DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, GURGAON-122001.
Consumer Complaint No: 362 of 2011 Date of Institution: 13.07.2011 Date of Decision: 14.10.2015.
Ram Avtar Verma s/o Sh. Badlu Ram Prajapati, R/o Gali No.3, near NSG Complex, Manesar Mandi, Manesar, Gurgaon having its Shop at Plot No.6, Sector-3, near Omaxe Co. Manesar, Gurgaon.
……Complainant.
Versus
- M/s Coca Cola, office at Enkay Towers, Udyog Vihar, Phase-V, Gurgaon. Also at 96 Akashneem Marg, DLF City, Phase-II, Gurgaon through its Managing Director/Duly Authorized Signatory.
- M/s Raj Enterprises, Opposite Power House, NH-8, Manesar, Gurgaon through its Proprietor Shri Dhani Ram.
..Opposite parties
Complaint under Sections 12 & 14 of Consumer Protection Act,1986
BEFORE: SH.SUBHASH GOYAL, PRESIDENT.
SMT JYOTI SIWACH, MEMBER
SH.SURENDER SINGH BALYAN, MEMBER.
Present: Sh. Manish Chauhan, Adv for the complainant.
Ms. Ritu Sobti , Adv for the opposite party No.1
Sh. R.P.Chauhan, Adv for OP-2
ORDER SUBHASH GOYAL, PRESIDENT.
The case of the complainant, in brief, is that he is engaged in the business of confectionary items, eatables, beverages, items of general use etc at his shop at Plot No.6, Sector 3, Manesar, Gurgaon. On 14.04.2011 the opposite party no.2 as usual supplied six crates of 300 ml bottles of Coca Cola and Limca etc to the complainant against Bill dated 15.04.2011. On 24.04.2011 the complainant noticed that there was unidentified black substance in a bottle of Limca. He immediately reported the matter to the opposite party no.2 regarding some foreign particle in the bottle of Limca but the opposite party no.2 did not pay any heed to his request. He also lodged a complaint with opposite party no.1 vide complaint No.NRA-911040240 telephonically but of no avail. The above said act of the opposite parties is also against the provisions of Food Adulteration Act. It is due to careless, criminal and profit making attitude. The complainant also sent a legal notice to the opposite parties dated 09.05.2011 but of no use. The opposite parties have intentionally and willfully repudiated the claim of the complainant. Thus, they are deficient in providing services to the complainant. He prayed that the opposite parties be directed to pay Rs. 5 Lacs with interest on account of financial loss, damages to his market goodwill. He also sought compensation of Rs.20,000/-. The complaint is supported with an affidavit and the documents placed on file.
2 OP-1 in its written reply has alleged that the complainant has no cause of action against the OP-1. It is denied that OP-1 is engaged in the business of manufacturing, bottling and marketing of brands of soft drinks and beverages. The Coca-Cola Company has granted licenses to certain entities in India in connection with the preparation and packaging in certain beverages under its trademarks. It is these bottlers that deal with the manufacturer, distribution and sale of these beverages in and throughout a geographical area authorized in the Bottler’s Agreement. The profit on the sale of beverages by the Bottler belongs entirely to the bottler and not to the opposite party No.1 or The Coca-Cola Company. These bottlers are independent legal entities and are in no way the agents of the opposite party no.1. The complainant has not produced the copy of alleged bill. Even otherwise the said bill is stated to be of opposite party No.2 who is not any agent or distributor of the opposite party no.1. The OP-1 is aware that the manufacturing process adopted by the authorized bottlers is fully automated and a highly advanced, sophisticated and a fully automatic process is followed for cleaning the bottles, filling the beverage in the bottles and sealing them with the crowns/closures. At no stage, is the product touched by the human hands. It is denied that any of the acts or conduct of the OP-1 amounts to crime under the provisions of the “Prevention of Food Adulteration Act, 1954” as alleged. The complainant has not suffered any loss, injury or damages at all qua the opposite party no.1 and the allegations of the complainant are wholly misconceived and baseless. Thus, there is no deficiency in service on the part of the opposite party no.1.
3 OP-2 in its written reply has alleged that the complainant himself has stated that he is engaged in the business of confectionary items, eatables, beverages, items of general use etc at his shop and works for gain. Thus, the complainant does not fall under the definition of consumer as provided u/s 2(1)(d) of Consumer Protection Act, 1986. It is alleged that complainant never purchased any product manufactured by OP-1 from the OP-2 at any point of time. The alleged estimate appended with the complaint by the complainant was never issued by the OP-2 and is a fabricated and forged one. Thus, there is no deficiency of service on the part of opposite party no.2 and the complaint qua opposite party no.2 is liable to be dismissed.
4 We have heard the learned counsel for the parties and perused the record available on file.
5 Therefore, from the facts and circumstances of the case, evidence on the file and the arguments advanced by the learned counsel for the parties as well as written arguments on behalf of opposite party no1 , it emerges that the complainant has filed the present complaint against the OPs alleging deficiency of service on their part on the ground that on 14.04.2011 the opposite party no.2 as usual supplied six crates of 300 ml bottles of Coca Cola and Limca etc to the complainant against Bill dated 15.04.2011. On 24.04.2011 the complainant noticed that there was unidentified black substance in a bottle of Limca. He reported the matter to the opposite parties but of no use and thus, opposite parties have sold sub-standard product to the complainant endangering the life of the people. He sought compensation of Rs. 5 Lacs on this account.
6 However, the contention of the opposite parties is that the complainant has allegedly purchased six crates of 300 ml bottles of Coca Cola and Limca from OP02 but there is no bill rather only estimate has been given by opposite party no.2 and in the estimate also no name of the complainant has been mentioned. Thus, in absence of any purchase bill the complainant cannot be a consumer. The further case of the complainant is that he has purchased the said bottles for commercial purposes as admittedly he is dealing in the business of confectionery items, eatables, beverages, items of general use etc and thus he has purchased the product for commercial purposes and thus, he does not fall within the definition of consumer u/s 2(1)(d) of Consumer Protection Act, 1986. In support of their contention learned counsel for the opposite parties have placed reliance on Kus Infonet Pvt. Ltd Vs Vivek Bansal I(2014) CPJ (UT Chd.), Laxmi Engineering Works Vs P.S.G. Industrial Institute II(1995) CPJ I (SC), Kalpavruksha Charitable Trust Vs Toshniwal Brothers (Bombay) Pvt. Ltd & Anr III(1996) CPJ 26 (SC), Synco Textiles Pvt. Ltd Vs Greaves Cotton & Companay Ltd I(1991) CPJ 499, J.C.Suri Vs The Chairman, The National Small Industries Corporation Ltd, and another I(1992) CPJ 393.
Learned counsel for the opposite parties have further contended that complainant failed to get the report from the laboratory as provided u/s 13(1) (c) of Consumer Protection Act, 1986. In this regard they have placed reliance on Pepsico India Holdings Pvt. Ltd Vs Hotel Pratap & Ano III(2015) CPJ 102 (NC) wherein the Hon’ble National Commission has specifically held that
“Consumer Protection Act, 1986-Sections 2(1)(g), 21(b)-Beverages-Foreign element-Alleged deficiency in service-District Forum allowed complaint-State Commission dismissed appeal-Hence revision-Case of complainant hinges upon his statement only-Photographs are very dim and clear picture does not emerge-Mere affidavit of the complainant is not suffice to prove his case-There should be some cogent and plausible evidence to support their case-Consequently, bottle should have been sent to laboratory by District Forum under Section 13(3), Consumer Protection Act, 1986-Orders passed by Foras below set aside.
Learned counsel for the opposite parties has also placed reliance on Auto Battery Experts Vs Haryana State Industrial Development Corporation Ltd & Ors 2012(4) CPJ (NC) 376 wherein the Hon’ble National Commission has also laid down guidelines in order to ascertain as to whether the complainant falls within the definition of consumer u/s 2(1)(d) of Consumer Protection Act, 1986 in order to invoke the jurisdiction of the Consumer Fora.
Similarly, reliance was also placed on Chilukuri Adarsh Vs Ess Ess Vee Constructions 2012(3) CPJ (NC) 315 and Satish Kumar Gajanand Gupta Vs Srushti Sangam Enterprises (India) Ltd & Others 2012(3) CPJ (NC) 264,J.K.Aggarwal and Anr Vs Three C Universal Developers Pvt. Ltd 2011(4) CPJ (NC) 455, Shikha Birla Vs Dif Retailers Developers Ltd 2013(1) CPJ (NC) 665.
Reliance was further placed on Birla Technologies Ltd Vs Neutral Glass and Allied Industries Ltd (2011) I Supreme Court Cases 525,and M/s Premlaxmi & Co. Mumbai Vs Ingersoll Rand (India) Ltd, Bangalore & Ano 2011 (1) Civil Court Cases 550 (Bombay)(DB).
Reliance has also been placed on Padma Sundara Rao (Dead) and Ors. Vs.State of T.N.and Ors.(2002)3 SCC 533, Jag Mohan Chhabra & Anr.Vs.DLF Universal Ltd.IV(2007) CPJ 199 (NC) abd N/s Purusharath Association Pvt.Ltd. Vs.M/s Uppal Housing Ltd.and Anr.Consumer complait No.112 of 2012, Satish Kumar Gajanand Gupta Vs.M/s Srushti Sangam Enterprises (India) Ltd.and Anr.Consumer Complaint NO.296 of 2011,
“Wherein the Hon’ble Apex Court and Hon’ble National Commission has laid down guide lines regarding the commercial activities, nature of commercial transaction so as to oust the jurisdiction of the District Consumer Forum”
7. Therefore, after going through the facts and circumstances of the case and the evidence produced on file it emerges that the complainant allegedly purchased 6 crates of 300 ml bottles of Coca Cola and Limca on 15.04.2011 but there is no bill rather only an estimate has been produced on the file. It is pertinent to mention here that in the estimate (Ann C-1) no name of the complainant has been mentioned and thus, in absence of any purchase bill and that too for consideration the complainant cannot be said to be a consumer qua the opposite parties as defined u/s 2(1)(d) of Consumer Protection Act, 1986.
8 Moreover, the complainant has himself mentioned in his complaint that he is engaged in the business of confectionary items, eatables, beverages, items of general use etc at his shop situated at Plot No.6, Sector 3, Near Omaxe Co. Manesar.
9. Now, the question for adjudication is as to whether the complainant was consumer under the Consumer Protection Act as defined in Section 2(1)(d) of the Act and the definition of “consumer” reads as under:
(d) “Consumer” means any person who:
(i) buys any goods for a consideration which has been paid or promised or partly paid and partly promised or under any system of deferred payment and includes any user for such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment when such use is made with the approval of such person, but does not include a person who obtains such goods for re-sale or for any commercial purpose: or
(ii)(hires or avails of) any services for a consideration which has been paid or promised or partly paid and partly promised or under any system of deferred payment and includes any beneficiary of such services other than the person whom (hires or avails of) the services for consideration paid or promised or partly paid and partly promised or under any system of deferred payment, when such services are availed of with the approval of first mentioned person;
Explanation: For the purples of sub clause (i) Commercial purpose, does not include use by a consumer of goods bought and used by him exclusively for the purpose of earning his livelihood by means of self employment
10 However there is nothing in the complaint as well as in the affidavit that the complainants had purchased the said items for resale for earning his livelihood exclusively meant of selfemployment so as to come within the definition explanation attached to section 2(1) (d) of the Consumer Protection Act.
11 The Hon’ble Supreme Court of India in Civil Appeal No.4193 of 1995 decided on 4.4.1995 titled Laxmi Engineering Works Vs. P.S.G. Industrial Institute has laid the latest law as to whether the complainant falls within the definition of Consumer as below
“Appeal against Order of National Commission that complaint not maintainable on ground of appellant was not consumer. –As per Act person who buys goods and use himself exclusively for purchase of earning livelihood by means of self employment is within the definition of expression “Consumer”-considering nature and character of machine goods which appellant purchased for use by himself not exclusively for purpose of earning his livelihood by means of self employment- machinery in question purchased for commercial purpose- appellant not entitled to regarded as consumer- No infirmity in Order passed by the National Commission- appeal dismissed.”
Furthermore, the complainant has also failed to get the report from the laboratory as provided u/s 13(1)(c ) of Consumer Protection Act, 1986 which could prove the deficiency in service on the part of the opposites parties.
12. In view of our above discussion and in view of the various legal precedents, it has also to be held that the complainant has purchased the alleged soft drink for commercial purposes and thus, the complainant was not “Consumer” and the complaint under the Consumer Protection Act was not maintainable.
13 Moreover, the complainant failed to prove that he has purchased the soft drink from the opposite parties and as such the complaint is not maintainable before this Forum
14 Therefore, in view of our above discussion there is no merit in the complaint and thus, the same is hereby dismissed. The parties concerned be communicated of the order accordingly and the file be consigned to the records after due compliance.
Announced (Subhash Goyal)
14.10.2015 President,
District Consumer Disputes
Redressal Forum, Gurgaon
(Jyoti Siwach) (Surender Singh Balyan)
Member Member
