BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, BHIWANI.
Complaint No.403 of 2011.
Instituted on: 7.9.2011.
Date of order: 18.3.2015 .
Surender Sharma son of Shri Murli Dhar Sharma son of Shri Gokal Sharma, resident of Dudhwa Johar, Bawani Khera, tehsil Bawani Khera, district Bhiwani. …………Complainant.
Versus
- M/s Laxmi Cold Drinks, Bada Garwa Ward No.11, Bawani Khera, tehsil Bawani Kherqa, district Bhiwani, authorized distributor of Coca Kola, Cock, Limca, Fenta, Sprite, Mazza, Kinley Sodha etc. through its Proprietor Shri Kanwarpal son of Shri Raj Kumar, resident of Ward No.11 Bawani Khera, district Bhiwani.
- Coca Kola India, Head Office, Udyog Vihar, Phase-5, Industria Area, Anki Tower, Gurgaon,
……….Respondents.
COMPLAINT UNDER SECTION 12 OF THE
CONSUMER PROTECTION ACT, 1986.
Sitting: Shri B.D.Yadav, President,
Shri Balraj Singh, Member,
Smt. Anita Sheoran, Member,
Present: Shri Kuldeep Sharma, Adv. for the complainant
Shri Ajay Verma, Adv. for the respondent No.1.
Shri Parbhakar Pandey, Adv. for respondent No.2.
ORDER
The case of the complainant, in brief, is that on 21.7.2011 he had purchased 2 carat of Limca cold drinks from the respondent no.1 vide Cash Memo No. 129 for Rs.750/- which is manufactured by respondent No.2. The complainant further alleged that on 15.8.2009 when he was distributing the cold drinks to the Guests on some party occasion he found one sealed bottle showing some insects (Ants). It is further alleged that consumption of the contents of that bottle could take away the life or could bring a major defect in the body. The complainant further alleged that the guests refused to drink the cold drink and as such he felt ashamed. The complainant further alleged that presence of substance floating inside the bottle clearly shows that the respondents are not maintaining the standard of hygiene. The complainant further alleged that he requested the respondents to compensate for misleading regarding the purity of soft drink and causing mental agony, shock and hardship to him and his guests but they did not pay any heed. Hence, it is clear cut deficiency in service on the part of respondents and as such, he had to file the present complaint for compensation.
2. Respondent No. 1 on appearance filed the written statement alleging therein that the answering respondent sold 2 boxes of cold drinks to the complainant and issued a bill No.129 dated 21.7.2011 for a sum of Rs.750/-. It is submitted that the answering respondent did not supply the alleged defective cold drinks to the complainant and he has not mentioned the Batch Number, Marka, Manufacturing date etc of the alleged cold drink in his complaint. It is further submitted that the answering respondent has no concern whatsoever with the manufacturing of any cold drinks of respondent No.1 and if any alleged manufacturing defect occurred than there is no fault on his part. Hence, in view of the facts and circumstances mentioned above, there is no deficiency in service on the part of the answering respondent and the complaint of the complainant is liable to be dismissed with costs.
3. Respondent No.2 on appearance also filed separate written statement and submitted that the complainant has nowhere given in his complaint the particulars pertaining to batch number, date & time of manufacture, name of bottler etc. which is always mentioned on the bottle itself. It is submitted that the complainant has failed to prove that the bottle is genuine product. It is further submitted that the answering respondent is also aware that the manufacturing process adopted by the authorized bottlers is fully automated and highly advance, sophisticated and fully automatic. It is further submitted that the complainant has not purchased the alleged cold drinks from the answering respondent nor the same contains dangerous elements for human consumption. It is further submitted that the bottle is not properly sealed and as such, answering respondent is not liable for any compensation. Hence, in view of the facts and circumstances mentioned above, there is no deficiency in service on the part of answering respondent and complaint of the complainant is liable to be dismissed with costs.
4. Both the parties have filed their duly sworn affidavit in their evidence to prove their version.
5. We have heard learned counsel for both the parties at length.
6. After hearing the learned counsel for both the parties and having gone through the material available on the records, we are of the considered view that the complaint of the complainant deserves acceptance, as there is deficiency in service and unfairtrade practice on the part of the respondents. From the perusal Annexure C1 photo stat copy of bill No. 129 dated 21.7.2011, it is proved on record that the complainant had purchased 2 carat of Limca cold drinks from the respondent no. 1 for a sum of Rs.750/-. During the proceedings of this complaint the bottle in question was produced & seen by the Forum, which found containing insects (ants) inside the bottle. Had the complainant and any other member consumed the cold drink i.e. “Limca” bottle in question it could prove fatal to the human life and health. The simple plea of the respondents is that the bottle was manufactured in a very hygienic way in automatic plant and there was no possibility of any insect in the bottle, but no evidence has been led by the respondents to prove that the bottle in question was not manufactured by the respondent no. 2. Had the local dealer manufactured the cold drinks of his own by using trade name of opposite party No.2. Opposite Party No.2 could have filed a criminal complaint against the dealer which has not been done so far. Moreover, vide order dated 7.8.2013 the alleged bottle was sent to the Food Analyst, Haryana, Sector-11, Chandigarh for Analysis and as per report received vide letter dated 24.12.2013 the sample does not confirm to the prescribed standards as laid down for Carbonated Water under Regulation 2.10.6(1) of FSS (Food product standards and food additives) Regulation 2011. The gist of the report is being reproduced as under:-
i) The sample contains dead insects (Ants), whereas it should be free from the same.
ii) The sample gives total plate count 1913 cfu/ml against the maximum prescribed limit of 50.
7. Ld. Counsel for the respondents argued that there is no evidence to show that the complainant had purchased the bottle in question from respondent No.1. Ld. Counsel also relied upon Hindustan Coca Cola Beverages Pvt. Ltd. Versus Vijay Narsingh Kulkarni & Anr. In our view, this plea of the Ld. Counsel for the respondents is not tenable as in the referred case the name of the customer is not mentioned in the bill but in the present case the Bill Annexure C1 bears the name of the customer. Therefore, the facts of the referred case are not applicable to the case in hand. Ld. Counsel for the respondents further argued that life of the bottle had already been expired before sending it to the Public Analyst. This plea of the Ld. Counsel is also not tenable as the contents of the complaint reveals that insects were visible on the day of purchase of the bottle. Ld. Counsel also argued that the chain of events is not complete in this case and Model Technology is used by the company in preparing cold drinks and the company enjoyed good reputation in the field. It is also submitted that the highly advanced and automated process is adopted in the manufacturing. Mere fact that the company enjoyed good reputation and the factory being equipped with high-tech machinery does not answer the presence of worm/insects in the bottle. Ld. Counsel for the complainant argued that the blame put upon the petty shopper by the manufacturing company is an attempt to sweep the dirt under the carpet. Ld. Counsel for the respondents further argued that there is no evidence to prove that the seal of the bottle was intact and there were chances of tampering. This plea of the Ld. Counsel for the respondents is also not tenable because as per report of Public Analyst the bottle in question has been mentioned as “Sealed Plastic bottle labeled as “Limca”. Hence, in view of the report of the Public Analyst this plea of the Ld. Counsel for the respondents is also not tenable.
Therefore, in view of the facts and circumstances mentioned above, it is clear cut deficiency in service and unfair trade practice on the part of respondents due to which the complainant has suffered mental agony, physical harassment and financial losses and as such, he is entitled for compensation. In view of the above circumstances the complaint of the complainant is allowed and the respondents are directed: -
1. To refund Rs.750/- (being the cost of the “Limca” bottles) along with interest @ 12% p.a. from the date of filing of present complaint till its final realization. The amount is payable by respondent No.1.
2- To pay Rs. 20,000/- as compensation. The amount is payable by respondent No.2 (being manufacturer).
- To pay Rs.2200/- as litigation charges.
The order be complied within 45 days after the receipt of the certified copy of this order. In case of default, the complainant is entitled to get interest @ 12% p.a. on the above said awarded amount from the date of default till its final realization. Certified copies of this order be sent to the parties free of costs. The file alongwith bottle be consigned to the record room.
Announced in open Court.
18.3.2015. President,
District Consumer Disputes
Redressal Forum, Bhiwani.
Anita Sheoran Balraj Singh .
Member. Member
