Date of Filling : 11.08.2014.
Date of Disposal : 26.08.2016.
DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, THIRUVALLUR - 1.
PRESENT: THIRU. S. PANDIAN, B.Sc., L.L.M., … PRESIDENT
TMT. S. SUJATHA, B.Sc., … MEMBER - I
Consumer Complaint No.53/2014
(Dated this Friday the 26th day of August 2016)
B.L. Shankar,
S/o. Mr. Balasubramanium,
No.9/5, Vaani Vinayagar Koil Street,
Thirumullaivoil,
Chennai - 600 062. … Complainant.
/ Versus /
1. M/s. Hindustan Coca Cola Beverages Pvt. Ltd.,
M2 TOM 11, Phase III B, Verna Ind-estate,
Verna Salcete,
Goa - 403 722.
2. HCCB Pvt. Ltd,
No.27, Poonamalee - Avadi Road,
Govardanagiri,
Chennai.
3. Prethivi Cool Bar,
No.14A, Thiruvalluvar Street,
Avadi,
Chennai. … Opposite parties.
This complaint is coming upon before us finally on 05.08.2016 in the presence of M/s. V. Logeswaren, Counsel for the complainant. Thiru. K. Ravi Kumar, Counsel for the 1 & 2nd opposite parties and the 3rd opposite party was set Ex-parte for non filing of written version and having perused the documents, evidences, oral and written arguments of the complainant and the 1 & 2nd opposite parties, this Forum delivered the following,
ORDER
PRONOUNCED BY THIRU. S. PANDIAN, PRESIDENT
This complaint is filed by the complainant U/S 12 of Consumer Protection Act, 1986 against the opposite parties for seeking compensation Rs.3,00,000/- with 24% interest p.a. till the date of realization towards mental agony and stress suffered by the complainant to pay Rs.2,00,000/- with 24% interest p.a. . till the date of realization towards compensation for negligent manufacturing of substandard product and deficiency of service with cost
2. The brief averments of the complaint is as follows:-
The complainant is a practicing Advocate. On 10th June 2014, the complainant went to the shop of the 3rd opposite party and purchased 200 ml Limca bottle to get rid of thirsty due to peak summer and purchased the brand for its reliability and brand value believing that no harm would be caused by consuming the said product but his belief was shattered when he saw some foreign object present inside the bottle before opening the same. The complainant would have easily returned the bottle and asked for replacement from the 3rd opposite party but being a true citizen he did not want to bury the issue there itself. Further he did not want the other consumers of the product to be affected due to the substandard product of the 1st opposite party. So he paid the amount for the bottle to the 3rd opposite party and enquired him whether it was a duplicate product, but the 3rd opposite party handed over the invoices issued by the second opposite party to the complainant stating that the product is genuine as he purchased the same from the 2nd opposite party who is the authorized dealer of the product of the 1st opposite party. So the complainant felt that there is no point in talking with the 3rd opposite party and took back the bottle along with the invoices to his home to know more truth about the contaminated packed and sealed product of the 1st opposite party, the contamination according to the complainant looks like a dead cockroach or something similar to that.
3. The 1, 2 & 3rd opposite parties have an inherent responsibility toward the consumers in their respective capacity as a manufacturer, distributor and retailer and therefore, the opposite parties are jointly and severally liable for their negligence and deficiency of service which they vow to the consumers. It was negligently manufactured by the 1st opposite party and the same was supplied to the 2nd opposite party in turn the 2nd opposite party also without verifying the product negligently passed the product to the 3rd opposite party who is the retailer sold the hazardous product to the complainant therefore all the opposite parties prima facie liable for their negligent act and deficiency of service.
4. It is pertinent to state that the subject matter itself a proof that the manufacturing and packaging process followed by the 1st opposite party is substandard hence they cannot escape from their lawful liability by giving lame excuses. Then the complainant sent legal notice dated 25.06.2014 to all the opposite parties by calling upon them to pay compensation for a sum of Rs.3,00,000/- towards mental agony and stress suffered by the complainant and sum of Rs.2,00,000/- towards deficiency of service and negligence on the part of the 1 to 3 opposite parties and the same was duly received by the 1st & 2nd opposite parties on 03.07.2014and 07.07.2014 respectively. As far as the 3rd opposite party is concerned notice was returned unserved. The 1st & 2nd opposite parties replied to the complainant’s notice on 17.07.2014 containing false frivolous vexatious statements and the reply of the 1st & 2nd opposite parties is vague without substance with intention to escape from the lawful liability. Hence, this complaint.
5. The contention of written version of the 1 & 2nd opposite parties is briefly as follows:-
All the allegations made in this complaint are specifically denied by the 1 & 2nd opposite parties as false, baseless and misconceived. The 1 & 2nd opposite parties states that both the 1 & 2nd opposite parties are one and same company and is engaged in the business of manufacturing various kinds of Sweetened Carbonated Beverages, Fruit Juices, viz., Coca Cola, Limca, Maaza etc, besides packaged drinking water all over India, including Tamil Nadu having high reputation in the field of business all over India in the brand name of M/s. Hindustan Coca-Cola Beverages Pvt. Ltd., and in the international market. That on receipt of the legal notice dated 25.06.2014 from the complainant, the representative of the 1 & 2nd opposite parties met the complainant’s counsel on 11.07.2014, at his residence at about 7:30 a.m., wherein he showed him the Limca 200 ml bottle with hesitation keeping it in a distance, which contains heavy dirt and returnable glass bottle seal and date code is in smudged condition and the metal cap of the returnable glass bottle was slightly seemed to be tampered and from that distance he is not able to identify the said foreign object.
6. It is submitted that Section 14 provides for payment to be awarded by way of compensation to a consumer only for any loss or injury suffered by the consumer due to the negligence of the opposite parties. In the absence of any proof that the complainant suffered any loss due to the negligence of the answering the opposite parties, the complainant does not fall within the scope of Section 14, It is well settled law that proof of loss or injury is a sine qua non for the award of the compensation. In the present case, as the complainant has failed to proof evidencing any loss or damage and hence there can be no award for the relief claimed. In view thereof, the complainant is not maintainable. The complainant claiming compensation against the opposite parties is not maintainable as there was no deficiency of service and negligent act under the Consumer Protection Act, 1985 and the purpose of filing the above vexatious complaint against this opposite parties is to make fantasy claim. Keeping the bottle with the complainant would give way for further tampering and contaminate the content of the bottle. The documents filed in support of the complainant’s claim would clearly shows that the complainant colluding with the 3rd opposite party tamper the bottle for the purpose of preferring the above complaint for the reason best known to them and no document was produced to show that the cool drinks bottle was purchased by the complainant for valid sale consideration from the 3rd opposite party instead produced invoice of the retailer which no retailer would circulate to the consumer in the normal course of its business.
7. The opposite parties further informed the complainant that they have an extremely sophisticated and hygienic manufacturing process for their products and a fully mechanized bottling system in their plants which ensures proper filling and sealing of each bottle. Therefore, the presence of any foreign substance in this opposite party’s product is highly improbable. Generally the print of Batch no. and manufacturing date will be conspicuous, legible and clear in all our clients’ product always as in strict adherence and compliance of various statutory regulations. Without prejudice to the opposite parties above contentions, they further states that the tampered/ spurious products perhaps made available in the market to cheat valuable consumers. Therefore, in the absence of Batch Number and manufacturing date information they are unable to comment on the authenticity of the product alleged to have been purchased by the complainant.
8. During the meeting with the complainant’s counsel on 11.07.2014, at his residence at about 7:30 a.m., the opposite party asked the complainant’s counsel to return the said bottle in order to examine and verify and send it for further investigation so they can answer each and every allegations and averments of the complainant notice elaborately. But the complainant’s counsel had refused to hand over the said bottle to this opposite parties’ officer on 11.07.2014 when he met the complainant’s counsel at his residence. Further, the opposite party had expressed their concern over the discomfort as alleged to have been experienced by the complainant as mentioned through legal notice. Although such incidents are highly improbable but in order to maintain the confidence of opposite parties’ valued retailers and consumer earned over more than a century the answering opposite party carefully investigates any allegation related to safety or quality of their products.
9. The allegations that the officials of the 1 & 2nd opposite parties tried to take possession of the subject matter permanently such illegal attempt of the officials of the 1st & 2nd opposite parties were successfully prevented as the complainant could not give away with the subject matter as it is the material evidence to prove the defective product as false. It is false to state that such attempt which was taken by the officials of the 1 & 2nd opposite parties on 11.07.2014 itself clearly proves that the subject matter is the product of the 1st opposite party. The attitude of the complainant and the 3rd opposite party is clearly established as the legal notice sent by the complainant to the 3rd opposite party was returned unserved on the 3rd opposite party.
10. Without prejudice to the above contention the answering opposite parties reiterate that all the averments and allegation contained in the above complaint are false and frivolous as the answering opposite parties are not manufacturing, distributing and selling any sub-standard product and there was no negligence on the part of 1 & 2nd opposite parties and there was no deficiency of service and negligence as alleged by the complainant and therefore, the mental agony and stress as alleged by the complainant would not be arise. Under these circumstances the 1 & 2nd opposite parties are not liable to pay the fancy claim made by the complainant.
11. It is submitted that the onus of proving the bill evidencing the purchase of the alleged cool drink bottle found foreign object inside the product dated 10.06.2014 is on the complainant. In addition to all the above, the complaint was filed only on 30.07.2014 after a period of more than 50 days from the alleged date of purchase i.e. 10.06.2014. Hence, the 1 & 2nd opposite parties state that without even producing proper material, a claim for a defective product is not maintainable. In the absence of report of a qualified government analyst and without testing the veracity of the bottle the complaint is liable to be dismissed in limine.
12. It is humbly submitted that the onus squarely lies on the complainant to establish that, the 1 & 2nd opposite parties manufactured the alleged bottle by producing proof in this regard. The bottle alleged to have been manufactured by the 1 & 2nd opposite parties has not been consumed by the complainant. While so, the question as to mental agony and stress alleged to have been suffered by the complainant which he estimated to Rs.3,00,000/- does not arise at all. In the absence of any proof that the complainant suffered any loss due to the negligence of the 1 & 2nd opposite parties the complainant does not fall within the scope of Section 14. The complainant taking unfair advantage of welfare legislation. Hence, the complaint deserves to be dismissed.
13. In order to prove the case, on the side of the complainant, the proof affidavit submitted for his evidence and Ex.A1 to Ex.A4 & Ex.F1 were marked. While so, on the side of the 1 & 2nd opposite parties, the proof affidavit is filed for his evidence and no document marked on his side.
14. At this juncture, the point for consideration before this Forum is:-
- Whether there is any deficiency of service on the part of the 1 & 2nd opposite parties as alleged in the complaint?
- To what other reliefs, the complainant is entitled to?
15. Written arguments has been filed and oral arguments adduced on the side of complainant and the 1 & 2nd opposite parties.
16. Point no.1:-
On careful perusal of the averments of the complaint and the proof affidavit of the complainant, it is seen that the complainant had purchased a 200 ml Limca bottle on 10.06.2014 at about 09:00 P.M. from the 3rd opposite party and the invoice produced by the 3rd opposite party for the purchase of the said Limca bottle to the 2nd opposite party is marked as Ex.A1. It is further learnt that when the complainant saw the bottle after purchase, some foreign object present inside the bottle before opening the same and immediately, the complainant asked the 3rd opposite party whether it was a duplicate product. But the 3rd opposite party has stated that the said product is a genuine one, which was purchased from the 2nd opposite party who is an authorized dealer. The photograph of the alleged bottle with the foreign object is marked as Ex.A2. Since the contamination according to the complainant looks like a dead cockroach or something similar to that, which is hazardous to the health of human and therefore, the complainant sent Ex.A3, legal notice to the opposite parties and inturn the 1 & 2nd opposite parties has sent Ex.A4, reply notice on evasive grounds. The notice sent to the 3rd opposite party was returned as unserved. It is further stated that the 1 & 2nd opposite parties have an inherent responsibility towards the consumer in their respective capacity, and therefore, the opposite parties are jointly and severally liable for the negligence and deficiency of service and thereby for causing mental agony and stress to the complainant.
17. On the other hand, on going through the written version and the proof affidavit submitted on the side of the 1 & 2nd opposite parties, it is contended that they are engaged in the business of manufacturing of various kinds of sweet and carbonated beverages, fruit juices viz. Coca Cola, Limca, Maaza etc. all over India and in the international market. It is further narrated that on 11.07.2014, at the residence of the compliant at about 07:30 A.M. wherein he showed the alleged Limca bottle with hesitation keeping it in a distance which contains heavy dirt and the returned glass bottle seal and date code is in smudged condition and the metal cap of the returnable glass bottle was slight seemed to be tampered and from that distance the 1 & 2nd opposite parties was not able to identify the said foreign object. Further the onus of proving the bill evidencing the purchase of the alleged cool drink bottle dated 10.06.2014, is not filed and therefore, in the absence of any proof for the complainant suffered any loss due to the negligence of the 1 & 2nd opposite parties, the complainant does not fall within the scope of the Consumer Protection Act, 1986 and therefore, the negligence and deficiency of service on the party of the 1 & 2nd opposite parties have not been proved as contemplated.
18. At this juncture, on careful perusal of the rival submissions put forth on either side, it is crystal clear that the 1st opposite party is the manufacturer, the 2nd opposite party is the authorized dealer of M/s. Hindustan Coca Cola Beverages Pvt. Ltd. and the 3rd opposite party is the retailer. First of all, as rightly pointed out by the 1 & 2nd opposite parties, the onus of proving the allegations made in the complaint is on the shoulders of the complainant. At the outset, this Forum has to consider as to whether the complainant has proved the purchase of the alleged Limca bottle by means of relevant and acceptable evidence. As per the evidence of the complainant, it is stated that the complainant had purchased the alleged 200 ml Limca bottle on 10.06.2014 at about 09:00 P.M. and he found some foreign object present inside the bottle before opening the same. If it is so, in order to prove the purchase, the vital document is the receipt or bill obtained from the 3rd opposite party on payment of the prescribed cost price. In fact, there is no such bill or receipt for the purchase of the alleged Limca bottle from the 3rd opposite party is not produced before this Forum. Instead of the purchase bill, the complainant had produced Ex.A1, the invoice handed over to him by the 3rd opposite party for the purchase of the alleged bottle from the 2nd opposite party, who is the authorized dealer of the said product. It is not at all necessary for this complaint.
19. Moreover, it is seen from the averments of the complaint as well as the proof affidavit, it clearly reveals the fact that the complainant has purchased sealed product of the Limca bottle as well. But there is no proof placed before this Forum to purchase the contents of the Limca with the entire bottle from the 3rd opposite party. Some beverages or fruit juices are sold out in glass bottles. In such cases, usually the customer after consuming the contents of the bottle need to return the empty bottle to the retail shop. If the consumer or the purchaser wants to purchase the contents with the entire bottle, necessarily they would have to pay the cost of the bottle also. In such circumstances, if the complainant had purchased the alleged Limca with bottle, certainly the complainant would have been paid the cost price of the bottle separately to the 3rd opposite party and for which, the complainant ought to have obtained the bill or receipt from the 3rd opposite party. But no such proof produced before this Forum by the complainant to that effect. Not only that, in order to prove the said facts and allegations made in the complaint, the complainant ought to have chosen to examine the 3rd opposite party as witness. But the complainant failed to do so. Therefore, as rightly pointed out by the 1 & 2nd opposite parties, the complainant does not come under the purview of the section 2 (d) of the Consumer Protection Act, 1986.
20. The next thing to be decided is, as to whether the alleged 200 ml Limca bottle is a genuine one or not?. At this instance, it is learnt from the evidence of the complainant that the Ex.A1, invoice slip was produced by the 3rd opposite party to show that the alleged product is genuine and also it is a sealed product of the 1st opposite party. At this point of time, it is vehemently contented by the 1 & 2nd opposite parties there is every possibility that the complainant collude with the 3rd opposite party tampered the bottle for the purpose of preferring the said complaint for the reason best known to them. Infact, in the absence of the batch number and manufacturing date information, it is highly impracticable to say that the alleged Limca 200 ml bottle was a genuine one and it was manufactured by the 1st opposite party and distributed by the 2nd to 3rd opposite parties and therefore, it is crystal clear that the metal cap of the alleged bottle was likely to be tampered and thereby, the genuinity of the said 200 ml Limca bottle is not at all proved by the complainant through reliable and consistent evidence by the complainant. At this point of time, on seeing the Ex.A2, the 200 ml Limca bottle through naked eyes we cannot able to see about the vital materials viz. batch number, date of manufacture and the seal of the metal cap. Furthermore, on perusal of the Ex.F1, the Analyst report, there is no mentioning about the above said particulars. So, it is crystal clear that when the alleged Limca bottle was purchased by the complainant is not containing the above said vital materials. Furthermore, it is true that on taking steps by the complainant, the Analysis Report, Ex.F1 received by this Forum with opinion that it contains sediments of a flying dead insect which is unsafe under section 31(zz(ix)of FSS Act, 2006. Unless it is not proved that the alleged Limca bottle is a genuine one, Ex.F1 is no way useful to the complainant’s case.
21. In the light of above facts and observations made, there is every possibility to presume that the metal cap of the returnable glass bottle has been tampered since, the complainant failed to prove that the metal cap has not been tampered by means of relevant and acceptable evidence. Further, it is seen that the bottle alleged to have been manufactured by the 1 opposite party, which is consumed by the complainant. While so, the question about mental agony and stress ought to have been suffered by the complainant does not arise at all. Similarly, in the absence of any proof that the complainant suffered any loss due to the negligence of the 1 & 2nd opposite parties, as rightly pointed out by the 1 & 2nd opposite parties, the complainant is not entitled for any relief. Hence, the complainant does not fall within ambit of section of 14 of the Consumer Protection Act, 1986. Furthermore, as per the averments of the complaint, it is clearly stated by the complainant that on seeing through naked eyes the presence of foreign object like a dead cockroach found in the alleged bottle, immediately, the complainant would have easily returned the bottle to the 3rd opposite party and ought to have get the non contaminated genuine drinks from the 3rd opposite party. At this instance, if the 3rd opposite party refused to do so, the scope of the complainant will come into the picture. But no such instance occurred. Therefore, the contention raised by the 1 & 2nd opposite parties that this complaint has been filed by the complainant for the reason best known by him holds good.
22. From the foregoing among other facts and circumstances, this Forum concluded without any hesitation that the complainant has not at all proved the allegations made in the complaint and negligence and deficiency of service on the part of the opposite parties with consistent evidence. Thus, the point no.1 is answered accordingly.
23. Point no.2:-
As per the conclusion arrived in point no.1, the complainant is not entitled for any relief as prayed in the complaint and answered this point accordingly.
24. In the result, this complaint is dismissed. No cost.
Dictated by the president to the steno-typist, transcribed and computerized by him, corrected by the President and pronounced by us in the open Forum on this 26th August 2016.
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MEMBER - I PRESIDENT
List of documents filed by the complainant:-
Ex.A1 | 17.05.2014 | Invoice issued by the 2nd opposite party to the 3rd opposite party. | Original |
Ex.A2 | | Photos of 200 ml Limca bottle | Original |
Ex.A3 | 25.06.2014 | Legal notice issued by the complainant to the opposite parties | Original |
Ex.A4 | 17.07.2014 | Reply notice of the 1 & 2nd opposite party to the complainant | Original |
Ex.F1 | 11.08.2015 | Analyst Report by King Institute Campus, Guindy, Chennai – 2. | Original |
List of documents filed by the 1 & 2nd opposite parties:-
Nil.
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MEMBER - I PRESIDENT
