BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, FARIDKOT.

Complaint No. : 84

Date of Institution : 29.3.2010

Date of Decision : 9.11.2010

Darshan Singh Mittal s/o Surjan Singh s/o Kaur Singh r/o Mittal Market, Jaitu Tehsil Jaitu District Faridkot.

...Complainant Versus

1. Jain Brothers, Kotkapura Road, Jaitu Tehsil Jaitu District Faridkot through Partner/Proprietor.

2. Coca Cola India Pvt. Ltd. Regd. Office: Plot No. 1107-1110, Village Pirangut, Tamulshi, Pune (Maharastra)-411001 through Manager Director/General Manager/Concerned Official.

3. Amritsar Beverages Private Limited, P.O. Raon and Silk Mills, G.T. Road, Amritsar-143104.

...Opposite Parties

Complaint under Section 12 of the

Consumer Protection Act, 1986.

Quorum: Sh. Ashok Kumar President

Dr. H.L. Mittal Member

Present: Sh. Neeraj Maheshwari counsel for the complainant.

Sh. V.K. Monga counsel for the opposite parties No. 1 and 3.

Sh. Ritesh Mohindera Counsel for opposite party No. 2.

ORDER

Complainant has filed the present complaint against the opposite parties for selling cold drink Maaza to the complainant having cork/cap of metal which was packed by opposite parties No. 2 and 3 and opposite party No. 1 sell the same to the complainant and for directing the opposite parties to pay compensation of Rs. 4,50,000/- because if complainant use the same it would caused great loss to his health and Rs. 10,000/- as litigation expenses.

2. Briefly stated, the case of the complainant is that he is the resident of Jaitu and used to purchase cold drinks and other items from opposite party No. 1. The opposite party No. 2 is the manufacturer of cold drink and opposite party No. 3 packed the same in bottles. On 6.11.2009 the complainant purchased Maaza cold drink from opposite party No. 1 for his and his family use vide bill No. 2208 dated 6.11.2009 and pay the amount of Rs. 216/- for that. When the complainant checked the cold drink at his house then he came to know that the sealed bottle was having cork/cap of metal which show that the opposite parties No. 2 and 3 are negligent in manufacturing and packing the cold drink in bottles. The said cold drink was sent to the market for sale without proper checking. This cold drink is much danger for the life of any person. The opposite party No. 1 is also negligent in selling the same without any checking to the complainant. Thereafter, the complainant approached the opposite party No. 1 and tell him about the negligence of the opposite parties but he could not give any satisfactory reply to the complainant. So the above act of the opposite parties amounts to great deficiency in service and unfair trade practice. Complainant is also entitled for compensation of Rs. 4,50,000/- and litigation expenses of Rs. 10,000/-. Hence this complaint.

3. The counsel for complainant was heard with regard to admission of the complaint and vide order dated 31.3.2010 complaint was admitted and notice was ordered to be issued to the opposite parties.

4. In response to the notice, the opposite party No. 1 filed written statement taking preliminary objections that the bottle in question was never sold by the opposite party No. 1 to the complainant. The opposite party No. 1 sold one create to Maaza drink vide invoice dated 6.11.2009 to one Darshan Singh Mittal but they never sold the bottle in question to the complainant. The produce was purchased by the purchaser after complete checking of the said product. On merits, it is admitted that the opposite party No. 1 is the distributor of opposite parties No. 2 and 3 at Jaitu for selling cold drinks. It is denied if the product sold by the opposite party No. 1 was having any defect. It is also denied that there has been any negligence on the part of the opposite party. So, there is no deficiency or unfair trade practice on the part of opposite parties. The allegations with regard to relief sought too were refuted with a prayer that complaint deserves to be dismissed against the answering opposite party with costs.

5. In response to the notice, the opposite party No. 2 filed written statement taking preliminary objections that the opposite party No. 2 granted license to certain entities in India such as respondent No. 3 and others to use specified trade marks in connection with the preparation and packaging of certain beverages. There is no averment or proof that complainant having suffered any loss or damage which is a direct consequence of the alleged sale of beverage. Complainant has only a grievance if at all against either the dealer or the bottler of the said bottle with no corresponding grievance or allegations against the answering opposite party. The complainant has not got the bottle examined from any Government approved laboratory. On merits, it is denied that opposite party sells or manufactures any beverage. It is denied if any cock/cap in the top of the bottle or that the same was closed in the bottle or that the complainant was upset on seeing the same. The beverage has been manufactured by the opposite party No. 3. The answering opposite party has no role in the manufacturing of the alleged beverage. So, there is no deficiency or unfair trade practice on the part of opposite parties. The allegations with regard to relief sought too were refuted with a prayer that complaint deserves to be dismissed against the answering opposite party with costs.

6. The opposite party No. 3 also filed separate written reply taking legal objections that the opposite parties No. 2 and 3 have got no concern with the alleged bottle of Maaza as the same does not bear any batch number, date of preparation and expiry date. The answering opposite party has got a fully automatic bottling plant of the international standards and there is no chance of any complaint in bottling of the drink manufactured by the opposite party. The alleged bottle has simple defective cork. The complainant has not consumed the contents of the bottle. On merits it is admitted that the opposite party No. 1 is the distributor of the opposite party No. 2. The products bottled by the opposite party No. 1 and 2 are supplied after the complete check of quality control. As the alleged bottle is not bottled/manufactured by the opposite party No. 1 and 2, so there is no deficiency or unfair trade practice on the part of opposite parties. The allegations with regard to relief sought too were refuted with a prayer that complaint deserves to be dismissed against the answering opposite party with costs.

7. All the parties wanted to lead evidence to prove their respective pleadings and proper opportunity was given to them. The complainant tendered in evidence his affidavit Ex.C-1, copy of bill dated 6.11.2009 Ex.C-2, photograph of bottle Ex.C-3, original bottle Ex.C-4 and closed his evidence.

8. In order to rebut the evidence of the complainant the opposite parties tendered in evidence affidavit of Narendra Kini Ex.R-1, affidavit of Ravinder Kumar Ex.R-2, affidavit of Rajinder Bhalla Ex.R-3 and closed their evidence.

9. We have heard learned counsel for parties and have very carefully gone through the affidavits & documents on the file. Our observations & findings are as under.-

10. Learned counsel for the complainant has argued that the opposite parties has supplied sealed bottle of cold drink having cork/cap of metal which show that the opposite parties No. 2 and 3 are negligent in manufacturing and packing the cold drink in bottles. The said cold drink was sent to the market for sale without proper checking. This cold drink is much danger for the life of any person. The opposite party No. 1 is also negligent in selling the same without any checking to the complainant. The complainant if use the said bottle it can caused great loss to his health for which the complainant is entitled for compensation and litigation expenses.

11. Learned counsel for the opposite parties however repelled the aforesaid contentions on the ground that the opposite parties never sold/supplied any bottle with cork/cap to the complainant. They supplied the cold drink bottles in the market after complete checking and inspection. As their bottling plant is international standards so there is no chance to supply any such type of bottle in the market. The bottle is having only simple cork/cap which cannot cause any loss to the health of any person. The complainant has not produced any laboratory report to prove his stand, so the complainant is not entitled for any compensation and litigation expenses.

12. We have keenly considered the rival contentions in the light of evidence on record. The complaint of the complainant is only with regard to the presence of cork in the bottle and a part of lead. This can happen at the time of bottling or beverages and may be detected at the time of its sale. Therefore, in our view no fault can be found in this respect with the opposite party No. 2. It is also noticed that in this case no deleterious effect is alleged adversely because the beverage available in the said bottle is not consumed, so the ends of justice would be adequately met if complainant is compensated with price of the bottle with token of compensation and litigation expenses. So, the complaint filed by the complainant is partly accepted and the opposite parties No. 1 and 3 are directed to refund the price of the bottle and to pay Rs. 1,500/- as compensation on account of mental tension and harassment and litigation expenses within the period of one month from the date of the receipt of the copy of this order, failing which the opposite parties No. 1 and 3 shall pay the above mentioned amount to the complainant alongwith interest at the rate of 9% per annum from the date of the filing of this complaint till realization of the amount. In case no compliance is made out of this order, complainant shall be entitled to proceed under the provisions of Sections 25 and 27 of the Consumer Protection Act. Copies of the order be sent to the parties free of costs. File be consigned to the record room.

Announced in open Forum:

Dated: 9.11.2010

Member President (Dr. H.L. Mittal) (Ashok Kumar)