Haryana

Ambala

CC/180/2013

PANKAJ BALI - Complainant(s)

Versus

M/S MOHNI SWEETS - Opp.Party(s)

ASHUTOSH AGGARWAL

26 Sep 2016

ORDER

              BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, AMBALA.

                        Complaint Case No.:  180 of 2013

Date of Institution    : 19.07.2013

Date of Decision   :   26.09.2016

Pankaj Bali son of Shri Varinder Pal Bali, R/o H.No.43, Prem Nagar, Ambala City.

                                                                                                                                                                    ……….Complainant

Versus

1.       M/s Mohni Sweets, near Bus Stand, Prem Nagar, Ambala City through its Proprietor.

2.       Prikshit Enterprises, Plot No.18/11, Singhawala, Hisar Road, Ambala City throught its Prop./owner.

3.       Pepsi Co. India, 3B, DLF Corporate Park, ‘S’ Block, Qutab Enclave, Phase-III Gurgaon-122002 through General Manager/Manager.

          ……Opposite Parties

 

Complaint under Section 12 of the  Consumer Protection Act.

 

CORAM:    SH. D.N. ARORA, PRESIDENT.

                   SH. PUSHPENDER KUMAR, MEMBER.

                  

Present:       Sh. Ashutosh Aggarwal, Adv. counsel for complainant.

                   Sh. Rajiv Sachdeva, Adv. counsel for Op No.1.

                   Sh. Sunny Sharma, Adv. counsel for Op No.2.

                   Op No.3 exparte.

ORDER:

                    Present complaint has been filed by the complainant alleging therein that on 25.06.2013, complainant purchased 15 bottles of Slice cold drink 250 ML. each and 9 bottles of Dew 300 ML each from the Op No.1 vide cash memo dated 25.06.2013 amounting to Rs.360/- for which the amount was paid by the complainant to the Opposite party no.1. It has been contended that when  the cold drinks were being served in his family members, complainant was surprised to see that  there were some worms in one of the slice bottle bearing batch no.23ELI dated 23.05.2013. The complainant and his family members were shocked to know that a little haste in consuming the said drink could have caused serious health problems to the complainant and his family members. So, the complainant informed the Op No.1 regarding the said worms  and showed him the photographs of the said bottle but the Op No.1 instead of taking any precautionary measure, suggested the complainant to consult the distributor i.e. OP No.2. Accordingly, complainant approached  the OP No.2 and showed him copy of the photographs of the said soft drink bottle containing worms alongwith the said bottle bearing contaminated soft drink but the Op No.2 instead of listening the complainant became furious towards the complainant and also torn the said photographs in limine. The OP No.3 even tried to manhandle the complainant, disrepute him and threatened him not to come again or to face the consequences. As such, the complainant has contended that Ops has adopted unfair trade practice with the complainant. Hence, the present  complaint seeking relief as per prayer clause.

2.                Upon notice, Ops appeared through their respective counsel.  Op No.1 filed reply raising preliminary objections qua maintainability, locus standi concealment of facts and cause of action.  On merits, answering OP admitted the purchase of alleged cold drinks and rest of the contents of complaint have been denied and prayed for dismissal of complaint with costs.

                   Op No.2 raised preliminary objections qua maintainability of complaint & suppression of material facts. On merits, it has been alleged that complainant never approached Op No.2 nor made any such complaint as alleged in the complaint. Further it has been urged that OP No.3 is the manufacturer and answering OP is distributor and they distribute the articles in good and sealed conditions as received from the manufacturer and never supplied substandard articles as alleged in the complaint.  Rest of the contents of complaint have been denied and prayed for dismissal of the complaint.

                   OP No.3 did not bother to appear despite registered post.  As such, he was proceeded against as exparte vide order dated 06.09.2013.

3.                In evidence, the counsel for complainant tendered affidavit of complainant as Annexure CX alongwith documents as Annexures C-1 to C-4 and closed the evidence whereas on the other hand, counsel for OP No.1 tendered affidavit of Vikas Nanda as Annexure RX and closed their evidence.  Counsel for Op No.2 tendered in evidence, affidavit Annexure RY alongwith document Annexure R-1 and closed the evidence.

4.                We have heard the learned counsel for the complainant and gone through the record very carefully.  Counsel for complainant has argued that  the cold drinks so purchased  by complainant vide cash memo dated 25.06.2013 found worms while it was being served and if the said drink was taken it could injuries to health of complainant and his family member. Thus the Ops are negligent and it is case of unfair trade practice on their part.

                   On the other hand, counsel for appearing Ops have argued that the they have purchased  the product from OP No.3 manufacturer  of the cold drink and sold it to the complainant as well as other customers in the condition as they are received. Counsel for Ops further argued that OP No.3 manufacturer company of the cold drink is a reputed company a reputed company in the field of cold drinks and also take care of hygiene and maintain the standard of their product for which they are known. As such, there is no fault on their part and they have not played any unfair trade practice. 

5.                During pendency of the case, complainant had moved an application for Chemical Analysis of the cold drink slice bearing batch no.23 EL-1 dated 23.05.2013 in a Medical Laboratory which was allowed vide order dated 06.09.2013.  Whereupon, Food Analyst, Haryana, Sector 11, Chandigarh send its report bearing no.FAH/CHD/2013/1235 DATED 28.11.2013 and opined that A) The sample does not conform to the prescribed standards as laid down for ready to serve fruit beverages under Regulation 2.3.10 of FFS (food product standards and food additives)Regulations 2011, tghereof in that:-

i)       The sample contains dead insects i.e. Makoras, whereas it should be free from the same

ii)      The sample gives total plate count 3540 cfu/ml and coliform count/100 ml 14 against the maximum prescribed limit of 50  and Nil respectively.

          Hence the sample is unsafe food.

 

6.                Perusal of cash memo (Annexure C-1) reveals that  the cold drinks in question was purchased by complainant from Op No.1 Mohini Sweets. Photographs of the cold drinks i are Annexures C-2 & C-3  wherefrom it can be seen with naked eye that Makoras are present in the bottle.   From perusal of the report so submitted by Food Analyst, it is crystal clear that the sample was unsafe food since it was having dead insects i.e. Makoras wherefrom it is concluded that if the said contaminated cold drink  would have consumed by complainant, it could injure the health of complainant or whoever have taken it.   The Ops have not rebutted the report of analyst nor led any evidence to contradict the same at any stage of the case.  Meaning thereby that the Ops have nothing to say in the matter and in the present situation, we have no other option except to believe the version of complainant supported by the report of analyst.  

                   In view of above discussed facts, we have come to the conclusion that the present case is a fit example of negligence and unfair trade practice on the part of Ops. Accordingly, we allow the present complaint and direct the Ops No.1 to 3 to comply with the following directions:-

1.  To refund Rs.225/- which is cost of 15 bottle of slice cold drink to the complainant alongwith interest @ 9% per annum from 25.06.2013 till actual realization.
2. To pay a sum of Rs.5000/- as compensation on account of mental agony & harassment.

                             The order be complied with within 30 days from the date of receipt of copy of the order, failing which the OPs will pay simple interest @ 9% per annum on the amount of Rs.5000/- referred under clause (ii)  from the date of complaint till its realisation. We assess Rs.3000/- as litigation expenses to the complainant. Copies of this order be sent to the parties concerned free of costs. File be consigned to the record room after due compliance.  

               

ANNOUNCED:26.09.2016                                                                      Sd/-

                                                                                                     (D.N. ARORA)

                                 PRESIDENT                

 

                                            Sd/-

                      (PUSHPENDER KUMAR)

                                                                                                               MEMBER