Complainant in person
Advocate R. T. Tathe for the Opponent No.1
Advocate Vaibhav Jathar for the Opponent No.2
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Per Hon’ble Shri. V. P. Utpat, President
:- JUDGMENT :-
Date – 21st August 2013
This complaint is filed by consumer against the retailer and manufacturing company for deficiency in service as well as for supply of defective goods u/s 12 of the Consumer Protection Act, 1986. Brief facts are as follows-
[1] Complainant is the resident of Koregaon Park, Pune. The Opponent No.1 is the retailer and the Opponent No.2 is manufacturing company of Beer and Wine. On 11/03/2009 the complainant has purchased three Beer bottles from the shop of the Opponent No.1. Out of the three bottles one bottle was containing metal cover inside and the bottle was sealed. Said bottle was not consumed by the complainant and preserved in the same condition as evidence. He has informed this fact to the opponents by sending notice through Advocate dated 16/03/2009 but the Opponents sent false and vague reply. Hence he has filed present complaint against both of them. According to him the goods supplied by the opponents is defective and both retailer as well as manufacturer are responsible for supplying the defective food product. He has claimed compensation of Rs.75/- i.e. the price of the bottle alongwith interest @ 18% p.a. and further asked compensation of Rs.4,50,000/- for mental harassment and inconvenience.
[2] The Opponent Nos. 1 and 2 have appeared before the Forum and resisted the claim by filing separate written version. They have denied the contents of the complaint in toto. They have specifically denied that the complainant had purchased the said bottle from them. It is also contended that eventhough the notice was issued by two consumers the complaint is filed by only one consumer and the said complaint is hit by the principle of non joinder of necessary party. It is further contended that the complaint is filed only with ulterior motive to squeeze money from the Opponents. The manufacturer has also denied the allegations made in the complaint. According to him the bottle was not consumed by the complainant hence he is not entitled to claim compensation for deficiency in service. It is also contended that the Opponent No.2 has Quality Control Department. Each and every product manufactured undergoes through effective quality control system. Unless each and every product meets the prescribed quality standard it is not cleared by the Quality Control System. The Opponents have prayed for dismissal of the complaint.
[3] After scrutinizing the documentary evidence filed by the parties, hearing the argument following points arise for my determination. The points, findings and the reasons thereon are as follows –
Sr.No. | POINTS | FINDINGS |
1 | Whether the complainant has proved that the Opponents have sold out defective product to him ? | In the affirmative |
2 | What order ? | Complaint is partly allowed. |
Reasons
As to the Point Nos. 1 and 2-
[4] The Opponents have denied that the complainant has purchased the bottle in dispute from them. In order to substantiate their contention they have produced the extract of register from Excise Department and at the strength of that extract they have contended that the said bottle was not sold out by them to the complainant. It is also contended that the complainant has not produced receipt of the bottle. Hence complainant is not a consumer and the complaint is not maintainable. However it reveals from the notice reply given by the Opponent No.2 that the Opponent No.2 had shown good gesture and asked the complainant to replace the defective bottle for another one. This fact itself is sufficient to held that the complainant has purchased the bottle from the Opponent Nos. 1 and 2. In ordinary course if there are no relations between the complainant and the Opponents as consumer and service provider there is no possibility that the Opponents might have shown good gesture and allowed the complainant for replacement of the said bottle. In the circumstances I held that the complainant has established relations between the parties as consumer and service provider.
[5] It is the case of the Opponents that the contents of the bottle are not consumed by the complainant and no injury has been sustained to the complainant. In such circumstances there is no deficiency in service and the complainant is not entitled for the compensation on that ground. It is also contended that there is no possibility of insertion of metal lead in the sealed bottle. According to them the complainant should produce the said bottle at the earliest and seek the report from the analyzer about the contents of the bottle. It is also contended that there is doubt about the seal of the bottle. The Opponents did not take pains for verification of the seal through any standard company. If the defects in the product can be seen by nacked eyes then there is no necessity to send the product for chemical analysis. Undoubtedly the chemicals in the Beer bottle must have been affected by insertion of the metal lead in the bottle and there is no need of expert opinion to say that the product which is sold out by the Opponents was defective one.
[6] The complainant has claimed exorbitant compensation i.e. Rs.4,50,000/- Complainant has not established that he had really worried due to purchase of the defective product from the Opponents. The Opponents had offered replacement of the bottle. In such circumstances it cannot be said that the complainant was harassed and mentally tortured. Eventhough the complainant had not consumed the said product the case of the complainant falls under the provisions of unfair trade practice as the product which was sold out by the Opponents as the product was not upto the mark. Hence if the product is replaced by the Opponents and certain amount of compensation is awarded to the complainant for physical, mental sufferings, deficiency in service and cost of the litigation that would meet the ends of justice.
I answer the points accordingly and pass the following order-
:- ORDER :-
1. Complaint is partly allowed.
2. It is hereby declared that the Opponents have caused deficiency in service by selling defective product to the complainant.
3. Opponents are jointly and severally directed to replace the Beer Bottle which is purchased by the complainant and pay compensation of Rs.5,000/- on the ground of deficiency in service, mental and physical sufferings and cost of the litigation.
4. Registrar of the Forum is directed to send the Beer Bottle which is deposited by the complainant to the Excise Department for disposal according to law after appeal period is over.
5. Both parties are directed to collect the sets which are provided for the Hon’ble Members within one month from the date of order. Else those will be destroyed.
Copy of order be supplied to both the parties free of cost.
Place- Pune
Date – 21/08/2013
