DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, BARNALA, PUNJAB.
Consumer Complaint No: 90/2012
Date of Institution : 28.03.2012
Date of Decision : 04.05.2015
In the matter of:
1. Preet Mohinder Singh son of Sh. Paramjit Singh resident of Street No. 9, G.T.B. Nagar, Handiaya Road, Barnala.
2. Gurpreet Singh son of Sh. Avtar Singh, resident of St. No. 5, Patti Road, Barnala, District Barnala.
…Complainants
Versus
1. Jasmail Singh and Company Shop No. 69, 70 New Grain Market, Barnala through its Proprietor Jasmail Singh son of Mukhtiar Singh, resident of Bajwa Patti, Jandawala Road, Barnala.
2. Jasmail Singh son of Mukhtiar Singh, Wine Contractor, resident of Bajwa Patti, Jandawala Road, Barnala.
3. Dhaminder Singh son of Darbara Singh, Wine Contractor, resident of Sandhu Patti, Sanghera Road, Barnala.
4. Parminder Singh son of Darshan Singh, Wine Contractor, resident of Sandhu Patti, Sanghera Road, Barnala. (Deleted vide order dated 22.1.2014)
5. The Proprietor Pernod Ricard India (P) Ltd. at Rajasthan Liquors Ltd. Village Haripur Hindua Derabassi, District S.A.S. Nagar (Mohali) Punjab.
…Opposite Parties
Complaint Under Section 12 of Consumer Protection Act, 1986.
Before:-
1. Shri Sukhpal Singh Gill : President.
2. Sh. Karnail Singh : Member
3. Ms. Vandna Sidhu : Member
For the complainant : Sh. Rajan Chaudhary Advocate with complainant.
For opposite parties No. 1 & 2 : Exparte
For opposite party No. 3 : Sh. R.K. Jain Advocate
For opposite party No. 4 : Deleted
For opposite party No. 5 : Sh. PS Aulakh Advocate
ORDER: BY SH. SUKHPAL SINGH GILL, PRESIDENT:
Preet Mohinder Singh and Gurpreet Singh complainants (hereinafter referred as to CCs for short) have preferred the present complaint against the Opposite Parties (herein referred as to OPs for short), on the ground that, CCs purchased a bottle of liquor brand Imperial Blue Whiskey for Rs. 300/- whereas the print price on the bottle was Rs. 255/- on 8.2.2012 from a shop situated at Court Chowk, Adjoining Malvika Sweets and both the CCs have taken two-two drinks together.
It is submitted that, in the midnight of the same day, CC-2 suffered from vomiting and loose motions. Similarly, CC-1 also faced some problems on the next morning. Thereafter, CCs went to Civil Hospital for treatment and doctor discharged them in the evening after giving required treatment. Thereafter, on 11.2.2012, CC-1 had pain in liver, for which he went to Civil Hospital, Barnala for treatment. The doctor gave him medicines for five days.
It is further submitted that, the liquor was adulterated, which caused physical problem to both the CCs and percentage of alcohol is not according to the label.
It is further submitted that, OP-1 has all the wine shops in its name, which is registered in the name of OP-2, OP-3 is a shareholder whereas OP-4 is a police official and a sleeping partner in the firm. Further, OP-5 is the manufacturer of this liquor.
It is further submitted that, OPs were given legal notice and demanded a compensation of Rs. 2,00,000/- by each CC but OP-4 refused to take legal notice and other parties also did not care for the legal notice.
Thus, alleging deficiency in service on the part of the OPs, CCs have sought the following reliefs against the OPs.-
1) OPs be directed to pay the medical expenses of Rs. 567/-.
2) OPs be further directed to pay Rs. 2,00,000/- as compensation and Rs. 10,000/- as litigation expenses.
Complaint of the CCs is signed and verified by both the CCs. The complaint is also supported by an affidavit of the CC-1.
2. OPs-1 and 2 have preferred to remain exparte.
OP-2 has already proceeded against exparte vide order dated 9.4.2012, but OP-2 filed version jointly with the OP-3.
In reply, OPs-2 and 3 have opposed the complaint of the CCs by taking legal objections on the ground that, CC has got no locus standi and cause of action to file the present complaint. Further, CCs have not come to the Forum with clean hands and concealed the true facts.
On merits, it is submitted that, Imperial Blue Whiskey was available on all the authorized liquor vends and CCs have not produced any proof of purchase of liquor from the vend near Malvika Sweets. It is further submitted that, if CC-2 suffered from vomiting and loose motion at midnight why he did not approach a medical specialist up to 12.45 to take treatment and waited till CC-1 also faced some problem and reached the Eye OPD of Civil Hospital instead of Medical OPD or Emergency Unit of Hospital. It is further submitted that, Gastroenteritis can be caused because of many reasons and there is nothing in the complaint to show that, the same was occurred due to consumption of liquor. Further, no investigations/tests were conducted. There is nothing on record that, physical problem to be suffered by the CCs was due to liquor or the strength of liquor is not according to the label.
It is further submitted that, the bottle in question is open and as per directions of the Government, every bottle of liquor bears the hologram and sealed and CCs have nowhere alleged, if the hologram was broken or seal was not intact. The contents of bottle cannot be adulterated without tampering the seal of bottle and damage to the hologram.
It is admitted that, OP-5 is the manufacturer of the liquor and responsible if the liquor is found to be not up to the mark.
Thus alleging no deficiency in service on their part, OPs-2 and 3 have prayed for the dismissal of the complaint with cost.
The version of OPs-2 and 3 is signed and verified by OP-2. The same is also supported by an affidavit of OP-2.
OP-4 has already been deleted from the arena of OPs vide order dated 22.1.2014.
In reply, OP-5 has opposed the complaint of the CCs by taking preliminary objections on the ground that, present complaint is false, frivolous and vexatious.
Further, CCs have failed to produce any proof that, they have purchased a bottle of Imperial Blue Whiskey from the OP-1 on 8.2.2012, so the complaint against OP-5 is not maintainable as the CCs are not the consumers of the OPs.
It is further submitted that, bottling of various alcoholic beverages by the answering OP is carried out in sophisticated and modern plants, which used a very high standard of hygiene and cleanliness. The bottling plants of answering OP have been set up under strict international guidelines. All the bottles are pressure washed by automated machines with de-mineralized water to remove dirt/foreign particles, if any. Thereafter, all the bottling lines have multi stage visual inspection panels, so all possibilities of contamination are, therefore, ruled out.
It is further submitted that, the manufacturing and distribution of the products manufactured by the answering OP is carried out under the supervision and control of State Excise Department, who dispatch all the products after certifying the sample to be in compliance with all the parameters. Further, the answering OP has not received any other complaint from any other consumer with regard to any bottle from the same batch.
It is further submitted that, CCs have not produced any medical report which shows that, the product has resulted in the health issues canvassed by the CCs and in the absence of the same these health related issues could not be attributed to the product manufactured by the answering OP.
It is further submitted that, the bottle produced before this Forum is an open bottle, so the contents of the same may not fit for any analysis. Further, CCs should have sought this Forum to send to product for chemical examination but without seeking the same and causing delay has caused a serious and grave prejudice to the answering OP.
It is further submitted that, the possibility of tampering with the bottle cannot be ruled out to blackmail the manufacturer, which is an abuse to the process of law. Further, it is also possible that, the impugned bottle would not be a genuine product manufactured by the answering OP, as it is not difficult for someone to mix spurious bottles of alcoholic beverages with genuine bottles to claim that, the spurious bottles have been manufactured by the original manufacturer.
Further, there are also many contradictions in the legal notice of the CCs and the present complaint.
It is further the objection of the answering OP that, the documents issued by the Civil Hospital never mentioned that, the problems to the CCs were caused due to consumption of liquor or due to any other food consumed by them. Further, no name of the doctor, who examined the CCs is mentioned on these documents.
Further, CCs have claimed Rs. 2,00,000/- as compensation, Rs. 10,000/- as litigation expenses and Rs. 567/- on account of purchase of bottle without any basis, as they have not mentioned or relied upon any documentary evidence to prove negligence on the part of the answering OP.
On merits, the contents of all the paras of the complaint are denied. CCs have not produced any proof of purchase of bottle, so they are not the consumers of the OPs and complaint is not maintainable on this ground. Further, answering OP is of prima facie view that, the bottle of whiskey has not been manufactured by it. The answering OP denied if CCs have suffered any mental and physical harassment as alleged in the complaint.
Thus alleging no deficiency in service on its part, OP-5 has prayed for the dismissal of the complaint with costs.
The version of OP-5 is signed and verified.
3. CCs in support of their claim, have tendered into evidence affidavit of CC-1 Ex.C-1, copy of hospital record Ex.C-2, medical bills Ex.C-3 and Ex.C-4, receipt bearing No. 50 Ex.C-5, copy of lab report Ex.C-6, affidavit of CC-2 Ex.C-7, copy of medical record of CC-2 Ex.C-8 and Ex.C-9, bill Ex.C-10, copy of notice Ex.C-11 and closed their evidence.
4. On the other hand, in order to rebut the evidence of the CCs, OP-3 has tendered into evidence affidavit of Dharminder Singh Ex.OP-3/1, affidavit of Jasmail Singh Ex.OP-3/2 and closed his evidence. Further, OP-5 has tendered into evidence affidavit of Sachin Sunder Ex.OP-5/1 and closed its evidence.
5. We have minutely perused the entire complaint, versions filed by the OPs-2 and 3 and OP-5, evidence of parties, report of Forensic Science Laboratory Punjab SAS Nagar and also heard counsel for the parties at length.
6. It is an admitted by the OPs-2 and 3 in their version that, the liquor in question is manufactured by the OP-5, who is responsible, if the liquor is found to be not up to the mark. It is also an admitted fact that, the bottle of liquor is an open bottle and CCs admitted in their complaint that, they have taken two drinks each from this bottle. It is further an admitted fact that, the open bottle was sent for analysis to the Forensic Science Laboratory Punjab SAS Nagar on the application of CCs dated 28.3.2012 alongwith present complaint and application of OP-5 moved on 19.12.2014.
The first main objection of the OPs in this case is that, as the CCs have not produced any bill or receipt of purchase of the liquor bottle, so the present complaint is not maintainable, as the CCs are not the consumers of the OPs under the definition of Consumer Protection Act and in the absence of proof of purchase, this Forum has no jurisdiction to decide the present complaint.
To meet this legal objection, we have perused the complaint and the affidavits of both the CCs Ex.C-1 and Ex.C-7. In the complaint of CCs it is specifically mentioned that, they have purchased a bottle of Liquor (Imperial Blue Whiskey) for Rs. 300/- on 8.2.2012 from a shop situated at Court Chowk, Adjoining Malvika Sweets and they have taken two-two drinks together. To support this specific plea both the CCs have filed their affidavits Ex.C-1 and Ex.C-7.
We have generally seen that, in the area of Punjab no Wine Contractor issued any bill or receipt for the sale of liquor bottles to any person, so in our view the affidavits of both the CCs Ex.C-1 and Ex.C-7 are sufficient to prove this point that, they have purchased the bottle of liquor from the vend of OP-1 after paying the amount of Rs. 300/-. So, in our view both the CCs are the consumers of the OPs and the present complaint is maintainable.
Further, to meet this objection we have also relied upon a latest judgment of the Hon'ble National Commission, New Delhi titled M/s Procter and Gamble Home Products Ltd. Versus Taranjit Kaur & Others reported in 2014 (3) Consumer Law Today-460 (NC), in which it has been held that.-
“Consumer Protection Act, 1986, Sections 2(1)(r) & 2 (1)(d)-Cash memo-Shopkeeper sold expired shampoo and not issued bill for purchase of pouch of Pantene Shampoo-Loss of hair-Whether complainant falls within the definition of Consumer? Held-Yes-Mere non-issue of bill is not sufficient to deny the liability of Ops-The sachet has already been produced by the complainant as evidence; therefore, the complainant is a consumer.”
This citation is fully applicable on facts and circumstances of the present case, as in the case in hand CCs also not produced the bill for the purchase of the liquor bottle, but produced the open bottle with the present complaint after consuming two-two drinks each. Hence, in the present case also CCs are the consumers of the OPs in view of the above mentioned citation of the Hon'ble National Commission.
Another main objection of the OPs is that, there is nothing on record that, physical problem suffered by the CCs was caused due to consumption of liquor, manufactured by OP-5 as they have not filed any affidavit of any doctor or any medical report to prove this point.
We have also perused this objection of the OPs and documents Ex.C-2 to Ex.C-5 and Ex.C-8 to Ex.C-10, which are medical record of both the CCs, bills and receipts of medicines and treatment taken by them from Civil Hospital, Barnala. From all these documents, it is not proved on the file that, the CCs suffered physical problems due to the consumption of liquor so purchased by them from the vend of OP-1 and manufactured by OP-5 and we cannot say that, this liquor in any way harmful for human consumption.
Further, OP-5 has taken a specific plea that, all the products manufactured by it were dispatched after certifying the sample to be in compliance with all the parameters by the State Excise Department, but OP-5 has failed to produce any report or certificate regarding the liquor bottle in question to prove that, this bottle has complied all the parameters as mentioned on the label.
Further, OP-5 in some places taken a plea that, this liquor has not been manufactured by it. OP-5 moved an application on 18.11.2014 before this Forum to allow its technical expert to physically inspect the impugned bottle, which was allowed by this Forum on 15.12.2014 and Quality Manager of OP-5 Sh. Sunil Sayal physically inspected the bottle in question on 16.12.2014, who never raised this objection in his statement recorded on the same day i.e. 16.12.2014 that, this liquor bottle is not manufactured by his company, so raising this type of objection by the OP-5 in our view is an after thought and not considered in any way. Further, if the bottle of liquor is not manufactured by OP-5 then why OP-5 moved an application to send the same for examination to the recognized laboratory for analysis. OP-5 also not produced any evidence to prove this objection, so in our view this objection of OP-5 is of no force.
Further, OP-5 also raised an objection that, as the bottle is an open bottle, so the contents of the same not fit for any analysis. In our view, this objection of the OP-5 is also of no force, as the bottle of liquor sent for chemical examination only when the OP-5 itself moved an application to send the same for examination to the recognized laboratory for analysis. Further, OP-5 raised another objection that, CCs have not sought from this Forum to send the product for chemical examination, which caused a serious prejudice to the answering OP, whereas CCs have moved an application for testing the bottle of liquor in the lab alongwith the present complaint on 28.3.2012, which was sent for testing only when OP-5 itself moved an application for this purpose, so the delay in testing the bottle does not cause any serious prejudice to the OP-5 in any way.
In end, we have perused the most important document on the file i.e the report of Forensic Science Laboratory Punjab SAS Nagar bearing No. 5/2015/FSL/Pb/Chem/Exam/dated 2.2.2015 Ex.C-6 and original report is also received in this Forum. In this report, it is clearly mentioned that.-
“On the basis of analytical data, it has been concluded that, in the present condition composition of the contents of the bottle under reference confirms to licit liquor with percentage proof spirit strength of 52.59 against BIS standard percentage proof spirit strength of 75.”
From the perusal of this report, it is clearly proved on the file that, the liquor in question is of 52.59 degree against BIS standard degree of 75. The OP-5 failed to rebut this report by way of any documentary or expert evidence. In this way, in our view, however it is not proved on the file that, the liquor in question in any way harmful for human consumption, but selling less degree of liquor against BIS Standard Degree is also a clear cut unfair trade practice and deficiency in service on the part of OP-5.
In view of the aforementioned facts, circumstances and report of Forensic Science Laboratory Punjab SAS Nagar dated 2.2.2015, we partly allow the present complaint against the OP-5 and OP-5 is directed to pay the amount of Rs. 25,000/- to the CCs in equal share for causing physical and mental harassment to them and also dragging them into unwanted litigation within the period of 30 days from the date of the receipt of the copy of this order, failing which the OP-5 is directed to pay the above mentioned amount of Rs. 25,000/- to the CCs in equal share alongwith interest at the rate of 9% per annum from the date of order till realization.
This order of ours shall be complied within 30 days from the date of the receipt of the copy of this order. Copy of this order be supplied to the parties free of cost. The file after its due completion be consigned to the records.
ANNOUNCED IN THE OPEN FORUM:
4th Day of May 2015
(Sukhpal Singh Gill)
President.
I do agree.
(Karnail Singh)
Member.
Vandna Sidhu
(Member)
