CONSUMER DISPUTES REDRESSAL FORUM PALAKKAD

Dated this the 25^th  day of February, 2017

PRESENT  : SMT. SHINY.P.R, PRESIDENT                         Date of filing: 12/11/2014

                  : SRI. V.P.ANANTHA NARAYANAN, MEMBER

CC/176/2014

       Manomohan,

       S/o.Mohanan, Puthanpurail Veedu,

       Akathethara, Thekkethara,

       Palakkad district.

      (By Adv.P.Padmaprakash)                                           :   Complainant

                                                                    Vs

1. Managing Director,

Hindustan Coca-Cola Beverages Pvt Ltd,

Plot number18, Bidai Industrial Area,

Bidai Hobli, Ramanagaram Taluk,

Bangalore Rural (Karnataka),

Rep by its Managing Director

(By Adv.John John)

2. Proprietor,

Excel Enterprises,                                                      :     Opposite parties

11/904(4), Land Mark Building,

Robinson Road, Palakkad.

Rep by its proprietor.

3. Satheesh kumar,
4.  

Rajappan Coner Shop,

Court Road, Palakkad.

       (By Adv.M.Deepa)

O R D E R

By Sri.V.P.Anantha Narayanan, Member

Brief facts of the complaint.

The complainant is working in Merchant Navy as off shore sea man. The complainant purchased the product of the first opposite party. The complainant decided to host a party for his friends on 05/11/2014 and for that purpose he had ordered food and other items worth Rs.50,000/- with catering service and also purchased 12 bottles of 600ml Coca Cola bottles from the 3^rd opposite party. After finishing 4 bottles when the complainant took the 5^th bottle he noticed that the quantity in the bottle was not upto the mark and when he examined it closely the complainant and his friends were shocked to notice remains of some dead insects inside the bottle. On seeing this one of his friends named Arun vomited and the complainant and other friends who were present there also felt discomfort and felt like vomiting. The friends who were present there made sarcastic comments and left the party. The complainant was very much mentally disturbed on seeing the particles in the products and also felt very bad and disappointed on hearing the comments of his friends. The money spent on the food and other items ordered for the conduct of the party was also wasted due to the above said incident. On the very same day the complainant was feeling sickness and discomfort and was forced to take medical treatment. The above said hardship and discomfort was caused to the complainant due to lack of quality and assurance of the product and lack of quantity which was marketed without conducting adequate or proper test, which amounts to unfair trade practice. Due to the above said act of the opposite parties, much hardship, mental pain and agony was caused to the complainant. Since the complainant suffered serious loss and mental agony due to the lack of quality and assurance of the products and unfair trade practice adopted by the opposite parties, the complainant is entitled to be compensated. Even though the complainant’s mental pain and  agony cannot be compensated monetarily, considering the financial loss and other aspects, the complainant limits claim of compensation to Rs.5,00,000/- ( Rupees Five Lakh Only). The complainant is entitled to get the amount of Rs.90,000/- (Rupees Ninety Thousand Only ) for the amount spent by the complainant on food , catering , and the complainant is entitled to get an amount of Rs.10,00,000/- towards the deficiency, lack of quantity and lack of quality and assurance of the product which was marketed without conducting an adequate  or proper test. Hence it is highly just and necessary that the opposite parties are to be ordered to pay an amount of Rs.15,90,000/- (Rupees Fifteen Lakh and Ninety Thousand Only) to the complainant with 12% interest per annum till its realization. Otherwise irrepairable injury and loss will be caused to the complainant. The course of action for the complaint arose on 05/11/2014 on which the complainant purchased the products from the 3^rdopposite party, and on which remains of some dead insects were found inside the bottle. The product was purchased from the 3^rd opposite party and the same was supplied by the 2^nd opposite party, at Palakkad which is within the jurisdiction of the Honorable Forum.

Therefore it is most respectfully prayed that this Honorable Forum may be pleased to pass an order directing the opposite parties to pay an amount of Rs.15,90,000/- (Rupees Fifteen Lakh Ninety Thousand Only) to the complainant as compensation with 12% interest till realization and cost.

 The complaint was admitted and notices were issued to the opposite parties 1,2 and 3. In their version opposite party 1 denies all the averments in the complaint except those which are expressly admitted here under.

It is submitted that the complaint filed by the complainant against this opposite party is not maintainable under the provisions of Consumer Protection Act 1986. This opposite party denies all the averments in Para No.1 of the complainant. The averments in the above para that the complainant is working in Merchant Navy as Offshore Sea man, that the second opposite party is the distributer of the 1^st  opposite party and that the 3^rd opposite party is the shop owner from where the complainant purchased the product of the 1^st opposite party are denied and put to strict proof of the complainant. The opposite party also denies all the averments in Para No.2 of the complaint. The averments in the above para that the complainant decided to host a party for his friends on 05/11/2014 that he ordered food and other items worth Rs.50,000/- from catering service, that the complainant purchased 12 bottles of 600ml of Coca-Cola soft drink from the 3^rd opposite party, that after finishing 4 bottles, when the complainant took the 5^th bottle he noticed that the quantity in the bottle was not up to the mark and when he examined it closely the complainant and his friends were shocked to notice the remains of some dead insects inside the bottle, that on seeing this one of the complainant’s friends named Arun vomited and the complainant and other friends who were present there at the place also felt discomfort and felt like vomiting, that the friends who were present there made sarcastic comments and left the party, that the complainant was very much mentally disturbed on seeing the particles in the product and also felt very bad and disappointed on hearing the comments of his friends, that the money spent for the food and the other items ordered for the conduct of the party were also wasted due to the above said incident and that on the very same day the complainant felt sickness and discomfort and was forced to take medical treatment etc are false and incorrect. Hence denied.  All the above said contentions of the complainant are not supported by any documents and complainant is put to strict proof of the same. The opposite party denies all the averments in Para No.3 of the complaint, the averments in that para that the hardship and discomfort caused to the complainant was due to lack of quality and assurance of the product and lack of quantity which was marketed without conducting adequate or proper test that it amounts to unfair trade practice, that due to the acts of the opposite parties, the complainant suffered much hard ship mental pain and agony, that the complainant suffered serious loss and mental agony due to lack of quality and assurance of the product and unfair trade practice adopted by the opposite parties, that the complainant is entitled to be compensated, that the complainant is entitled to get a compensation of Rs.5,00,000/- for mental pain and agony, that the complainant is also entitled to get an amount of Rs.90,000/- for the amount spent by the complainant on food and catering, that the complainant is entitled to get an amount of Rs.10,00,000/- towards the deficiency, lack of quantity and lack of quality and assurance of the product, that the complainant is entitled to get a total amount of Rs.15,90,000/- from the opposite parties with 12% interest per annum till its realization and that otherwise irrepairable injury and loss will be caused to the complainant etc. are false and incorrect and the complainant is put to strict proof of the same. This opposite party is the manufacturer of various kinds of Carbonated sparkling beverages, fruit juices and packaged drinking water for the past several years. This opposite party is having its own goodwill and reputation for manufacturing hygienic and better quality products. Day by day this opposite party is getting good consumer feed backs from its consumers. This opposite party uses every safety measure while manufacturing, bottling and distributing its products for keeping a standard of the company. This opposite party exercises stringent quality and safety measures specifically designed to prevent product quality issues. All products manufactured by the company are subject to most advanced inspection technology available by both manual and mechanical and every precaution is taken during the production process to ensure the integrity, hygiene and quality. The company has an extremely sophisticated and hygienic manufacturing process for all the products and have fully mechanized bottling system in the plants, which ensures proper filling and sealing of each bottle. The presence of any foreign substance in the products of this opposite party is highly improbable.

The officials of this opposite party inspected the product in question produced by the complainant with the permission of this Honorable Forum. It is observed that inside the bottle the presence of loose foreign matter like mould growth (Micro contamination) in the product. Moreover there is more gap between the cap seal and the neck supporting ring, which shows that the bottle has been re-caped after tampering the original cap. Almost 50 percentage of the product has either leaked out or taken out and due to outside air contamination mould was formed inside the bottle. It is submitted that on the process of manufacturing opposite party follows the below mentioned process to ensure that the product’s closures (Cap) are properly fixed.

Closure torque- is the rotational force applied during manufacturing to fix the closure with a bottle. Application of the closure torque affects the seal integrity and the tightness between the bottle and closure. Before the product is delivered to the market a personal verification of the products is also carried out by the employees to ensure that the closures are fitted properly on the bottle neck ring, Logo on the closures and tamper evident seal conditions. Hence it is respectfully submitted that only the forcible opening of the bottle will tamper the cap as in the alleged product.

The bottle in question has pressure impregnated, it is submitted that it is a result of microbial growth process, as microorganisms like mould grow and produces gas during multiplication as a natural process. It is the reason due to which the bottle is pressurized. It is respectfully submitted that the particle inside the bottle is not the remains of any dead insect but it is only a mould growth due to outside air contamination. From the manufacturing plant of this opposite party, there are no chances for such outside air contamination and the formation of mould in the bottle, since this opposite party used to adopt every safety measure while manufacturing the products.

The filling process of this opposite party is of volumetric measurement dispensing system to ensure that all products are correctly filled with respect to declare net content. After filling, highly sophisticated inspection system is adopted to ensure proper net content bottles are released to final packaging stage.

 It is submitted that for the above said reasons the allegation of the complainant is quite unbelievable and imaginary. The quantity of the bottle is almost 50% less than the actual net content and the same is clearly visible. There is no chance for this opposite party to supply such a low quantity bottle to the distributer. No distributer will distribute such a low quantity bottle to any retailer and it is highly improbable. No retailer will sell such a low quantity bottle to any customer. Moreover, nobody will purchase such a low quantity bottle from a shop as alleged. That itself shows that it is a fabricated story and there are no bonafides on the part of the complainant. Now this opposite party could learn that the attempt of the complainant is to threaten this opposite party of losing the goodwill and to make illegal enrichment by colluding with Third opposite party. There is no unfair trade practice on the part of this opposite party and the complainant is not entitled to get any amount from this opposite party.

The cause of action stated in Para No.4 of the complaint is absolutely false and incorrect. The complainant has no right to get any relief from this opposite party.

Therefore, it is most respectfully prayed that this Hon’ble Forum may be pleased to accept the contentions of this opposite party and to dismiss the complaint with costs. This opposite party also reserves its right to file additional written version, if required.

Although notice to 2^nd opposite party was served on them 2^nd opposite party called absent and hence they were set exparte.

In their version, the 3^rd opposite party contend that they deny all the allegations in the complaint except those specifically admitted by them. The complaint was filed without good faith in order to make 3^rd opposite party suffer. The complaint does not legally sustain.  Except that 3^rd opposite party is a shop owner, that complainant has purchased from this shop 12 bottles 600ml Coca-Cola, that in one bottle the quantity of Coca-Cola was not up to the mark, that in that bottle some contaminated thing was present , other allegations are denied by the 3^rd opposite party. Further, the averments in the complaint that the complainant and his friends experienced vomiting that friends of the complainant made sarcastic remarks about him and hence the complainant felt disgraced, that complainant took treatment, that complainant suffered much financially and mentally – all these averments in the complaint are not known to this opposite party and therefore denied.

In the allegations leveled in the complaint, if there is any fact, the same was not due to lapse of this opposite party and compensation for this has to be given by opposite parties 1 and 2. This opposite party is only the retail outlet selling the products of the 1^st opposite party company. In the production or other activities of the 1^st opposite party company’s products this opposite party has no role. Hence this opposite party is not at all responsible for any defects or problems in the products of the above company.

Hence it is prayed to the Hon’ble Forum to accept this opposite parties contentions and dismiss the complaint against this opposite party.

The emergent application was filed to appoint an advocate commission and the same was allowed. Advocate commission was appointed to examine the bottle and file a detailed report. The commissioner’s report was filed and marked as Ext.C1. 1^st opposite party filed IA 448/2014 to permit 1^st opposite party’s counsel to inspect the Coca-Cola bottle produced by the company.  Since no objection was submitted by the complainant the IA was allowed. The complainant also filed IA 108/2015 seeking time to file chief affidavit and it was allowed on cost. The disputed bottle produced by the complainant was marked as MO1. 1^st opposite party filed IA 144/2016 to reopen evidence, IA 145B/2016 to remit the CR1 of the advocate commissioner and IA145A/2016 to receive the objections to CR. In the interest of justice IA144/2016 was allowed on cost. IA 145A/2016 and IA 145 B/2016 were also allowed. 1^st opposite party filed application seeking time for filing panel of experts and it was allowed. The 1^st opposite party filed panel of experts. Technical expert Mr. Rajesh Nair was appointed to inspect the bottle and file detailed report. CR was filed and marked as Ext. C2. Since no application for adjournment was filed, the same was allowed on cost. Documents on the side of the complainant consist of proof affidavit and chief affidavit; from the side of 1^st opposite party proof affidavit and from the side of 3^rd opposite party proof affidavit; no documents were filed from the side of 2^nd opposite party.

Issues that arise for consideration

1. Whether there is any deficiency of service on the part of opposite parties?

2. If so, what is the relief and cost entitled to the complainant?

Issues 1 & 2

This complaint is filed for getting compensation from the opposite parties for the deficiency in quantity and quality of the products marketed and for the marketing of the products without conducting proper and adequate tests. For conducting a party for his friends on 05/11/2014 the complainant purchased 12 bottles of 600ml Coca-cola from the 3^rd opposite party. In the 5^th bottle the complainant and his friends noticed less quantity of Cola drink and presence of  remains of dead insects inside the bottle. Consequently they felt discomfort and felt like vomiting and one of his friends vomited also. The complainant also felt sickness and was forced to take medical treatment. The complainant attributed the hardship and discomfort caused to him to lack of quality, quantity and assurance of the product which, according to him, was marketed without adequate tests. Since he suffered serious loss and mental agony due to lack of quality and assurance of the product and unfair trade practice adopted by the opposite parties he claimed compensation of Rs.5,90,000/- altogether from the opposite parties.

From the side of 1^st opposite party, they contend that they are the manufacturers of Carbonated Beverages, fruit juices and packaged drinking water for the last several years, with good reputation in manufacturing hygienic and quality products; they also used all safety measures at the time of manufacturing, bottling and distributing its products to keep up their standard and to prevent product quality issues. They also take stringent quality and safety measures; all manufactured products are subjected to most advanced inspection technologies and all precautions are taken to ensure the hygiene and quality of the products. The company has an extremely sophisticated and hygienic manufacturing process for all its products and has fully mechanized bottling system in the plans to ensure proper filling and sealing of the bottles. According to the first opposite party, only the forcible opening of the bottle will tamper the cap as happened in the alleged disputed bottle; 1^st opposite party adopts the filling process which is of volumetric measurement dispersing system to ensure that all products are correctly filled to declare net content and after filling, highly sophisticated inspection system is followed to ensure proper net content. From the manufacturing plant there are no chances for outside contamination and the formation of mould in the bottle because all safety measures during manufacturing are adapted by the first opposite party. The 2^nd opposite party although received notice did not appear before the forum. Hence they were called absent and set exparte. According to OP3, they only know that the complainant purchased 12 bottles of 600ml Coca-cola from his shop and the remaining allegations against him in the complaint are not known to 3^rd opposite party and hence they are denied by them. They further contend that there was no deficiency of service from their part because they are only sales outlet of the first opposite party and not connected with production and other activities of the first opposite party. Hence 3^rd opposite party claims no responsibility for decrease in the quantity and the other problems relating to the products of first opposite party. As per Ext.C1 advocate commissioner reported that at the time of her examination of the quantity in the disputed bottle, it was half of the bottle in between the sticker and was approximately 400ml. The manufacturing date of the said bottle was 24/09/2014; it was also reported that at the time of her examination visible solid particles were seen in the inner bottom of the disputed bottle resembling like remains of some dead creature. Application was filed by the petitioner /1^st opposite party to remit the commission report dated 15/11/2014, marked as Ext.C1 and first opposite party filed a work memo in which guidance of the technical expert was asked and also filed a team of technical experts. Accordingly another inspection of the disputed bottle was conducted by the technical expert Mr.Rajesh Nair on 08/08/2016 at the CDRF, Palakkad premises in the presence of counsel of 1^st opposite party and bench clerk ; the report of the commission marked as Ext.C2 mentioned that the disputed bottle was floppy and the same happened due to carbonization loss; the expert also explained that after demonstration of the disputed bottle, it is possible to spill and fill the liquid from and to the bottle without breaking seal. Regarding the sediments in the bottle, they were micro organisms present due to moisture in the bottle.

 From the above we observe that the complainant has failed to produce the documentary evidences for the purchase of 12 bottles of 600ml Coca cola soft drink on 05/11/2014 from 3^rd opposite party and also for the amount he spent on food and catering. It is also seen that the complainant did not get the disputed bottle soft drink examined in an approved laboratory and failed to produce the laboratory report. Further for the medical treatment of the complainant no evidence was seen produced and also for the vomiting of his friend Mr.Arun. Hence the complainant has failed to prove unfair trade practice, negligence and deficiency in service on the part of the opposite parties. Further final commission report (Ext.C2) did not mention any adverse comments against the 1^st opposite party.

In the light of all of the above the complaint is dismissed.

     Pronounced in the open court on this 25th day of February 2017.   

                                                                                                Sd/-

     Smt. Shiny. P.R

                         President

                             Sd/-

             Smt. Suma. K.P

                           Member

                                                                                                Sd/ 

               Sri.V.P.Anantha Narayanan

                          Member