Tamil Nadu

South Chennai

204/2011

K.B.Saravanakumar - Complainant(s)

Versus

HCCB Cocacola - Opp.Party(s)

M/s.Ramesh Kumar

01 Nov 2017

ORDER

                                                                        Date of Filing :   28.07.2011

                                                                        Date of Order :   01.11.2017

DISTRICT CONSUMER DISPUTE REDRESSAL FORUM, CHENNAI (SOUTH)

     2^nd Floor, Frazer Bridge Road, V.O.C. Nagar, Park Town, Chennai-3

PRESENT: THIRU. M.MONY, B.Sc., L.L.B. M.L.,                     : PRESIDENT            

                  TMT. K.AMALA, M.A. L.L.B.,                                 : MEMBER I

             DR. T.PAUL RAJASEKARAN, M.A ,D.Min.PGDHRDI, AIII,BCS : MEMBER II

C.C.NO.204/2011

WEDENSDAY THIS  1^ST DAY OF NOVEMBER 2017

 

K.B. Saravanakumar,

S/o.Balakrishnan,

No.22, Kirshnapalayam 1^st Street,

Arappalayam Cross Road,

Madurai.                                                      .. Complainant

                                        ..Vs..

 

1. The General Manager,

Hindustan COCA COLA BEVERAGES

Pvt. Ltd., Sy.No.127 to 131,

Kappugenneri Village,

Sri Kalahasti Mandal,

Chittor, Andhrapradesh,

Pin Code 517 640.

 

2. The Proprietor,

“Lalithas” Medical  & General

G.T.Road,

Opp. Egmore Railway Station,

Chennai – 8.                                                  .. Opposite parties.

 

 

Counsel for Complainant         :   M/s. Ramesh Kumar & others          

Counsel for opposite party-1   :   M/s. Satishparasaran & others    

Counsel for opposite party-2   :   Exparte

ORDER

THIRU. M. MONY, PRESIDENT

This complaint has been filed by the complainant against the opposite parties under section 12 of the Consumer Protection Act 1986 seeking direction to pay a sum of Rs.24/- towards the bill amount of Sprite bottle and to pay a sum of Rs.9,00,000/- towards mental agony with cost of the complaint.

 1. The averment of the complaint in brief are as follows:

         The complainant submit that the complainant purchased 600 ml Sprite bottle on 16.10.2010 for a sum of Rs.24/-.  The 1^st opposite party is a manufacturer and the 2^nd opposite party is the retailer.  When the complainant took the Sprite bottle for drinking he saw a foreign material in a decomposed (dead house fly) inside the bottle.   After confirming the decomposed foreign material a death house fly.  He has not opened the bottle and kept the bottle for taking suitable action.  Thereafter the complainant contacted the opposite party-2 and through telephone and clarified the foreign material inside the bottle; since the 2^nd opposite party has  not responded in a proper manner.   Accordingly the complainant issued a registered legal notice to both opposite parties on 24.12.2010 & 31.12.2010 and failed to send any reply to the complainant. As such the act of  the opposite parties amounts to deficiency in service which caused mental agony and hardship to the complainant.  Hence this complaint is filed.

2.    The brief averments in Written Version of  the  1^st  opposite party is  as follows:

The  1^st opposite party deny each and every allegations except those that are specifically admitted herein.    The 1^st opposite party submit that the present complaint has been filed before this forum seeking for redressal of certain alleged grievance which are absolutely baseless on merits and require no consideration.   The 1^st opposite party also state that the complaint is not maintainable under the provisions of the C.P. Act 1986 in as much as the complaint has not been filed in the manner in which it is required to be filed as contemplated under section 12 read with section 13 of the said Act, sub section (1) of section 13 empowers the Hon’ble Forum no receipt of a complaint in relation to any goods where the complainant alleges a defect in the goods, which cannot be determined without proper analysis or test of the goods to obtain a sample of goods in question has been received, whether it has been received in the manner as specified in sub-section (1) of section 13 i.e. duly sealed and authenticated in the manner prescribed or the sample so sealed, referred to the appropriate laboratory along with a direction for making an analysis or test at the time of filing the complaint.   The complainant has filed the present complaint without the necessary procedural formalities and as such the same is liable to be dismissed and at the same time casts and doubts on the veracity of the complaint itself, sub-section (c ) of section 13(1)  of the Consumer Protection Act 1986. Hence there is no deficiency in service on the part of the 1^st opposite party and the complaint is liable to be dismissed.

3. Inspite of service of notice the 2^nd opposite party is called absent and set exparte.

4.     In order to prove the averments of the complaint, the complainant has filed proof affidavit as his evidence and documents Ex.A1 to Ex.A5 marked.  Proof affidavit of  opposite party filed and no documents marked on the side of the opposite parties and also Ex.C1 is marked.

5.   The points for the consideration is: 

1. Whether the complainant is entitled to a sum of Rs.24/- towards cost of the Sprite bottle as prayed for ?

 

2. Whether the complainant is entitled to a sum of Rs.9,00,000/- towards mental agony with cost  as prayed for ?

 

6. POINTS 1 & 2 :

           Heard both sides.  Perused the records.   The learned counsel for the complainant would contend that the complainant purchased Sprite bottle on 16.10.2010 for a sum of Rs.24/- as per Ex.A1.  The 1^st opposite party is a manufacturer and the 2^nd opposite party is the retailer.   When the complainant took the Sprite Bottle for drinking he saw a foreign material in a  decomposed stage (dead house fly) inside the bottle.  After confirming the decomposed foreign material is a dead house fly; he has not opened the bottle and kept the bottle for taking suitable action.   Thereafter the complainant contacted the opposite  party-2 through telephone and clarified the foreign material inside the bottle; since the 2^nd opposite party has not responded in a proper manner, the complainant was constrained to issue a telegraphic notice Ex.A2 for which also there is no reply.  Hence the complainant issued the legal notice Ex.A3 on 24.12.2010 which was returned with endorsement refused by 2^nd opposite party and was duly acknowledged by the 1^st opposite party.  Thereafter the complainant filed this case on 8.7.2011 and taken steps for sending the Sprite Bottle for due chemical analysis by filing CMP 428/2011 on 19.7.2011 within the prescribed period.   This forum also after hearing both parties passed ordered to send the impugned sprite bottle for chemical analysis before Government Analyst, Food Analysis Laboratory, Guindy, Chennai and also submitted a report Ex.C1 dated 22.11.2012 after due analysis the following details:

“This sample found to be an Unsafe Food under Regulation 3(1) (zz) (ii) & (x) of the FSS Act 2006, since it contains a dead house fly which is not permitted in this food.

Confirm the foreign material which may cause harm.  Further the learned counsel for the complainant contended that the impugned Sprite bottle was duly covered and sealed and send to the Government Analyst, through this forum without any tampering.   Further the contention of the complainant is that across the world people having faith in the privilege of the 1^st opposite party; but they are contamination.   The complainant is claiming a sum of Rs.24/- towards the cost of the Sprite Bottle and a sum of Rs.9,00,000/- towards mental agony and deficiency of service.

7.     The learned counsel for the 1^st opposite party would contend that this complaint is baseless and it should be dismissed in limine.   The allegation that the complainant purchased 600 ml of Sprite Bottle on 16.10.2010 from the 2^nd opposite party namely M/s. Lalitha’s Medical & General, Egmore, Chennai-8 as per Ex.A1.  But Ex.A1 have no details regarding the batch No. date of manufacturer etc. regarding the Sprite Bottle.  Further the learned counsel for the 1^st opposite party contended that after one month the complainant noticed a foreign object in the bottle and it is rather absurd that the bottle remained unopened for over a month.  But it is very clear from the evidence on the record that the complainant after purchase the sprite bottle proceeded to Madurai to Chennai on the way to Madurai itself  while taking the bottle for drinking noted the particles i.e. decomposed house fly in the sprite bottle.   Thereafter the complainant contacted the 2^nd opposite party and gave a telegram, legal notice and filed the case, taken steps for chemical analysis steps by step.   Further the learned counsel for the 1^st opposite party contended that the complainant filed a petition for testing the Sprite Bottle produced before this Forum by the Tamilnadu Food safety and Drug Administration Department without serving a notice to opposite party.   It is not clear whether the complainant had submitted the alleged beverage Sprite bottle in a sealed condition and in the same manner in which it was found at the time of purchase.  Since the cap of every Sprite bottle contains particulars namely batch number, date of manufacturing, date of expiry etc., it is imperative that the same is examined to ascertain any tampering and whether at all the product is one manufactured by the opposite party.    The analyst report No.3792, dated 22.11.2012 reveals that the Sprite bottle was covered with a “Gada cloth” establish that the bottle was not properly sealed condition and the analyst’s report cannot be relied upon in this case.  But on a careful perusal of the entire records it is very clear that on 19.7.2011 the CMP 428/2011 was filed with prayer to send for the article (Sprite Cool Drinks) bottle before the appropriate authority for analysis.  After given notice and hearing both sides, this Hon’ble forum passed an order sent the Sprite bottle for due chemical analyst on 12.9.2014 and the said bottle was duly packed and sealed sent through this forum establish there is no scope of any tamper.

8.     Further the learned counsel for the 1^st opposite party contended that as per Sec.13 (c ) of the C.P. Act expert opinion shall be called or within 45 days.  But the complainant filed CMP 428/2011 on 19.7.2011 within 45 days.  The delay caused by this Forum shall not pay the ground for questioning the genuineness of the report by Government Analyst, Food Analysis Laboratory, Guindy, Chennai.   Further the learned counsel for the  1^st opposite party would contend that the Sprite bottle may be duplicate one.   The complainant has not taken any steps to find out the correctness of the bottle which was duly manufactured by the 1^st opposite party cannot be accepted because it is the duty of the 1^st opposite party to prove that the Sprit bottle was a duplicate one and the action can be initiated.   Further the learned counsel for the 1^st opposite party contended that the law is well settled that proof of loss is mandatory.   In this case, admittedly no harm caused to the complainant, except some mental agony which is also not proved such a logical manner.  Since admittedly the complainant has not consumed the drinks.  Considering the facts and circumstances of the case this forum is of the considered view that the opposite parties 1  and 2  are jointly and severally liable to pay a sum of Rs.24/- towards cost of the Sprite bottle and shall pay compensation of Rs.15,000/- towards mental agony with cost of Rs.5,000/-  and the points are answered accordingly.

In the result the complaint is allowed in part.  The opposite parties 1  and 2  are jointly and severally liable to pay a sum of Rs.24/- (Rupees Twenty four only)  towards cost of the Sprite bottle and shall pay compensation of Rs.15,000/- (Rupees Fifteen thousand only) towards mental agony with cost of Rs.5,000/-  (Rupees Five thousand only) to the complainant.  

The aboveamounts shall be payable within six weeks from the date of receipt of the copy of this order, failing which, the said amount shall carry interest at the rate of 9% p.a to till the date of payment.

           Dictated by the President to the Assistant, taken down, transcribed and computerized by her, corrected by the President and pronounced by us in the open Forum on this the 1^st day  of  November 2017.  

 MEMBER-I                        MEMBER-II                             PRESIDENT.

Complainant’s side documents:

Ex.A1- 16.10.2010         - Copy of Cash bill.

Ex.A2- 19.11.2010         - Copy of Telegram Notice.

Ex.A3- 24.12.2010         - Copy of registered notice.

Ex.A4- 31.12.2010         - Copy of returned notice with cover.

Ex.A5- 2712.2010 - Copy of Ack. Card.

Opposite parties’ side document: -   .. Nil..

 

Exhibit:-

 

Ex.C1- 22.11.2012         - Analysis report from Govt. Analyst, Food Analysis

                              Laboratory, Guindy, Chennai.

 

 

MEMBER-I                        MEMBER-II                             PRESIDENT.