STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

Pepsico India Holdings Pvt. Ltd., (Earlier known as Aradhana Soft Drinks Company), Village Ali Asgarpur, P.O. Ganjbar, Panipat, (Haryana)- 132103 (Appellant/ Opposite Party No.1).

……Appellant

V e r s u s

1. Himanshu Sharma, son of Sh.Surinder Kumar Sharma, resident of H.No.399, Sector 15-A, U.T., Chandigarh (respondent no.1/complainant).

2. Sharma Confessionary and Juice Bar, Booth No.316, Sector 15/A, Chandigarh (Retailer) through its Authorized Signatory. (respondent no.2/Opposite Party No.3)

3. Grace Drinks Pvt. Ltd., Railway Station Road vii, Village Daria, Chandigarh (Distributor of Pepsi Co. Beverages) (respondent no.3/Opposite Party No.2).

              ....Respondents

Appeal under Section 15 of the Consumer Protection Act, 1986.

BEFORE:   JUSTICE SHAM SUNDER (RETD.), PRESIDENT.

                MRS. NEENA SANDHU, MEMBER.

Argued by: None for the appellant.

                    Sh. Harmanjit Singh, Advocate for respondent no.1

                   Respondents No.2 and 3, already exparte.

PER JUSTICE SHAM SUNDER (RETD.), PRESIDENT

              This appeal is directed against the order dated 23.05.2012, rendered by the District Consumer Disputes Redressal Forum-I, U.T., Chandigarh (hereinafter to be called as the District Forum only), vide which, it accepted the complaint, filed by the complainant (now respondent no.1) and directed Opposite Party No.1 (now appellant) and Opposite Party No. 2 (now respondent No.3), jointly and severally, as under:-

“As a result of the above discussion, we are of the opinion that the deficiency in rendering proper services as well as indulgence into unfair trade practices by the OPs has been proved.  Therefore, we allow this complaint against OPs NO.1 & 2.  The OPs Nos.1 & 2 are, jointly & severally, directed to pay Rs.50,000/- as compensation, out of which Rs.10,000/- should be paid to the complainant and Rs.40,000/- should be deposited with the State Legal Services Authority, U.T., Chandigarh.  The OPs No.1 & 2 are also directed to joint & severally pay litigation cost of Rs.10,000/- to the complainant. 

This order be complied with by OPs No.1 & 2, jointly & severally, within a period of 30 days, from the date of receipt of its copy, failing which, they would be jointly & severally, liable to pay the above awarded amount, alongwith interest @ 12% p.a. from the date of filing of the present complaint i.e. 23.11.2011, till the amount is actually paid to the complainant as well as to the State Legal Services Authority, U.T., Chandigarh, besides paying the litigation cost of Rs.10,000/- to the complainant”.

2.             The complaint, qua Opposite Party No.3 (now respondent no.2), was dismissed by the District Forum.

3.             The facts, in brief, are that the complainant purchased a crate of soft drinks including mixed flavours like Pepsi, Slice, Coke, Mazza etc., vide bill Annexure C-2, from Opposite Party No.3. In the bottle of Slice (Pepsi Company Product), which was purchased vide the bill, aforesaid, a housefly was found, and the said fact was brought to the notice of the Quality Control Manager of Pepsi Company, at Chandigarh, but to no result. Ultimately, an e-mail Annexure C-3 was sent, followed by reminders, which was replied by the Opposite Parties, saying that, it may be an abusive produce, not manufactured by their Company. It was stated that the bottle, containing the housefly was still with the complainant, and, intake of the contents of the same, would have caused a serious harmful health hazard. It was further stated that, by selling such spurious drinks, which posed a serious harmful health hazard, to the people at large, the Opposite Parties were deficient, in rendering service, as also indulged into unfair trade practice. When the grievance of the complainant, was not redressed, left with no alternative, a complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter to be called as the Act only), was filed, directing the Opposite Parties, to refund the amount, of the bottle with interest; pay compensation for mental agony and physical harassment, to the tune of Rs.50,000/-:; and cost of litigation to the tune of Rs.7,500/-.

4.             Opposite Party No.1, in its written version, stated that the complainant, failed to provide any proof, regarding the purchase of bottle of soft drink, in question. It was further stated that the complainant purchased one crate of Coke, as per the bill, Annexure C-2, while as per the allegations, in the complaint, the alleged bottle was of Slice.  It was further stated that a bill of purchase of Coke, which was the brand of Coca Cola, could not be termed as Pepsi. It was further stated that the story narrated by the complainant was false, frivolous and concocted one, and it could not be believed as true. It was further stated that the document Annexure C-3 (email) produced, on record, was a false document, without any authenticity. It was denied that Opposite Party No.1, was deficient, in rendering service, or indulged into unfair trade practice. The remaining averments, were denied, being wrong.

5.             Opposite Parties No.2 and 3, were duly served, but no legally authorized representative, on their behalf, put in appearance. Accordingly, Opposite Parties 2 and 3, were proceeded against ex-parte, by the District Forum, vide order dated 22.12.2011.

6.             In paragraph no.4 of the impugned order, it was recorded by the District Forum, that the parties, led evidence, in support of their case.

7.             After hearing the Counsel for the complainant, Opposite Party no.1, and, on going through the evidence, and record of the case, the District Forum, accepted the complaint, in the manner, referred to, in the opening para of the instant order. 

8.             Feeling aggrieved, the instant appeal, has been filed by the Pepsico India Holdings Pvt. Ltd., (Earlier known as Aradhana Soft Drinks Company/appellant/ Opposite Party No.1).

9.             Respondents No.2 and 3, were duly served, but no legally authorized representative, on their behalf, put in appearance. Accordingly, Respondents No. 2 and 3, were proceeded against ex-parte, vide order dated 07.09.2012.

10.           On 27.09.2012, when the appeal was fixed for arguments, none put in appearance, on behalf of the appellant, whereas the Counsel for respondent no.1, put in appearance.

11.           In these circumstances, this Commission was of the considered opinion, that the appeal should be decided on merits, in the absence of the appellant, as envisaged by the Provisions of Rule 8(6) of the Chandigarh Consumer Protection Rules, 1987.

12.           Accordingly, we have heard the Counsel for respondent no.1, and have perused the evidence, and record of the case, carefully.

13.           .      There is, no dispute, about the factum that the proceedings before the Consumer Foras under the Act, are summary in nature. The Consumer Foras are not required to go into the technicalities, while deciding the complaint.  In other words, the proceedings before the Consumer Foras, in a complaint, are unfettered by technicalities, as envisaged by the Evidence Act.  However, at the same time, it cannot be forgotten that the complainant and the Opposite Parties are required to file their affidavits, by way of evidence, in support of the averments, contained in the complaint, and the written reply. The affidavits, so filed, must be, in accordance with the provisions of law, and only then the same can be read into evidence, for deciding the complaint. In the instant case, no doubt, in the complaint, the complainant stated that he purchased a crate of soft drinks including mixed flavours like Pepsi, Slice, Coke, Mazza etc., vide bill Annexure C-2, from Opposite Party No.3/respondent no.2 on 07.03.2011, wherein, in one of the bottle of Slice (Pepsi Company Product), a housefly was found, but despite bringing the same to the notice of the Quality Control Manager of Pepsi Company, at Chandigarh, as also sending an e-mail Annexure C-3, followed by reminders, it was never admitted by the Opposite Parties, but, on the other hand, they denied that the said bottle of slice was the product of their Company. However, as stated above, in support of the averments, contained in the complaint, the complainant only filed his short affidavit, to the effect, that the contents of the accompanying complaint, on his behalf, were true and correct. In S. Kumar Vs. New India Assurance Company Limited & Anr., III (2005) CPJ 642, decided by this Commission, only a short affidavit, in support of the averments, contained in the complaint was filed. This Commission held that such a short affidavit, could not be treated as legally admissible evidence. Since, a short affidavit, cannot be treated as legally admissible evidence, it means that the averments/allegations, contained in the complaint, simply remained unsubstantiated. However, it may be stated here that, in the appeal, the Appellate Authority, is required to take into consideration, as to whether, the  correct procedure, laid down, in the Act, was adopted by the District Forum, for deciding the complaint or not. The District Forum did not take into consideration that only a short affidavit, in support of the allegations, contained in the complaint, was filed by the complainant, which could not be read into evidence. Thus, the allegations contained in the complaint, remained unproved, through legally admissible evidence. Even the perusal of various orders passed, in the complaint, goes to reveal that the District Forum did not afford an opportunity, to the complainant, to file a detailed affidavit, in support of the averments, contained in the complaint. It was the duty of the District Forum, to go through the complaint file properly. Had the District Forum gone through the complaint file carefully, it would have certainly come to the conclusion, that the short affidavit, which was filed by the complainant, in support of the  allegations, contained in the complaint, was not legally admissible, and, direction could have been given to the complainant, to file a detailed affidavit, but it did not do so. The District Forum, thus, failed to adopt proper procedure to decide the complaint, resulting into miscarriage of Justice. Under these circumstances, it is a fit case, in which the order of the District Forum, should be set aside, and the complaint should be remanded back, to the District Forum, for fresh decision, in accordance with the provisions of law, by affording an opportunity to the complainant, to lead its evidence, by way of detailed affidavit(s) .

14.           For the reasons recorded above, the appeal is accepted, with no order as to costs. The order impugned, is set aside. The complaint is remanded back to the District Forum, with a direction, to afford an opportunity to the complainant, to lead its evidence, by way of detailed legally admissible affidavit(s) and, if he leads the same, then give an opportunity to the Opposite Parties, to rebut the same, if they so desire, and, thereafter, decide the complaint, afresh, on merits, within one and a half months from 19.10.2012, in accordance with the provisions of law.

15.           The parties are directed to appear before the District Forum, on 19.10.2012 at 10.30.a.m.

16.           The District Forum record, be sent back immediately, alongwith a certified copy of this order, so as to reach there, well before the date fixed.     

17.           Certified Copies of this order, be sent to the parties, free of charge.

18.           The appeal file be consigned to Record Room, after completion.

Pronounced.

October 1, 2012

Sd/-

[JUSTICE SHAM SUNDER (RETD.)]

PRESIDENT

Sd/-

[NEENA SANDHU]

MEMBER

Rg