OFFICE OF THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, KAMRUP,GUWAHATI-03
C.C.76/2009
Present:-
1) Md.Sahadat Hussain, A.J.S. - President
2) Smti ArchanaDekaLahkar - Member
3) Md Jamatul Islam - Member
Ms Deepali Sharma -Complainant
D/O- Late Sree Prasad Sharma
R/O- Paltan Bazar,Guwahati
-VS-
1) Coca -Cola India Ltd. -Opp.party
Having its Registered Office at Phase-5,Vanijanmi Kunj,
Ankay Towers,Udyog Vihar,Gurgaon-122016
2) Hindustan Coca-Cola Beverages
Dihang Arcade,ABC,G.S.Road,
Guwahati,Dist-Kamrup,Assam
3) Hindustan Coca-Cola Beverages
A.T.Road,Jorhat-785006
Dist-Jorhat,Assam
4) M/S Swastik Distributors
3, International Hospital Complex,
R.G. Baruah Road,Guwahati-781005
Dist-Kamrup,Assam
5) M/S Food Doof
M.C.Road,Baruwari,Guwahati
Dist-Kamrup,Assam
Appearance:
Complainant Ms Deepali Sharma appears for her case and Ld advocate Ms Pallavi Phukan for the Opp. Party No-1,2 & 3 .
Date of argument -26/09/2018
Date of judgment - 16/11/2018
JUDGMENT
This is a proceeding U/S- 12 of the Consumer Protection Act, 1986
1) The complaint filed by Ms Deepali Sharma against -i)Coca-Cola India Ltd. ii) Hindustan Coca-Cola Beverages , Dihang Arcade, ABC,G.S.Road, Guwahati iii) Hindustan Coca-Cola Beverages, Jorhat , iv) M/S Swastik Distributors , Guwahati and v) M/S Food Doof , Baruwari, Guwahati was admitted on 10/08/2009 and notices were served on all the opp. parties ; and Opp. Party No-1,2 & 3 filed joint written statement , but the case against Opp. Party No-4 is proceeding on exparte vide this forum’s order dtd.05/02/2010 and the case against Opp.Party No-5 is also proceeding on exparte . Thereafter , the complainant adduced her evidence and the evidence of one Shri Pranab Kr Chetia and Shri Debajit Parasar in affidavit and CW-1 and 2 were cross examined by the ld counsel of the Opp. Party No-1,2 and 3 , but evidence of Shri Debajit Parasar is expunged vide our order dtd.27/01/2016 having he did not turn up for cross- examination.After cross-examination of the complainant side witness , Opp. Party No-1,2 & 3 side vide Petition No-86/2016 prays for recalling CW-1 for further recross-examination but that petition was rejected vide our order dtd.12/01/2016. Thereafter , dates are fixed for filing evidence of Opp. Party No-1,2 & 3 sides and they also filed evidence of Sri Masoom K Hussain in affidavit and he was cross examined by the complainant side on 21/12/17; and thereafter the dates were fixed for filing written argument but the complainant side only filed written argument and Opp. Party No-1,2 & 3 side again filed Petition No-889/18 prays for adjournment i.e. giving time for filing written argument . The petition was rejected .Finally, on 26/09/2018 we heard oral argument of the complainant forwarded by the complainant herself and the ld advocate Ms Pallavi Phukan for Opp. Party No-1,2 & 3, and today we deliver our judgment which is as below-
2) The complainant’s case in brief is that, Opp. Party No-1 is a multinational company carrying the business of manufacturing and selling beverages namely-Coca-Cola ,Thumps Up,Sprite ,Limca and Fanta etc and Opp. Party No-2 is the branch office of Opp. Party No-1 in Guwahati and Opp. Party No- 3 is the manufacturer of the Sprite R.G.D bottle and Opp. Party No-4 is the distributor appointed by Opp. Party No-1 for distribution of product of Opp. Party No-1 and Opp. Party No-5 is a restaurant and a retailer of Opp. Party No-1 at Guwahati. On 22/07/2009, the complainant went to Opp. Party No-5 restaurant in the evening hours to have some light refreshment and purchased one bottle of Sprite(RGD) from Opp. Party No-5 . The bottle was served to her without opening the sealed cover and when she attempted to open the bottle with a bottle opener she saw a dead fly inside the bottle and then she immediately inform the matter to the owner of the restaurant and the brother of the owner of Opp. Party No-5 informed one of the officers of Opp. Party No-2 company over phone and asked what to do and how to deal with the matter and then the concerned officer of Opp. Party No-2 inform him to deal with the matter for that day as it was already evening assuring to send official on the next day and to give her other bottle and keep the bottle with the dead fly at the restaurant. But she being enraged by their response , took away the bottle with her to home without opening the bottle. On the next day (23/07/09) she went to Opp. Party No-5 restaurant again to meet the officer of Opp. Party No-2 but they failed to give any concrete reason as to why that had happened rather try to convince her that, the bottle might have been tempered. On the date of purchasing the bottle, she suffered from convulsion like feeling , mental and physical agony which continued till the date of filing of the complaint and developed a hatred to taking cold drinks which was her most favourite cold drinks. The alleged product ,which is a product of a reputed company , are consumed by majority of people and so the manufacturer should take responsibility to maintain quality standard and make it hazard free ,but the manufacturer failed to maintain so , and also failed to give reason of such happening ; and in result their products are unfit for drink and dangerous for the consumers and as such they caused deficiency of service towards her ; also caused mental and physical harassment to her and as such they are liable to pay compensation of Rs.1,00,000/- for deficiency of service , Rs.2,00,000/- for mental agony and undue physical harassment , Rs.3,00,000/- for unfair trade practice and Rs.50,000/- as cost of proceeding totaling Rs.6,50,000/-.
3) The pleading of the opp. party No-1,2 and 3 in brief is that , the complaint is not maintainable , it is filed by the complainant fabricatting a story which is totally mis-conceived . The complainant has no cause of action against them but filed the complaint with a sole motive to harass them and extract money from them. The complainant is not a consumer in respect of the said bottle as she has no evidence that she got the said bottle on paynment of consideration. The complainant fails to mention the batch number and other details of the product purchased by her. Opp.Party No-1 was wrongly arrayed in the present complaint. The complainant has not suffered physical injury owing to purchase of the said bottle and owing to the fact that, she had not consumed any drink from the said bottle . If she is supposed to had a bottle of Sprite with a dead fly inside she would be entitled to replacement of the alleged bottle but not the compensation she prays . The company has a fully mechanised system of production, where, all the raw materials including water are purified and cleaned through multiple level of filteration and therefore, the presence of dead fly in the impunged bottle is highly improbable and it seems that the complainant had either purchased a spurious product from other source or has tempered with the seal of the bottle and hence it is needed to send the bottle to appropriate laboratory. The story of the complainant is fabricated and concocted one.The story of the complainant that she being resident of Panbazar went to a distant place Barwari to have cold drink is quite surprising one and it is also surprising that the bottle was served to her without opening it. It is highly improbable that the restaurant took Rs.15/- as price of the allleged bottle while its price is only Rs.10/- and before drinking the said beverage the complainant paid the price of the bottle and bottle was served to her with a opener. Management of Opp.Party No-5 issued a cashmemo of Rs.15/- as the price of the said bottle and then she seat on a table and so the fly inside the bottle which is dark green coloured are all improbable in general practice . It is true that, a complaint filed by the complainant was received by the officer of Opp.Party No-2 on 22/07/2009 and that was registered as Complaint No-14 dtd.21/07/2009 and she also furnished information to the officer of Opp.Party No-2 through her mobile and the complaint was assigned to Mr Arpan Saikia , the Executive of Opp.Party No-2 and Mr Saikia contacted the complainant and also meet her in the premises of Opp.Party No-5 at 2.30PM in the following date and found the complainant along with some other persons were sitting there and complainant was introduced to him and one was introduced as a magistrate of Govt. of Assam and another was as a journalist Mr Nayanjyoti Saikia and all of them started threaten him and asked him to give explanation how a fly could be found inside a sprite bottle and then he replied that if such thing has really happened his company will definitely look into the same and he also offered to take all of them to the bottling plant to show the environment of bottling but they refused to do so and he then asked the complainant to show the bottle and then the complainant took out a bottle covered with a plastic bag tide with rubber band and when the plastic bag was removed he saw the cap/crown of the bottle was bent which clearly indicated that the bottle had been opened and then he stated to them the cap of the bottle had been opened and then they said as to why he felt so and two of them started to shout and threatened him that unless he immediately arranged for paying them adequate compensation they will use their connection in the media and spoil the reputation of his company and also initiate legal proceeding against them and then he reported the matter to the management for further action and told the complainant that he was not authorised to give commitment unless instruction are received from the management and he also recorded the batch no ,the production date, the time of production of the said sprite bottle . Thereafter , complainant herself made a complaint to the management of the opp. party through email and also rang up the said representative of Opp.Party No-2 asking him to meet her at Sunflower Restaurant at Panbazar and he meet him in the said place and the complainant introduced a person to him as Mr Partha who is an Advocate of the same chamber of complainant and both of them asked him when the compensation would be paid but he inform them that the bottle had been found in open state and hence monetary compensation cannot be paid but a replacement at best can be arranged if it is proved there had indeed been a fly inside the bottle while it was in sealed condition and it is needed to send the bottle to the proper laboratory and then they told him that they will be in touch with him or his superior . The sample of a opened bottle cannot be accepted in the laboratory and moreover 3 to 4 months have already colapsed since the said bottle had bottled had been opened and the alleged incident occurred . The impurities or the foreign bodies not present in the said bottle has clearly taken place after crown of the bottle had been opened and hence no purpose will be served if any sample from the alleged bottle is sent for analysis; but te forum may send the bottle to an authorised laboratory to test the integrity of the crown of the bottle so as to ruleout the possibility of any seal tempering and foul play by the complainant . They are producing standard quality product which cannnot be health hazzard to the consumers and the allegation against them are defamatory in nature. The products are prepared , bottled and packaged in extremely hygenic , clean and sterile environment and if that being so the chance of any foreign bodies and impurities being present in any of their product doesnot arise . The complainant claim compensation on highly imaginative ground and filed the complaint to gain wrongfully and so the complaint is liable to be dismissed.
4) We have perused the pleading as well as evidence of the parties and found that the complainant in her evidence state that in the evening of 22/07/2009, she went to M/S Food Doof (Opp.Party No-5) for light refreshment and ordered for a returnable glass bottle of Sprite before occupying a seat and a waiter gave her a bottle of Sprite and went inside the restaurant and when she was about to open the cap of the bottle , she noticed a dead fly inside the bottle and she felt vomiting tendency and then she went to the counter and asked for cash-memo and after handing over the cash-memo she informed the owner of the restaurant the matter while there were full of customers; and then the brother of the owner, Shri Debajit Parasar asked her to calm down and called upon one of the officers of Opp.Party No-2 and informed him the matter and Shri Debajit Parasar informed her that Opp.Party No-2 requested him to settle the matter by replacing the bottle with another one; and in case if she doesnot agree she would be asked to come on the next day, and she, being dis-satisfied, took the bottle with her but on request of Opp.Party No-2 she went to the restaurant of Opp.Party No-5 at around 2.30PM on the next day and then one Shri Arpan Saikia of Opp.Party No-2 came there and tried to convince her but refused to accept the fact that the bottle contained a dead fly inside although the bottle was placed before him and he noted down something and left .
Supporting the evidence of the complainant , CW-2 Shri Pranab Kr Chetri (an advocate by profession) states that one evening in the first week of August , 2009 , when he was in Panbazar for some personal work he met complainant near Sunflower restaurant and the complainant informed him that he had come to meet the official of Coca-Cola company as she found a dead fly inside a bottle of Sprite while going to the restaurant “M/S Food Doof” on 22/07/2009 and requested him to accompany her and at that time one Shri Arpan Saikia , an official of Coca-Cola company came there , whom the complainant introduced to him and Shri Saikia seated with them in the table in Sunflower restaurant and the complainant asked Shri Saikia as to what instruction he has received from the company but Shri Saikia replied that no monetary compensation could be given to her as the bottle was tempered with but she was, at best , entitled to replacement of the said bottle and then she told Shri Saikia that she had neither tempered the bottle nor opened the bottle and she will be compelled to approach consumer court, and that he himself inspected the bottle and found that the bottle was not tempered with and there was a dad fly inside the said bottle.
In the joint written statement of Opp.Party No-1,2 and 3 , specifically states that the complainant had not suffered any physical injury owing to the purchase of the imputed bottle . This version of Opp.Party No-1,2 and 3 is a clear admission of the plea of the complainant that she had, on , 22/07/2009, visited M/S Food Doof restaurant (Opp.Party No-5) in the evening hours and ordered and purchased a bottle of Sprite from Opp.Party No-5 and while she went to open the bottle with a bottle opener she saw a dead fly in the said bottle and she immediately reported the matter to Opp.Party No-5 and Opp.Party No-5 reported the matter to Opp.Party No-2, and the official of Opp.Party No-2 came down to Opp.Party No-5 to discuss with the matter . Thus , it is clearly eatablished that on 22/07/2009, the complainant in the evening visited M/S Food Doof restaurant (Opp.Party No-5) and purchased a returnable bottle of Sprite from Opp.Party No-5 and while she was to open the bottle with an opener she saw a dead fly inside the bottle and she immediately reported the matter to Opp.Party No-5 and Opp.Party No-5 reversely reported the matter to Opp.Party No-2 and an officer of Opp.Party No-2 came down to the said restaurant discuss the matter with the complainant.
The said admission of the Opp.Party No-1,2 and 3 side proves the plea of the complainant that the said bottle of the Sprite contained a dead fly inside the said bottle. It is found that the Opp.Party No-1,2 and 3 side has not applied to this forum for analysing the content of the said bottle through public analyst although it is their right to do so. So, this abstinence on the part of Opp.Party No-1,2 and 3 infers that the fact of containing a dead fly inside the said Sprite bottle factually true. So, in such situation for non examination of the contents of the bottle through public analyst (Food Analyst) is not fated to the case of complainant . The complainant is found to have deposited the said bottle in this forum at the time of filing of this complaint and the said bottle is in safe custody of this forum . This forum examined the said bottle in presence of both parties and during cross-examination of CW-1 it is found that the bottle contained a black coloured foreign object inside the bottle and this forum also noted down the said fact in the sheet of cross-examination and that was not objected by opp. party side. This examination which was made by this forum supports the plea of the complainant that the said bottle of Sprite contained a dead fly inside it which she had detected after purchasing it from Opp.Party No-5 . Thus, it is clearly established that , the bottle of Sprite which the complainant had purchased from Opp.Party No-5 on 22/07/2009, had contained a dead fly inside it which the complainanmt detected while she was about to open it and she did not open the cap of the bottle nor drank the contents of the bottle but reported the matter to Opp.Party No-5 and Opp.Party No-5 side reported the matter to Opp.Party No-2 and the officer of Opp.Party No-2 came to Opp.Party No-5 on that very day and talked with the complainant about the matter .
From the evidence of the complainant and CW-2 , it is clearly established that the next day of the occurrence, the complainant met one Mr Arpan Saikia of Opp.Party No-1 & 2 at Sunflower Restaurant and again discussed with her about the matter but Mr Saikia refused to pay any compensation to her stating that the bottle was tempered and she was at best entitled to replacement of the bottle of the Sprite . Thus , it is crystal clear that knowing about the fact of containing dead fly in the said bottle Opp.Party No-1 ,2 & 3 side refused to pay proper compensation to the complainant . Their plea is that the bottle was tempered but this forum itself , after examining the bottle, found that the said bottle was in intact condition with its contents and a dead fly . Thus , the plea of opp. party side is not established .
We have perused the case laws referred by the opp. party side i.e. M/S Hindustan Coca-Cola VS S.Sekhar on 15th December,2009- State Conumer Dispute Redressal Commission ,Chennai as well as Pepsi Foods Pvt Ltd VS National Consumer Protection on 13th May ,2015 . National Consumer Disputes Redressal Commission ,New Delhi and found that the decision of the case Pepsi Foods Pvt Ltd National Commission is relating to examination of public analyst in the case of spurious cold drink which is not admitted by the manufacturer and seller and M/S Hindustan Coca-Cola case , Chennai is relating to use of the bottle of Coca-Cola by some other person and hence the ratio decidendi of those two cases are not applicable in the case in our hand.
5) Now question is whether the complainant is actually entitled to any compensation for selling such spurious Sprite bottle to her by Opp.Party No-1 ,2 & 3 through Opp.Party No-5 . The complainant states that when she saw the dead fly she felt tendency of vomiting . Secondly, we have found that if the complainant would have drunk the content of the said bottle , she would have suffered from poisoning due to existence of said dead fly inside the bottle which caused the contents spurious; and there was also possibility of demise of her for taking said spurious contents of the said bottle . So, the plea of the opp. party side that the complainant is not entitled to any compensation as she had not drunk the content of the said bottle is not sustainable. So , we hold that the complainant being a consumer is entitled to get proper compensation from the manufacturer and seller of the said spurious cold drink .
Secondly, it is also found that the complainant is an advocate of high repute and her high esteem was lowered for facing such trouble for the fault of the opp. parties . Thirdly , she has also suffered from mental agony thinking that if she would have taken the contents of the bottle she would have died . Fourthly, it is also found that Opp.Party No-2 side held two session of discussions with her about the matter, but refused to pay her due compensation for such sufferings . These conducts on the part of the Opp.Party No-1 ,2 & 3 side amounts to causing harassment to her . Considering the above circumstances we are of opinion that the complainant is entitled to get at-least Rs. 50,000/- as compensation from Opp.Party No-1 ,2,3 & 5 for causing apprehension of death to the complainant by selling spurious Sprite to her . She is also entitled to get another amount of Rs.10,000/- for causing harassment to her and Rs.10,000/- as cost of the proceeding .
6) Summing up our discussion as above, we hold that the complainant has cause of action against all the opp. parties which she has succeeded to prove . Accordingly , the complaint against Opp.Party No-1 , 2, 3, and 5 is allowed on contest but against Opp.Party No-4 is allowed on exparte and they are directed to pay to the complainant Rs.50,000/- as compensation for causing apprehension of death by selling spurious Sprite to her and Rs. 10,000/- as compensation for causing harassment to her as well as Rs.10,000/- as cost of the proceeding, to-which, all the opp. parties are jointly and severally liable . They are directed to pay the awarded amountS within 45 days, in-default , the amounts shall also carry interest at the rate 12% per annum from this day until full satisfaction of the award.
Given under our hands and seals today on this 16th November , 2018.
(Smt Archana Deka Lahkar) (Md.Jamatul Islam) (Md.Sahadat Hussain) Member Member President
