DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II

Udyog Sadan, C-22 & 23, Qutub Institutional Area

(Behind Qutub Hotel), New Delhi-110016

Case No.438/2010

Sh. Sanjay Sharma

S/o Late Shri Paresh Nath Sharma,

R/o Apartment #50,

Plot No. 5,

Uttaranchal Apartments, Mother Dairy,

I.P. Extension, New Delhi-92                                     

….Complainant

Versus

1. Karim’s Restaurant

DLF Food Court,

DLF Place,

A-4, District Centre Saket,

New Delhi-110017.

Through its Manager/ Principal Officer/ Director/ Secretary

2. Coca Cola India Pvt. Ltd.         

Enkay Towers, Phase-V, Udyog Vihar,

Gurgaon, Harayana

Through its Manager/ Principal Officer/ Director/ Secretary

3.   Hindustan Coca Cola Beverages Pvt. Ltd (Subsidiary of Coca Cola)

      JMD Towers,

11^th Floor DLF-II,

Gurgaon, Haryana

Through its Manager/ Principal Officer/ Director/ Secretary

4. Enrich Agro Food Products Limited

267-277 Udyog Vihar Dundahera,

Gurgaon-122016

Through its Manager/ Principal Officer/ Director/ Secretary

                                                                         ….Opposite Parties

                                                  Date of Institution      :         07.07.10    Date of Order              :         04.06.19

Coram:

Sh. A.S. Yadav, President

Ms. Kiran Kaushal, Member

ORDER

Member - Kiran Kaushal

1.      The complainant Sanjay Sharma, along with his family went to DLF Place Mall and bought a coupon worth Rs.1000 to be consumed at the DLF Food Court.

1.1    Complainant’s child bought a bottle of Limca 600 ML (pet bottle) from Karim’s Restaurant hereinafter referred to as OP-1 which is bottled at Enrich Agro Food Products Ltd. (OP-4). Before the child of the complainant opened the bottle the complainant saw some foreign object floating inside the sealed bottle. The complainant immediately stopped his child from opening the bottle and on further careful examination the foreign object seemed like some kind of plastic with red botches.

1.2    On approaching the staff of OP-1 the complainant was advised to approach Coca Cola India Pvt. Ltd. (OP-2) and its subsidiary Hindustan Coca Cola Beverages India Pvt. Ltd. (OP-3). The complainant thereafter, approached OP-2 and OP-3 on various occasions but did not receive any satisfactory response. Though verbally one Mr. Virender Sehag the Quality Assurance Executive of OP-3 said that the stocks need to be checked as the contents thereof may be unfit for human consumption. Appalled with OPs response complainant approached this Forum to direct OP with the following prayer. Despite having the knowledge OPs failed to redress the grievance.

(a)      The respondents, to furnish a written apology to the complainant for the entire incident as mentioned above.

(b)     The respondent No. 2 to 4 to adopt more stringent actions in order to avoid these kinds of cases.

(c)      The respondents, to pay to the complainant, an amount of Rs.15,00,000/- (Rupees Fifteen Lakhs) Only for the mental agony and harassment caused to the complainant and his family due to the aforesaid acts deficiency of service of the respondents.

(d)     The respondents, to pay to the complainant Rs.50,000/- only towards cost of litigation of this complaint.

2. OP-1 resisted the complaint inter-alia stating that OP-1 is only a retailer. He is neither a manufacturer nor a supplier of the soft drinks. It is further submitted that the two receipts are taken out by the computer, one receipt is provided to the customer and other receipt is kept in the record of OP-1. The complainant has not produced the receipt of purchasing Limca 600 ML bottle from OP-1. Hence, OP-1 cannot be held liable for deficiency of service. It is, thus, prayed to dismiss the complaint with heavy cost.
3.  OP-2 filed its written statement raising preliminary objections that the complaint is bad for mis-joinder of parties. OP-2 submits that it has no connection with manufacturing or selling of any beverage / drink. OP-2 is not in the business of preparation, packaging, distribution and sales of beverages/ cold drink. Therefore, OP-2 prays that the complaint should be dismissed with exemplary cost for wrongly arraying OP-2 in litigation.
4. OP-3 resisted the complaint stating that as per complainant’s own admission the said bottle has been manufactured by OP-4 which is an independent business entity having no nexus and relation with OP-3. It is next submitted that as the complainant had not mentioned the name of the manufacturer of the disputed bottle in his complaint, therefore, Mr. Virender Sihag visited the residence of the complainant merely to inspect the bottle and check the name of the manufacturer. However, since the bottle was manufactured by OP-4. Mr. Virender could not take any corrective remedial steps at his end. For the reason stated above, it is prayed for dismissal of the complaint qua OP-3.
5. OP-4 resisted the complaint inter-alia stating that the bill annexed with the complaint does not relate to the alleged purchased product. The complaint is devoid of material such as details of batch number and date of the manufacturing of the bottle. Further OP-4 submits that there is absolutely no material to show the alleged loss suffered by the complainant and thus, the claim of compensation is unjustified, as by complainant’s own admission the complainant did not consume the beverage contained in the said bottle.
   1. It is further submitted that OP-4 maintains extremely high standards of quality and hygiene for various products bearing the trademarks of the Coca Cola Company. OP-4 prepares and packages its product with the utmost attention as regards the product quality, hygiene and cleanliness. Therefore, it is submitted that the alleged bottle is a spurious one and OP-4 had neither manufactured nor bottled the same. Reiterating the quality checks and stringent measures taken by OP-4 during manufacture, packaging and bottling, OP-4 submits that over a period of time Coca Cola Company has detected that various unlicensed persons have been selling spurious beverages by unlawful means and illegally using the trade mark of the company in India.
   2.  It is next submitted that the amount of compensation claimed by the complainant is baseless and unconscionable. It is prayed that for the reasons stated above, the complaint should be dismissed with exemplary cost.
6. Rejoinder is filed on behalf of the complainant. Evidence by way of affidavit is filed by the complainant wherein facts of the complaint are reiterated. Evidence by way of affidavits of Shri Afroz Alam, Authorized Representative, Shri Anjal Raj Authorized Representative and Shri Vijay Kumar Sarda General Manager have been filed on behalf OP-1, OP-3 and OP-4 respectively. No evidence has been filed on behalf of OP-2
7.  Written arguments have been filed on behalf of the parties.
8. Arguments on behalf of the complainant, OP-1, OP-2 and OP-4 have been heard and despite providing opportunity to OP-3 none appeared on their behalf to advance oral arguments.
9. It is evident from the recharge slip exhibited as Annexure-A and Debit Card Status Report issued by the DLF Food Courts, Saket exhibited as Annexure-X that bottle of Limca 600 ml. was purchased by the complainant and taken by his son for consumption. Photographs of the sealed bottle wherein red botches can be seen inside are placed on record. Further at the time of oral arguments, the complainant had brought the sealed bottle wherein some foreign particle could very well be seen with naked eye. There is no iota of doubt that the said bottle purchased by the complainant contained foreign substance. Therefore, as held in a matter titled Hindustan Coca Cola beverages vs. Shri A.K. Sharma in appeal No. A-2007/494 we did not find it necessary to send the bottle for lab test. The relevant portion of the order is produced as under:-

“….Once District Forum had inspected the contents and on seeing the bottles with naked eye contents appear to be contaminated or having some foreign substance then there was no need to send for chemical analysis or laboratory test as provided by Section 13 of Consumer Protection Act, 1986”.

10. Further the plea taken by OP-4 that the bottle of Limca seems to be spurious or counterfeit product does not hold water in our eyes as such an escape route cannot be allowed without evidence in the particular case.
11. Similar views was taken in Hindustan Coca Cola Beverages Vs. Shri A.K. Sharma in Appeal No. A-2007/494 :-

“In our view, it is for the manufacturer of such drinks to ensure that the consumer who intends to purchase their products are sold defect free. It is not the concern of the consumers unless proved otherwise that the product in the brand name like “Maza” is being manufactured by some spurious manufacturer and not by the actual manufacturer. Also person would go by the label prominently projecting the name of the product. If such defences are allowed then every manufacturer would escape from its liability.”

12.     The forum is of the opinion that OP-1 failed to redress the grievance of the complainant at the point of sale itself, therefore is liable for deficiency in service. OP-2 and OP-3 cannot wriggle out of their liability by stating that it has no concern with the manufacturing or selling of any beverages. The complainant has annexed as Annexure-D the printouts of the website of Coca Cola India acknowledging that ‘Coca Cola System comprises of Coca Cola India Pvt. Ltd. Hindustan Coca Cola Beverages Pvt. Ltd. and Franchise bottling operations’. Further OP-4 in its evidence averred that the Coca Cola Company owns the trade marks, formulations and other intellectual property in relation to the beverages bases and the beverages, vis, Coca Cola, Fanta, Thumbs up, Limca, Sprite and Gold Spot etc. Coca Cola company has appointed and licensed / franchised the OP-4 to prepare, package sell and distribute the beverages under trademark of the Coca Cola Company.

13.     Hence, the conclusion drawn is that by lending its brand name and trademark to a product, OP-2 and OP-3 are as much liable for the deficiency in service as OP-4, where the product was manufactured or bottled. The said averment is nowhere controverted by OP-2 and OP-3.

14.     Therefore, in the light of above discussion, we hold OP-1, OP-2, OP-3 and OP-4 guilty of deficiency in service. We allow the complaint and direct to OP-1, OP-2, OP-3 and OP-4 to pay jointly and severally Rs.25,000/- by way of compensation towards mental agony, harassment with interest @ 6% per annum from the date of purchase of the bottle till realization and Rs.5,000/- as litigation cost to the complainant.

15.     OPs are directed to pay the complainant within a period of two months from the date of receipt of the copy of this order failing which the OPs shall become liable to pay interest @ 9% p.a. on the aforesaid amount from the date of purchase of the bottle till realization.

Let a copy of this order be sent to the parties as per regulation 21 of the Consumer Protection Regulations. Thereafter file be consigned to record room.

Announced on 04.06.19.