Punjab

Ludhiana

CC/15/517

Sushant Gupta - Complainant(s)

Versus

Hindustan Coca Cola Beverages Pvt.Ltd. - Opp.Party(s)

R.K.Gupta Adv.

08 Jun 2017

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, LUDHIANA.

 

Consumer Complaint No. : 517 of 28.08.2015

   Date of Decision            :   08.06.2017

 

Sushant Gupta resident of 619, Malerkotla House, Civil Lines, Ludhiana.

….. Complainant

Versus

1.Hindustan Coca Cola Beverages Pvt. Ltd., 3^rd Floor, Orchid Centre DLF Golf Course Road, Sector 53, Gurgaon, Ludhiana.

2.M/s Reliance Retail Ltd., Reliance Fresh Ltd., B-I-1342, Kailash Cinema Road, Civil Lines, Ludhiana.

3.M/s Kandhari Beverages Pvt. Ltd., village Navipur, District Fatehgarh Sahib, Punjab-140406.

…Opposite parties

 

          (Complaint U/s 12 of the Consumer Protection Act, 1986)

 

QUORUM:

SH.G.K.DHIR, PRESIDENT

SH.PARAM JIT SINGH BEWLI, MEMBER

 

COUNSEL FOR THE PARTIES:

For complainant                      :         Sh.Rakesh Kumar, Advocate

For OP1                         :         Ex-parte, but Sh.Narotam Ghai, Advocate 

appeared for arguments.

For OP2                         :         Sh.Sahil Sharma, Advocate

For OP3                         :         Sh.M.S.Sethi, Advocate

 

PER G.K DHIR, PRESIDENT

 

1.                          Complainant purchased Coca Cola 500 ml bottle from OP2, which is outlet of Reliance, on 1.6.2015 for celebrating occasion of clearing exams. Amount was paid in cash through computerized cash memo. After purchase, complainant suddenly saw something therein the packed bottle, but on minute examination, it was found as if there was a fly in the said bottle. Complaint was lodged with retail counter of OP2 immediately, but the person standing at the counter rudely behaved with the complainant by claiming that they have purchased the packed bottle from the unit of OP3 and that Op2 is the trader and not the manufacturer of the said product. By pleading negligence in service on the part of Op1 in refilling the bottle and after finding no other alternative, this complaint filed after serving registered legal notice dated 3.6.2015 upon Ops through counsel. Had complainant consumed the contents of bottle without minutely observing the same, then same would have caused serious disease to the complainant resulting in unbearable loss to his health. Coca Cola product is a very reputed cold drink. Op1 spends lot of money on advertisement for attracting the customers and if this type of adulterated drinks is sold to the general public, then same will spoil the health of the people at large. Refilling address of soft drink on the sold bottle is given of OP3 and as such, by claiming that all the Ops equally responsible for selling the adulterated/spurious product, prayer made for awarding compensation of Rs.5 lac for negligence and deficiency in service on the part of Ops. Rs.35,000/- claimed as litigation expenses.

2.                In written statement filed by OP3, it is claimed that no cause of action accrued to the complainant against him. It is also claimed that OP2, nowhere specifically disclosed in its bill for sale of Coca Cola bottle that the sold product is of OP3. Complainant with the help of local maker filled coca cola in the empty bottles  of OP3. Empty bottles of OP3 are openly available in the market and the same has been misused. Bottle as purchased by the complainant from OP2 under the name of Coca Cola is not bottled/filled or manufactured by OP3. Even it was not sold by OP3 to OP2. No notice for sending the bottle for sample ever served on OP3 and as such, compliance of provisions of Section 13 of Consumer Protection Act has not been done at all in this case. Complainant has not availed or hired services for consideration from OP3 and as such, he is not a consumer of OP3. Complainant has not approached this Forum with clean hands because he procured some duplicate/fake bottle manufactured by some small time manufacturer, who infringes the trade mark and crown of reputed company. Sophisticated and fully automated process for cleaning the bottles and thereafter, filling the beverage therein is adopted by OP3. After such filling, sealing with crowns is being finalized without any use and help of human hands. Each and every bottle is re-examined/checked at the final stage before leaving the factory gates. There is 100% chance of foreign articles/insect in the bottle if the same is not filled in the authorized plant of OP3. Complainant never approached OP3 for checking of said bottle. No irregularity found in the bottling plant of OP3. Every product bearing batch number with date and timing etc is sold by OP3 only to its distributors and authorized dealers. Besides, OP3 is not selling its product in Ludhiana District. No batch number or date or timing disclosed in the complaint for proving the filling of the said bottle by OP3. Allegations in the complaint are alleged to be false,  frivolous and vague and moreover, complaint is alleged to be filed for harassing Ops. Each    and every other averment of the complaint denied by claiming that no legal notice received by OP3.

3.                In separate written reply filed by OP2, it is pleaded interalia as if complaint is misconceived, being filed with ulterior motive and that complaint is not maintainable against it. Besides, it is claimed that the complainant has not produced any valid materials for substantiating his case. OP2 is a company of great repute for the last several years and is famous for its quality services and for selling products at very competitive prices. OP1 is the brand owner of the product “Coca-Cola”, which is getting the same manufactured and packed from Op3. In the entire process right from manufacturing to packaging of Coca Cola, OP2 has not contributed anything. Op2 is merely engaged in the business of selling/retailing of products manufactured and received from various manufacturers/their agents. Job of OP2 is only to sell the products manufactured and supplied by others including OP1 and as such, OP2 cannot be fastened with liability. Admittedly, the complainant purchased the bottle of 500ml of Coca Cola from the store of OP2, but it is denied as if the said bottle was having any fly in it. Entire store of OP2 is well managed and proper arrangement made for the convenience of the customers by way of displaying and storing of the products. Utmost attention is paid to the hygiene condition by the professionally trained staff of OP2. OP2 has Complaint Redressal process cell, where the registered complaint is taken note off by having correct action. Complainant has not lodged any complaint with OP2 and as such, complaint alleged to be filed on concocted facts for earning easy money from OP2. Service of legal notice and each and every other averment of the complaint denied by claiming that there is no negligence or deficiency in service on the part of OP2.

4.                OP1 is ex-parte in this case.

5.                Complainant to prove his case tendered in evidence his affidavit Ex.CA along with documents Ex.C1 to Ex.C9 and then his counsel closed the evidence.

6.                On the other hand, counsel for OP2 tendered in evidence affidavit Ex.RA2 of Sh.Sandeep Kr.Sheetal, Store Manager of OP2 and thereafter, closed the evidence.

7.                Counsel for OP3 tendered in evidence affidavit Ex.R3 of Sh.Ashish Sethi, Chief Executive of OP3 and then closed the evidence.

8.                          Written arguments in this case submitted by complainant, but not by any other parties. Oral arguments of counsel for the parties heard and records gone through minutely. 

9.                Though, OP1 was ex-parte in this case, but vide order dated 10.05.2016, permission was granted to OP1 to take part in proceedings at the stage of record of evidence by Ops. No evidence was adduced by OP1, but oral arguments of Sh.Narotam Ghai, Advocate appearing for OP1 heard. It is contended by Sh.Narotam Ghai, Advocate appearing on behalf of OP1 that OP3 is not licensee of OP1 and as such, OP1 has been wrongly impleaded. OP3 has not produced any record to show that OP3 is not licensee of OP1 and nor OP1 has produced any record to prove that fact and as such, virtually evidence in that respect not produced, due to which, it cannot be held that OP3 is licensee of OP1 or OP1 gave license to OP3 to pack its bottle and then deliver the same in whole sale. Being so also liability of OP1 cannot be inferred.

10.              It is vehemently contended by counsel for complainant through oral submissions as well as through written arguments that purchase of the bottle in question sent for chemical examination to Food Analyst, Punjab, Chandigarh by the complainant from OP2 is proved by bill Ex.C1. That submission of counsel for complainant certainly has force because even in the written reply submitted by OP2 as well as in affidavit Ex.RA2 of Sh.Sandeep Kr.Sheetal, the store manager of OP2, it is admitted that complainant purchased Coca Cola 500 ml bottle from the store of OP2. This evidence on record enough to establish as if the bottle of Coca Cola in question was purchased by the complainant from OP2.

11.              That bottle of Coca Cola was produced in this Forum by the complainant at the time of his first appearance in this case on 3.9.2015 and thereafter, on application filed by complainant and depositing analysis fee of laboratory of Rs.1000/-, the same was ordered to be sent to Food Analyst, Punjab, Chandigarh vide order dated 3.9.2015 itself. Report of the laboratory is produced as Ex.C3. Perusal of that report duly corroborates the contention of counsel for complainant that on analysis, the contents of the same were found to be having dead fly therein. Perusal of Ex.C3 reveals that label printed as Coca Cola, manufactured by Kandhari Beverages Pvt. Ltd., Village Nabipur, District Fatehgarh Sahib having batch No.BN 308 with date of manufacturing as    25.12.2014 is there on bottle. It is also mentioned on this label itself as if the product should be used best before two and half months from the date of manufacture. As the date of manufacture of the bottle was 25.12.2014 as per contents of report Ex.C3 extracted from label printed on the bottle and even as per that label print,so the use must be within two and half months from the date of manufacture. As such, label of the bottle itself reflects as if it must have been used/consumed by 10.3.2015. However, this bottle was purchased on 1.6.2015 by the complainant from OP2 as per contents of complaint, affidavit Ex.CA of complainant and bill Ex.C1 and as such, virtually the purchased bottle was not fit for human consumption on the date of purchase of the bottle itself. Keeping of this bottle by OP2 in its store or in display counter for sale itself is an act of utmost negligence on the part of OP2, who was selling the product in question, despite the fact that shelf life period for consumption had already expired two and half months prior to the sale of the same on 1.6.2015. Sale of the product, whose expiry period of consumption expired two and half months prior to such sale itself is an act of unfair trade practice. Display of such bottle                   of expired shelf life period of the product itself gives offer to the customer to purchase the same by paying the price. A customer by paying the price to accept that offer and then the contract is concluded. Same has happened in this case because complainant purchased the bottle in question by paying Rs.34.30P to OP2 and as such, negligence and deficiency in service in providing due service is on the part of OP2 because it deliberately sold the product, whose shelf life period or the consumption period expired two and half months prior to the sale of the same to the complainant through bill Ex.C1. In view of this, OP2 cannot escape from liability at all, particularly when dead fly was found in the bottle itself by the Food Analyst, Punjab, Chandigarh through report Ex.C3.

12.              It is vehemently contended by counsel for complainant that connivance of OP2 with OP3 is there because OP2 is praising OP3, despite the sale of adulterated things without bothering the health of consumers. Merely because OP2 has taken the plea that it is selling the product of reputed company, due to that alone, it cannot be inferred that OP2 is conniving with OP3, more so when such plea is taken by OP2 for saving its own skin by claiming as if hygienic conditions through trained staff are maintained in the store of OP2. This praise by Op2 is     for saving its own skin and as such, due to that alone, inference of          connivance cannot be drawn, particularly when OP3 has taken specific plea that product sold by OP2 is not the product manufactured by it. Rather, it is the case of OP3 that empty bottles of OP2 are easily available in the market and same has been misused by filling beverage therein. Specific plea of infringement of trade mark right taken in the written statement of OP3, but despite that no material produced on record to establish that any action against the defaulter under the Trade Mark Act has been taken by OP3 or OP1 or any of them and as such, inference is   obvious that actually such plea taken without adducing proof thereof. If lea of infringement    of the trade mark right has been falsely taken, despite that liability of OP1 and OP3 to accrue only in case, it is proved that product in question sold by OP2 actually was purchased by it from Op1 or OP3 or any of them and not otherwise. It is so because the manufacturing company of repute like Coca Cola certainly sells its products through authorized distributors/dealers/retailers. As and when supply by the manufacturer of such like company to retailer to take place through authorized distributors/retailers, then bills are prepared and issued by mentioning TAN number etc. OP2 has not produced any bill of such purchase from the authorized dealer of OP1 and OP3 and as such, the onus of proof placed on OP2 for proving that product purchased by him and thereafter, as supplied to the complainant was actually the product of OP1 and OP3. That onus of proof not discharged by OP2 by producing the bill of purchase or any other material like that. Being so, plea taken in the written statement of OP3 to the effect that it has not sold the product in question to OP2 cannot be disbelieved. Rather, due to non production of bill of purchase of the product in question by OP2 from Op1 or OP3, OP2 has rendered himself exclusively liable by sale of the product, whose shelf life period stood already expired two and half months before the sale of the same by him to the complainant. As per Section 27(3) of The Food Safety & Standard Act, 2006, the seller shall be liable under the provisions of this Act for any article of sale, which is sold after the date of its expiry. In view of this specific provision of Section 27(3) of The Food Safety & Standard Act, 2006, liability remains of OP2, being seller because he sold the product in question to the complainant after two and half months of expiry date of consumption.

13.              Even if dead fly in the sold bottle was found by the chemical examiner through report Ex.C3, despite that liability for the same on OP1 and oP3 cannot be fastened because the said sample was sent on 3.9.2015 itself by this Forum without giving notice of such sending to any of Ops. Section 13(4) of Consumer Protection Act, 1986 provides that District Forum shall have the same powers as are vested in a Civil Court under Code of Civil Procedure, 1908 in respect of requisitioning of the report of concerned analysis or test from the appropriate laboratory or from any other relevant source. Section 13(1)(c) of the Consumer Protection Act, 1986 further provides that where the complaint alleges defect in the goods, which cannot be determined without proper analysis or test of the goods, then District Forum to obtain the sample of the goods from the complainant, seal it and authenticate it in the manner prescribed and thereafter, refer the sample so sealed to appropriate laboratory along with a direction that such laboratory to make an analysis or test, whichever may be necessary for finding out as    to whether such goods suffered from alleged defect or not. Section 13(1)(e) of Consumer Protection Act, 1986 further provides that after receipt of report from the appropriate laboratory, District Forum to forward a copy of report along with its remarks(as it considered appropriate) to Ops. However, copy of report Ex.C3 not shown to be sent at all to Ops or any of them and as such, the report cannot be read against Ops, particularly when as per law laid down by the Hon’ble State Consumer Disputes Redressal Commission, Punjab, Chandigarh in its decision dated 20.02.2015 rendered in First Appeal No.268 of 2011 titled as Rajan Garg vs. M/s Cholamandalam MS General Insurance Company Limited and others, it has been specifically held that in case notice of appointment of local commissioner for conduct of inspection of the vehicle etc., is not issued to Ops, then the report of local commissioner cannot be used against Ops. Same is the position in the case before us because here neither copy of report Ex.C3 sent to Ops or any of them and nor notice before sending bottle to laboratory was given to Ops or any of them.

14.              However, a dead fly was discovered in the bottle purchased by the complainant from OP2 through report Ex.C3 and as such, keeping in view that fact in mind as well as provisions of Section 27(3) of The Food Safety & Standard Act, 2006, liability of the seller to remain there. In cases of Moon Beverages Ltd. vs. Vinod Gupta and others-2010(2)CPR-488(Delhi State Consumer Disputes Redressal Commission, New Delhi) and Pepsi Co.India Holdings Pvt.Ltd. vs. Harish Chandra Pandey and others-2005(1)UAD-983(State Commission Consumer Protection Uttarakhand, Dehradun), liability of the manufacturer was held in circumstance that product sold was not having its shelf life period expired. Op1 and OP3 never authorized Op2 to sell the product for consumption by customer after expiry period of shelf life and as such, also liability of OP1 and OP3 cannot be inferred. Moreover, the services of OP2 alone were hired by the complainant by purchase of the bottle in question by paying the price and as such, complainant is consumer of OP2 and not directly of OP1 and OP3. As per law laid down in case titled as Charanjit Kaur vs. Manjit Kaur-1998(Judicial Reports Consumer)-283(Punjab State Consumer Disputes Redressal Commission, Chandigarh), a person would be considered as a consumer if he hired services of the OP for consideration. Consideration in this case not paid by the complainant to OP1 or OP3 and as such, also submissions advanced by counsel for OP3 has force that the complainant is not a consumer of OP1 and OP3. In such circumstances, service or non service of legal notice by the complainant on Ops does not matter much.

15.              Had complainant at the time of purchase of the bottle in question seen the date of expiry printed on the bottle, then he would have not purchased the bottle in question. However, major fault is of OP2 because it displayed and sold the bottle in question even after the expiry of two and half months prescribed period of use. So, OP2 must refund the charged price with interest w.e.f. the date of purchase till payment. OP2 is also liable to pay compensation for mental harassment and agony as well as to litigation expenses.

16.              Therefore, as a sequel of the above discussion, complaint allowed in terms that OP2 will refund the charged price amount of Rs.34.30 N.P. with interest @8% per annum on that amount w.e.f. 01.06.2015 (date of purchase) till payment. Further complainant will be entitled to compensation for mental harassment and agony of Rs.5,000/- and litigation expenses of Rs.2,000/- more allowed in favour of complainant and against OP2 only. Complaint against OP1 and OP3 each is dismissed, but same is allowed against OP2 only. Payment of compensation amount and litigation expenses be made within 30 days from the date of receipt of copy of order by OP2. Copies of order be supplied to parties free of costs as per rules.

17.                        File be indexed and consigned to record room.

 

 

 (Param Jit Singh Bewli)                            (G.K.Dhir)

 Member                                                     President

Announced in Open Forum

Dated:08.06.2017

Gurpreet Sharma.