Tamil Nadu

StateCommission

A/202/2018

M/s. Coca Cola Company,South India Bottling Company Pvt Ltd, Rep by its Managing Director - Complainant(s)

Versus

L.Mohan Raj, Son of Lingusamy and 3 others - Opp.Party(s)

M/s. B. Shyam

31 Jan 2022

ORDER

IN THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI

 

BEFORE :       Hon’ble Thiru Justice R. SUBBIAH                           PRESIDENT

            Tmt. Dr. S.M.LATHA MAHESWARI                             MEMBER

     

COMMON ORDER IN

F.A.NO.202/2018 AND FA.NO.203/2018

(Against order in CC.NO.14/2014 on the file of the DCDRC, Erode)

 

DATED THIS THE 31^st DAY OF JANUARY 2022   

 

FA.NO.202/2018

 

M/s. Coca-Cola Company

South India Bottling Company Pvt., Ltd.,

Rep. by its Managing Director

B 163-B 170, INDL Growth Center

Sipcot-National Highways-7                                                          M/s. Shyam

Gangaikondan Village                                                                  Counsel for

Tirunelveli District - 637352                                             Appellant / 2^nd opposite party

 

           Vs.

 

1.       L. Mohanraj

          S/o. Lingusamy

          Kodaioonjalkaadu, Ganapathipalayam

          Poonjaikalamangalam Village                                             Served called absent

          Erode Taluk and District                                        1^st Respondent/ Complainant

 

2.       M/s. Hindustan Coca-Cola Beverages Pvt. Ltd.,

          Rep. by its Managing Director                                         M/s. Leela & Co.,

          13, Abul Fazal Road, Bengali market                                  Counsel for

          New Delhi – 110 001                                        2^nd Respondent / 1^st Opposite party

 

3.       M/s. KAS Agency

          Rep. by its Proprietor

          Sub Dealer

          33, Ganapathipalayam                                            Deemed to be served

          Ganapathipalayam Nall Road

          Eode District, Tamil Nadu

 

4.       M/s. Maruthu Bakery & Sweets Stall

          Rep. by its Proprietor

          7D, Savadipalayam Pudhur                                          Served called absent

          Erode District                                        3&4 Respondents/ 3 & 4 Opposite parties

 

 

FA.NO.203/2018

 

M/s. Hindustan Coca-Cola Beverages Pvt. Ltd.,

Rep. by its Managing Director                                                     M/s. Leela & Co.,

13, Abul Fazal Road, Bengali market                                              Counsel for

New Delhi – 110 001                                                       Appellant / 1^st Opposite party

 

                        Vs.

 

1.       L. Mohanraj

          S/o. Lingusamy

          Kodaioonjalkaadu, Ganapathipalayam

          Poonjaikalamangalam Village                                             Served called absent

          Erode Taluk and District                                        1^st Respondent/ Complainant

 

2.       M/s. Coca-Cola Company

South India Bottling Company Pvt., Ltd.,

Rep. by its Managing Director

B 163-B 170, INDL Growth Center

Sipcot-National Highways-7                                             M/s. B. Shyam

Gangaikondan Village                                                        Counsel for

Tirunelveli District - 637352                             2^nd Respondent / 2^nd Opposite party

 

3.       M/s. KAS Agency

          Rep. by its Proprietor

          Sub Dealer

          33, Ganapathipalayam       

          Ganapathipalayam Nall Road                                          

          Eode District, Tamil Nadu

 

4.       M/s. Maruthu Bakery & Sweets Stall

          Rep. by its Proprietor

          7D, Savadipalayam Pudhur                                           Served called absent

          Erode District                                        3&4 Respondents/ 3 & 4 Opposite parties

 

The 1^st Respondent/ complainant had filed a complaint before the District Commission against the opposite parties praying for certain direction. The District Forum allowed the complaint. Against the said order, these appeals have been preferred by the 1^st opposite party in FA.No.203/2018 and by the 2^nd opposite party in FA.No.202/2018 praying to set aside the order of the District Commission dt.29.6.2018 in CC.No.14/2014.

 

          These appeals coming before us for hearing finally today, upon hearing the arguments of both parties, perusing the documents, lower court records, and the order passed by the District Commission, this commission made the following common order:

 

 

 

 

ORDER

 

JUSTICE   R. SUBBIAH,  PRESIDENT    

 

1.       These appeals have been filed by the 1^st and 2^nd opposite parties separately viz.FA.No.203/2018 and FA.No.202/2018 respectively, against the order in CC.No.14/2014 dt.29.6.2018 praying to set aside the order impugned.

 

2.       Since both the appeals are arising out of the same order, these appeals are disposed of by way of common order. 

 

3.       For the sake of convenience, the parties shall be referred as arrayed in the original complaint filed before the District Commission in CC.No.14/2014.

 

4.       The brief facts which are necessary to decide the issues involved in the appeal are as follows:

          The 1^st and 2^nd opposite parties are the manufacturing company, selling their product through the 3^rd opposite party/ sub dealer, and the 4^th opposite party is the retail shop keeper. On 15.5.2013 the complainant had purchased Coco-Cola product viz. “Fanta” from the retail shop keeper viz the 4^th opposite party/ Maruthu Bakery and Sweet Stall.  The complainant was shocked to see the beverage bottle that contains dust, which is not good for health.  The complainant had lost his faith in the opposite party company product.  If the complainant had drunk the soft drink that contains dust, his health would have been affected.  Therefore, there is negligence on the part of the opposite parties.  Hence he filed a complaint against the opposite parties, claiming a sum of Rs.18,00,000/- towards compensation alongwith cost.

 

5.       The said complaint was resisted by the 1^st opposite party by filing counter, denying the allegations made in the complaint, stating that Fanta bottle is a glass bottle, and the cover of the bottle is of metal.  The present complaint has been filed only on the instigation of 3^rd and 4^th Respondents, who are the sub-dealer and retail seller.  The complainant by opening the cap of the bottle had inserted the dust particles and then closed the bottle, and filed this complaint by raising allegations.  Therefore the complaint is liable to be dismissed. 

 

6.       The 2^nd opposite party has filed their version stating that the material object filed along with the complaint as per the list of document is the Sprite bottle, whereas the complainant narrates it as Fanta bottle, thus the complaint has to be dismissed at the threshold. 

          This opposite party believe that the complainant had tampered the seal of the material object and inserted the alleged dust particles inside the bottle and refitted the seal so as to give a look of an intact seal and then filed the material object before this forum to get unjust enrichment.  Furthermore it is a common knowledge that no person purchase a cash bill for purchase of cool drinks, chocolates etc.,  But the production of such bill is a clear indication of collusion between the complainant and the 3^rd and 4^th Respondent on the one hand and oter.  The detailed reply for the legal notice was sent to the counsel for the complainant.  M/s. South India Bottling Company Pvt. Ltd., maintains and follow extremely high standard of quality and integrity in producing all its products.  All the products are made with utmost attention to quality, as public confidence in quality and authenticity of the product is critical to business.  Further the beverages prepared and packaged are with utmost care and precaution in conformity with the laws of the land.  Thus they sought for dismissal of the complaint.

 

7.       The 3^rd and 4^th opposite parties also have filed their separate versions denying the allegations made by the complainant. 

 

8.       Before the District Commission, the complainant had produced the Fanta bottle, and the same was on application sent to Food Safety and Drug Administration Department, and a report dt.2.5.2016 was received stating that “Fanta –Non alcoholic Carbonated Beverage – RTS, …….. and found to contain “”Sediments (0.028gm/200ml) of organic nature showing the presence of “Aspergillus Species Bacteria”, and  makes the sample “Unwholesome” and hence it is “Unsafe Food” .

          Based on the said report, the District Commission had allowed the complaint directing the opposite parties 1 to 4 to pay a sum of Rs.40000/- towards compensation along with cost of Rs.10000/-. Aggrieved over the order impugned, these appeals have been preferred by the opposite parties 1 and 2 separately.

 

 9.      It is the submission of the learned counsel for the appellants before this commission  that the complainant by colluding with the 3^rd and 4^th Respondents, for unlawful enrichment,  tampering the cap of the bottle had inserted the dust particles, and resealed the cap.  But the District Commission failed to consider those defence. 

          The appellants would further contend that the address of the 4^th opposite party was mentioned as Ganapathipalayam Nall Road, whereas in the complaint it was mentioned as Savadipalayam Pudhur.  This factual aspect would show that the fraud was committed by the complainant with the connivance of the 3^rd and 4^th opposite parties.  Thus they sought for setting aside the order passed by the District Commission. 

          In support of their contentions the appellants have drawn our attention to a citation reported in 2015 SCC online NCDRC 3782 in Hindustan Coca-Cola Beverages Pvt. Ltd., Vs. S.Subbiyyan & Ors, wherein it was held that “Considering that a full size blade could have entered the bottle without its being purposely plotted by someone, we have no hesitation in holding that somebody had actually tampered with cork of the bottle in order to insert the rusted blade inside”. 

 

10.     Per contra, the learned counsel for the complainant made submission, in support of the order of the District Commission.

 

11.     The 1^st Respondent/ complainant though served, remained absent. We have heard the learned counsels appearing for the appellants, perused the materials available on record, and the order impugned. 

 

12.     The main submission of the learned counsel for the appellant is that there is a collusion between the complainant and the 3 & 4 opposite parties.  The District Commission ought to have sent the bottle to an authorised laboratory to verify whether the crown cap/cork of the subject bottle had been tampered with or not before rejecting the plea?  Therefore the food analysis report of the contents cannot be admitted into evidence before verifying the tampering of the cap.

 

13.     In our considered opinion the submission of the learned counsel for the appellants cannot be accepted, since the metal cap once removed cannot be fixed manually by an ordinary person.  The report from the Food Analysis Department also denotes as “The sample (1x200 ml) was received in sealed labelled glass bottle with labled crown cork”.  Therefore, it is clear that the bottle was in sealed condition only.   Furthermore, when the MO was subjected to food analysis, and a report had been obtained stating as “Unsafe Food”, absolutely the manufacturer have no defence, unless they prove contra by producing substantial evidence.                      But there no such rebuttal evidence had been produced by the appellants/ opposite parties 1 and 2 to disprove the allegation made by the complainant.  Instead they are blaming the opposite parties 3 and 4 as such they have colluded with the complainant.  Therefore, looking at any angle, there is no infirmity in the order of the District Commission, which warrants our interference.  Accordingly the appeals are liable to be dismissed.

 

14.     In the result, both the appeals are dismissed, confirming the order of the District Commission in CC.No.14/2014 dt.29.6.2018.  There is no order as to cost in these appeals. 

 

           

S.M. LATHAMAHESWARI                                                          R. SUBBIAH

           MEMBER                                                                                            PRESIDENT

 

 

 

 

INDEX : YES / NO

Rsh/d/RSJ/ ORDERS