Per Shri S.R. Khanzode – Hon’ble Presiding Judicial Member:
(1) This revision is directed against the order dated 10/11/2010 passed on interlocutory application filed by the Respondent No.1/original Complainant in Consumer Complaint No.PDF/155/2010, Advocate – Mr.Mangesh Mafatlal Shah V/s. Hindustan Coca-Cola Beverages Private Limited & Ors. by Consumer Disputes Redressal Forum, Pune. Non-Applicant/original Complainant – Mangesh Shah (hereinafter referred to as ‘the Complainant’) to send the defective sample of Coca-Cola bottles for examination as per the provisions of section 13(1)(c) of Consumer Protection Act, 1986 (hereinafter referred to as “the Act” for brevity). Similar such application was also made by the Revisionist/original Opponent No.1 (hereinafter referred to as ‘the Company’ for the brevity), who is the manufacturer of alleged defective Coca-Cola bottles wherein it is alleged by the Complainant that foreign material such as nail and dirty dust was found. The Forum by impugned order rejected both the applications. The Company came in revision as against the order rejecting their application for sending the sample as per Provisions of Section 13(1)(c) of the Act. It is also alleged by the Company that such examination is necessary since they suspected the tampering of seal of the bottle.
(2) The Forum expressed opinion that certain particle which according to the Forum is a foreign body could be seen by naked eyes and as such there arise no question of sending the bottle to the expert for examination.
(3) Admit and heard forthwith with the consent of both the parties.
(4) Surprisingly, though the Complainant himself asked for sending the bottle for examination as per the provisions of section 13(1)(c) of the Act which is a mandatory provision in case of defective goods, took a different stand and at the time of hearing of this application opposed the application for similar relief made by the Company. For this purpose, the Complainants wants to rely upon the decisions of two Consumer Disputes Redressal Commissions, viz.of Delhi and Kerla [Delhi Appeal No.A-219/2005, M/s.Hindustan Coca Cola Company Pvt. Ltd. V/s.Mr.Ram Dev Tiwari & Anr. (Date of decision: 04.12.2007) and of Kerala in the Appeal (A)-No.830/2002, Hindustan Coco Cola Beverages Pvt. Ltd. V/s.M.J. Biju]. We are afraid, in view of the view taken by our Commission referring to mandatory nature of Section 13(1)(c) of the Act, the above opinions of the other State Commissions need not be followed. In the instant case, what exactly is the nature of the foreign particle noticed in the sealed Coco Cola bottle (as alleged by the Complainant) is to be examined by a competent laboratory and not by mere observing in naked eyes from outside. Besides this, the nature of tampering of seal alleged or suspected by the Company also needs to be proved properly by the competent laboratory. Under the circumstances, rejecting the application of the Company for sending the damaged of defective goods to the competent laboratory and that too, particularly, when the Complainant also made a similar request earlier, is per se failing in duty on the part of the Forum to exercise its judicial discretion in a proper and legal manner. It is a fit case where the impugned order needs interference involving the revisional powers of this Commission. We hold accordingly and pass the following order:
O R D E R
(i) Revision is allowed.
(ii) Impugned order dated 10.11.2010 rejecting the application of the Revisionist Company to send the defective Coca Cola bottles which are kept in the sealed cover with the Registrar for examination as per Provisions of Section 13(1)(c) of the Act, is hereby set aside and the Forum shall forthwith send the defective goods i.e. sealed bottles of Coco Cola to the competent laboratory as per provisions of Section 13(1)(c) of the Act.
(iii) The cost of sending the sample of examination be initially borne by the Company.
(iv) Coco Cola Company can also suggest the name of competent laboratory to the Forum.
(v) The revision application stands disposed of accordingly.
Pronounced
Dated 17th June, 2011
