Punjab

Ludhiana

CC/14/388

Narinder Singh - Complainant(s)

Versus

Coca Cola Co. - Opp.Party(s)

07 Dec 2015

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, LUDHIANA.

 

Consumer Complaint No. 388 of 20.05.2014

Date of Decision            :   07.12.2015

 

Narinder Singh Makkar aged about 51 years s/o Sh.Balbir Singh r/o H.No.7648/3, Shahid Bhagat Singh Nagar, Haibowal Kalan, Ludhiana.

….. Complainant

                                                         Versus

1.The Coca Cola Company, 1-Coca Cola Plaza/Atlanta, GA-30313, USA through its Incharge/Director/Manager.

2.Kandhari Beverages Pvt.Ltd., village Nabipur District Fatehgarh Sahib, Punjab (Manufacturer) through its Incharge/Director/Manager.

3.Vishal Mega Mart, (A franchise Store Operated by Airplaza Retailed Holdings Pvt. Ltd.), Euphoria Is Tower 2435, Maharaj Nagar, Ferozepur Road, Ludhiana, Punjab through its Incharge/Director/Manager.

…Opposite parties

 

                   (Complaint U/s 12 of the Consumer Protection Act, 1986)

 

QUORUM:

SH.G.K.DHIR, PRESIDENT

SH.SAT PAUL GARG, MEMBER

 

COUNSEL FOR THE PARTIES:

For complainant                      :         Sh.C.S.Channa, Advocate.

For OP1                         :         Sh.G.S.Sandher and Sh.S.S.Sobti, Advocates

For OP2                         :         Sh.Joginder Pal Singh, Advocate

For OP3                         :         Sh.Yogesh Dewan, Advocate

 

PER SAT PAUL GARG, MEMBER

 

1.           Complaint under Section 12 of Consumer Protection Act, 1986(hereinafter in short referred to as ‘Act’) filed by complainant Sh.Narinder Singh Makkar against OPs by claiming that he purchased one Limca Pet Bottle 500 ml for Rs.29.75/- from OP2 namely Vishal Mega Mart vide bill No.028/8110000001509 dated 10.5.2014. It is further alleged that OP1 is the dealing head of Coca Cola Company, but OP2 is the manufacturer and OP3 is the franchise and as such, all the Ops are equally responsible for their act and conduct. After the purchase of the above said bottle, the complainant was astonished to see fungus/scrap type material in the bottle which could prove deleterious to the health of the complainant. Complainant approached Ops and brought the said facts to their knowledge, but they virtually refused to listen to the complainant. As such, Ops are guilty of rendering deficient service to the complainant and also liable for the unfair trade practice, due to which, the complainant has to suffer mental tension, agony and harassment. Consequently, complainant has filed a claim for payment of Rs.4 lacs on account of mental tension, agony and trauma suffered by him and Rs.11,000/- as litigation expenses along with interest @12% p.a.also sought.

2.                Op1 submitted written statement taking defence that present complaint being filed against Coca Cola India Pvt. Ltd., while this company merely grants a temporary permission to some other company for manufacturing their products. In view of this fact, the grievance, if any, lies against the person/entity that allegedly manufactured the beverage in the bottle (“Bottler”) or the person/entity that allegedly sold the product to the complainant. Thus, there is no cause of action of claims arose against OP1. Further stated that complainant is not a consumer of Op1 and since the bottler(OP2) is fully equipped with highly sophisticated and fully automatic machine following  by cleaning of bottles. Such type of fungus cannot be considered to have occurred in the bottle especially from the fact that when process of bottling is fool proof.  It is also pointed out by OP1 that said bottle was not properly sealed which is clearly mentioned in the report of Food Analyst Punjab, Chandigarh because seal ring remained attached to the screw cap even after the bottle was opened. Under these circumstances, it cannot be considered that bottle was tampered with before submitting the same with Food Analyst Laboratory for testing of the product. On merits, Op1 denied all the contents of the para of the complaint.

3.                In separate written statement submitted by OP2, in which, Op2 took up certain preliminary objections like complaint is bad for mis-joinder of parties as this complaint has been filed against Coca Cola India Pvt. Ltd which does not deal in sale/purchase and of bottling of Coca Cola products, but it is the franchisee bottles of the Coca Cola Company in different parts of India. Further alleged that M/s Kandhari Beverages Pvt. Ltd. has no distributor nor seller in Ludhiana. While complainant has purchased the said bottle from Ludhiana. The bottle also appears to have been tampered with and filled with spuriously by the complainant himself and there is nothing connecting with OP2 with that bottle which was sold by OP3 to the complainant. The process of bottling is so efficacious and that machine rejects the bottle which have even micro sized foreign particle. Therefore, no question of any foreign matter in the bottle so filled by OP2.

4.                Similarly, written statement has also been filed by OP3 rebutting the allegations of complainant by taking the defence plea that OP3 is neither the manufacturer nor the distributor of Limca Pet Bottle which allegedly contains fungus/scrap. However, it is admitted that OP3 had sold the Limca Pet Bottle vide bill No.028/8110000001509 dated 10.5.2014, but denied the factum that particular bottle was sold by OP3. It is denied that complainant made any complaint to the OP3 about the purchase of bottle from him, in which, fungus/scarp is allegedly present. Since the Op3 is neither the manufacturer nor the distributor of the bottle in question, as such, complaint is not maintainable against OP3.

5.                Complainant to prove his case tendered in evidence his affidavit Ex. CA along with documents Ex. C1 & Ex.C2 and thereafter, closed the evidence.

6.                On the other hand, counsel for OP1 tendered in evidence affidavit Ex. RA1 of Sh.U.Narendra Kini, GM & Company Secretary of OP1 and even tendered document EX. R1 and then closed evidence of OP1.

7.                On the other hand, counsel for OP2 tendered in evidence affidavit Ex.RWA/2 of Sh.Gurjeet Singh, General Manager in Kandhari Beverages Pvt. Ltd., 177-F, Industrial Area, Phase-I, Chandigarh and even tendered document EX.RW1/1 and then closed evidence of OP2.

8.                On the other hand, counsel for OP3 tendered in evidence affidavit Ex.RA3 of Sh.Rakesh Kumar Sharma, Employee of OP3 and even tendered documents EX. R3/1 to Ex.R3/5 and then closed evidence of OP3.

9.                Written arguments submitted by complainant and OP2 only, but it is not submitted by OP1 and OP3. Oral arguments of OP1 and OP3 were addressed and heard. Records gone through carefully.

10.              It is an established fact that complainant had purchased the bottle in question from OP3 which was bottled by OP2 under the franchise of OP1. The averment made by the OP1 is correct to the extent that they are not directly the manufacturer of the product and since working on principal to principal basis, they are also by no means liable for any act and conduct of bottler i.e. OP2. However, averments made by OP2 that they are neither the manufacturer nor distributor of bottled product. Rather, they are simply the bottlers. They are also not the distributor in Ludhiana District. So, any bottle sold or purchased in District Ludhiana is not the liability of the OP2. OP2 could be held liable only if the bottle was purchased from any authorized distributor. But in the present case, it is not so and as such, they are not liable for any such act.  It is further observed that Op1 merely grants a temporary permission to OP2 and there is no privity of contract/service between Op1 and complainant. Similar view has also been held by the judgments cited by OP1 during the course of arguments titled as Hindustan Coca Cola Beverages Pvt. Ltd. vs. Vijay Narsing Kulkarni and another-First Appeal No.918 of 2008, decided on 10.12.2013(Maharashtra State Consumer Disputes Rederssal Commission, Mumbai, Circuit Bench at Aurangabad); Anpurna Departmental Store vs. Kandhari Beverages Pvt. Ltd. and others-Appeal No.1884 of 2008, decided on 18.3.2010(Hon’ble State Consumer Disputes Redressal Commission, U.T.Chandigarh); Simran Departmental Store vs. JBS Sabhrwal and others-First Appeal No.650 of 2010, decided on 29.4.2010(Hon’ble State Consumer Disputes Redressal Commission, Punjab, Chandigarh) and M/s Varun Beverages Limited vs. Sh.Babar Sharp and others-First Appeal No.46 of 2007, decided on 6.12.2008(Hon’ble State Consumer Disputes Redressal Commission, Uttarakhand, Dehradun. Accordingly, Op1 cannot be considered to be found to be liable to the complainant. Furthermore Op1 is neither a manufacturer nor the distributor of the said product. Op2 is the authorized distributor but it is not understood how their product is being sold without their knowledge or permission in Ludhiana District when they allege that they are not distributor for this area. Thus, they are liable to be not aware and to check as to how their product being sold. The denial of OP2 that bottling is done by OP2 or that there is nothing connecting with the bottle in the light of said fact that label on the bottle bears the name of OP2 which has been divulged by the Analyst. At the same time, liability of OP3 cannot be denied because OP3 must have earned some profit out of the sale of this bottle.

11.              Further, it is an established fact from the report of Food Analyst, Punjab, Chandigarh dated 18.6.2014 that Limca Pet Bottle purchased by the complainant from OP3, the content of which was bottled by OP2, contained ‘jaala' like substance which was a sort of fungus and as such, contents of the bottle was unsafe for human consumption. The defence taken by OPs that complainant had filled spurious substance in the bottle himself is not tenable because as per report of Food Analyst, Punjab, Chandigarh, no synthetic colour was detected and at the same time, there is no such evidence is proved that bottle was refilled by any spurious substance. Report of Food Analyst shows that seal ring remained attached to the screw cap even after the bottle was opened. But there is no such report that bottle appeared to have been refilled by the complainant with spurious substance.

12.               This Forum is of the opinion that this ‘jaala’(fungus) like substance cannot be put in the bottle by the complainant himself and there is no such evidence, nor there is any such mention in the Analyst report. The allegation by OP3 that the name of the purchaser does not figure in the bill, but it is not proved that OP3 is issuing all the bills in the name of the customers by mentioning their names. Since, the complainant is the bearer of the bill, so OP3 is also considered to be liable for deficiency in service to the complainant. Also that OP1 is working on principle to principle basis, their liability cannot be considered, while liability of OP2 and OP3 is very much apparent from the facts of the entire case.

13.              Therefore, as a sequel of the above discussion, present complaint allowed in terms that OP2 and OP3 are burdened with liability of paying compensation of Rs.20,000/- to the complainant jointly and severally along with Rs.2000/- as litigation charges. Compliance of these orders be made within 30 days from the date of receipt of copies of order. Copies of order be supplied to parties fee of costs as per rules. File be indexed and consigned to record room.

 

                   (Sat Paul Garg)                         (G.K. Dhir)

             Member                                   President

Announced in open Forum

on 07.12.2015

Gurpreet Sharma

 

Additional reasons recorded by: G.K.Dhir, President

 

1.                  Even if OP3 is neither the manufacturer nor the distributor, but despite that the bottle in question was sold through invoice Ex.C1 by OP3 against payment and as such services were rendered by OP3 actually to the complainant. So, complainant certainly, a consumer of OP3, due to which, OP3 cannot escape from liability, even if contents of A to C contained in Ex.R3/3 provides that HCCBPL is engaged in production, manufacture, bottling, sale, distribution, marketing and supply of beverages or that based on market requirements, the beverages are distributed, marketed and sold by HCCBPL in returnable glass bottles, PET bottles, cartoons, pouches, tin cans etc. A manufacturer always      sells the products through employed agents i.e. retailers and as such, virtually OP3 being retailer acted as an agent of OP2, who manufactured the bottle in question. Liability of Principal and Agent is joint and several for the acts done by the agent for and on behalf of the Principal. OP3 as retailer has acted an agent of OP2 and as such, liability of OP2 and Op3 certainly to be joint and several.

2.                List of dealers/retailers/distributors employed by OP2 bound to remain with OP2 and not with the complainant. That list of dealers/retailers/distributors has not been placed on record by OP2 and as such, best evidence available in that respect withheld by OP2. As the proof of authorized dealers/retailers/agents available with OP2 and as such due to withholding of that proof by OP2 deliberately, there is no escape from the conclusion that OP3 virtually is the authorized retail dealer of OP2 as alleged by the complainant. As manufacturing/production/bottling to be done by OP2 under the Agreement Ex.R3/3 and as such, virtually OP2 is the manufacture.

3.                As per Clause 3.1 of Agreement Ex.R3/3, the customer to purchase the beverages launched or offered by HCCBPL, from HCCBPL during term of the Agreement and as such it is contended that HCCBPL is the authorized seller alone. However, trademarks are owned by parent company of HCCBPL, being the Coca Cola Company and as such, in view of the holding of trademarks, the responsibility of the manufacturer to ensure that duplicate or spurious products of the company are not sold. For infringement of the trademarks rights, a complaint could have been filed under the Trade Marks Act, 1999, but no such complaint shown to be filed by either OP1 or OP2 against OP3 and as such, the said conduct of OP1 and OP2 coupled with non production of the list of authorized retailers/dealers/distributors enough to establish that OP3 was permitted by necessary implication by OP2 to sell its products.

4.                Ex.R3/5 is the document relied upon by the counsel for OP3 for arguing that Airplaza Retail Holdings Pvt.Ltd. Ferozepur Road, Ludhiana purchased the Limca Pet from Ludhiana Bottling Company, but that Airplaza Retail Holdings Pvt.Ltd. Ferozepur Road, Ludhiana has not been impleaded as party and as such, complaint is bad for want of impleadment of authorized seller. List of authorized sellers has not been submitted by OP2 and nor the same got produced by OP3 and as such, virtually true information qua the authorized dealer has been suppressed. Contents of Ex.R3/5 establishes as if Airplaza Retail Holdings Pvt.Ltd. Ferozepur Road, Ludhiana purchased Limca Pet from Ludhiana Bottling Company and Vishal Mega Mart, a Franchise Store operated by Airplaza Retail Holdings Pvt.Ltd., Ludhiana, is a fact borne from endorsement on the top of Ex.R3/2= Ex.C1 and as such contents of these documents also establishes as if OP3 is a Franchise Store, being so OP3 virtually is the authorized seller and submission of counsel for OP3 to the contrary has no force.

5.                It is contended by counsel for OP3 that fault with OP3 is not there, but that submission has no force because OP3 holding franchise must offer for sale, only those products which are not health hazardous. Had that precaution  been observed by OP3, then the fungus infested bottle would have not been sold by it to the complainant through bill Ex.C1.

6.                In para no.3 of the complaint itself it has been mentioned that OP2 is the manufacturer and in para no.4 of Ex.RA/3, it has been acknowledged that OP3 is  authorized  vender  of  OP1   and  as  such,  virtually  these                      contents of affidavit contains admission of Op3 qua his being authorized vendor of the bottle in question. Non impleadment of the Distributor of the bottling, as party will not absolve the manufacturer and the authorized retailer from their liability. If bill does not mention the batch number or mark of Ludhiana bottling, then the same does not make any difference because evidence of complainant qua such purchase and admission of OP3 as authorized vendor, enough to prove the case of the complainant.

7.                Submission of Sh.Joginder Pal Singh, Advocate representing OP2 has no force that OP2 has no dealing with OP3 because list of retailers/authorized sellers etc., has not been produced at all.

8.                As the bottle in question was having health hazardous contents and as such by consumption of the same, the complainant may have suffered in health, due to which, he was bound to remain in lot of mental strain and stress or pain and agony and as such, to ensure that the health hazardous daily consumable products are not sold in the market, it is fit and appropriate to burden OP2 and OP3 with compensation of Rs.20,000/- atleast. With these additional reasons, I agree with the findings recorded by learned Member.

 

                                                                    (G.K.Dhir)

                                                                   President.                                         

Announced in open Forum

On 07.12.2015.

Gurpreet Sharma