DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II
Udyog Sadan, C-22 & 23, Qutub Institutional Area
(Behind Qutub Hotel), New Delhi-110016.
Case No.375//2008
Sh. Achin Goel
S/o Sh. R. K. Goel
R/o G-17, 1st Floor
Dishad Colony,
Delhi ….Complainant
Versus
Enrich Agro Food Products Limited
Khasra No.647-648, Ghitorni,
New Delhi
Also at:
276-277, Udyog Vihar,
Phase-II, Gurgaon-122016
2. Coca Cola India
Enkay Towers, Udyog Vihar V,
Gurgaon-122106, Haryana (India) ……Opposite Parties
Date of Institution : 16.06.08 Date of Order : 14.03.16
Coram:
Sh. N.K. Goel, President
Ms. Naina Bakshi, Member
O R D E R
The case of the Complainant, in brief, is that on 14.06.06, he had purchased 3 bottles of cold drink containing 300 ML from a shop near Qutub Minar, Mehrauli, Delhi. One bottle was of Pepsi and other two were of Limca i.e. a brand of OP No.2. When he was about to open the cap of one bottle of Limca he was shocked and surprised to see that many brownish colour particles i.e. foreign bodies were floating inside that bottle of Limca Cold drink. Thereafter, he immediately checked two other bottles which were in normal condition. He immediately asked the shopkeeper about it but he expressed his inability to explain the reason for the bottles having the brownish colour particles and the shopkeeper informed him that the bottles were delivered by OP No1. & 2 and he is not aware of anything. He sent a legal notice on 30.08.06 to the OP No.1 but no reply was received. However, one Mr. Yoginder Singh (consumer response coordinator) from OP No.1 visited his residence on 06.09.06 for verifying the facts and after making enquiry, the officer of OP offered him to settle the matter through compromise. However, the compromise talks did not get materialized as he wanted the OP to apologize for their deficiency in service towards the public at large. Thereafter the official assured him that some senior officer will approach him and settle down the grievances/losses suffered by him and Mr. Yoginder Singh had requested him for providing some time and not to initiate any legal proceedings against them as it will affect the reputation of the company. The bottle had a mark of Enrich Agro Private Ltd. and the bottle bears the information (i) FPO No.6675 (ii) batch No.10A & (iii) manufacturing date 07.04.06. The Complainant has further stated that if he had consumed the Limca, he might have either suffered the loss of life or permanent disablement or which could result in total loss of eye sight/blindness or some other side effect. Another legal notice dated 22.05.08 sent to OP No.1 was received back with remark “incomplete address” but the same address was in the visiting card of Mr. Yoginder Singh. Therefore, OP No.1 in collusion with the delivery man prepared a false report as incomplete address. The legal notice sent to OP No.2 has neither been received back nor has any reply been received. Hence, there is a deficiency in service on the part of OPs. The Complainant has prayed as under:-
- Direct the OPs to pay a sum of Rs.4 lacs in lieu of damages towards the mental agony suffered by the Complainant due to the deficiency in service.
- Direct the OPs to pay Rs.20,000/- towards litigation cost and Rs.4400/- towards the fee of two legal notices.
- Direct the OPs to deposit a sum of Rs.50,000/- with the Delhi legal Aid Services as penalty.
OP No.1 in the written statement has stated that there is no proof of sale and purchase of two bottles of Limca by the Complainant and he had not got the contents of the bottles sealed and tested soon after he had noticed the defect and the complaint is filed without any proper analysis report and hence liable to be dismissed on this ground alone; the Complainant has not made any complaint before the Appropriate Authority i.e. statutory body constituted under the Prevention of Food Adulteration Act, 1954 and the Rules framed there under which is a comprehensive legislation dealing with the foods and food articles and which has the provision to take appropriate action against the manufacturer. The Complainant did not deliberately seek the remedy from the said Forum and filed the false complaint before this Forum. It is, however, stated that the official of the Company made best efforts to get the matter settled but the Complainant did not prefer to do so. The entire process of manufacturing and bottling the beverages at all the bottling plants of OP is automatic and computerized. The product goes through several checks and controls before leaving the plant. The overall effect of the plant and equipment, technical and production process used by HCCBPL right from the bottle washing stage upto the stage of crowning of the bottle means that it is virtually impossible that the bottles could have left the plant of HCCBPL with any foreign material in them. Therefore, the present complaint is baseless and without any merit. OP No.1 has prayed for dismissal of the complaint.
OP No.2 has stated that they are not liable for any loss suffered by the Complainant as no relief can be sought against the OP No.2. OP No.2 Company is engaged in the business of manufacturing and sale of certain concentrates and beverage bases. Beverage syrups are prepared from these concentrates and beverage bases. These syrups are then used to prepare certain non-alcoholic beverage which are then offered for sale in bottles and other contains, as also in other forms or manners. They are the owner of various trademarks that distinguish these beverage bases, syrups and beverages. The OP No. 1 is one of such bottler of OP No.2 and OP No.2 has granted license to use the specified trademarks in the preparation, sale and distribution of certain specified beverages to OP No.1 in parts of Delhi including Mehrauli. OP No.1 is solely responsible for carrying out its obligations under the Bottlers Agreement and OP No.2 is an indirect wholly owned subsidiary of the Coca-Cola whose registered office is located in Pune, Maharashtra and which has an office in Gurgaon. The Complainant has failed to implead the shop owner, who sold the bottle to the Complainant. In the absence of the seller, who is a necessary and proper party, this complaint suffers from a patent defect and not is maintainable. There is not an iota of proof/document on record to establish that the bottle has been bought by the Complainant as there is no memo of purchase, no document to show that the bottle was ever purchased by the Complainant in the manner that he had stated. There is also no evidence to show/establish any contamination. The Complainant himself was not clear as to in what capacity he had impleaded the OP No.2. The manufacturing process adopted by the authorized bottlers i.e. the Coca-Cola Company 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 caps. At no stage is the product touched by human hands. 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 unless the bottle has been tampered with after it has left the factory gate. Hence, in all probability the bottle in question may have been tampered with or is spurious or counterfeit. OP No.2 has prayed for dismissal of the complaint.
Complainant has filed separate rejoinders to the written statements submitted by the OPs and reiterated the averments made in the complaint. In the rejoinder to the written statement of OP No.1, the Complainant has stated that OP No.1 on one hand is alleging that there is no deficiency in service and on the other hand, they are admitting on their own that they tried to settle the dispute with the Complainant but the Complainant did not prefer to do so. It is clear that OP No.1 has admitted their deficiency towards the Complainant and also admitted that there exists dispute between the parties.
In the rejoinder to the written statement of OP No.2, the Complainant has stated that he had purchased the goods bearing the brand name of OP No.2 with bonafide belief that the same could not be contaminated with hazardous substance or the unknown particles and OP No.2 is correctly impleaded as a party to the present complaint because he had purchased the goods only because of brand name i.e. Coco-Cola.
Complainant has filed his affidavit in evidence. On the other hand, affidavit of Sh. Vijay Kumar and affidavit of Sh. Joel A. Feres have been filed in evidence on behalf of OP No.1 & 2 respectively.
Written arguments have been filed on behalf of OP No.2. We have heard the arguments on behalf of OP No.2 and have also gone through the file very carefully.
Complainant had purchased three bottles of cold drink, one was of Coca-Cola and other two bottles were of Limca from M/s Harish General Store, Mehrauli, New Delhi. The Complainant saw some brown particles in one bottle of Limca. The bottle cap was bearing FPO No. 6675, batch No.10A and manufacturing date 07/04/06 and mark Enrich Agro Foods Product Ltd. This fact has not been denied by the OPs in their respective written statements which is a mute admission on their part. Secondly, the official of OP No.1 Mr. Yoginder Singh visited the residence of the Complainant on 06.09.2006 wherein it is written that “Maine visit Kiya consumer Sahmat Nahi Hai Limca 300 ML BN No.10A 07/04/06” (copy annexure –A2). This clearly proves that the Limca bottle in question had been manufactured and filled by the OP No.1. Therefore, non-analyses of the contents of the bottle in question by any laboratory has no adverse effect on the merits of the case because admission is the best piece of evidence.
This is evident that OP-1 was made aware that in Limca there were some brown particles and, hence, they tried to settle the matter with the Complainant and Mr. Yoginder Singh visited the residence of the Complainant in this regard. Hence, the OP No.1 has admitted its deficiency in service, otherwise they would not have offered any settlement to the Complainant. Therefore, we allow the complaint and direct the OP No.1 to pay Rs.15,000/- towards the mental agony and harassment suffered by the Complainant including cost of litigation and OP No.1 is further directed to deposit Rs.25,000/- in Delhi Legal Aid Services.
The order shall be complied within 30 days of receipt of copy of this order failing which OP No. 1 shall become liable to pay interest @ 6% per annum from the date of filing of the complaint till its realization.
Let a copy of this order be sent to the parties as per regulation 21 of the Consumer Protection Regulations. Thereafter file be consigned to record room.
Announced on 14.03.16.
(NAINA BAKSHI) (N.K. GOEL) MEMBER PRESIDENT
Case No. 375/08
14.3.2016
Present – None.
Vide our separate order of even date pronounced, the complaint is allowed. OP No. 1 is directed to pay Rs.15,000/- towards the mental agony and harassment suffered by the Complainant including cost of litigation and OP No.1 is further directed to deposit Rs.25,000/- in Delhi Legal Aid Services. The order shall be complied within 30 days of receipt of copy of this order failing which OP No. 1 shall become liable to pay interest @ 6% per annum from the date of filing of the complaint till its realization. Let the file be consigned to record room.
(NAINA BAKSHI) (N.K. GOEL) MEMBER PRESIDENT
