IN THE DISTRICT CONSUMERS’ DISPUTES REDRESSAL FORUM AT MYSORE<br /> PRESENT: 1. Shri.A.T.Munnoli<br /> B.A., L.L.B (Spl.) - President <br /> <br /> 2. Smt.Y.V.Uma Shenoi<br /> M.Sc., B.Ed., - Member<br /> 3. Shri. Shivakumar.J.<br /> B.A., L.L.B., - Member<br /> CC 488/09 DATED 08.03.2010<br /> ORDER<br /> Complainant B.M.Cariappa, <br /> S/o Late B.C.Muthappa,<br /> No.3, Shanthi Nivas, Satya Marg, Siddhartha Layout, <br /> Mysore-570012.<br /> (By Sri. R.Ravi, Advocate)<br /> <br /> Vs. <br /> Opposite Parties 1. Prodprietor, M/s Bopy’s Bar and Restaurant, No.201/1A, Hunsur Road, Vijayanagar, Mysore.<br /> 2. M/s Hindustan Coco-cola Beverges Pvt. Ltd., No.10/A, Bannimantap, Opposite Railway Goods Shed, Mysore.<br /> 3. Managing Director, <br /> M/s Hindustan Coco-cola Beverges Pvt. Ltd., Plot No.18, Bidadi Industrial Area, Bangalore.<br /> (By Smt. M.V.Latha, Advocate for O.P.1 and Sri.H.S.Kumar, Advocate for O.P.2 and 3)<br /> <br /> Nature of complaint : Deficiency in service<br /> Date of filing of complaint : 30.12.2009<br /> Date of appearance of O.P. : 15.01.2010<br /> Date of order : 08.03.2010<br /> Duration of Proceeding : 1 MONTH 21 DAYS<br /> <br /> <br /> PRESIDENT <br /> <br /> <br /> <br /> MEMBER<br /> <br /> <br /> MEMBER<br /> <br /> <br /> Sri. A.T.Munnoli,<br /> President<br /> <br /> 1. The complainant has filed the complaint under section 12 of the Consumer Protection Act against the opposite parties, seeking direction to pay compensation of Rs.10,00,000/- for deficiency in service and for unfair trade practice of the second and third opposite parties, alleging that in the Coca-Cola bottle manufactured and supplied had contained Gutka packet cut open.<br /> <br /> 2. In the complaint, it is alleged by the complainant that, he is reputed businessman of Mysore City. On 13.09.2009, the complainant with his wife and children visited the restaurant of the first opposite party, in order to have dinner. The complainant ordered for snacks. Son of the complainant wanted to drink Coca-Cola. Accordingly, a bottle was ordered. The first opposite party supplied a bottle of Coca-Cola of 300 ml. Son of the complainant was eating snacks. During this time, the complainant checked the bottle and he was surprised and shocked to see a Gutka packet cut open inside the sealed bottle. When the complainant summoned the Proprietor of the first opposite party, he assured to take action against the company. At that time, hotel was jam-packed with customers. There was lot of hue and cry. The complainant felt ashamed in front of his family and children, because of the act of the opposite parties. Proprietor of the first opposite party pacified the complainant and assured that he will not give room for such incident. The complainant was a regular customer of the first opposite party. In good faith, he heeded the advice of the first opposite party and left the hotel disgusted. On 14.09.2009, complainant visited the hotel and the first opposite party was not in a position to explain anything. The complainant insisted to take action against the second and third opposite parties. First opposite party took photographs of the bottle and charges Rs.31,.85 and gave the bottle to the complainant. Complainant issued notice dated 15.10.2009. Opposite parties have failed to reply the notice. Thereby, opposite parties admitted their deficient act. Said act of the opposite parties, squarely amounts to unfair trade practice. Second and third opposite parties are not adherent to strict quality norms. The complainant would have virtually lost his son because of the deficient act and service done the part of the second and third opposite parties. The complainant and his family members suffered mental agony and loss of reputation. Second and third opposite parties are liable to pay compensation to the complainant. Hence, it is prayed to allow the complaint.<br /> <br /> 3. The first opposite party in the version has contended that, the complaint is not maintainable either in law or on facts. Also, it is not maintainable for mis-joinder of party. There is no cause of action against this opposite party. The fact that the complainant visited the restaurant of this opposite party, is admitted. It is stated that, this opposite party is selling approximately 700 bottles of the soft drinks manufactured by second and third opposite parties for the last 5-6 years. It is admitted that, the Coca-Cola bottle supplied to the complainant contained Gutka packet cut open. This opposite party sent legal notice dated 25.09.2009 to second and third opposite parties. Untenable reply was given. The reply speaks volumes regarding unsafe procedure adopted by them. Prima-facie it shows that, second and third opposite parties do not give importance to the health of the customers, but only for making money. They have failed to take care and follow standard procedure resulted in a foreign object being present in the bottle. The incident has caused loss of reputation and loss of business of this opposite party, which cannot be compensated by any means. It is prayed to take action against second and third opposite parties.<br /> <br /> 4. Second and third opposite parties have filed their joint version, contended that, the complainant is not a consumer. The complainant has not purchased the product in question for consumption. Hence, the complaint is not maintainable. It is contended that, the complaint is filed only to tarnish the image of these opposite parties. The opposite party’s company is with strong ethical, moral and legal values and dedicated to serve the customers/clients. The company follows extremely high standard of quality and integrity in producing all the products. The beverages prepared and packaged by the company are prepared with atmost care and precaution in conformity with the loss. The company follows good manufacturing practice to ensure hygienic and sanitary condition, so as to eliminate the likelihood of product spoilage because of presence of any extraneous matter. The company has fully equipped laboratory by team of experienced and trained chemists to make sure that the standards are met at every stage of production till the beverages is manufactured and packaged into the bottle. The manufacturing process in detail has been narrated in paragraph 7. If and whenever necessary, we will consider the same at appropriate stage. It is further stated that, the entire process is automatic and computerized. The individual product goes through several checks and controls before leaving the plant. Hence, presence of some Gutka pack in the Coca-Cola or beverage as alleged in the complainant is not possible. It is specifically denied by these opposite parties that, there was Gutka packet cut open inside the sealed bottle. It is contend that, many spurious/counterfeit of this popular brand is found in the market with an intention to make profit of the renowned brand name. The genuineness of the product can be determined only after analysis of the sample taken from the bottle. The first opposite party had called the Sale Executive of the company by name Ashuthosh on 13.09.2009. On the next day, he visited the first opposite party restaurant and requested to show the bottle. The Sales Executive had specifically informed that the alleged bottle was likely to be spurious or tampered product. He had requested the first opposite party to hand over the bottle against an acknowledgement for ascertaining the integrity of the product. The first opposite party did not hand over the bottle. Further, it is contended that, assuming but not admitting, the dispute in instant complaint there are complicated issues involved and as such, this Forum has no jurisdiction to resolve all the disputed facts and questions. Certain other allegations made in the complaint are denied. Accordingly, it is prayed to dismiss the complaint.<br /> <br /> 5. To prove the facts alleged in the complaint, the complainant has filed his affidavit and produced certain documents and so also, the Coca-Cola bottle in question. The Proprietor of the first opposite party has filed his affidavit. For second and third opposite parties, one Sri K.N.Ramesh has filed his affidavit. Certain documents are produced. We have heard the learned advocates for the complainant and second and third opposite parties. When the matter was posted for arguments, first opposite party and his advocate were absent. We have perused the entire material on record.<br /> <br /> 6. Now the points arises for consideration are as under:-<br /> 1. Whether the complainant has proved any deficiency in service and that second and third opposite parties have induced in Unfair trade practice and as such, he is entitled to the reliefs sought?<br /> 2. What order?<br /> <br /> 7. Our findings are as under:-<br /> Point no.1 : Negative.<br /> Point no.2 : As per the order.<br /> <br /> REASONS<br /> <br /> 8. Point no. 1:- The second and third opposite parties in their version have contended that, complaint is not maintainable on the grounds that the complainant is not a consumer and that the matter involves complicated issued and in the summary proceedings, same cannot be heard and decided. But, considering the entire facts and the material on record, we found no substance in the said contention.<br /> <br /> 9. Second and third opposite parties have further contended that, the complainant has filed the complaint in collusion with the first opposite party to tarnish the image of these opposite parties using the welfare legislation as a weapon to enrich himself and that the complaint is frivolous and vexatious. As regards, the contention that there is collusion between the complainant and the first opposite party, firstly it is relevant to note that, though according to the complainant, he purchased the coco-cola bottle in question from the first opposite party, let it be manufactured by second and third opposite parties, no releifs is sought against first opposite party. Secondly, also it is relevant to note that, the first opposite party in the version has admitted all most all the facts alleged in the complaint. In addition to it, most important fact needs to be noted is, first opposite party had issued a notice to the third opposite party dated 25.09.2009 calling upon to pay a sum of Rs.20,00,000/- within 7 days from the date of receipt of the notice, failing which the first opposite party will b constrained to expose the bottle to the publics through news media, television, and print media including local, national and international and further it is mentioned in the notice, the notice is issued not to blackmail. Considering this amongst other circumstances and the material on record, the contention of the second and third opposite parties on the point, cannot be brushed aside.<br /> <br /> 10. Coming to consider the main allegation of the complainant that, the coco-cola bottle in question found Gutka packet cut upon inside the sealed bottle, the second and third opposite parties in addition to denial of the same have contended that, many spurious/counterfeit of the popular brand of these opposite parties is found in the market sold by un scrupulous businessmen with an illegal intention to make profit out of the renowned brand name and hence, genuineness of the bottle in question, is challenged and it is contended that, such spurious or counterfeit tampered bottle might have been supplied by the first opposite party to the complainant.<br /> <br /> 11. To substantiate the defense referred to above, second and third opposite parties at Annexure-B have produced Xerox copy of news published in the Vijaya Karnataka Daily newspaper dated 18.07.2009. As per the said news published, the Tumkur District Superintendent of Police along with special squad arrested the persons, who were manufacturing spurious cold drinks such as Faunta, Sprite, pepsi, coco-cola 300 ml bottles. A picture of the seized bottles along with police officer and the Deputy Commissioner can be seen. Considering this fact, the contention of second and third opposite parties regarding spurious or counterfeit coco-cola and other cool drinks, cannot be brushed aside.<br /> <br /> 12. In paragraph 14 of the version, second and third opposite parties have specifically contended regarding spurious or counterfeit manufacture of the coco-cola bottles and also, there is specific mention in the version that, the coco-cola bottle in question was likely to be spurious or tampered product, which might have been sold by first opposite party to the complainant. This fact specifically pleaded by the second and third opposite parties, has not at all been denied or disputed by the complainant in his affidavit and so also, in the affidavit of the first opposite party. Hence, firstly, the said defense is not denied or disputed by the complainant and secondly, said fact is stated by the witness for second and third opposite parties, who has filed his affidavit. Hence, obsolutely we have no reasons to discard and dis-believe the said contention of second and third opposite parties on the point.<br /> <br /> 13. Further more, second and third opposite parties in the version at paragraph 8 have narrated the procedure, and the process including washing of the bottles, test etc., and thus it is contended that, presence of Gutka packet in the coco-cola beverages alleged by the complainant, is not possible. Apart from the process said to have been followed by second and third opposite parties in manufacturing the bottle, it is important to note that, neck of the bottle is approximately 1/2 inch where as the Gutka packet which can be seen inside the bottle is approximately 1 ½ inch width and breadth. It is common knowledge that Gutka packet cover is some what stip, which cannot on it’s own go inside the bottle. Under the circumstances, intentionally one has to insert such Gutka packet into the bottle.<br /> <br /> 14. As noted above, spuriousness or tampering of the bottle in question is the specific contention of second and third opposite parties. At the cost of repetition, that statement in the version is not denied by the complainant and said fact is stated by the witness for these opposite parties. In this background, further it is relevant to note that, second and third opposite parties have contended that, the company sales executive Mr. Ashuthosh had called upon the first opposite party on 13.09.2009 itself and on 14.09.2009 he visited the restaurant of the first opposite party and requested to show the alleged bottle for visual inspection and also the sales executive expressed improbability in the matter and specifically, it was informed likelihood of spuriousness or tampering of the product and accordingly, the sales executive requested to hand over the bottle against the acknowledgement for ascertaining the integrity of the product, but the first opposite party did not hand over the bottle and test analysis and also, it is alleged that not only first opposite party, but also complainant did not co-operate and did not hand over the bottle for analysis and they insisted monitory compensation, which was denied as is unethical and unlawful. In view of these specific facts put forth by the second and third opposite parties, genuineness of the bottle in question shall have to be proved by the complainant. It is submitted by the learned advocate for these opposite parties that burden of proof is on the complainant. Considering the entire facts, particularly in view of the fact that the fact stated in the version and the affidavit regarding tampering or spuriousness being not disputed or challenged by the complainant, same cannot be brushed aside.<br /> <br /> 15. Advocate for the complainant relied on the ruling reported in II (2005) CPJ 579. In this case, our Hon’ble State Commission with reference to the fact of that case, in the mineral water bottle manufactured by the opposite party in that case second opposite party in the present case, held contamination proved. It is important to note that, in paragraph 6 of the said ruling with reference to the evidence of that case, it is noted by the Hon’ble State Commission that the witness examined for the opposite parties, in the cross-examination admitted that the bottle is in such a condition that anything cannot be mixed inside the bottle and that the bottle was sealed and it was intact and there is no likelihood of tampering. In view of the said admission of the witness of the company, Hon’ble State Commission found deficiency in service on the part of the opposite party. But, in the case on hand, it is definite and specific case of second and third opposite parties that, spurious or counterfeit cold drinks including coco-cola bottles were manufactured and in this regard, much prior to the present case, Superintendent of Police and Deputy Commissioner of District raided particular spot and found such spurious manufacturing of coco-cola etc., of the present opposite party company. In addition to this, the fact stated in the version regarding tampering etc., which is also stated by the witness of the company is not challenged or disputed by the complainant. For this reason, the ruling will not help the complainant.<br /> <br /> 16. Considering the facts and the evidence on record, in our opinion, the complainant has failed to prove the deficiency in service as well as unfair trade practice. Accordingly, our finding on the above point is in negative. <br /> <br /> 17. Point No. 2:- Considering the discussion made above and conclusion arrived at, we pass the following order:- <br /> <br /> ORDER<br /> <br /> 1. The Complaint is dismissed.<br /> 2. In the circumstances of the case, there is no order as to costs.<br /> 3. Give a copy of this order to each party according to Rules.<br /> <br /> (Dictated to the Stenographer, transcribed by her, transcript revised by us and then pronounced in the open Forum on this the day 8th March 2010)<br /> <br /> <br /> <br /> <br /> <br /> (A.T.Munnoli) <br /> President <br /> <br /> <br /> <br /> (Y.V.Uma Shenoi)<br /> Member<br /> <br /> <br /> <br /> (Shivakumar.J.)<br /> Member<br /> <br /> <br />