BEFORE THE DISTT.CONSUMER DISPUTES REDRESSAL FORUM; AMBALA.

C.C.No.88 of 2015.

Date of Instt.: 30.03.2015.

Date of Decision: 22.11.2017.

Rajinder Chawla son of late Sh.Gobind Ram Chawla, resident of A-20, Tribune Colony, Ambala Cantt.

                                                                             ..Complainant 

  Versus

1.  Bisleri International Pvt. Ltd. # 60, Rama Road, Shivaji Marg, New Delhi, Head Office-110015 through its Regional Sales Manager.

2.  M/s Asianlak Health Foods Ltd. V.P.O. Jandali, Chandigarh Road, Kohara, Ludhiana through its Manager.

3.   Sonu Trading Co.Shop No.11, Ram Krishan Colony, Near Milap Bakeri, Ram Bagh Road, Ambala Cantt. through its proprietor.

                                                                        ..Opposite parties.

              Complaint under Section 12 of CP Act

Before:        SH.D.N.ARORA, PRESIDENT.

                   SH.PUSHPENDER KUMAR, MEMBER.

                     MS. ANAMIKA GUPTA, MEMBER.

Present:                 Sh.Puneet Mittal, Advocate for complainant.

                             Sh.P.S.Sharma, Advocate for OP No.1.

                             Sh.Mukesh Kumar, Advocate for OP Nos.2 & 3.

ORDER

                              Brief facts of the present complaint are that on 22.06.2014 the complainant had purchased 2 boxes of Bisleri Fizzy Soda  having batch No.157 (RP/SS) with date of manufacturing as 06.06.2014 from OP No.3 in order to serve in a kitty party but as soon as he opened the bottles for serving the same to the  guests then he noticed that one of the bottle was having some foreign material such as dirty contents & some hairs and unhygienic, therefore, same was not fit for human consumption, hence, the complainant could not serve the same to the guests and felt humiliation before them. On 23.06.2014 the complainant made telephone on No.9915715230 printed on the bottle and got lodged his complaint to one Mr.Jha but he could not give any response. The complainant lodged his complaint to Ambala Depot of company but the sales Manager Gurvinder Singh also failed to give any satisfactory reply then the complainant contacted Sh.Gopal Poddar, owner of the company on his mobile. After seeing the video he felt guilty but none has approached the complainant thereafter despite sending an email to the OP no.1 on 16.07.2014 by the complainant. The complainant further contacted Sh.Rajender Garg, Director, North India of Op no.1 but to no avail and even the officials of Ops have rebuked and insulted the complainant who was already in the state of shock. The  OPs have mocked the helplessness of complainant and further tarnished his reputation, therefore, he got lodged a complaint against OPs and their officials under Sections  272/273 IPC.  The act and conduct of the OPs are deficiency in service.  In evidence, the complainant has tendered his affidavit Annexure CX and documents Annexure C1 to Annexure C7.  

2.                OPs appeared and contested the complaint of the complainant by filing separate replies. OP No.1 in its reply has submitted that it is not liable for any claim of the complainant and as per agreement OP No.2 is solely responsible for the products manufactured and marketed by it as in the Franchisee Agreement dated 13.07.2014 executed between OP No.1 & OP No.2 who states that it is agreed to promote and sell ‘BILSERI” in the territory of Punjab and Haryana except Gurgaon District. The present complaint has been filed just to malign the reputation of OP No.1 as in Op No.2 is to see that sub-standard and spurious products are not manufactured/ filed/ packed/ labeled and cleared from the factory directly or indirectly. No assurance qua compensation has ever been given by Op No.1 as the product in question has neither been manufactured nor marketed by it.  Other contentions made in the complaint have been controverted and prayer for dismissal of the complaint has been made.

3.                          Op Nos. 2 & 3 in their joint reply has submitted that the present complaint has been filed just to black mail them for enrich him because the plant of Op No.2 is fully automatic and all the products are being manufactured on ultra modern hygienic machinery under able guidance of highly technical qualified staff without any hand touch, therefore, question of any foreign material in the product does not arise at all. Sh.Gurwinder Singh met the complainant but he demanded either to pay heavy amount or a tour of Manali for five persons for a week. The complaint lodged by the complainant was found false and frivolous. The complainant is a mischievous type of person and he wanted to grab heavy amount from the OPs. Other allegations lavelled in the complaint have been denied and prayer for dismissal of the complaint has been made. In evidence the Op No.1 has tendered affidavit Annexure RX and document Annexure R1 whereas the OP Nos.2 & 3 did not lead any evidence and prayer for treating the reply filed on their behalf as their evidence vide statement dated 31.10.2017 has been made.

4.                Heard. The counsel for the complainant reiterated the averments made in the complaint and prayed for its acceptance whereas the counsels for OPs reiterated the averments made in the reply and prayed for dismissal of the complaint.

5.                It is proved on the case file that the complainant had purchased two boxes of Fizzy Soda from OP No.3 vide Annexure C1. The complainant has come with the plea that the said Fizzy Soda was not fit for human consumption as the same was having foreign material in it and in order to prove this fact he moved an application for getting expert/chemical examination report after testing the same through expert. Vide order dated 12.06.2017 the bottle in question was sent to Food Analyst Haryana District Food Laboratory and after examination it was opined that The above referred sample bearing Lab No.445/July/2017  shows presence of suspended matter where as it should be free from the same and contravene the provision of FSS Act, 2006. Hence, the sample is unsafe within the meaning of Section 3.1 (zz) of Chapter 1 of FSS Act 2006 (preliminary) and Rules and Regulations, 2011 (Annexure C7).

6.                          We have further gone through the Section 3.1 (zz) of Food Safety and Standards Act, 2006, which reads under:           

 (zz) "unsafe food" means an article of food whose nature, substance or quality is so affected as to render it injurious to health:

(i) by the article itself, or its package thereof, which is composed, whether wholly or in part, of poisonous or deleterious substances; or

(ii) by the article consisting, wholly or in part, of any filthy, putrid, rotten, decomposed or diseased animal substance or vegetable substance; or

(iii) by virtue of its unhygienic processing or the presence in that article of any harmful substance; or

(iv) by the substitution of any inferior or cheaper substance whether wholly or in part; or

(v) by addition of a substance directly or as an ingredient which is not permitted; or

(vi) by the abstraction, wholly or in part, of any of its constituents; or

(vii) by the article being so coloured, flavoured or coated, powdered or polished, as to damage or conceal the article or to make it appear better or of greater value than it really is; or

(viii) by the presence of any colouring matter or preservatives other than that specified in respect thereof; or

(ix) by the article having been infected or infested with worms, weevils or insects; or(x) by virtue of its being prepared, packed or kept under insanitary conditions; or

(xi) by virtue of its being mis-branded or sub-standard or food containing extraneous matter; or

(xii) by virtue of containing pesticides and other contaminants in excess of quantities specified by regulations.

7.                Counsel for the complainant argued that in view of the report made by Food Analyst Annexure C7 it is clear that the sample shows presence of suspended matter where as it should be free from the same and contravene the provision of FSS Act, 2006 Hence, the sample is unsafe within the meaning of Section 3.1 (zz) of Chapter 1 of FSS Act 2006 (preliminary) and Rules and Regulations, 2011, therefore, version of the complainant is duly proved  that there was some foreign material in the bottle which was unsafe for human consumption.

8.                          On the other hand, counsel for the OP Nos. 2 & 3 argued that the above said bottled was containing batch No.157 (RP/SS) having manufacturing date as 06.06.2014 with expiry date 05.12.2014 but the sample was sent for examination on 12.06.2017 by this Forum after making an application by the complainant only on 07.02.2017 after a period of 2-1/2 years and the concerned lab had prepared the report on 28.07.2017 after examination the said bottle. Said report was received by this Forum on 08.08.2017.  It has been further argued that the said report cannot be read into evidence as the validity of the bottle had already been expired and even no batch number has been mentioned on the same. Even no affidavit of any member of Kitty party where alleged bottle was to be used by the complainant after using some another bottles allegedly purchased by the complainant from OP No.3, to authenticate the version of the complainant regarding presence of foreign substance in bottle in question in the presence of said persons.  

9.                          Learned counsel for the Op No.1 as per Franchisee Agreement dated 13.07.2014 executed between OP No.1 & OP No.2 (Annexure R2) who states that it is agreed to promote and sell ‘BILSERI” in the territory of Punjab and Haryana except Gurgaon District. The present complaint has been filed just to malign the reputation of OP No.1 as in Op No.2 is to see that sub-standard and spurious products are not manufactured/ filed/ packed/ labeled and cleared from the factory directly or indirectly. It has no responsibility qua the product in question.

10.                        After going through the material available on the case file it is clear that as per Analyst report the sample was found in contravention of provision of FSS Act, 2006 as the sample was unsafe within the meaning of Section 3.1 (zz) of Chapter 1 of FSS Act 2006 (preliminary) and Rules and Regulations, 2011 (Annexure C7).  The above said bottle was not fit for human consumption as it is well established that contents in the impugned bottles of Fizzy Soda was contaminated, spurious or sub-standard.  Undisputedly, these products are in high demand and on a number of occasions the products are found to be spurious which may not be the act of manufacturing company but in the present case when the complainant had specifically provided the batch number with date of manufacturing and time of manufacturing to the Op No.2 therefore, the Op No.2 had opportunity to rebut the pleadings of the complainant by producing authentic evidence but it has not done. It is proved that contaminated substance/ foreign object is clearly visible in the bottle from the naked eyes as is evident through photographs Annexure C4 to Annexure C6 and these are authentic and sufficient piece of evidence to rebut the contentions put-forth by learned counsel for the OPs.  Moreover, if the complainant had consumed the same then it could have been fatal for him and the allegations levelled by the complainant are well established from the report of Food Analyst (Annexure C7).  The case law titled as M/s Heinz India Private Limited  Vs. Shibhu T Paul and another 2015 (1) CPJ, 591  (NC) relied upon by learned counsel for the OPs is not applicable to the case in hand and is being distinguished.

11.                        In view of the discussion as made above we are of the opinion that the complainant has been able to prove his case against the Op Nos. 2 & 3 only because and as per agreement executed between the Op No.1 and Op No.2 the Op No.2 had acted as Franchinee of Op No.1 and was to see sub-standard and spurious products are not manufactured, filled/packed/ labelled and cleared from his factory or directly or indirectly and if the product does not meet with the standard specifications, at any stage, the Franchisee wild be solely responsible for ht same, therefore, we have no hitch to reach at conclusion that no liability can be fastened upon  Op No.1. Accordingly, present complaint is allowed against Op Nos.2 & 3 only and dismissed against Op No.1. The Op Nos. 2 & 3 are  burned with exemplary and punitive compensation being deficient in providing service to the complainant, therefore, they are directed to pay a sum of Rs.10,000/- (Rs.Ten Thousand only) with interest @ 9 % from the date of filing of complaint till realisation. They are further directed to pay a sum of Rs.5,000/- to the complainant as cost of litigation. Order be complied with within one month from the date of receiving the copy of this order jointly and severally by the OP Nos. 2 & 3. Copy of this order be supplied to both the parties free of cost. File be consigned after due compliance.

Announced in open Forum.

Dated: 22.11.2017

                                                                      (D.N.Arora)

                                                                       President,

(Anamika Gupta) (Pushpender Kumar)      Distt.Consumer Disputes

      (Member)            (Member)                      Redressal Forum, Ambala.