The instant case was instituted on the basis of a written complaint filed by one Pradip Kr. Koley of Deshbandhupara  East, Jhaljhalia, Post & Dist. Malda under the P.S. English Bazar u/s. 12 of the Consumer Protection Act, 1986  which was registered before this Forum as Consumer Case No. 69/2016.

The fact of the case is that there was a function which was held at the residence of the complainant on 07/09/2016 and on that occasion more than 50 persons were invited for attending dinner and for the said purpose the complainant purchased 50 bottles of 1 liter each sealed mineral water of “BISLERI” brand on 05/08/2016 from Biswas Varieties Railway Hospital More, Jhaljhalia in cartoons of 12 bottles having “BISLERI” Brand No. 194 (MTCCS)MPR  Rs. 20/- manufactured at 07-56 on 12/07/2016. When the dinner was going on at the residence of the complainant a few invitees noticed that the water served to them was emanating bad smell and the water had an abnormal test. Thereafter, some of the guests observed that there was abnormal colour suspended articles inside the sealed “BISLERI” bottles. It has been further stated that in the meantime few of them felt uncomfortable due to bowel discomfort and many of the guests returned their home without taking any meal in the house of the complainant out of fear. Generally, the guests who were invited started to blame the complainant. At that time the complainant was in great distress that the guest to leave the house of the complainant along with their ill children. It has been further stated that in the mid-night of that day four invitee persons including one child became seriously ill and they were under treatment in connection with severe diarrhea with vomiting and other symptoms. It has also been further stated that the complainant also suffered the same type of ailments after consuming water from the sealed bottles which were purchased by him and he also took treatment at his working hospital i.e. Divisional Railway Hospital at Malda and for such treatment  he had to purchase medicines, doctor visits and other expenditure incurred by him for pathological test for the guest who were invited by him for which the complainant spent Rs.30,000/-(Rupees Thirty Thousand Only). It has been further stated that after three or four days the complainant also suffered from serious illness, loose motion along with vomiting and headache. Many of the bottles were destroyed by the invitee guests at that situation but the complainant kept two bottles in the same batch and that were presented before this Forum as sample. On the next day the complainant called up the Customer Care Centre Executive, BISLERI and reported the same but no such assistants or moral support was received from the Executive of BISLERI. The complainant has prayed for Rs. 50,000/-(Rupees Fifty Thousand Only) as compensation.                  

The O.P. No.1 filed the written version i.e. M/s. BISLERI International Private Ltd. denying all the material allegations as leveled against the O.P.No.1 contending inter alia that the instant case is not maintainable.          

The further defense case is that it is beyond the knowledge of the O.P. No.1 that the complainant purchased the 50 bottles of BISLERI bottles of one liter each and the complainant is bound to prove such fact by producing the cogent evidence.

The further defense case is that the manufacturer of “BISLERI” Brand water carefully controlled and test the purity at their quality control limit. The Batch No. 194, Manufacturing Date 12/07/2016 was also done in the same fashion as regard to the testing of quality and purity and report was found O.K.

The petition has been contested by O.P. Nos. 2 and 3 by filing separate written version. The O.P. No. 2 in the written version has denied all the material allegations as leveled against him contending inter alia that the instant case is not maintainable. The case is bad and the case is liable to be dismissed.

The further defense case of the O.P. No.2 is that the “BISLERI” brand is highly reputed and most reliable band in India. The manufacturer of “BISLERI” Brand Water carefully control and test the purity at their quality control limit and the said manufacturer does it in daily basis and PPR for each and control unit test daily.  The Batch No. 194, manufacturing date 12/07/2016, control unit test report is OK. The further case is that there is no other complaint nowhere except the complainant. So concerning such fact the instant case is liable to be dismissed.

O.P. No.2 M/s. Bhagirathi Beverages filed the written version separately denying all the material allegations as leveled against it contending inter alia that the instant case is not maintainable. The case is pre-matured one and out of greed the present complaint has been filed by the complainant. The manufacturer of BISLERI Brand water carefully control and test the purity at their quality control limit. The Batch No. 194, Manufacturing Date 12/07/2016 was also done in the same fashion as regard to the testing of quality and purity and report was found O.K. As such the case is liable to be dismissed.  

O.P. No.3 has also filed the written version denying all the material allegation as leveled against him contending interalia that the instant case is not maintainable against him and he has been made unnecessary party and that in the W/V the O.P. No.3 has admitted the fact that the O.P. sold 50 bottles of BISLERI Water to the complainant having batch no. 194 dt. 12/07/2016 and O.P. is not responsible for any occurrence as alleged by the complainant as such the instant case is liable to be dismissed.

In order to prove the case the complainant Pradip Kr. Koley was examined as P.W.-1 and cross-examined. On the other hand no other witness was examined on behalf of the O.Ps.

Now the point for consideration whether the complainant is entitled to get any relief as prayed for.

During trial the complainant has proved and marked the documents as Exts. 1 to 2. No documents have exhibited on the part of the O.Ps.

It is to be mentioned that on 17/03/2017 the complainant deposited two bottles of water for sending for analysis to an expert in the Forum but the Ld.Forum vide Order No. 08 dt. 17/03/2017 did not send the bottle as foreign materials were visible by naked eye. So this Forum did not incline to send the bottles to the laboratory for analysis.         

POINTS FOR DETERMINATION

Whether the complainant is entitled to get any relief as prayed for.

::DECISION WITH REASONS::

At the time of argument the complainant personally argued the case and submitted that due to the consumption of the water which was purchased by him he along with other invitees became seriously ill due to bowel discomfort and vomiting. According to the argument as advanced by the complainant is that due to consumption of water in the bottles the complainant and his invitees’ guest became ill. So order may be passed in favour of the complainant. He further submitted that the complainant was himself examined at Malda Divisional Railway Hospital as the complainant is working as a railway employee. On the other hand the Ld.Lawyer of the O.Ps argued that there is no evidence on record to prove the fact that due to consumption of water of the bottles which was purchased by him, the complainant along with the invitees’ guest became ill. So how this Forum will come to a conclusion that due to the consumption of water in the bottle the complainant and other invitees became ill.  He further argued that from the evidence of complainant it is found that in the programme food and other articles were served. The invitees also consumed the same so there may be a chance that due to the food poison for which the invitee/ invitees became ill.

It is a fact that no document has been filed by the complainant to prove that any of the invitees became ill due to food poison. No pathological test report has been filed. It is a fact that the complainant filed a prescription of Mrs. Aradhana Das. By such prescription the complainant wants to impress upon this Forum that due to the consumption of water the invitee guest Aradhana Das was affected by bacillary discentry but mere filing the prescription will not suffice it to say that due to the consumption of the water in the bottle Mrs. Aradhana Das suffered from bacillary discentry, unless and until pathological report is filed before this Forum. So on considering such facts and circumstances it is found that the complainant has failed to prove that the complainant and his invitee guests became ill due to the consumption of water in the bottle which was purchased by him from O.P. No.3 Biswas Varieties.

Next point is to be considered whether the water in the bottle was below standard or not. In this regard the complainant filed the two bottles before this Forum on 17/03/2017 for sending it to the laboratory for chemical analysis but this Forum declined to send the same as because the foreign particles of black colour were found in naked eye inside the sealed bottle. Now the question is whether the water in the bottle was prepared according to the standard of purity or not. Definitely when the foreign articles are found floating inside the sealed bottles so definitely it is under no imagination can be said that the water in the bottle bears the less standard of purity. In this regard the Ld.Lawyer for the O.P. argued that there is no prove that the complainant purchased such bottles from the O.P. No.3. The O.P. Nos. 1 and 2 in their written version has clearly stated that the complainant is required to prove that he purchased the bottles from the O.P. No.3 of BISLERI Company. But on perusal of the receipt which has been marked Ext.-1 and from the W/V. filed by the O.P. No.3 it is clearly found that the complainant purchased 50 bottles of “BISLERI” brand from O.P. No.3. So there is no dispute as to the purchase of such bottles.  Now the question comes whether existence of any article or foreign materials comes under the definition of deficiency as emphasizes in Consumer Protection Act, 1986. According to the definition of deficiency as mentioned in section 2(g). ‘Deficiency’ means ‘any fault, imperfection, short coming or inadequacy in the quality’.  As the foreign articles were found floating in the sealed bottle which are visible in open eye so definitely it comes under the definition of ‘Deficiency in Service’  as because the bottles were purchased on payment of amount and it was not given to the complainant free of cost. Moreover, selling of material like drinking water with the foreign articles in a sealed bottle definitely comes under the definition of ‘Unfair Trade Practice’. Accordingly, definition of ‘Unfair Trade Practice’ which means a trade practice, for the purpose of promoting the sale, use or supply any goods or the provision of any service adopts any unfair method  or unfair or deceptive practice shall be treated as unfair means. So on considering such facts and circumstances it is found that there was deficiency of service and the O.Ps adopted the unfair trade practice in selling the drinking bottle containing the foreign articles in a sealed bottle. In the written version the O.P. Nos 1 and 2 have clearly stated that the quality of the water is regularly tested and after testing it was found fit. It is not understood why the foreign articles were found floating in a sealed bottle? Can it be said that the bottle were tested and found fit if the bottles at all tested then how the presence of foreign articles found present in the sealed bottle? 

At the time of writing judgment this Forum also noticed the existence of foreign articles black in colour in the sealed bottle and that black foreign articles were not dissolved by the lapse of two years from the date of manufacture i.e. on 12.07.2016.

So considering such facts and circumstances the complainant has been able to prove the case and entitled to get compensation.

C.F. paid is correct.

Hence, ordered that

that the case be and the same is allowed on contest against the O.Ps.

The complainant gets Rs.60,000/-(Rupees Sixty Thousand Only) from the O.Ps. The O.Ps are jointly and severally liable to pay the amount of Rs. 60,000/-(Rupees Sixty Thousand Only) on the ground of deficiency in service and unfair trade practice. Beside that the complainant is entitled to get Rs. 10,000/-(Rupees Ten Thousand Only) as litigation cost.                  

O.P. Nos. 2 and 3 should have the liability to see whether they are selling the articles like the sealed drinking water which is free from any foreign articles. As such they are also liable to pay as they did not perform their duty before selling the water bottles to the customer.         

In this regard the Forum expressed the gratitude to the complainant that he has brought the notice to the Forum that drinking water bottle is sold without maintaining the purity having found foreign articles in a sealed bottle. In this regard the Registrar-in-Charge, D.C.D.R.F, Malda is directed to ventilate the matter to the public by well publication either in T.V. Media or in the newspaper so that people may be aware before purchasing any sealed drinking bottle. The Registrar –in-Charge is further directed to keep the sealed two bottles which were produced by the complainant before this Forum in a sealed cover so that the bottles may not be damaged till the disposal of this appeal as because the whole case depends upon the existence of foreign articles in the bottles.  Let Registrar-in-Charge be informed.        

Let a copy of this order be given to each of the parties free of cost with proper application.