Kerala

StateCommission

A/15/710

PRASANTH FAMILY RESTAURANT - Complainant(s)

Versus

K V SURESH BABU - Opp.Party(s)

K HAMZA

22 Feb 2017

ORDER

KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION SISUVIHARLANE VAZHUTHACADU THIRUVANANTHAPURAM

 

APPEAL NOS.753/15 & A.710/15

COMMON JUDGMENT DATED: 22.02.2017

 

(Appeals filed against the order in CC.No.146/2013 on the file of CDRF, Malappuram order dated : 06.06.2015)

PRESENT

 

SRI.K.CHANDRADAS NADAR   : JUDICIAL MEMBER

SRI.V.V.JOSE                          : MEMBER

 

APPELLANT

M/s.Hindustan Coca Cola Beverages (P) Ltd,

Plot No.18, Bidai Industrial Estate,

1^st Phase, Bidadi Hobli, Ramanagara Taluk,

Bangalore Rural – 562109

Rep.by its Working Capital Manager Mr.JVR Joga Rao

 

(By Adv.Sri.Raju.K.Mathews & Adv.Sri.S.Manilal)

 

Vs

RESPONDENTS

1. K.V.Suresh Babu,

Kizhakeveetil House,

Tirur.P.O, Thazhepalam,

Vadakke Annara, Malappuram

 

2. Prasanth Family Restaurant,

UP Hill, Malappuram

 

(R1 by Adv.Smt.R.Suja Madhav)

(R2 by Adv.Sri.S.Reghu kumar)

COMMON JUDGMENT

SRI.K.CHANDRADAS NADAR   : JUDICIAL MEMBER

        These appeals are filed respectively by opposite parties 1 & 2 in CC.No.146/2013 in the CDRF, Malappuram. The first respondent in both the appeals was the complainant. He purchased a bottle of drinking water from opposite party no.2 which was manufactured by opposite party no.1 on 24.06.2013 by paying Rs.20/-. According to the complainant when he opened the bottle and started to drink water he felt distaste and noticed colour change in the water. Complainant was convinced that impure water was filled in the bottle supplied to him which was unfit for human consumption. There was exchange of words with the manager of opposite party no.2 attracting the attention of local channels who were covering a collectorate march conducted by one of the political parties. Immediately afterwards complainant approached the consumer forum and filed complaint. He produced the water bottle along with the complaint. He had approached the office of the health department nearby but they failed to entertain his complaint.

        Only the second opposite party filed version before the consumer forum. They admitted purchase of water bottle from their shop but disputed all the remaining allegations. They contended that the water bottle was a sealed one and no complaint was ever made to the second opposite party. They disputed the allegation that the water supplied to the complainant was impure and that the water was unfit for human consumption. They further contended that even if the allegations were true, opposite party no.1, the manufacturer alone was responsible. The complaint is filed with a view to tarnish the goodwill and reputation of the second opposite party.

        Before the consumer forum the complainant gave oral evidence as PW1. Exts. A1 & A2 were marked on his side. The water bottle purchased by the complainant was produced as MO1. On the side of the opposite parties no oral or documentary evidence was adduced. The consumer forum held that deficiency in service was committed by the opposite parties and directed them to deposit Rs.50,000/- before the consumer forum. From the said amount Rs.10,000/- was directed to be paid to the complainant and the remaining amount was directed to be          “ handed over to the Kerala Chief Minister’s Relief Fund to the scheme of providing pure drinking water to the common  masses”. The opposite parties separately challenge the order of the consumer forum. Identical questions arise for consideration in these appeals.

        Admittedly, complainant purchased as per Ext.A1 bill a bottle of drinking water from the second opposite party on 24.06.2013. The first opposite party was the manufacturer of the drinking water. The allegation that when the complainant started to consume the water he noticed colour change and distaste is disputed by the second opposite party. As observed by the consumer forum within one hour after purchase of the drinking water MO1 bottle was produced before the consumer forum. It is true that the consumer forum did not follow the procedure contemplated by Section 13(c) of the Consumer Protection Act. But Section 13 (c) is attracted only when the consumer forum feels that the defect in the goods cannot be determined without proper analysis or test of goods. Here apparently, the consumer forum felt no such necessity. At any rate, it was the failure of the consumer forum itself and the complainant can not be blamed because of that. So the question is whether the complainant can be  believed when he asserts that the water in MO1 bottle purchased by him was not fit for human consumption and the opposite parties had supplied impure drinking water to him. The complainant produced Ext.A2 a CD allegedly shot by media persons who were covering a collectorate march. But the CD perse is not acceptable evidence. The person who shot the event and prepared the CD is not examined. But as against the deposition of the complainant no evidence on oath is forthcoming. The complainant was cross examined by the learned counsel for the second opposite party. He admitted that the water sold was in sealed bottle. He demanded bill for the product apparently when its quality was doubted. There is nothing to disbelieve this version because ordinarily no person will insist for a bill on purchasing a bottle of drinking water. So immediately on purchase the quality of the product was disputed and within one hour the dispute was brought before the consumer forum. Hence though expert evidence is lacking we are inclined to accept the version of the complainant that the product supplied to him was unfit for human consumption. So this finding of the consumer forum is liable to be upheld.

        But it may be observed that the consumer forum went on to assume many things which are not supported by evidence and finally passed the order referred to earlier which is beyond its jurisdiction. The consumer forum awarded compensation of Rs.10,000/- to the complainant. But the direction to deposit Rs.40,000/- in the Kerala Chief Minister’s Relief Fund is passed without jurisdiction. Under the scheme of the Consumer Protection Act such a procedure is not contemplated and the consumer forum can exercise only the powers vested as per the provisions of the Consumer Protection Act. So this part of the direction of the consumer forum is liable to be vacated. The consumer forum rightly fixed joint and several liability on the appellants who are the manufacturer and seller of the product. It appears that he had only started to consume the product and there is nothing to show that any physical harm was caused to the complainant. Therefore, the compensation amount can be reduced to Rs.5000/-.

        Accordingly, we allow the appeal in part and direct the opposite parties to jointly and severally pay Rs.5000/- to the complainant / first respondent in this appeal within one month from the date of receipt of copy of this order.

K.CHANDRADAS NADAR : JUDICIAL MEMBER

 

 

 

V.V.JOSE                         : MEMBER

 

Be/

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

KERALA STATE

 CONSUMER DISPUTES

 REDRESSAL COMMISSION

 SISUVIHARLANE

VAZHUTHACADU

 THIRUVANANTHAPURAM

 

APPEAL NOS.753/15 &

 A.710/15

COMMON JUDGMENT

DATED: 22.02.2017

 

 

                                                                         BE/