manufacturer. The complainant did not approach OP No.2 at any point of time nor lodged any complaint with customer care number. It is further stated that the manufacturing process of OP No.2 is equipped with world class modern and fully automatic machinery. The bottling process is done in most hygienic and dust free/bacteria free atmosphere. The online electronic inspection system is so efficient that it even rejects the bottle having any micro sized particle, which is even not visible with naked eyes.  There is no deficiency in service on the part of OP No.2. After denying the other averments made in the complaint, it prayed for dismissal of the complaint.
5.           In order to prove his complaint, the complainant tendered in evidence his affidavit Ex. C-1, report of the food analyst Ex. C-2, affidavit of Abhishek Verma Ex. C-3, cutting of newpaper Ex. C-4 and closed the evidence.  In rebuttal OPs tendered in evidence affidavit of Sh. Ashish Sethi Ex. OP-1, affidavit of Dhan Singh Ex. OP-2. No other evidence is produced by the OPs despite several opportunities. Hence, the evidence of the OPs was closed by order.
6.           The ld. counsel for the complainant at the outset has submitted that OP No.2 has failed to prove that the said adulterated cold drink namely Limca had not been bottled by OP No.2. The Learned counsel also stated that OP No.2 had also failed to prove that the said soft drink was spurious/fake. Learned counsel argued that when a person buys some article from shops, like that of OP No.1 they do not give any bill for the purchased items. The ld. counsel argued that after the complainant discovered that the said bottle was adulterated, the complainant requested OP No.1 for issuance of the bill but OP No.1 refused the same. He further argued that it is proved from the analysis report dated 22/08/2016 that the said cold drink was containing abundance of dead insects and jala like foreign substance.
7.           On the other hand, Learned counsel for OP No.1 submitted that the complainant had failed to produce any bill to prove that the said cold drink bottle was purchased from OP No.1. He argued that in absence of bill, OP No.1 cannot be held liable for deficiency in service as alleged by complainant. Learned counsel pleaded that the present complaint deserves to be dismissed qua OP No.1.
8.  Learned counsel for OP No.2 has stated that the said soft drink had not been manufactured by OP No.2. The ld. counsel argued that at no stage, the products are touched by the human hands. All the liquid are tested at the laboratory and then sent for being filled in the bottles. Thus it ensures a high standard of hygiene and cleanliness and with strict quality checks, rules out any possibility of any inferior material. He pleaded that no opportunity was granted to OP No.2 to rebut the report i.e Ex.C-2. The learned counsel also argued that no deficiency or unfair trade practice had been adopted by OP No.2, as the said bottle does not belong to OP No.2  nor OP No.1 is the authorized dealer/agent of the OP No.2, hence  the present complaint deserves to be dismissed.

9.         After hearing the Learned Counsel for the parties and going through the pleadings, evidence produced by the parties and the oral arguments as well as the written submissions, we find force in the submissions made by the learned counsel for the complainant. We are of the opinion that OP No.2 failed to produce any evidence on record to prove that the said analysis report i.e Ex.C-2 was not correct. OP No.2 was at liberty to rebut the said analysis report which states (OPINION: From examination of the sample herein referred to and the result obtained by analysis, I am of the opinion that the contents of the sample marked here as P-46- Aug 16 contain abundance of dead insects and jala like foreign substance. Hence, unsafe for human consumption). Moreover OP No.2 had also failed to prove that the said soft drink bottle was a spurious one. In our opinion OP No.2 could have appointed expert, in order to rebut the analysis report Ex.C-2 to prove whether the said cold drink bottle was bottled by OP No.2 or it was a spurious one. OP No.2 failed to produce any such expert report to prove their stand. With regard to non issuing of the bill by OP No.1, in order to support its contentions, one witness Abhishek verma had deposed Ex.C-3 stating that the said bottle of Limca was purchased from OP No.1 for consumption and no bill was issued by OP No.1.

10.           The Hon’able National Commission in a case Hindustan Coca-Cola Beverages Pvt. Ltd  Vs Purushottam Gaur & Anr,Revision Petition No.1361/2014 decided on 21,March,2014 has held, the relevant  Para No.6 is being reproduced; “Mere  saying  that  OP4  has  no connection with them,  is not enough.  They should have made an enquiry as to why this bottle was sold by OP4.  OP4  could  have  given  the answer  from  where  he  had  purchased  this bottle.  No efforts were made by OPs 1 to 3, regarding the origin of  that  bottle.  Prima facie, it appears that this bottle belongs to OPs 1 to 3.  However, they have failed to rebut the evidence against them.   They must find out as to who is copying their bottle. The control sample was never provided by the OPs to the Laboratory  Incharge.  The manufacturer could not help as to where  the bottle  had  been opened  and re-packed  with a new cap.  The OPs could have  appointed their own Expert  to find out,  whether, the bottle in question, belonged to them or not?.  The question is, who  could  manufacture  the  bottles on  behalf of OPs 1 to 3.  Such  like  incidences, come to light, immediately.  The petitioner is conspicuously  silent  about the same.  The silence on their part is pernicious.  The case against OPs 1 to3 stands proved.  The revision petition, being without merit, is hereby dismissed.  No order as to costs”.

11.              Accordingly, in view of our aforementioned discussion and the judgment of the Hon’ble National Commission, we find that OP No.1 committed deficiency in service by not issuing the bill for the cold drink while charging him Rs.20/-. We further find that OP No.2 has committed unfair trade practice by bottling and supplying adulterated soft drink bottle to the complainant. Hence we direct OP No.1 to refund a sum of Rs.20/- and pay amount of Rs.2000/- as lump sum compensation. We also direct OP No.2 to pay compensation amounting to Rs.10,000/- and litigation cost of Rs.5000/-. Further we direct OP No.2 to deposit Rs.20,000/- in Consumer Welfare Fund of this Forum. The aforesaid costs be paid within 45 days from the date of receipt of this order. 

12.                 Copy of the order be sent to the parties free of cost and thereafter the file be consigned to the record room.

Pronounced

Dated:14.07.2017

(A.P.S.Rajput)

President

 

(Inder Jit)    

         Member