Punjab

Ludhiana

CC/15/39

Sandeep Singla - Complainant(s)

Versus

Coca Cola India Pvt Ltd - Opp.Party(s)

H.S.Bains

11 Jan 2017

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, LUDHIANA.

 

Consumer Complaint No. 39 of 15.01.2015

Date of Decision            :   11.01.2017 

 

Sandeep Singla s/o Sh.Madan Lal Singla r/o HL-5, Jamalpur Colony, Near Lovely Sweet Shop, Ludhiana.

….. Complainant

                                                         Versus

 

1.Coca Cola India, Enkay Tower Udyog Vihar V, Gurgaon, Haryana, 122106, India.

2.Ludhiana Beverages Pvt. Ltd., Auth. Manufacturers for Coca Cola India, 185, G.T.Road, Ludhiana.

…Opposite parties

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

 

QUORUM:

 

SH.G.K.DHIR, PRESIDENT                                     

SH.PARAM JIT SINGH BEWLI, MEMBER

 

COUNSEL FOR THE PARTIES:

For complainant            :         Sh.H.S.Bains, Advocate

For OP1                         :         Sh.Ajay Kohli, Advocate

For OP2                         :         Sh.M.S.Sethi, Advocate

 

PER G.K.DHIR, PRESIDENT

 

1.                Complainant bought one bottle of Limca 200ml for Rs.10/- from a nearby shop of his place for his son aged 4 years, who was feeling unwell on 29.8.2014. When the complainant opened the said bottle, then he discovered some unidentified black particles in the bottle, which looks like some garbage/dust/insects. These things could not have been expected to be there in the product of Coca Cola. Complainant himself being a Chemist and health conscious was under huge shock to see those particles in the bottle because he was aware that consumption of these things may be serious for health. The product was purchased by believing that Limca is good for health. Details mentioned on the bottle are quantity of 200 ml, MRP Rs.10, manufacturing dated 26.7.2014 01:58, Batch No.LB1BN36, manufactured by Ludhiana Beverages Pvt.Ltd., 185 GT Road, Ludhiana, under authority of Coca Cola Company, 1 Coca Cola Plant, Atlanta, GA-30313, USA. The bottle bears expiry upto six months. Complainant tried to lodge the complaint on Toll Free customer care number of OP1 on 29.8.2014, but no response was received. Thereafter, the complainant sent email to Coca Cola India at their helpline email Id on 1.9.2014, but despite that response was not received. Legal notice dated 4.9.2014 was got served from counsel through registered post for calling upon Ops to apologize and pay compensation for the threat caused to the life and health of son of the complainant. No solid reply was received from Ops by the complainant and thereafter, complainant finally sent email to Ops, but when no response received, than this complaint filed by pleading deficiency in service on the part of OPs. OP2 manufactured the said bottle, but OP1 is  its authorized  representative/agent and distributor at Ludhiana. Bottle even was purchased at Ludhiana. Compensation for mental harassment and agony of Rs.2 lac, but litigation expenses of Rs.25,000/- more claimed.

2.                In written statement filed by OP1, it is claimed that Coca Cola India Private Limited(hereinafter in short referred to as OP1) is an indirectly wholly owned subsidiary of the Coca Cola company, USA. There is no entity by the name of M/s Coca Cola India, Stricto Senso. In view of this, it is claimed that answering OP1 is not even a respondent to the present proceedings. However, out of reverence for the notice as received from this Forum, reply is filed. Complaint alleged to be bad due to mis-joinder of OP1. Besides, it is claimed that the complainant is not consumer of OP1 because proof of purchase of the said bottle not provided. The bill or invoice of purchase of bottle has not been produced. Even name of alleged seller has not been disclosed and nor he has been made as a party. It is claimed that OP1 is not involved in the production of the beverages and as such, complaint against him is not maintainable. Further, it is claimed that Coca Cola Company grants a temporary permission, uncoupled with any right and/or interest to authorized bottler to use the trademark, but without accepting any payment of fee or royalty charges. It is the authorized bottlers that deal with the manufacture, distribution and sale of beverages throughout in a geographical area as per the Bottler’s Agreement. Profit on the sale of beverages by the authorized bottlers belongs entirely to them and not to OP1. Authorized bottlers have independent legal entities and they are in no way the agents of The Coca Cola Company. The authorized bottlers obtained license from the Food Safety and Standards Authority of India before undertaking the activity of preparation, packaging, distribution and sale of beverages including packaged water. The same is so depicted on the labels. Name/particulars of the manufacturer/authorized bottler is mentioned on the bottle itself. So, grievance of the complainant is at the most against the manufacturer of the beverages and not against OP1. The concentrate beverage basis prepared by the authorized bottlers are not meant for direct human consumption. The authorized bottlers uses the concentrate and beverage base for producing the beverage and selling to the customers. As bill or invoice of the purchase not produced and as such, it is claimed that the bottle in question is counterfeit. No relationship of the consumer and service provider exist between the complainant and OP1. Authorized bottlers adopt a fully automated, highly advanced and a sophisticated process for cleaning the bottles, filling the beverage in the bottles and sealing them with the crowns. At no stage, the beverage touched by the human hands. It is claimed that from the contents of complaint itself, it is made out that the bottle in question is not a genuine product as manufactured by the authorized bottlers. Certain unscrupulous persons alleged to be engaged in manufacturing and packaging of spurious products by using the Coca Cola brand name. It is well known in the industries and to the others that the sale of counterfeit products including soft drinks is rampant. No evidence brought on record to show that the complainant purchased any bottle because the identity of the alleged seller not even disclosed. Complainant has failed to prove that bottle in question is genuine product or the same is not tampered with. It is claimed that the said bottle even has not been produced before this Forum and nor this Forum has been called upon to send the said bottle for lab investigation. Cause of action available to the complainant against the person/entity that manufactured the beverage or the person who sold the product to him. It is also claimed that the complainant has not approached this Forum with clean hands because he has suppressed the material facts by submitting incomplete and incorrect facts. Conduct of complainant disentitles him for claiming any relief, particularly against OP1. Besides, it is claimed that the complainant has not suffered any loss or damage from any act of OP1 and that is why the particulars of such loss not submitted. Each and every other averment of the complaint denied.  

3.                In separate written statement filed by OP2, it is claimed that this Forum vide order dated 12.08.2015 itself has held that the gaps in assertions of link between shopkeeper with the Ops can be established through evidence. Though, the complainant claims to have purchased the bottle from a nearby shop of his place, but the name was not originally disclosed. However, subsequent affidavit only filed for disclosing as if the bottle purchased from Mohit General Store, near Sabzi Mandi Sherpur, Ludhiana. That place is not near to the premises of the complainant because the same is at distance of 1 Km from the residential address of the complainant. There are more than 20 shops keeping soft drink bottles situate nearby the residence of the complainant. It is claimed that in view of purchase of the bottle in urgent need from the distance of 1Km from the premises of the complainant, a suspicion arises qua such purchase. Facts disclosed in the affidavit qua purchase made from Mohit General Store are afterthought. Non joinder of Mohit General Store as a party is also fatal to the case of the complainant, particularly when the bill of purchase even not produced. Allegations regarding non supply of bill/cash memo alleged to be false. No service availed or hired by the complainant from OP2. Besides, the bottle alleged to be purchased from Mohit General Store sent hurriedly for analysis without giving opportunity to OP2 for inspecting the bottle. Report procured by mis-representing the facts and in violation of provisions of Section 13 of the Consumer Protection Act, 1983(hereinafter in short referred to as ‘Act’). No notice for intention of sending the bottle for analysis was given to OP2 and as such, violation of Section 13 of the Act alleged. Son of the complainant also alleged to be a necessary party. No loss or injury alleged to be caused to the complainant or his son because contents of the bottle were not consumed. It is not proved that water/specification inside the alleged bottle manufactured by OP2. Complainant nowhere pleaded that his eyesight was weak and he could not notice the foreign particulars in the bottle at the time of purchase, but despite that existence of foreign particular in the bottle pleaded and as such, a false story concocted up. No legal notice served upon or received by the OP2. Even no final email was served upon or received by OP2. Each and every other averment of the complaint denied.

4.                Complainant to prove his case tendered in evidence his affidavit Ex.CA along with documents Ex.C1 to Ex.C8 and then closed the evidence.

5.                On the other hand, counsel for OP1 tendered in evidence affidavit Ex.RA of Sh.U.Narendra Kini, G.M. & Company Secretary for Coca Cola India Pvt. Ltd along with document Ex.R1 and then closed the evidence.

6.                Counsel for OP2 tendered in evidence affidavit Ex.RW1 of Sh.S.D.Chhabra, Chief Executive Officer of OP2 and then closed the evidence.

7.                Written arguments in this case submitted by OP1 as well as OP2, but those are not submitted by the complainant. Oral arguments of counsel for parties heard. Records gone through carefully.

8.       From Perusal of order dated 12.8.2015 passed on the basis of application filed by OP2 for dismissal of complaint, it is made out that the complaint was not dismissed at that stage for giving opportunity to the complainant to supply the gap in assertions of link between shopkeeper  with  the Ops. It was held at that time that the complainant in course of evidence may establish the link of shopkeeper with Ops. So, it is obvious that if initially name of the shopkeeper, from whom the bottle purchased not disclosed, then complainant was afforded opportunity of establishing by way of evidence as to where from the bottle purchased.

9.                It is vehemently contended by counsel for the complainant that expiry date of bottle of soft drink containing beverage is of six months. Manufacturing date on the bottle is mentioned as 26.7.2014 and as such, the contents of the bottle could have been consumed by 25.1.2015. The bottle in question purchased on 29.8.2014 and thereafter, legal notice served on 4.9.2014 as revealed by contents of Ex.C8 and as such, in view of report of Chemical Examiner dated 16.2.2015, it is vehemently contended that as the bottle in question contained the suspended matter and as such, the same was unsafe for human consumption. It is vehemently contended that bottle in question was having crown cork print as Limca, manufactured by Ludhiana Beverages Pvt. Ltd., G.T.Road, Ludhiana and the same as per report could have been consumed before 6 months from the date of manufacturing and as such, in view of supply of spurious beverage, Ops are liable for paying the amount of compensation for mental harassment and agony. It is vehemently contended that if the contents of bottle would have been consumed by the complainant or his son, then they would have suffered from health problem because the material was unsafe for human consumption. Even if the report of The Food Analyst, Punjab, Chandigarh referred above may be establishing that date of manufacturing of the bottle was 26.7.2014 and the same was containing suspended matter, unsafe for human consumption, despite that it is for the complainant to establish as to from where the bottle in question was purchased and that the said bottle was manufactured by OP1 or OP2 or any of them. In the original complaint, name of shopkeeper from where the bottle was purchased by the complainant was not disclosed. Rather, it was only mentioned that bottle of Limca was purchased from a nearby shop of place of residence of complainant for son of the complainant.Why these particulars were initially not disclosed qua that no explanation offered and as such, submissions advanced by counsel for Ops has force that subsequent story put forth regarding purchase of the bottle from Mohit General Store, may be a concocted one, particularly when the said Mohit General Store not impleaded as a party and nor any bill or invoice of purchase of the bottle produced on record. Even in affidavit Ex.CA mention not made qua the name of the shop from where the bottle in question was purchased and as such, complainant virtually has not brought on record any evidence to establish  as to where-from the alleged bottle       was purchased. Even in the notices Ex.C2 and Ex.C8 sent by the complainant to Ops, mention of the name of shopkeeper from where the bottle purchased not made and as such, it is obvious that complainant suppressed the material facts for enabling this Forum to determine as to how the bottle in question came in hands of the complainant or as to where from he purchased the same. The seller of the bottle is not impleaded as a party and as such, certainly submissions advanced by counsel for the Ops has force that bottle in question not proved to be manufactured by OP1 or any of them. These submissions have force because the manufacturer bound to have distributors, who in turn will sell the product to authorized retailers for supply to the customers as per tradition of the business of sale of soft drinks by reputed company like Coca Cola. So, impleadment of the seller or production of the alleged seller as witness alone could have enabled this Forum to arrive at conclusion as to whether the bottle in question actually purchased by the complainant from the authorized retailer of OP1 or OP2 or any of them. Non production of affidavit of seller of bottle in question to the complainant and even non impleadment of him as a party leads to the inference that the complainant has suppressed the material facts as to where from the bottle in question actually purchased by him. Moreover, it is not proved by convincing evidence at all that bottle in question is a genuine product of Coca Cola Company and as such, complaint against present Ops is not maintainable.

10.              As per law laid down in case Pepsi Cola India Marketing Company vs. Ashok Kumar Gupta-2001(1)UC-43(N.C.), in case, the distributor not made a party and it is not proved that distributor of the company sold the same product, which was bottled by Pepsi Cola Marketing Company, then inference of collusion with complainant draw-able. It is also held in this case that products of the branded companies are sold through a large network of distributors and dealers because those products are in high demand is a matter of common knowledge. On number of occasions the products are found to be spurious, which may not be the act of the bottler or manufacturing company. In case, the distributor would have been made as party, then he could have submitted the information that product was received by him from the Pepsi Company alone. Onus is on the complainant to prove that bottle he had put was containing the spurious material, supplied by Ops. All these are the observations recorded in the above cited case. By applying the analogy of law laid down in the above cited case, it has to be held that non disclosure of the name of the person, from whom the complainant purchased the bottle, leads to the inference that the complainant deliberately had not supplied the material for proving the fact as to whether the bottle in question purchased by him from the authorized dealer or distributor of Ops or not? Certainly, OP concerned is a company of repute, whose products are in demand in large number and as such, possibility of preparing spurious or counterfeit products cannot be ruled out. As the complainant has not proved by way of production of bill or by arraying the supplier as a party and as such, the complainant certainly unable to prove that the bottle got tested from the laboratory or public analyst, in fact is a product prepared by Ops or any of them. Only the seller on being arrayed as party, would have disclosed as to how the bottle in question sold by him to the complainant, came in his hands. Ratio of above cited case in such circumstances is fully applicable to the facts of the present case.

11.              Even as per decision of case given by the Hon’ble State Consumer Disputes Redressal Commission, Punjab, Chandigarh on 3.12.2013 through First Appeal No.732 of 2010 titled as Managing Director/Area Manager(Coca Cola company) Amritsar vs. Sanjeev Kumar and others, in case the bill or supporting evidence not adduced to prove that the bottle was purchased from the seller, then     the bald statement of the complainant through affidavit is not enough to hold that bottle was purchased from the seller. Same is the position in the case before us and as such, certainly complainant failed to prove that the bottle in question actually was purchased by the complainant from the authorized supplier of the Ops or any of them or their authorized distributors. In case, evidence is not produced to establish that product of Coca Cola brand purchased from the authorized dealer or distributor of company manufacturing soft drinks, then the Forum is not justified in jumping to the conclusion that the product in question had been manufactured by Ops or any of them. In holding this view, we are fortified by law laid down by the Hon’ble State Consumer Disputes Redressal Commission, Shimla, Camp at Dharamshala in First Appeal No.305 of 2012 decided on 26.3.2013 titled as Dhillon Kool Drinks and Beverages Pvt. Ltd, G.T.Road. Phillaur, District Jalandhar vs. Shri Tilak Raj Ratra and others. Liability of spurious products lies on the person who sold it is the crux of law laid down by the Hon’ble State Consumer Disputes Redressal Commission, Punjab, Chandigarh in judgment dated 29.4.2010 passed in First Appeal No.650 of 2010 titled as Simran Departmental Store vs. J.B.S.Sabharwal and others. In this case, complainant claims to have purchased the bottle in question from a person not named by him and even if subsequently named, despite that he has not been impleaded as party, albeit liability for sale of the spurious product is on                    the seller, particularly when it is not established that actually the product in question manufactured by OP1 or OP2 or any of them or it came in the hands of seller of the complainant from the authorized dealer/distributor of Ops.

12.              Perusal of report of The Food Analyst Punjab, Chandigarh dated 16.2.2015 reveals that crown cork on the bottle was having print as Limca manufactured by the Ludhiana Beverages Pvt. Ltd, G.T.Road, Ludhiana, Punjab etc. However, name of Coca Cola Company is mentioned in this report, but the same is mentioned on the cork of this bottle, the photograph of which has been produced. From that photograph, it is made out that bottle manufactured by Ludhiana Beverages Pvt. Ltd., G.T.Road, Ludhiana under authority of Coca Cola Company at Coca Cola Plaza. Even if these prints may be there, despite that facts not proved by calling the seller as witness or by arraying him as a party that actually the bottle in question is not a counterfeit bottle, but came in hands of the seller from the authorized distributors of above said company. So, certainly the complainant failed to prove that the bottle in question actually was prepared by any of Ops.

13.              Moreover, perusal of report of The Food Analyst dated 16.2.2015 reveals that the sample was received on 5.2.2015, but the date of manufacturing is 26.7.2014. This bottle to be consumed before 6 months from the date of manufacture also is mentioned on the label of the bottle as well as in the report and as such, contents of bottle must have been consumed by 25.1.2015. So, certainly sample received by the Food Analyst, Punjab, Chandigarh after expiry of the shelf period. In view of this, liability remains of seller as per the provisions of Food Safety and Standards Act,  2006 and rules and regulations of 2011 framed thereunder. This is specifically mentioned  in the report of The Food Analyst, Punjab, Chandigarh and as such, even if the report of The Food Analyst taken as correct, despite that liability for spurious product in the bottle in question, will remain of the seller and not of the manufacturer. So,             non impleadment of the seller deliberately as party by the complainant leads to the inference that the manufacturer impleaded as a party just for getting undue benefits, despite the fact that liability of sale of spurious product was of the seller. Non impleadment of the seller, the necessary party, as such is a circumstance fatal to the case of the complainant. So, complaint deserves to be dismissed.

14.              As a sequel of the above discussion, complaint dismissed without any order as to costs. Copies of order be supplied to parties free of costs as per rules.

15.                        File be indexed and consigned to record room.

         

                   (Param Jit Singh Bewli)                                        (G.K. Dhir)

                                                Member                                                President

Announced in Open Forum                                                              Dated:11.01.2017

Gurpreet Sharma.