Punjab

Ludhiana

CC/19/424

Narinder makkar - Complainant(s)

Versus

M/s ABS Beverages - Opp.Party(s)

R.K.Chhabra Adv.

03 Nov 2023

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, LUDHIANA.

                                                Complaint No:424 dated 05.09.2019.                 

                                       Date of decision: 03.11.2023.

 

Narinder Makkar aged ____ years, resident of B-34-7648/3, Shaheed Bhagat Singh Nagar, Haibowal Kalan, Ludhiana.                                                                                                                                                                                                                                                     ..…Complainant

                                                Versus

1.M/s ABS Beverages, Street No.3, Hargobind Nagar, Dhogri Road, Jalandhar, through its Proprietor/Partner.

2.M/s Shri Ram Karyana Store, Near Dukh Niwaran Gurudwara, 22 Feet Road, Haibowal Kalan, Ludhiana, through its Proprietor/Partner.

…..Opposite parties 

Complaint under section 12 and 14 of the Consumer Protection Act

QUORUM:

SH. SANJEEV BATRA, PRESIDENT

SH. JASWINDER SINGH, MEMBER

MS. MONIKA BHAGAT, MEMBER

 

COUNSEL FOR THE PARTIES:

For complainant            :         Sh. Rohit Kumar Chhabra, Advocate.

For OP1 and OP2          :         None

 

ORDER

PER SANJEEV BATRA, PRESIDENT

1.                In brief, the facts of the case of the complaint are that the complainant purchased one cold drink “Fresh Live/Fresh Lime’ from the OP2 manufactured by the OP1 on 07.07.2019 against payment of cash of Rs.10/- for serving to his guests by him. However, when the complainant was going to open the bottle of the cold drink to consume the same, he was totally shocked and surprised to see one insect in the said packed/sealed cold drink bottle. The complainant immediately took the cold drink bottle to the OP2 and complained about the abovesaid insect in the said bottle. However, the OP2 wiped off their hands by saying that they have received the said cold drink from the OP1 in the same condition in which they have sold it to the complainant. Thereafter, the complainant also approached the OP1 through telephonically but OP1 also refused to redress the grievances of the complainant and misbehaved with the complainant. The complainant got served one registered legal notice dated 11.07.2019 upon the OPs calling upon them to compensate the complainant to the tune of Rs.80,000/- but despite the service of the said legal notice, OPs miserably failed to do the needful. Such act and conduct of OPs is claimed to be deficiency in service and unfair trade practice on their part, due to which, the complainant has suffered mental harassment, pain, agony etc. So, by filing the present complaint, the complainant has prayed for issuing directions to OPs to compensate the complainant to the tune of Rs.88,000/- for the physical as well as mental pain along with litigation expenses of Rs.11,000/-.

2.                Upon notice of the complaint, OP1 and OP2 were duly served and filed their separate written replies. In the written reply filed by the OP1, OP1 took up the preliminary objections that the present complaint is not maintainable in the eyes of law and the same has not been properly verified under the provisions of Consumer Protection Act. The complaint is vague and evasive and same is a gross abuse of process of law. The complainant has filed the complaint with the sole motive of pressurizing and harassing the answering OP to submit to the unreasonable and mischievous demands of the complainant. The complainant has concealed the material facts from this Hon’ble Commission and wrongly involved the answering OP just to grab the money and also to defame the reputation of the answering OP. The alleged cold drink bottle not sold by the answering OP nor same belongs to them. On merits, all the allegations levelled in the complaint have been specifically denied and prayed for dismissal of the complaint with costs.

3.                In separate written statement filed by the OP2, it has been submitted in the preliminary objections that the present complaint is not maintainable as the answering OP has been involved in the present complaint without any base because OP2 has no connection with the complainant. The answering OP has never sold any Fresh Live/Fresh Lime cold drink bottle to the complainant. Even the set of documents supplied to the answering OP are clearly shows that the complainant has filed this complaint against someone Shri Ram Karyana Store, whereas the Trade name of answering OP is Shriram Traders, so the claim is apparently bad due to filing of complaint against the wrong party. On merits, the fact regarding purchase of the bottle in question from answering OP has been specifically denied and prayed for dismissal of complaint being devoid of any merits.

4.                In support of his claim, the complainant tendered his affidavit Ex.CA in which he reiterated the allegations. The complainant also tendered documents Ex. C1 copy of legal notice dated 11.07.2019 sent to the OPs, Ex.C2 and Ex.C3 are the copies of postal receipts, Ex.C4 copy of reply to legal notice sent by the OP1 on 23.07.2019 and Ex.C5 is the copy of photographs of the bottle in question and closed the evidence. 

5.                Thereafter, the case was remained pending for concluding the entire evidence of OP1 and OP2 but despite granting sufficient opportunities, neither any evidence was concluded by the OP1 and OP2 despite imposing cost and neither anyone appeared on their and the evidence of OP1 and OP2 was closed by order vide order dated 18.10.2023.

5.                We have heard the arguments of the counsel for the complainant and also gone through the complaint, affidavit and annexed documents attached with the complaint as well as written statements of OP1 and OP2.

6.                In the present case, the complainant claimed himself to be purchaser of one cold drink “Fresh Live/Fresh Lime” from the OP2 on 07.07.2019 against the cash payment of Rs.10/-. Further, the grievance of the complainant in this case is that one insect was found in the said bottle and in order to substantiate his case, the complainant has placed on record the photographs of the disputed bottle as Ex.C5 on the record. In order to raise any consumer dispute, the complainant is liable to prove that he had purchased the goods or availed the services from the OPs. The complainant has not produced on record any bill of purchase in order to show that he in fact purchased the bottle in question from the OP2. It is not the case of complainant that the OP2 had refused to issue a bill despite demand made by him. In the written statement filed by the OPs, they have specifically pleaded that the complainant never approached them or purchased the bottle in question from them. Even otherwise, the complainant has not mentioned in his complaint the batch number, date of manufacturing or date of expiry of the bottle from where it could have been easily assessed that the said bottle in question was manufactured by the OP1 and sold by the OP2 to him. The complainant did not produce the bottle in question before this Commission either at the time of filing of the complaint or during the proceedings of this complaint. Further, no request was ever made to this Commission for sending the bottle in question to some recognized/Government laboratory for examination purposes in order to detect the presence of an insect in it as alleged by the complainant. From the careful perusal of the bottle in the photographs Ex.C5, it can be easily seen that the bottle with liquidity contained in packaged bottle where two black marks are visible even when seen with the naked eyes. The complainant purchased a single bottle and at the time of purchase, he could have easily detected a insect in the bottle and could have immediately lodged the complaint either with the OP2 at the time of purchase or subsequently with the manufacturer i.e. OP1. However, the complainant only served a legal notice dated 11.07.2019 Ex.C1 upon the OPs after 4 days of purchase of the bottle in question and the same was suitably replied by the OP1 on 23.07.2019 vide Ex.C4 wherein, OP1 had categorically denied the allegations of complainant and further, OP1 had categorically asserted that the entire story cooked up and things have been manipulated by the complainant in order to just enrichment for himself and to grab the money from them. The onus to prove the deficiency in service is upon the complainant but the complainant has failed to discharge the initial burden of proving deficiency in service on the part of the opposite parties by way of any credible evidence.

7.                In this regard, reference can be made to SGS India Ltd. Vs Dolphin International Ltd. in Civil Appeal No.5759 of 2009 decided on 06.10.2021 (LL 2021 SC 544) by the Hon'ble Supreme Court of India whereby it has been held as under:-

19. The onus of proof of deficiency in service is on the complainant in the complaints under the Consumer Protection Act, 1986. It is the complainant who had approached the Commission, therefore, without any proof of deficiency, the opposite party cannot be held responsible for deficiency in service.

In the above cited case, the Hon'ble Supreme Court of India has placed reliance on its own judgment reported as Ravneet Singh Bagga v. KLM Royal Dutch Airlines & Anr. whereby it has been held that the burden of proving the deficiency in service is upon the person who alleges it. "6. The deficiency in service cannot be alleged without attributing fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be performed by a person in pursuance of a contract or otherwise in relation to any service. The burden of proving the deficiency in service is upon the person who alleges it. The complainant has, on facts, been found to have not established any wilful fault, imperfection, shortcoming or inadequacy in the service of the respondent." 20. This Court in a Judgment reported as Indigo Airlines v. Kalpana Rani Debbarma & Ors. (LL 2021 SC 544) held the initial onus to substantiate the factum of deficiency in service committed by the opposite party was primarily on the complaint. This Court held as under:-

"28. In our opinion, the approach of the Consumer Fora is in complete disregard of the principles of pleadings and burden of proof. First, the material facts constituting deficiency in service are blissfully absent in the complaint as filed. Second, the initial onus to substantiate the factum of deficiency in service committed by the ground staff of the Airlines at the airport after issuing boarding passes was primarily on the respondents. That has not been discharged by them. The Consumer Fora, however, went on to unjustly shift the onus on the appellants because of their failure to produce any evidence. In law, the burden of proof would shift on the appellants only after the respondents/complainants had discharged their initial burden in establishing the factum of deficiency in service."

                   The Hon'ble Supreme Court of India has further upheld this view in recent judgment II(2023) CPJ 83 (SC) in Chairman & Managing Director, City Union Bank Ltd. & Anr. Vs R. Chandramohan. In the given facts and circumstances, the complainant has failed to prove the deficiency in service on the part of the opposite party by any cogent and convincing evidence. 

8.                As a result of above discussion, the complaint fails and the same is hereby dismissed. However, there shall be no order as to costs. Copies of order be supplied to parties free of costs as per rules. File be indexed and consigned to record room.

9.                Due to huge pendency of cases, the complaint could not be decided within statutory period.

 

(Monika Bhagat)          (Jaswinder Singh)                     (Sanjeev Batra)

Member                         Member                                       President         

 

Announced in Open Commission.

Dated:03.11.2023.

Gurpreet Sharma