DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,

BATHINDA

C.C. No. 85 of 05-03-2013

Decided on 10-07-2013

Arvind Ghai, Advocate, aged about 28 years, S/o Mohinder Ghai, R/o H. No. 4035 Jaura Street, Arya Smaj Chowk, Bathinda.

........Complainant

Versus

1. Coca Cola India Private Limited, Head Office : Enkay Tower Udyog Vihar, V Gurgaon 122106 through its Director MD/CEO

2. Amritsar Cold Drinks, 14-A. Opposite P.F. Colony Old Jail Road, Amritsar, also having their Branch office at 37-B, Grain Market, Bathinda.

3. Suresh Shanker Variety Store, through its Prop. Suresh Shankar, Near Des Raj, Senior Secondary School, Bathinda.

   .......Opposite parties

Complaint under Section 12 of the Consumer Protection Act, 1986.

QUORUM

Smt. Vikramjit Kaur Soni, President

Sh. Amarjeet Paul, Member

Smt.Sukhwinder Kaur, Member

For the Complainant : Sh. Amit Ghai, counsel for the complainant.

For the opposite parties : Sh. Gursewak Singh Sidhu, counsel for opposite party No. 1.

Sh. Vikas Singla, counsel for opposite party Nos. 2 .

Sh. Harsatnam Singh, counsel for opposite party No. 3.

O R D E R

VIKRAMJIT KAUR SONI, PRESIDENT

1. The instant complaint has been filed by the complainant under section 12 of the Consumer Protection Act, 1986 as amended upto date (here-in-after referred to as an 'Act'). Briefly stated the case of the complainant is that on 20-06-2012, he purchased one Fanta bottle of 200 ml, from opposite party No. 3 against payment of Rs. 10/- and a bill was issued to him. The opposite party No. 1 is the manufacturer of Fanta bottles whereas opposite party No. 2 is wholesale dealer and opposite party No. 3 is local dealer of the same at Bathinda. The complainant alleged that after purchasing the bottles of Fanta from opposite party No. 3, he had seen the plastic material in the bottle which was visible to the naked eye meaning thereby that the contents of the bottle is contaminated. The complainant immediately contacted the opposite party No. 3 and showed him the bottle in question, but the opposite party No. 3 proclaimed that he purchases the bottles from whole sale dealer i.e. opposite party No. 2 and supplies to consumers/general public in the same position in which it is purchased, so he is not responsible for the contents of the bottle as the bottle is water tight, sealed, hence the opposite party Nos. 1 & 2 are responsible for the same. The complainant purchased the said bottle which is product of Coca Cola India Private Limited under the impression that the same is of best quality, free from all type of un-hygienic substance, but shocked to notice that there was plastic material in the bottle. The complainant further alleged that he in case he had consumed the contents of the bottle without seeing the plastic material, it must have adversely affected him medically as well as mentally. The supply of such like infected bottles are not only injurious to the health of the complainant but are plying havoc with the health of other residents of the area and such like practice deserves to be stopped. The complainant further alleged that the opposite party nos. 1 & 2 are negligent in performing the duties by floating defective products in market for sale which is in fact un-consumable. Hence, the complainant has filed the present complaint seeking directions to the opposite parties to pay compensation of Rs. 1,00,000/- to the complainant and supply defect free bottles to the general public in future.

2. The opposite parties filed their separate written statements. The opposite party No. 1 in its separate written statement pleaded that complainant is not consumer of opposite party No. 1 as it is not engaged in the manufacture or sale of carbonated soft drink or any beverage to the consumer. The concentrates and beverage basis, which are a result of the process of The Coca-Cola Company, USA are neither meant nor fit for direct human consumption. These concentrates and beverages basis are supplied by it to the authorized bottlers of “The Coca-Cola Company” who then use the concentrates and beverage basis for producing the beverages and selling it to the ultimate consumers. The opposite party No. 1 neither a seller nor a distributor of the beverage in question. Since there exists no relationship of a consumer and service providers between the complainant and opposite party No. 1, this complaint deserves dismissal. The opposite party No. 1 has pleaded that the complainant has failed to prove that the bottle is a genuine product. He has not provided details of the product such as batch number, name of the manufacturer etc., which is always mentioned on the bottle itself. The bill in question appears to be manipulated especially in the light of the fact that opposite party No. 2 has denied having sold any such bottle to opposite party No. 3. There is no proof of the fact that the bottle has not been tampered with by the complainant or any other opposite party after the purchase and before filing this complaint. The opposite party No. 1 has further pleaded that it is also aware of the fact that the manufacturing process adopted by the authorized bottlers is fully automated and a highly advance, sophisticated and fully automatic process followed for cleaning the bottles, filling the beverage in the bottle and sealing them with the crowns. At no stage is the beverage touched by the human hand. With such strict international standards of quality, inspection, cleanliness and hygiene, it is highly improbable that any foreign body, pollutants, dirt and other matter could enter the bottle as alleged by the complainant unless the bottle has been tampered with after it has left the factory gates of the authorized bottlers. Thus, in all probability the bottle in question is tampered, spurious and counterfeit.

3. The opposite party No. 2 has pleaded that there is no contract between the complainant and it. The opposite party No. 2 has never sold any product to opposite party No. 3 as well as to the complainant. The complainant has produced on file the bill vide which he has purchased the bottle in question from opposite party No. 3, but neither the opposite party No. 3 is its dealer nor it has ever sold its any product to opposite party No. 3. The opposite party No. 2 has denied that the complainant purchased any bottle of cold drink on 20-06-2012 from opposite party No. 3 as it has no concern with opposite party No. 3. The opposite party No. 2 has pleaded that opposite party No. 3 is not its dealer and it has not sold any cold drink bottles to opposite party No. 3.

4. The opposite party No. 3 has pleaded in its separate written statement that it has sold the bottle in question of Fanta to the complainant in sealed condition. The complainant visited the opposite party No. 3 with a complaint that he found plastic material in the bottle which was visible to the naked eye. The bottle was in sealed condition when it was sold to the complainant. The opposite party No. 3 is not responsible in any manner because it sells the bottles in sealed condition as received from opposite party Nos. 1 & 2. The opposite party No. 3 has further pleaded that it is not a manufacturer or supplier but is a small shopkeeper and gets a small margin in selling the bottle, so it cannot be held responsible in any way. If there is any negligence or deficiency in service, the same is on the part of opposite party nos. 1 & 2.

5. Parties have led their evidence in support of their respective pleadings.

6. Arguments heard. Record alongwith written submissions submitted by the parties perused.

7. The learned counsel for the complainant submitted that after purchasing the bottles of Fanta from opposite party No. 3, the complainant had seen the plastic material in the bottles which was visible to the naked eye meaning thereby that the contents of the bottle is contaminated. The complainant immediately contacted the opposite party No. 3 and showed him the bottle in question, but the opposite party No. 2 proclaimed that he purchased the bottles from opposite party No. 2 from whole-sale dealer i.e. opposite party No. 2 and supplies to consumers/general public in the same position in which it is purchased, so he is not responsible for the contents of the bottle as the bottle is water tight, sealed, hence the opposite party Nos. 1 & 2 are responsible for the same.

8. The submission of the learned counsel for the opposite parties is that the complainant is guilty of manipulations, making false averments. The complainant did not purchase any such bottle. The bill issued by opposite party No. 3 appears to be manipulated especially in the light of the fact that opposite party No. 2 has denied that it had ever sold any product to opposite party No. 3. In the earlier complaint bearing CC No. 338 of 18-07-2012, the complainant has interchangeably used the name of opposite party Nos. 2 & 3 to aver that he had purchased the bottle from them. He filed forged and manipulated bill dated 18-06-2012 claiming to have been issued by opposite party No. 2 to opposite party No. 3. When the opposite party No. 2 had denied of selling any product to opposite party No. 3, then how the complainant got in possession such a bill. The learned counsel for the opposite parties further submitted that when this was pointed out during final arguments in the earlier case, the complainant withdrew the earlier case and concealed the said fact and not filed the said bill with this present complaint.

9. We have perused the filed of this Forum i.e. CC No. 338 of 18-07-2012 which was dismissed as withdrawn and a perusal of file reveals that complainant withdrew the said complaint at the stage of final arguments by recording a statement to the effect that he does not want to proceed with the complaint due to some technical defect. The opposite party No. 3 did not appear in the said case despite of the fact that notice of the complaint was sent to it through registered post. In the present case, the notice of the complaint was sent to opposite party No. 3 through same process i.e. by registered post and opposite party No. 3 appeared before this Forum and filed written statement. Hence, the version of the opposite parties that the complainant appears to be in collusion with the opposite party No. 3, seems to be correct. Moreover, the opposite party No. 2 has stated in its written statements filed in both the complaint cases that opposite party No. 3 is not its dealer. The opposite party No. 2 has specifically denied that it had ever sold any product to opposite party No. 3 or to the complainant. In the earlier complaint, the complainant has alleged that he purchased the bottle in question from opposite party No. 2 and he produced on file a bill dated 18-06-2012 Ex. C-3 issued by opposite party No. 2 in the name of Sanker S.T.D. The complainant has failed to satisfy this Forum that how he got in possession of such a bill especially when there was denial on the part of opposite party No. 2 in selling any product to opposite party No. 3 or to the complainant. The complainant withdrew the earlier complaint and did not produce the aforesaid bill allegedly issued by opposite party No. 2 in the case in hand. This act of the complainant further strengthened the version of the opposite parties that the complainant in connivance with opposite party No. 3 filed this complaint whereas there is no evidence on file to prove that opposite party No. 3 purchased the bottle in question from opposite party Nos. 1 & 2 and actually the said product belongs to opposite party Nos. 1 & 2. Thus, this Forum is of the considered opinion that the complainant has failed to prove his version with cogent and convincing evidence rather he has not approached this Forum with clean hands. The support can be sought from the precedent laid down by the Hon'ble National Commission in the case titled S. Girija Selvaraj, S. Prabhu Vignesh Kumar (Minor) Vs Sri Swaranambigai All India Travel Co. wherein it has been held :-

   “12. It is well settled that any party who seeks an equitable relief must approach the judicial Forum with clean hands and should not conceal the material facts. Hon'ble Supreme Court in Faquir Chand Gulai V. M/s. Uppal Agencies P Ltd., & Anr., Speical Leave Petition 9C) Nos. 18225 – 18226 of 2011 dated 14-8-2011, observed :-

   “From what we have stated above, it is clear that the petitioner has not approached the Court with clean hands. Therefore, he is not entitled to be heard on the merits of his grievance. Reference in this connection can usefully be made to the judgement of this court in Dalip Singh V. State of U.P. (2010) 2 SCC. 114 :-

   ….2. In the last 40 years, a new creed of litigants has cropped up. Those who belong to this creed do not have any respect for truth. They shamelessly resort to falsehood and unethical means for achieving their goals. In ord er to meet the challenge posed by this new creed of litigants, the Courts have, from time-to-time, evolved new rules and it is now well established that a litigant, who attempts to pollute the stream of justice or who touches the pure fountain of justice with tainted hands, is not entitled to any relief, interim or final.”

10. In view of what has been discussed above, this complaint fails and is hereby dismissed without any order as to costs.

    A copy of this order be sent to the parties concerned free of cost and the file be consigned to record.

    Pronounced in open Forum

    10-07-2013

    (Vikramjit Kaur Soni)

    President

     

     

     

    (Amarjeet Paul) Member

     

     

    (Sukhwinder Kaur)

    Member