Tamil Nadu

StateCommission

A/175/2018

The General Manager, Hindustan Coca cola Beverages Pvt Ltd, - Complainant(s)

Versus

K.B. Saravanakumar and another - Opp.Party(s)

M/s. R.Parthasarathy

30 Aug 2022

ORDER

 IN THE TAMILNADU STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI.

 

Present:   Hon’ble THIRU. JUSTICE R. SUBBIAH  :     PRESIDENT

                 THIRU R. VENKATESAPERUMAL            :      MEMBER

 

F.A. No. 175 of 2018

(Against the order passed in C.C. No.204 of 2011 dated 01.11.2017 on the file of the D.C.D.R.F., Chennnai (South).

 

Tuesday, the 30^th day of August 2022

 

The General Manager

Hindustan CocaCola Beverages

   Pvt. Ltd., Sy.No.127 to 131

Kappugenneri Village

Sri Kalashasti Mandal

Chitoor – 517 640

Andhra Pradesh                                                 .. Appellant/

                                                             1^st Opposite Party

 

- Vs –

 

1.  K.B. Saravanakumar

     S/o. Balakrishnan

     No.22, Krishnapalayam 1^st Street

     Arapalayam Cross Road

     Madurai – 16.                                               .. 1^st Respondent/    

                                                                                     Complainant

2.  Proprietor

     ‘Lalithas’ Medical & General

     G.T Road

     Opp. Egmore Railway Station

     Chennai – 600 008.                                       ..2^nd Respondent/

                                                                              2^nd Opposite party

                       

  Counsel for Appellant / 1^st Opposite Party       : M/s.R.Parthasarathy       

  Counsel for the 1^st Respondent/ Complainant  :  Served, Called Absent

 

  Counsel for the 2^nd Respondent/

   2^nd Opposite Party : M/s. J.J.R. Edwin                                                                             

                                               

This appeal is coming before us for final hearing today, on 28.04.2022, and on hearing the arguments of the counsel for the appellant and the 2^nd Respondent and on perusing the material records, this Commission made the following :-

O R D E R

R.SUBBIAH J., PRESIDENT

                This appeal has been filed under Section 15 of the Consumer Protection Act, 1986 as against the order dated 01.11.2017 passed by the District Consumer Disputes Redressal Forum, Chennai (South) in C.C. No.204 of 2011, allowing the complaint, in part. 

 

        2.  The appellant is the 1^st opposite party, the 1^st respondent is the complainant and the 2^nd respondent is the 2^nd opposite party.  For the sake of convenience, the parties will be referred as per their ranking before the District Forum. 

 

            3.   The case of the complainant is that he is a travel agent and also owner-cum-driver of a tourist car.  During his routine visit to Chennai, the complainant along with his friend went to the shop of 2^nd opposite party and purchased a 600 ml bottle of ‘Sprite’ and a ‘5 Star’ chocolate, obtained a cash bill No.25026 dated 16.10.2010.  The said Sprite bottle is a product of the 1^st opposite party.  After purchasing the bottle the complainant was shocked to see a fragment of a dead house fly floating inside the bottle in the juice of the soft drink bottle.  It could be seen transparently without opening the bottle.  Hence, he did not open the bottle.  As soon as he reached Madurai he called the 2^nd opposite party and informed him about this.  He has not properly responded.  The complainant also sent a telegram notice to the 2^nd opposite party on 15.11.2010 calling upon him to send the dealer’s address for initiating legal action.  But, the said telegram was not responded.  Hence, he issued a legal notice to both the opposite parties, without impleading the dealer, as his address was not known to him despite taking sincere and serious efforts.  It is the duty and responsibility of the manufacturer to maintain vigil, while manufacturing the product.  Had the complainant opened the bottle and consumed the drink ‘Sprite’ purchased from the 2^nd opposite party, his health would have been seriously affected.  Hence, alleging deficiency of service on the part of the opposite parties, he has filed the complaint before the District Forum claiming a sum of Rs.10,00,000/- towards mental agony caused to the complainant.

 

            4.             Resisting the complaint, the 1^st opposite party had filed a written version stating that the 1^st opposite party company maintains and follows extremely high standard of quality and integrity in producing all the products.  The 1^st opposite party maintains and follows good manufacturing practices to ensure hygienic and sanitary condition, so as to eliminate the likelihood of product spoilage because of any extraneous matter.  It is also pertinent to mention here that they have a fully equipped laboratory manned by a team of experienced and trained chemists to make sure that the standards are met at every stage of production till the beverages is manufactured and packed into the bottle.  The complainant is not entitled to any relief under Section 14 of the Consumer Protection Act, 1986 in as much as the complainant has claimed relief of Rs.24/- the value of the cool drink and Rs.10 lakhs as damages and compensation for mental agony.  Section 14 provides for payment to be awarded by way of compensation to a consumer only for any loss or injury suffered by the consumer due to the negligence of the opposite parties.  The complainant has not produced any proof for the loss suffered by him due to the negligence of the 1^st opposite party.  Further, the complaint is not maintainable under the provisions of the Consumer Protection Act, 1986 in as much as the complaint has not been filed in the manner under which it is required to be filed, as contemplated under Section 12 r/w Section 13 of the Act.  As per Section 13(1), the District Forum, on receipt of a complaint, where the complainant alleges any defect in the goods, cannot be determined without proper analysis or test of the goods and should obtain sample of goods in question in the manner as specified in Section 13(1) i.e., duly sealed and authenticated in the manner prescribed or the sample so sealed referred to the appropriate laboratory along with a direction for making an analysis or test, at the time of filing the complaint.  The present complaint has been filed without following such necessary procedural formalities and hence the same is liable to be dismissed.  There is no scope for carelessness or negligence on the part of the opposite party since all the bottling plants of the 1^st opposite party are fitted with robust state-of-the-art machinery which is fully automatic. All the products bearing the trade mark of Coca Cola are bottled with utmost care.  There is no scope of carelessness or negligence of any sort on the part of the 1^st opposite party since it is technically impossible for any foreign object to be present in plastic pet bottles which are not re-used or refilled.   There is no possibility of the alleged house fly or any such alien particle in its soft drink as the drink is manufactured, filled, sealed after taking high care and precautions, moreover all the drinks are manufactured with automated machines, hence presence of house fly in the drink is stoutly denied.  The said bottle has been tampered or prepared by the complainant to seek unjust advantage out of the beneficial legislation by claiming Rs.10 lakhs.  Since the content of the bottle is questionable, the complaint based on that bottle also becomes questionable and baseless in the eye of law.  There is an effective alternative forum for resolution for the complaint and the authorities set up there have enough powers to take action against unscrupulous elements, who are manufacturing these spurious drinks. Hence, the present complaint cannot be decided by this consumer forum. 

 

             5.  In order to prove the case, on the side of the complainant, along with proof affidavit 5 documents were filed and the same were marked as Ex.A1 to A5.  On the side of the opposite parties, proof affidavit has been filed but no documents were marked.  The Chemical analysis report obtained by the District Forum is marked as Ex.C1.

 

            6.  The District Forum, after analyzing the entire evidence and records, has allowed the complaint directing the opposite parties to pay a sum of Rs.24/- towards cost of the Sprite bottle and a sum of Rs.15,000/- as compensation for mental agony along with a cost of Rs.5000/-. 

 

            7.  Learned counsel for the appellant/ 1^st opposite party made a detailed submission adverting to the defence made in the version.  It is the specific submission of the counsel that the bottle with the dead housefly could never be manufactured or marketed by the appellant/ 1^st opposite party.  It is also further submitted that it is difficult to believe that the alleged bottle had not been noticed by the Quality Control Department at the time of loading and unloading.  Further, it is easy for anyone to open the bottle and drop in a foreign material.  Furthermore, it is also not clear in the case whether the complainant had submitted the alleged beverage PET bottle in a sealed condition and in the same manner as it was, at the time of purchase.   The cap of every PET bottle contains the particulars namely, batch number, date of manufacture, date of expiry etc., but the same was not there in the bottle produced by the complainant.  The Analyst Report No.3792 dated 22.11.2012 reveals that the bottle was covered with a gada cloth.  However, the closure condition of the cap finds no mention.  In the report, whether the bottle was in a properly sealed condition or had already been opened, is not mentioned.  The Analyst’s Report cannot be relied upon as there is no mention about the product details such as batch number, date of expiry which renders the entire report unreliable.  Further, the Analyst’s Report does not contain the following tests that are mandatory to check the integrity of the products sent for analysis,

i)  Closure condition,

ii) Closure function,

iii) Appearance Tests,

iv) Carbonation, Micro and

v) Net content. 

The closure condition of the bottle should have been checked using special equipment.  In the absence of the special equipment in the laboratory to conduct the test, it would have been impossible to arrive at a conclusive proof.  Furthermore, considering the acidic nature of the liquid, it is impossible for an organic matter such as a housefly to be in the same state for more than a year i.e., from the date of purchase till the date, the bottle was sent for testing.  This leads to serious doubt. 

 

In the absence of appropriate tests the report of the Government Analyst is not a complete one.  Hence, sought to set aside the order of the District Forum.

           

        8.   Heard the submissions made by the counsel for the appellant/ 1^st opposite party and have carefully gone through the entire material available on records.  There is no representation for the 2^nd respondent/ 2^nd opposite party.  Though notice has been served, there is no representation for the 1^st respondent/ complainant.

 

            9.  Be it as it may, though the submission of the counsel for the appellant/ 1^st opposite party is appreciable, the fact is that the sprite bottle was marked as MO-1 and was produced before the District Commission.  Pursuant to the order passed by the District Commission, the same was sent for chemical analysis before the Government Analyst, Food Analysis Laboratory, Guindy, Chennai.  In the said report, it has been stated,

“ This sample found to be an unsafe food under Regulation 3(1)(zz)(ii) & (x) of the FSS Act 2006, since it contains a dead house fly which is not permitted in this food”

 

Though the appellant/ 1^st opposite party had stated that the PET bottle was not manufactured by them.  Except merely making a statement explaining their production process, quality check etc., they have not taken any effort to defend the stand, by producing any tangible evidence.  The appellant/ 1^st opposite party ought to have taken some steps to establish that the bottle containing house fly was not manufactured and marketed by them.  Therefore, we do not find any infirmity in the order passed by the District Forum.  However, we feel that the complainant is not affected due to the mistake committed by the opposite parties. 

 

                10.   Therefore, we are of the considered opinion that the compensation of Rs.15,000/- awarded is on the higher side and that a compensation of a sum of Rs.3000/- towards deficiency of service and a sum of Rs.2000/- as cost, would meet the ends of justice. 

 

                11.   In the result, the Appeal is dismissed.  However, the award of Rs.15,000/- granted as compensation to the complainant is reduced to Rs.3000/- and the sum of Rs.5000/- awarded as cost is reduced to Rs.2000/-.  The opposite parties  1 and 2 are directed the pay the above amount, within a period of two months from the date of receipt of a copy of this order.  Except the above modification, the order dated 01.11.2017 passed in C.C. No.204 of 2011 by the District Consumer Disputes Redressal Forum, Chennai (South) is confirmed, in all other aspects.  Consequently, the Appeal is dismissed.

 

 

 

R. VENKATESAPERUMAL                              R.SUBBIAH

         MEMBER                                                            PRESIDENT

 

 

Index :  Yes/ No

 

AVR/SCDRC/Chennai/Orders/August/2022

 

 

 

 

 

 

 

 

 

 

 

 

 

 

F.A. No. 175 of 2018

HON’BLE THIRU

JUSTICE R.SUBBIAH, PRESIDENT

        In the result, the Appeal is dismissed.  However, the award of Rs.15,000/- granted as compensation to the complainant is reduced to Rs.3000/- and the sum of Rs.5000/- awarded as cost is reduced to Rs.2000/-.  The opposite parties  1 and 2 are directed the pay the above amount, within a period of two months from the date of receipt of a copy of this order.  Except the above modification, the order dated 01.11.2017 passed in C.C. No.204 of 2011 by the District Consumer Disputes Redressal Forum, Chennai (South) is confirmed, in all other aspects.  Consequently, the Appeal is dismissed.

 

MEMBER                  PRESIDENT

30.08.2022               30.08.2022