BEFORE THE DISTRICT CONSUMER DISPUTES
REDRESSAL COMMISSION, JALANDHAR.
Complaint No.566 of 2019
Date of Instt. 02.12.2019
Date of Decision: 13.11.2024
Divij Babuta, S/o Manish Babuta, R/o 94-A, New Harbans Nagar, Jalandhar.
..........Complainant
Versus
1. Coca Cola Company Corporate Office, 1 Coca Cola, Plaza NW, Atlanta, GA 30313, United States, through its Managing Director / Principal Officer / Manager.
2) Hindustan Coca Cola Beverages Private Limited at 3rd floor, Orchid Centre, Golf Course Road, Sector 53, Haiderpur, Haryana-122003 through its Managing Director/Principal Officer/Authorized person.
3) Ludhiana Beverages Pvt. Ltd. at 185, G. T. Road, Ludhiana through its Managing Director/Principal Officer/authorized person.
4) Amikiz Best Buy, Near Sabzi Mandi Maqsudan, Jalandhar through its Proprietor/authorized person.
….….. Opposite Parties
Complaint Under the Consumer Protection Act.
Before: Dr. Harveen Bhardwaj (President)
Smt. Jyotsna (Member)
Sh. Jaswant Singh Dhillon (Member)
Present: Complainant in Person.
OPs No.1 & 4 exparte.
Mr. Nitish Arora, Adv. & Mrs. Aditi Kapur, Adv. Counsels for the OP No.2.
None for OP No.3.
Order
Dr. Harveen Bhardwaj (President)
1. The instant complaint has been filed by the complainant, wherein it is alleged that the complainant bought 24 bottles of Limca for his personal usage on 12.07.2019, vide bill no.T/19-20/26220 on cash payment from M/s Amikiz Best Buy. During a family gets together, when the bottles were opened for consumption. To utter shock of the complainant, when he opened one of the bottle and passed onto his brother, the brother of the complainant puked immediately after the foreign contamination went into his mouth; and on checking the contents they found rest of the contamination floating around in the bottle. And when the complainant checked the next bottle before opening it, he was shocked to discover foreign contamination in it too. The complainant and his family were so shocked that they had to drain away all the open bottles. The unopened bottle is with the complainant, as piece of evidence of OPs selling contaminated cold drinks and is also proof of low standards of cleanliness of the factory unit of OPs No.1 & 2, the same would be produced as and when required. The complainant is surprised by the poor quality inspection of the product of OPs No.1 to 3. The OPs have failed to maintain the level of service that is falsely alleged by in their Ads on TV or internet or their website. There is threat to health of public in general because of low standard products or bottling in the factories of OPs No.1 to 3. The complainant contacted no.4 but he refused to hear to the plea of the complainant-repeatedly. Then the complainant tried to contact office of OPs No.1 and 2, but to no avail. The complainant sent notice in written to OPs No.2 to 4, but they did not give any reply to the same. The complainant is left with no option but to initiate legal action. The complainant has lost the faith in opposite parties. He feels cheated by OPs of his hard earned money. The act and conduct of OPs has resulted loss to the complainant and has further caused mental tension and agony to the complainant. The complainant approached the OPs and requested them to pay the damages as mentioned above, but they refused and rather threatened and as such, necessity arose to file the present complaint with the prayer that the complaint of the complainant may be accepted and OPs be directed to refund all the amount paid together with interest thereon and with compensation to the tune of Rs.1,00,000/- for causing mental tension and harassment to the complainant alongwith interest @ 18% per annum from the date of filing the complaint till actual realization.
2. Notice of the complaint was sent to the OPs, but despite service OP No.1 and OP No.4 failed to appear and ultimately, both the OPs were proceeded against exparte, whereas the OP No.2 appeared through its counsel and filed written statement, whereby contested the complaint by taking preliminary objections that the present complaint is bad for mis-joinder of the parties. The OP No.2 (Hindustan Coca-Cola Beverages Pvt. Ltd.) is an authorized bottler of The Coca-Cola Company, Atlanta, United States of America. The OP No.2 is in the business of production, manufacture, bottling, sale, distribution, marketing and supply of beverages including sparkling beverages, packaged drinking water and fruit based drinks prepared from beverage base under various trademarks ("Trademarks") such as Coca-Cola, Kinley, Sprite, Fanta, Diet Coke, Limca, Thums Up, Maaza, Minute Maid etc. in certain parts of India, under the authority of The Coca-Cola Company, Atlanta, U.S.A.. The Coca- Cola Company, Atlanta, U.S.A. is the owner of the Trademarks of above- named products. The answering OP neither manufactures nor distributes the Coca-Cola products in the jurisdiction of entire Punjab. The territory of Punjab is catered by different franchise bottler(s) of The Coca-Cola Company and the impugned bottles may be manufactured and distributed by M/s Ludhiana Beverages Pvt Ltd. i.e., the OP No. 3 and not the answering OP with all certainty. The answering OP is not the manufacturer of the impugned bottle and hence the complaint ought to be dismissed qua OP No. 2 with costs as they have been impleaded with a malafide intent. It is further averred that no negligence on part of the answering OP has been established to give rise for any claim of compensation. It is further averred that the complainant is not a consumer qua the answering O.P. and as such the present complaint is frivolous and vexatious and ought to be dismissed with costs and lastly prayed that the answering OP’s name may kindly be removed from the array of the party.
3. OP No.3 filed its separate written reply and contested the complaint by taking preliminary objections that the present complaint against OP No.1 is not maintainable as OP No.1 is not a necessary and proper party to the dispute involved in the present complaint as no cause of action of any kind so far accrued against the OP No.1 to the complainant at Jalandhar so present complaint is bad for mis-joinder of OP No.1 so no relief can be awarded against OP No.1 as same is out of India being international concern as such name of the OP No.1 deserved to be withdrawn by the complainant or same shall be deleted from the array of OPs without any more delay. It is further averred that from the documents as filed by the complainant, it is established that present complaint has been preferred to gain illegally because just within 1000 meters of the residence of the complainant, all kinds of beverages are available to the complainant whereas complainant visited the shop of OP No.4 which is almost far away at the distance of 5.2 Km app. of his residence hence with the conspiracy between the OP No.4 & the complainant, complainant succeeded in filing the present complaint on false, frivolous grounds so OP No.4 & complainant deserves to be penalized u/s 26 of the C.P. Act, 1986. It is further averred that there is no pleading or proof against hiring of service of the OP No.3 for consideration as such without hiring the services or goods for consideration as per provision contained in section 2 (d) of the C. P. Act, 1986, complainant is not a consumer as per provisions of C. P. Act, 1986. On merits, all the allegations as made in the complaint are categorically denied and lastly submitted that the complaint of the complainant is without merits, the same may be dismissed.
4. Rejoinder not filed by the complainant.
5. In order to prove their respective versions, both the parties have produced on the file their respective evidence.
6. We have heard the learned counsel for the respective parties and have also gone through the case file as well as written arguments submitted by complainant and counsel for the OP No.3 very minutely.
7. The complainant has alleged that he bought 24 bottles of Limca for his personal usage on 12.07.2019 from M/s Amikiz Best Buy i.e. OP No.4. When the bottle was opened, they found the contamination floating around in the bottle and the same was contaminated bottle. Some foreign contamination was found in the bottle and when they checked all the bottles, which were unopened, were also containing the same contamination. The opened bottles were drained away and the unopened bottle was produced in the Court. It has been alleged that the product was of poor quality and the OPs No.1 to 3 have not maintained the level of service, which was required for the consumer.
8. Arguments have been refuted by the OPs No.1 and 2. The OP No.2 has alleged that the OP No.2 is neither manufacturer nor distributor of Coca-Cola product in the jurisdiction of Punjab, therefore, there is no negligence or deficiency in service on the part of the OP No.2. The complainant is not a consumer. It has been alleged that the Limca bottle allegedly purchased by the complainant is glass bottle, which is having its cost apart from the cost of the drink inside the bottle and in case of purchasing genuine purchase of soft drink in glass bottle customer have to pay the security for the glass bottle, which is returnable on return of empty glass bottle by the consumer, but the complainant has not alleged that he bought 24 bottles of Limca after paying security. The bill produced by the complainant is forged and fabricated and is not genuine bill. The OP No.2 has further alleged that the bottle was never got tested, which is the requirement of the law. There is no specific evidence on the record that the complainant purchased 24 bottles. No negligence is proved. The bottle was never got tested from any expert to prove the deficiency in service by the OPs. Request has been made to dismiss the complaint.
9. The complainant has produced on record the bill dated 12.07.2019 Ex.C-2, which shows that he had purchased 24 bottles of Coca-Cola/Limca for Rs.240/- and he has also produced on record the photo of the bottles Ex.C-7 to Ex.C-10 which shows the maximum price of the bottles as Rs.12/-. The bottle produced in Commission is a bottle of glass. Ex.C-11 shows that the same was manufactured by Ludhiana Beverages Pvt. Ltd. i.e. OP No.3. Now the point is as to whether the product and drink was contaminated. The date of manufacturing has been mentioned as 08.04.2019 and it is to be used within six months from the date of manufacturing. In Ex.C8 and Ex.C9 and the bottle produced in Commission, some contaminated particles are seen in the bottle. The bottle produced in the Commission is a glass bottle and the complainant has not produced on record any bill to show that any security was deposited by him at the time of purchase of the crate of the Limca bottles nor is evident from the bill Ex.C-2 produced by the complainant. It has nowhere been mentioned that the bottles are returnable and the price on the bottle has been mentioned as Rs.12/-. The date of manufacturing is 08.04.2019 and that was to be consumed within six months from the date of manufacturing and the date expires on 08.10.2019. The present complaint has been filed on 02.12.2019 after the expiry of the date. Even if it is assumed that the bottle was having contaminated particles on the day when the same was purchased i.e. on 12.07.2019, then those particles should have got been tested by the Chemical Analyst. The present complaint was filed on 02.12.2019 and the application for getting the same tested from Chemical Analyst was filed on 10.12.2019. The application was allowed and the complainant was directed to deposit the fee of the laboratory in the shape of demand draft in the name of authorized laboratory alongwith providing the packing material of the bottle for sending into authorized laboratory. This order was passed on 10.12.2019, but the complainant neither deposited the fee of any authorized laboratory nor informed the Commission about any authorized laboratory nor got the same tested from Chemical Analyst in the authorized laboratory as per order passed by the Commission nor any extension was sought by the complainant. Without getting the bottle tested from Chemical Analyst from any authorized laboratory, it cannot be concluded that the particles in the bottle are contaminated as the complaint was filed after two months of the expiration of the period of usage of the bottle and after about five months of the purchase of the bottle. In the written arguments, the complainant has alleged that it was the duty of the Consumer Forum Department to send the bottle to authorize laboratory as per order 10.12.2019 and the Forum had to make the detail order regarding the amount to be deposited for the process and state as to which laboratory the bottle was to be sent but till date no such order has been made, but this arguments and contention of the complainant is not tenable as the Commission has passed specific order on 10.12.2019 to deposit the charges of authorize laboratory and to provide packing material so that the bottle can be sent to the concerned laboratory. If the complainant was not sure about any such laboratory, he could have come to the Commission and ask for the clarification or could have challenged the order passed by the Commission, but he did not do so rather has alleged that the Commission has not passed the detailed order and he kept on waiting for detailed order, whereas detailed order was passed on 10.12.2019 without any ambiguity. This clearly shows the casual approach of the complainant in complying with the order of the Commission. It has been held by the Hon'ble National Commission, in a Revision Petition No.2904 of 2011, decided on 31.08.2015, titled as ‘Hindustan Coca-Cola Beverages Pvt. Ltd. Vs. S. Subbiyyan & Ors.’ that ‘no manufacturer/bottler will itself put a blade inside the bottle containing aerated drink meant for human consumption since that it would be a suicidal act on the part of the manufacturer/bottler and doing so will definitely tarnish the image of the bottler, if any such foreign element such as blade found inside the bottle containing aerated drink meant for human consumption.’ In that case the foreign element of blade was found in the bottle and the Hon'ble National Commission held that there was no deficiency in service on the part of the bottler/manufacturer. It has been observed by the Hon'ble National Commission in a case titled as P. A. Pouran Vs. Mcdowell & Co. and Another, in a Original Petition No.17 of 1991, decided on 21.08.1989 that ‘there is nothing to show that in the meantime, he had made any complaint or representation to the Municipal Authorities who are incharge of the administration of the Prevention of Food Adulteration Act or to any other authority. Nor was any step taken to get the bottle seated and its contents analyzed by any recognized laboratory.’
In the present case also, the complainant, after coming to the know about the contaminated particles found, in the bottle never approached the Municipal Authorities or Administration to prevent the Food Adulteration nor sent the bottle for analysis and after five months of purchase of bottle, he has come to the Commission. As per the law laid down by the Hon'ble National Commission, no deficiency in service was found in such cases. The complainant has alleged in the complaint that he purchased 24 bottles and some were used and others remain unopened. He has further alleged that the unopened bottles were also having contaminated particles, but he has not produced all those bottles in the Commission to prove that all the bottles were having same particles nor did he make any complaint to the OP No.4, from whom, he allegedly purchased the bottles, regarding the contaminated particles. Thus, it cannot be said that all the bottles were having contaminated particles. So, the complainant has failed to prove any deficiency in service and unfair trade practice on the part of the OPs and thus, the complaint of the complainant is without merits and the same is dismissed with no order of cots. Parties will bear their own costs. This complaint could not be decided within stipulated time frame due to rush of work.
10. Copies of the order be supplied to the parties free of cost, as per Rules. File be indexed and consigned to the record room.
Dated Jaswant Singh Dhillon Jyotsna Dr. Harveen Bhardwaj
13.11.2024 Member Member President
