BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, BHIWANI.
Complaint No. 392 of 2010.
Instituted on: 2.6.2010.
Date of order: 16.7.2015 .
Sanjay Kumar son of Shri Sheelu Ram, resident of House No.10, in front of HUDA Office, Patel Nagar, Bhiwani, district Bhiwani
…………Complainant.
Versus
1.Little Heart Restaurant, through its Prop. Boby, resident of Patel Nagar, Bhiwani, tehsil and district Bhiwani.
2.Varun Beverage Ltd. Plot No.SP-290-292, Ricco Industries Area, Phase-7, Chopanki, Bhiwadi, district Alawar (Rajasthan).
……….Opposite Parties.
COMPLAINT UNDER SECTION 12 OF THE
CONSUMER PROTECTION ACT, 1986.
BEFORE :- Shri Rajesh Jindal, President
Shri Balraj Singh, Member
Smt. Anita Sheoran, Member
Present: - Shri V.B.Malik, Advocate for complainant.
OP No.1 ex parte.
Shri S.S.Bedwal, Advocate, for OP No.2.
ORDER:-
Rajesh Jindal, President:
The case of the complainant, in brief, is that respondent No.2 is the manufacturer company of mountain dew cold drink and respondent No.1 is seller. The further case of the complainant is that on 25.1.2010 he purchased one bottle of Mountain Dew cold drink from the respondent no. 1 for serving his friends. The complainant further alleged that when he wanted open the same it was found some plastic articles i.e. plastic piece of Dilbag wrapper paper in the bottle. The complainant further alleged that respondent company has conducted negligence act while manufacturing the bottles in question and has been playing with the health of people. The complainant further alleged that he met with CMO, GH, Bhiwani for sending the bottle to Laboratory for analysis, he acceded his request and advised not to drink the same as it is poison. The complainant further alleged that due to the negligent act and conduct of the opposite parties, he had to suffer mental agony, physical harassment and financial loss. Hence, it is clear cut deficiency in service on the part of opposite party and as such, he had to file the present complaint for compensation.
2. Opposite PartyNo.2 has failed to come present despite service. Hence, he was proceeded against ex parte by this Forum vide order dated 29.7.2010.
3. Opposite party No.2 on appearance filed the written statement alleging therein that the alleged bottle was purchased by the complainant on 25.1.2010 and it is well established fact in the knowledge of all the persons that the cold drinks are manufactured with the “Best before 6 months” stipulation and as such the same cannot be tested after the expiry of six months. It is alleged that complainant has failed to produce the chain of invoice, to establish the factum of manufacture of alleged bottle by answering respondent in the absence whereof it cannot be taken truth, especially in view of the fact that these days the markets are flooded with spurious and counterfeit bottles of leading brands and it is very easy for anyone to mix spurious bottles of soft drink with genuine bottle and then to claim the spurious bottles to have been manufactured or sold by original manufacturer. It is also alleged that as per allegations of the complaint, no loss or injury has been sustained by the complainant and thus, he is not entitled for any compensation. It is also alleged that the complainant has never intimated that the alleged cold drink could cause death. Thus from the above facts, it is amply clear that the answering respondent has never been negligent in the manufacturer of the beverages. Hence, in view of the facts and circumstances mentioned above, there is no deficiency in service on the part of answering respondent and complaint of the complainant is liable to be dismissed with costs.
4. In order to make out his case, the complainant has placed on record Photograph of the cold drink, postal receipts, copy of legal notice and receipt along with supporting affidavit.
5. In reply thereto, the opposite parties have placed on record Annexure OPW-A/1 certified copy of resolution along with supporting affidavit.
6. We have gone through the records of the case carefully and written arguments filed by counsels for the parties.
7. Both the parties have filed written arguments.
8. Learned counsel for the complainant reiterated the contents of the complaint. He submitted that the manufacturing company has conducted negligence act while manufacturing the bottle of dew and the company has playing with the health of the people. He further argued CMO advised the complainant not to drink the same as it is a position and death may occur after consuming it.
9. Learned counsel for Opposite Party No.2 has reiterated the contents of the reply. He submitted that the complainant in-collusion with Opposite Party No.1 has filed the present complaint to get compensation from Ops No.2.
10. In the light of the pleadings and arguments of the parties we have examined the relevant material on record. From the perusal of receipt issued by Op No.1 in favour of complainant, it is proved on record that the complainant had purchased one bottle of Mountain Dew drink for a sum of Rs.10/-. The complainant alleged that some foreign material article (plastic wrapper) was inside the bottle in question. According to Section 13(i) ( c) where the complainant alleges the defect in goods which could not be determined without proper analysis/test of goods, the goods in question will be sent to appropriate laboratory to find out whether such goods suffer from any defect as alleged in the complaint. But in the instant case, the complainant did not produce the bottle in question with a view to obtain the analysis report from the approved laboratory to ascertain that the bottle in question is genuine and was having original seal and same was containing the foreign material as alleged by the complainant in his complaint. Admittedly, the cold drink has not been consumed by the complainant, as such he has not suffered any physical ailment. The typed receipt on a paper produce by the complainant seems not to be genuine because it has not been issued by OP No.1 from his bill book. Counsel for the complainant relied upon the following judgments (1) Director, Pepsi India Holdings Ltd. Versus Rajesh Sainani Anr. IV (2004) CPJ 98 of Hon’ble Gujarat Sate Commission (2) Pepsico India Holdings Ltd. Vs. H. Ashok Kumar & Anr. IV (2004(CPJ) 485 of Hon’ble Tamilnadu State Commission.
11. In the first case, the Laboratory test has been got done and the consumer has consumed the cold drink but in the instant case no laboratory test has got done and the complainant has not consumed the cold drink. In the second case, fact of worm in bottle was not disputed and genuineness of the bottle was also not challenged by the OP, but in case in hand OP No.2 has challenged the genuineness of the bottle and foreign articles inside the bottle is not admitted by OP No.2. Hence, above said both judgments are of no help to the complainant. In view of the facts, as narrated above, we hold that the complainant has failed to prove any cogent and convincing evidence to prove his version. Resultantly, the complaint of the complainant is hereby dismissed. No order as to costs. Certified copies of the order be sent to the parties free of costs. File be consigned to the record room, after due compliance.
Announced in open Forum.
Dated: 16.7.2015.
(Rajesh Jindal)
President,
District Consumer Disputes
Redressal Forum, Bhiwani.
Anita Sheoran Balraj Singh .
Member. Member
