BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, FATHGARH SAHIB.
Complaint Case No: 84 of 2017
Date of Institution: 05.12.2017
Date of Decision: 16.11.2021
Rajinder Kumar Thareja son of Sh. Chaman Lal, resident of Mohalla Kalandar Shah, Bassi Pathana, Tehsil Bassi Pathana, District Fatehgarh Sahib
...........Complainant
Vs.
- Khem Chand & Sons, Mote Wala Chowk, Bassi Pathana, District Fatehgarth Sahib through its Proprietor Rakesh Kumar S/o Sh. Khem Chand...
- Dhruv Bhatia Marketing and Sales Manager, Opposite Usmania Gate, Patiala.
- Kashmir Hygienic, Pvt. Ltd. Canal Rest House, VPO Gobindpura, Bathinda, Punjab through its Managing Director.
- Kashmir Hygienic, Pvt. Ltd. 257, Patel Nagar, Bathinda, through its Director.
..........Opposite Parties
Complaint Under Section 35 of Consumer Protection Act 2019
Quorum
Sh.Pushvinder Singh, President
Ms.Shivani Bhargwa, Member
Sh.Manjit Singh Bhinder, Member
Present: Sh. Tejinder Singh Kang Advocate, counsel for the
complainant.
Opposite Party No.1 Ex-parte.
Sh.Gajinder Singh, Advocate, Counsel for the Opposite party
no.2.
Sh. Vinay Sood, Advocate , Counsel for OPs no.3 and4.
ORDER
By Pushvinder Singh, President
The present complaint was filed under Consumer Protection Act, by the complainant (hereinafter referred as ‘CC’ for short) against the Opposite Parties (hereinafter referred as “OPs” for short) Under Section 35 of the Consumer Protection Act 2019. The brief facts of the complaint are as under:-
2. In this complaint, The CC pleaded that he has purchased a Crate of Campa lemon drink (24 Bottles) bearing Batch no.503 by paying Rs.165/- from OP. no.1 on dated 2.6.2017. The CC visited the shop of OP no.1many times for obtaining the bill of said purchase but the OP. No.1 kept on delaying the matter on one pretext or the other and after a considerable time he issued the bill vide invoice no.4 dated 26.8.2017. When the CC opened the said Crate of Campa Lemon Drink, he saw some noxious material in the bottle of said Campa Lemon Drink and noticed that there were many dead ants and fungus in the same. The CC approached to OP no.1 to take back the bottles but he flatly refused to take back the same. Regarding this matter, the CC also sent whatsapp message to the OP no.2. After seeing the message the OP no.2 told the CC that he will come within few days to Bassi Pathan but he did not come to see the said Campa Lemon Bottles . The CC many times requested OPs to return the above said Crate of Campa Lemmon Drink but the OPs refused to take back the same. On dated 1.9.2017 the CC served a legal notice through his counsel upon the opposite parties, but all in vain. The act and conduct of the opposite parties amounts to deficiency in service on their part. Hence, this complaint for giving directions to the OPs to pay Rs.1,00,000/- as compensation on account of physical pain , mental agony and harassment.
3. The complaint has been contested by OP no.2, who filed his written reply, raising preliminary objections that the present complaint is not maintainable, that there is no consumer of the OP no.2, no unfair trade practice or no deficiency in service and devoid of any merits. The complainant has not approached this Commission with clean hands as he has got no cause of action etc against him (OP no.2). It is further alleged on the merit that the complaint of Complainant is baseless and there is no involvement of the OP no.2 in the present dealing of the complainant. The Complainant earlier has filed the complaint on the basis of some false bill . Later on when the objection was raised by OP no.2 then he twisted the matter by procuring false document and got amended the complaint very cleverly. Earlier the CC himself alleged that he purchased product worth Rs.165/- on 2.6.2017 bearing Batch no.503 whereas later on bill produced is of dated 26.08.2017 and that of Rs.370/- without any batch number. The CC has alleged in complaint that he has purchased a Crate of Campa Lemon Drink (24 bottles) by paying Rs.165/- ,whereas in the bill dated 26.8.2017 alleged to have been issued by OP no.1, mentions the description of goods as (i) “Fruit Juice Base Drink 250ML Cola of Rs.165 and (ii) Fruit Juice Base Drink 250ML Lemon of Rs.165/-. It shows how cleverly and mischievously Complainant manipulated the bills just to get the compensation amount from OP.2. It is denied that CC has sent the whatsapp message to the OP no.2 and not even a single allegation is there against the OP no.2. There is neither any service rendered by the OP no.2 to the Complainant nor the Complainant has purchased any goods or any other item from the OP no.2. The OP no.2 belongs to Patiala and he has nothing to do with the alleged purchase of Crate of Campa Lemon drink by the CC from the OP no.1 at Fatehgarh Sahib nor he has any link with the said business of OPno.1. There is no deficiency in service or unfair trade practice on the part of the OP no.2. Accordingly , OP. no.2 prayed for dismissal of the complaint with costs.
4. The complaint has been contested by OPs no.3 and 4, who filed their written reply, raising preliminary objections that the present complaint is not maintainable, complaint is false, frivolous, the complainant has not come to the court with clean hands, no cause of action, this commission has got no territorial jurisdiction to try and decide the present complaint. It is further alleged on the merit that the complaint it is wrong that Complainant has purchased a Crate of Campa Lemon drink (24 Bottles) by paying Rs.165/- from OP no.1 on dated 2.6.2017, bearing batch no.503. No copy of the bill has been supplied nor has been appended with judicial file. It is denied that when the complainant opened the said crate of Campa Lemon Drink then he saw some noxious material in the bottle of said Campa Limon Drink and there are many dead ants
and fungus in the same. Accordingly , OPs. no.3 and 4 prayed for dismissal of the complaint with costs.
3. The Notice of this complaint was given to OP. no.1 but in spite of proper service OP No.1 did not come to contest this complaint and he was proceeded against Ex-Parte.
3. The CC in support of his complaint tendered in his evidence affidavit Ex.CW1/A along with documents Ex.C1 to Ex.C7 and closed the evidence. In rebuttal the OPs. no.3 and 4 tendered in evidence affidavit of Vikas Singla Ex.OPZ/1
4. We have heard learned counsel for the complainant and OPs no.2,3 and 4 and have also gone through the record.
5. The complainant has been filed the present complaint with the allegation that he purchased 24 bottles of Campa Lemon Drink by paying Rs.165/- from the OP no.1 on 2.6.2017. The complainant demanded bill of said purchased bottles but OP no.1 did not issue the bill at that time but he postponed the matter on one pretext or the other and after a long time he issued the invoice no.4 dated 26.8.2017. When the complainant opened the said bottle, then he saw some noxious material in the bottle of said Campa Lemon Drink and there are many dead ants and fungus in the same. The Op no.1, who allegedly sold the bottles of Campa Lemon Drink did not come forward to contest the case . Further the OPs no.2,3 and 4 denied all the allegations of the complainant.
6. The complainant in evidence has furnished his affidavit and deposed retreating the facts of the complaint and he also proved bill issued by the OP no.1 as Ex.C1, visiting card of Dhruv Bhatia Ex.C2, Legal notice as Ex.C3, Postal receipts Ex.C4 to Ex.C6 and report of Food analyst, Punjab Chandigarh Ex.C7 and affidavit of Vikas Singla, Director Kashmir Hygienics Ex.Z1 by the Counsel for OPs no.3 and4.
7. As per the bill produced by the complainant as Ex.C1, it is clear that he purchased 24 bottles of Campa Lemon Drink from OP n o.1 i.e Khem Chand & Sons and in this regard bill/invoice issued on 26.8.2017. The complainant has alleged that 24 bottles of Campa Lemon Drink purchased on 2.6.2017 but the bill was not issued by the OP no.1 on that time and it was issued later on i.e on 26.8.2017 when the complainant approached him again and again. This fact of complaint is unrebutted as OP no.1 did not come forward to contest the claim and this fact deposed by the complainant by way of filing affidavit also. From perusal of file it is also clear that on 25.2.2019 the bottle of 250ML Lemon fruit Juice base drink of Campa was produced by the complainant before this Commission and Ld. counsel for the complainant requested to send the bottle to the Public Analyst Central Forensic Laboratory for the purpose of testing. . The batch number of said bottle is mentioned in the order dated 25.2.2019 as 503 and manufactured by Kashmir Hygienic Pvt. Ltd , PO Gobindpura, Bathinda(Punjab) on 2.3.2017. The said bottle was sent to the Food Analyst Central Forensic Laboratory, Chandigarh and report was called and the report dated 22.3.2019 was received on 1.4.2019. Perusal of repot , we find that the following opinion has been given by Analyst:-
From examination of the sample herein referred to and the result obtained by analysis , I am of the opinion that the sample has been received in the laboratory after expiry of its best before date and as per section 27(3)(a) of Food Safety and Standards Act 2006, seller is liable for any article of food which is sold after the date of its expiry . Also, the contents of the sample contain abundance of insects and jala like foreign substance. Hence unsafe for human consumption also.
As per the report submitted by Food Analyst Central Forensic Laboratory, Chandigarh , it is clear that the date of manufacture or packing is 2.3.2017 as mentioned on the bottle and it is also mentioned on the bottle itself that it should be used within 3 month from the date of manufacturing. Meaning thereby the Campa Lemon Drink was fit to consume till 1.6.2017. The OP no.1 sold the said bottle on 2.6.2017 i.e after the date of expiry and it is also opined by Food Analyst that as per section 27(3)(a) of Food safety and Standards Act 2006, seller is liable for any article of food which is sold after the date of its expiry. It is also mentioned that it was unsafe for human consumption. Accordingly, we find that the OP no.1 sold the bottles of Campa Lemon Drink to the complainant after the expiry of date, so he is liable for the same. The complainant has requested compensation of Rs.1,00,000/- on account of physical pain and the complainant is also entitled to recover the price of bottle i.e Rs.165/- from OP no.1 along with compensation and costs.
8. So far as the liability of other OPs is concerned there is nothing against them as they are only manufacturers and the OP no.1 purchased the said bottle from other OPs and there is no allegation at that time there was any defect in the Drink. Even, otherwise the OP no.1 sold the bottles to the complainant after the date of expiry. So he is only entitled to pay the price of bottles along with compensation and costs. OP no.1 did not come forward to contest the complaint and he was proceeded against Ex-parte. So the complaint is allowed Ex-Parte. So far as the compensation is concerned the complainant has claimed Rs.1,00,000/- as compensation for harassment and mental tension but we find the said claim amount is very excess and the complainant has also failed to point out any specific harassment and mental pain . So we are of the view that an amount of Rs.5000/- can be awarded to the complainant towards the compensation along with costs of litigation of Rs.2000/-.
9. In view of our above said discussion , the complaint is dismissed against OPs no.2 to 4 and the complaint is allowed ex-parte against OP no.1 only. And OP no.1 is directed to pay the sum of Rs.165/- as price of bottles and Rs.165/- as interest on the amount of bottles along with Rs.5000/- as compensation for harassment and mental pain and Rs.2000/- as costs of litigations. Compliance of this order be made by OP no.1 within sixty days from the date of receipt of certified copy of this order. Certified copy of the order be supplied to the complainant and the OPs through registered post as per rules. File be indexed and consigned to record room.
Announced
November 16, 2021
(Pushvinder Singh)
President
(Shivani Bhargava)
Member
(Manjit Singh Bhinder)
Member
