Haryana

Ambala

CC/107/2021

Dilbagh Singh - Complainant(s)

Versus

Bridavan Agro Industries Pvt ltd - Opp.Party(s)

Alka

06 Dec 2023

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, AMBALA.

Complaint case no.	:	107 of 2021
Date of Institution	:	25.02.2021
Date of decision	:	06.12.2023

Dilbagh Singh @ Bagga age about 50 years s/o Sh. Om Parkash proprietor of Bagga Halwai, near Khera Chowk, Ambala City.

          ……. Complainant.

                                                Versus

1. Brindavan Agro Industries (P) Ltd. Village Chhata Shergarh Road Tehsil Chhata Distt.Mathura-281401 (U.P)
2. M/S Suri Traders, 1876/2, Nahan House, Opposite Police Post no.4, Ambala City

….…. Opposite Parties.

 Before:        Smt. Neena Sandhu, President.

                             Smt. Ruby Sharma, Member,

           Smt. Vinod Kumar Sharma, Member.           

 

Present:        Ms. Alka Sharda, Advocate, counsel for the complainant

                     Shri Rajesh Kumar, Advocate, counsel for the OP No.1.

                     Shri Parveen Kumar Garg, Advocate, counsel for the OP No.2.

Order:        Smt. Neena Sandhu, President.

                   Complainant has filed this complaint under Section 35 of the Consumer Protection Act, 2019 (hereinafter referred to as ‘the Act’) against the Opposite Parties (hereinafter referred to as ‘OPs’) praying for issuance of following directions to them:-

i) To pay compensation to the tune of Rs.5,00,000/- for supply of contaminated coke.

ii) To pay compensation/damages to the tune of Rs.1,00,000/- on account of mental agony and harassment suffered by the complainant.

iii) To pay Rs.1,00,000/- on account of unfair trade practices.

iv) To pay the cost of litigation of Rs.21,000/-.

OR

Grant any other relief which this Hon'ble Commission may deems fit.

2.             Brief facts of this case are that the complainant is running a shop of sweets (halwai) under the name and style of M/s Bagga Halwai near Khera Chowk, Ambala City to earn his live hood by means of self employment and bought 4 petti of Coke etc. from OP No.2 vide invoice No.1502 dated 05.11.2020 @560/- per case/petti including CGST/SGST etc i.e. total amount of Rs.3160/- which was manufactured by OP No.1. As soon as the complainant reached his shop and opened the petti for keeping/storing the said coke bottles in the fridge, suddenly he noticed that one bottle of Coke bearing Code No. CCZ4620547-04 is contaminated. The complainant contacted the OP No.2 and informed it regarding contaminated coke, but OP No.2 instead of listening to the complainant, rather misbehaved with him. The complainant also moved complaint against OP No.2 before Food & Supply Department, Ambala on 11.11.2020 in the matter. Thus, by manufacturing contaminated coke, the OPs are playing with the life of the public at large.  Even the reputation of the complainant was damaged in the eyes of public at large, shopkeepers, neighbours etc. Under the compelling circumstances, the complainant got served a Regd. Ad Legal notice upon the OPs through his counsel on 17.12.2020 at their correct addresses to compensate him in the matter but to no avail.  Hence, the present complaint.
3.           Upon notice, OP No.1 appeared and filed written version wherein it raised preliminary objections to the effect that the complaint is not maintainable in the present form; the complainant as per his averments is doing the business of sweet shop which is doing a commercial activities and as such he does not come within the domain of the consumer as defined under the act; the complaint is bad for misjoinder and nonjoinder of necessary parties, as Coca Cola India Ltd. has not been impleaded in the arrays of the parties etc. On merits, it has been stated that the complainant as well as the OP No.2 are totally stranger to OP No.1.  The product in question was never supplied by the OP No.1 to OP No.2. The OP No.1 is not the manufacturer of coke bearing code no. CCZ4620547-04.  Even from the perusal the alleged bill it is only mentioned as Baga and neither any address/full particulars nor any batch number nor any other particulars of product are found mentioned therein.  At no point of time, the product was ever supplied to any of the place at Haryana, as OP No.1 has supplied the material in the Uttar Pardesh State only. It is not clearifyied in the complaint that how the alleged material came to Haryana.  Rest of the averments of the complainant were denied by the OP No.1 and prayed for dismissal of the present complaint with special costs.
4.           Upon notice, OP No.2 appeared and filed written version wherein it raised similar preliminary objections to the effect that the complainant has purchased the said product for commercial purpose therefore he is not a consumer;  the complainant has not come to this Commission with clean hands; OP No.2 is neither the manufacturer nor the Distributor of OP No.1 nor the complainant purchased the said product from OP No.2; the complainant failed to substantiate that alleged one contaminated bottle is out of these four petti. On merits, it has been stated that in case, the complainant had raised any such issue with OP No.2, it would have requested him to return the same and that OP No.2 would have taken up the matter with supplier i.e. M/S Goldy Agencies. Rest of the averments of the complainant were denied by the OP No.2 and prayed for dismissal of the present complaint with costs.
5.           Complainant tendered his affidavit as Annexure C/A alongwith documents as Annexure C-1 to C-7 and closed the evidence of the complainant. Learned counsel for OP No.1 tendered affidavit of Devesh Kapoor, Manager Legal M/s Brindavan Agro Industries Pvt. Ltd., UP Tower, Sanjay Place, Agra, Uttar Pradesh as Annexure RW1/A alongwith documents Annexure R-1 to R-9 and closed evidence on behalf of the OP No.1. Learned counsel for OP No.2 tendered affidavit of Pardeep Kumar Suri, Sole Prop. M/s Suri Traders, 1876/2, Nahan House, Opposite Police Post No.4, Ambala City as Annexure RW-2/A and closed evidence on behalf of the OP No.2.
6.            We have heard the learned counsel for the parties and have also carefully gone through the case file.
7.           Learned counsel for the complainant submitted that since it has been proved on record by the expert report that the contents of the bottle in question was containing foreign substance, which was not safe for human consumption. Had the contents of said bottle been consumed by the complainant, anything would have happened. By manufacturing and supplying the contaminated coke, the OPs have committed deficiency in providing service and caused lot of agony to the complainant, as such, they are liable to compensate him.     
8.           On the contrary, the learned counsel for the OP No.1 while denying the allegations leveled by the complainant submitted that OP No.1 is not the manufacturer of product bearing code no.CCZ4620547-04.  In the alleged bill dated 05.11.2020, Annexure C-1, it is only mentioned as Baga and neither any address/full particulars nor any batch number nor any other particulars of product are found mentioned therein. He further submitted that at no point of time, the product was ever supplied to any of the place at Haryana, as OP No.1 supplied the material in the Uttar Pardesh State only.
9.           Learned counsel for OP No.2 submitted that it is not the manufacturer of contents of the said bottle, as such, it cannot be made liable in the matter. He further submitted that the complainant failed to substantiate that alleged one contaminated bottle is out of the four cartons purchased by him. Had the complainant raised any such issue with OP No.2, it would have requested him to return the same.
10.           First coming to the objection taken regarding the status of the complainant as a consumer, it may be stated here that it has been clearly stated by the complainant in his complaint that the bottles in question were purchased by him for his shop, for onward sale of the same to his customers, as he is running the said shop, for earning his livelihood. The OPs have failed to prove that by selling the said bottles of coke, the complainant was earning huge profits, rather than earning his livelihood. In this view of the matter, objection taken by the OPs stands rejected.      
11.           Now coming to the merits of this case, it may be stated here that the complainant by way of placing on record bill/invoice dated 05.11.2020, Annexure C-1 has proved that four cartons of coke bottles were purchased by him from OP No.2. It is also the definite case of the complainant that one of the said bottles was contaminated and was unsafe for human consumption. As such, during pendency of this complaint, the sealed bottle in question was sent to the Food Analyst Haryana, District Food Laboratory, Karnal, to apprise this Commission in the matter. The Food Analyst Haryana, District Food Laboratory, Karnal, vide its detailed report  dated 13.01.2023, Annexure C-6 clearly opined that after analysis of the said bottle, it was found that the contents of the bottle were unsafe as well as misbranded. Thus, the said report leaves no doubt with this Commission to hold that the contents of the bottle in question  were unsafe for human consumption
12.           Now the next question that arise for consideration is as to who can be held responsible for selling the said unsafe and misbranded product. It may be stated here that the complainant has failed to place on record any evidence to prove that the product in question was manufactured by OP No.1, yet, at the same time, he has proved on record vide bill  dated 05.11.2020, Annexure C-1 that it was sold by OP No.2. The complainant has also failed to convince this Commission as to why he did not make the manufacturer of the Coke as necessary party, especially, when legal notice dated 17.12.2020, Annexure C-3 was served upon  it. However, in these circumstances, we are left with no alternative to hold that it is OP No.2 only i.e. seller of the said, who is responsible for selling unsafe product to the complainant. OP No.2 was bound to check and inspect the product before selling it to the general public but it failed to do so, which resulted into selling of a product which is not safe for human consumption and hence it is liable to compensate the complainant. Now coming to the quantam of compensation. The complainant has claim of compensation Rs.5,00,000/-for supply of contaminated coke and Rs.1,00,000/- on account of mental agony and harassment caused to him. Legal position regarding amount of compensation has been explained by the Hon’ble Supreme court of India, Hon’ble National Commission, in catena of cases. In the case of Chief Administrative Huda & Anr. Vs. Shakuntla Devi, the Hon’ble Supreme Court of India, in paragraph No.12 of the judgment has observed as under:-

           the sine qua non for entitlement of compensation is proof of   loss or injury suffered by the consumer due to the negligence of                  opposite party. Once the said conditions are satisfied, the  Consumer   Forum would have to decide the quantum of                                       compensation to which  the consumer is entitled. There cannot be any dispute that the computation of compensation has to be               fair, reasonable and   commensurate to the loss or injury. There is a duty cast on the Consumer Forum to take into account all                  relevant factors for   arriving at the compensation to be paid”. 

13.           In view of the law laid down by the Hon’ble Supreme Court of India, in the above referred case, the compensation sought for by the complainant is very excessive and cannot be granted.  
14.           Since the complainant has failed to prove any role of OP No.1 in the matter, as such, complaint against OP No.1 is liable to be dismissed.
15.           In view of the aforesaid discussion, we hereby dismiss the present complaint against OP No.1 and allow the same against OP No.2 and direct it, in the following manner:-
    1. To refund the amount received in respect of the bottle in question to the complainant. 
    2. To pay Rs.3,000/- as compensation for the mental agony and physical harassment suffered by the complainant.
    3. To pay Rs.2,000/- as litigation expenses.   

                   The OP No.2 is further directed to comply with the aforesaid directions within the period of 45 days, from the date of receipt of the certified copy of the order, failing which the OP No.2 shall pay interest @ 8% per annum on the awarded amount, from the date of default, till realization. Certified copy of this order be supplied to the parties concerned, forthwith, free of cost as permissible under Rules. File be indexed and consigned to the Record Room.    

 Announced:- 06.12.2023

 

(Vinod Kumar Sharma)	(Ruby Sharma)	(Neena Sandhu)
Member	Member	President