BEFORE THE DISTRICT CONSUMER FORUM : MEDAK AT SANGAREDDY

PRESENT: Sri Patil Vithal Rao, B.Sc., LL.B.,President

Smt. Meena Ramanathan, B.Com., Lady Member

              Sri G.Sreenivas Rao, M.Sc., B.Ed.,LL.B.,PGADR (NALSAR),Member

Tuesday, the 23^rd day of April, 2013

CC.No. 32 of 2012

Between:

R. Madhu Goud S/o late R. Mallesham Goud,

Aged: 30 years, Occ: Business,

R/o H.No. 3-2-84, Nethaji Nagar,

Sangareddy town & Mandal,

District Medak.                                                                   …. Complainant

And

1. Classic Cool Drinks, Shop No. 6-1-9,

Near Govt. Hospital, Main Road,

Sangareddy town & Mandal,

District Medak.

2. The General Manager,

Pepsi Company Limited,

Pothreddipally village, N.H. Way No. 9,

Mandal Sangareddy,

District Medak.                                                        … Opposite parties.

                This case came up for final hearing before us on 10.04.2013 in the presence of counsel for the complainant Sri K. Anjaneyulu, opposite party No. 1 remained exparte and counsel for opposite party No. 2 Sri C. Vikram & Associates, on hearing the arguments and perusing the record and having stood over for consideration till this day, this Forum delivered the following:

       O R D E R

(Per se G. Sreenivas Rao, Member)

                   This complaint is filed under Section 12 of the Consumer Protection Act, 1986 to direct the opposite parties to pay the cost of cool drink bottles of Rs. 60/- with interest @ 8% p.a. and award compensation of Rs. 50,000/- towards deficiency in service, mental agony caused along with costs and any other order as deemed fit.

                   The brief averments of the complaint are that on 21.06.2012, the complainant had purchased six (6) Mirinda Cool Drink Bottles with batch No. LB193 and dt. 05.05.2012 @ Rs. 10/- each from opposite party No. 1 having a shop at Sangareddy town. The complainant later on found an empty sachet of R.M.D. Manikchand Gutka at the bottom of one Mirinda cool drink (200ml). He approached the shopkeeper /opposite party No. 1 and reported the matter who took it easily and the responsibility of it was thrown on to the opposite party No. 2 being the manufacturer of cool drinks. On seeing this, he got issued a legal notice to both the opposite parties on 28.06.2012. Both parties kept silent resulting in deficiency in service. Thus the complainant filed his redressal before this Forum for necessary compensation.

2.               The opposite party No. 1 has been set exparte and the opposite party No. 2, in the written version, denied all the averments and submitted that there is no deficiency of service or negligence on the part of the opposite party. The complainant has consciously noticed the soft drink with foreign matter and the contents of this bottle was not consumed by the complainant. So the complainant has miserably failed to make out his case and has in fact raised wild and baseless allegations against the answering opposite party No. 2. That since there is no loss or damage caused to the complainant on account of the answering opposite party No. 2 as contemplated within the meaning of Sec. 14 (1)(d) of the Consumer Protection Act, 1986 and the complainant is not entitled to any relief. It is also submitted that soft drinks manufactured by the opposite party No. 2 are manufactured in modem sophisticated plants, which use a very high standard of hygiene and cleanliness. The manufacturing process involves strict quality checks at various stage of manufacture, ruling out all possibility of any foreign matter in the bottle product as alleged by the complainant. The soft drink bottles undergo multistage cleaning process at the bottling plant where there is no scope of contamination. The opposite party No. 2 elaborately explained the different stages of manufacture of ‘Mirinda’ carbonated beverage drinks.  It is submitted that the alleged product seems to be a spurious product and has not been manufactured by the opposite party No. 2, it is very easy for anyone to mix spurious bottles of soft drink with genuine bottles and then to claim the spurious bottles to have been manufactured or sold by the original manufacturer purchased under bill for valid consideration. Utmost care is taken by the opposite party No. 2 to ensure that no foreign matter enter in the bottle. The company values the consumers and is equally concerned about maintaining its good will and reputation in the international market. The opposite party No. 2 submits that the complaint has been filed with ulterior motives to obtain undue pecuniary gains from the opposite party No. 2. Hence it is prayed that this Hon’ble Forum may be pleased to dismiss the complaint with exemplary costs in the interest of justice and equity.

3.            Evidence affidavit filed by the complainant and documents were marked as Exs. A1 to A5 and opposite party No. 2 had also submitted documentary evidence as Exs. B1 and B2, further MO.1 is also marked. The opposite party No. 1 remained exparte despite notice being served. The complainant and opposite party No. 2 argued but only opposite party No. 2 filed his written arguments.

4.                 Now the point for consideration is, Whether the complainant is able to prove deficiency in service on the part of opposite parties? If so, to what relief?

Point:

5.               The complainant had purchased six Mirinda cool drink bottles from the opposite party No. 1 / shopkeeper, but he found an empty sachet of gutkha in one of the bottles, he questioned the opposite party No. 1 who inturn threw the responsibility on the opposite party No. 2 being the manufacturer. He sent legal notices to both the parties, who remained silent, Hence the complaint before the Forum seeking compensation for the deficiency in service.

6.                The complainant led documentary evidence. Ex. A1 is the bill of cool drinks dated 21.06.2012 given by the opposite party No. 1, the Ex. A2 is the legal notice issued to both the parties dated 28.06.2012; The Ex. A3 is the reply notice dated 04.07.2012 given by the opposite party No. 2; the Ex. A4 is the postal receipt dated 28.06.2012 addressed to opposite party No. 1 and Ex. A5 is the postal receipt dated 28.06.2012 addressed to opposite party No. 2. Similarly the opposite party No. 2 filed documentary evidence as Ex. B1 is the FIR dated 18.06.2012 against Mr. Sitender Rana of Ambala and Ex. B2, dated 22.04.2012 showing the raid report contents.

7.               On serious perusal of the above, no doubt the opposite party No. 2 takes care of the high quality control measures by adoption of latest technology available. So there is minimal scope of contamination/adultery. The counsel for the opposite party No. 2 submitted in his arguments that even a micron thickness of any foreign particles will easily be detected by the quality control of the firm consisting of 12- stages of processing. So the cool drink bottles with an empty sachet of gutkha is only a creation for the purpose of the case. To support his argument the opposite party No. 2 submitted the documentary evidence of Exs. B1 and B2 running into several pages showing how the spurious drinks are being circulated in the market and raids (Haryana, Gujarat & Tamil Nadu) conducted by the police on behalf of the company, later on submission of confession by the offenders / shopkeepers indulging in such unfair trade practice.

8.            The opposite party No. 1/shopkeeper despite service of notice, remained absent to the entire proceedings. He ought to have deposed before the Forum explaining his innocence (if any) since he is the actual party sold such contaminated cool drink and also a resident of this place.

9.               The learned counsel for the opposite party No. 2 has vehemently contended that the complainant did not establish the alleged purchase of MO.1 from the shop of the opposite party No. 1 except filing of the receipt, Ex. A1, which is in fact without complainant’s name and that virtually no evidence was brought on record to establish that MO.1 was manufactured by the opposite party No. 2 company and that admittedly the complainant did not consume the content of MO.1 and suffer any injury and that therefore his claim for compensation is not tenable. In support of his contention he has on relied on the decisions in, “P.A. Pouran Vs. Mac Dowel & Company and another”, “Amit Swami Vs. Coco Cola India Limited & Others” and II (1991) CPJ 394, in the written statement and written arguments. But he did not submit actual text of the said decisions. Therefore we are unable to go through the same and appreciate his contention. Mere citing of the decisions is not sufficient without actually making them available.

10.              The Forum also points out at the behavior of the shopkeeper who on noticing the sachet of Gutkha in the cool drink bottle, he should have immediately taken back and replaced with a different bottle and thereafter he should have brought to the notice of the company as a fair play. But the opposite party No. 1/shopkeeper did not even bother to replace the bottle or appear before the Forum to give his version despite service of notice. This proves his lackadiasical attitude. Thus negligence and deficiency in service is duly proved against the opposite party No. 1 and he is liable for the compensation.

11.                Now coming to the role of the opposite party No. 2 company, it is to be seen that though the learned counsel for the opposite party No. 2 has referred to various stages of processing in manufacture of cool drinks the fact remains that MO.1 bottle contains a foreign body i.e., Gutkha Sachet. There is also no evidence to show that it was placed inside the said bottle by tampering with lid of the bottle by somebody else. It is not the case of the opposite party No. 2 that opposite party No. 1 did not purchase the bottle from opposite party No. 2 and alternatively tampered with the bottle and inserted the sachet in it. Even the documents under Ex. B1 & B2 do not show that any raids were conducted in the State of Andhra Pradesh at the behest of opposite party No. 2 company to find out the trade of spurious cool drinks on its name. In the circumstances it has to be presumed that somehow the cool drink bottle, MO.1 was manufactured defectively at the opposite party No. 2 company itself. Therefore the company has to be adequately saddled with compensation on the ground of unfair trade practice.

12.            In view of the aforesaid discussion it is crystal clear that opposite party No. 1 has exhibited deficiency in service and opposite party No. 2 in unfair trade practice. Therefore they are liable for compensation for the mental agony caused to complainant.

13.              In the result, the complaint is allowed directing the opposite party No. 1 to pay a sum of Rs. 5,000/- towards compensation and Rs. 10/- towards cost of the cool drink bottle (MO.1) to the complainant. Further, the opposite party No. 2 shall pay a sum of Rs. 15,000/- to the complainant. An interest shall carry @ 9% p.a. on the above said amounts from this day till the date of realization. The complainant is also entitled for a sum of Rs. 1,000/- towards cost of the litigation, against both the opposite parties jointly and severally. Time for compliance is thirty days. MO. 1 shall be destroyed after appeal time is over.    

                 Dictated to Stenographer, after transcription and correction the order is pronounced by us in the open court today on this the   23^rd day of April, 2013.

         Sd/-                               Sd/-                                      Sd/-

      MALE MEMBER     LADY MEMBER                    PRESIDENT

APPENDIX OF EVIDENCE

                                 WITNESS EXAMINED

For the complainant:                                            For the opposite parties:-

DOCUMENTS MARKED

For the complainant:                                                   For the opposite parties:-

                  Sd/-                                     Sd/-                                     Sd/-

      MALE MEMBER                     LADY MEMBER                   PRESIDENT 

Copy to:

1. Complainant
2. Opposite parties
3. Spare copy.