Punjab

Ludhiana

CC/19/585

Gurmeet Kaur - Complainant(s)

Versus

M/s Parle Agro India Ltd - Opp.Party(s)

Gayanpreet Singh

05 Oct 2023

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, LUDHIANA.

                                                Complaint No:585 dated 19.12.2019.                                                         Date of decision: 05.10.2023.

 

Gurmeet Kaur aged 33 years wife of S. Jagmeet Singh @ Noni, resident of House No.6417/A, Street No.2, New Janta Nagar, Ludhiana.                                                                                                              ..…Complainant

                                                Versus

1. M/s. Parle Agro India Pvt. Ltd., Western Express, Highway, Andheri (East), Mumbai-400099 Through its Director/M.D.
2. MOH Epicu Agro Products Pvt. Ltd., Village Mohra, G.T. Road, Ambala-133001, Haryana, Through its Officer Incharge.  
3. M/s. K.R. Auto Engineers, 228-A, Industrial Area-A, Ludhiana through its Proprietor/Partner.                                                                                                                                                          …..Opposite parties 

Complaint Under section 12 and 14 of the Consumer Protection Act, 1986.

QUORUM:

SH. SANJEEV BATRA, PRESIDENT

SH. JASWINDER SINGH, MEMBER

 

COUNSEL FOR THE PARTIES:

For complainant             :         Sh. Gaganpreet Singh, Advocate.

For OP1 and OP2          :         Sh. K.L. Kochar, Advocate.

For OP3                         :         Exparte.

 

ORDER

PER SANJEEV BATRA, PRESIDENT

1.                Succinctly put, the facts of the case are that the complainant purchased one 500 ML Frooti bottle for her personal consumption, through Pardeep Kumar C/o. M/s. Madan Pansari & Karyana Store, Opposite Shiv Shakti Dairy, Daba Road, Ludhiana. On 08.11.2018 at about 04.00 PM, when the complainant was going to open the frooti bottle for consumption, then there was a blast in the said frooti bottle from its cap side and the contents/juice of the bottle went inside her mouth which acted as poison for the complainant and the tongue, other internal part of her mouth were badly damaged/injured and she was taken to Deep Hospital, Ludhiana where stitches were applied in the internal mouth of complainant near neck and even she had to be operated upon. The complainant remained hospitalized from 08.11.2018 to 11.11.2018. According to the complainant the frooti was poisonous due to which she suffered physically and the opposite parties have committed deficiency in service and unfair trade practice by selling substandard frooti juice due to which she has suffered physical and mental harassment, pain, agony etc. The complainant served a legal notice dated 10.10.2019 upon the opposite parties calling upon to pay compensation of Rs.3,00,000/- but no response was given by the opposite parties. Hence this complaint whereby the complainant has prayed for directing the opposite parties to pay compensation of Rs.3,00,000/- to the complainant for her physical, mental pain, agony, harassment etc. and also to pay litigation expenses of Rs.21,000/-.

2.                 Upon notice, none appeared on behalf of opposite party No.3 despite service through affixation and munadi and as such, opposite party No.3 was proceeded against exparte vide order dated 31.10.2022.

3.                Opposite parties No.1 and 2 appeared and filed their separate written statements. In its written statement, opposite party No.1 by taking preliminary submissions, assailed the complaint on the ground of maintainability of the complaint; lack of cause of action; mis-joinder and non-joinder of necessary parties; lack of jurisdiction etc.  Opposite party No.1 stated that the alleged Frooti bottle has not been manufactured by it nor it has privity of contract with the complainant. Opposite party No.1 further stated that Pardeep Kumar C/o/ M/s. Madan Pansari and Kiryana Store has not been impleaded as party. According to opposite party No.1 the product Frooti is manufactured in the factory which is highly advance and no man handled was involved in batch wise manner and each batch more than 3800 products are manufactured, before packing the finished product the product is tested and once the product is found as per specification then only the product is packed and sold in the market. Moreover, it has not received any single complaint till date with respect of the product from any part of the country as the preparation of the entire batch is done together.

                   On merits, opposite party No.1 reiterated the crux of averments made in the preliminary objections. Opposite party No.1 stated that the invoice enclosed with the complaint does not bear the batch No./MFG date of product and in the absence of which, it is not possible to ascertain that this  is the invoice for the purchase of impugned Frooti bottle. Moreover, the perusal of invoice shows that the invoice is raised by K.R. Auto Engineers, Ludhiana in favour of Madan Pansari and not in the name of the complainant and date mentioned on the bill is 29.10.2018. Thus, the complainant has filed the complaint with malafide intention to harass the company for wrongful gain. According to opposite party No.1, its brand “Frooti” is renowned for its purity. The procedure for manufacturing the said product “Frooti’ is subject to highest industry standards for purity and hygiene to ensure that the final product is completely devoid of organic/inorganic contaminants. The said product is packed into virgin food grade PET bottles using world class automated and thus, it is highly impossible that its said product was poisonous, contaminated, unhealthy or any explosive substance was present in the product at any given point. Moreover, the complainant has failed to follow the mandatory procedure prescribed under the Food Safety and Standards Act, 2006 and rules framed there under for testing of any food article alleged to be containing foreign material and in the absence of any report of a statutorily approved laboratory, it cannot be said that the product was substandard or not. Opposite party No.1 further stated that it has been unnecessarily dragged in this false complaint with some ulterior motive to extract money.  Opposite party No.1 denied any deficiency in service on its part and in the end, prayed for dismissal of the complaint.

4.                In its separate written statement, opposite party No.2 assailed the complaint by taking preliminary objections on the ground of non-joinder of necessary parties; maintainability of the complaint; the complainant has concocted a story etc. Opposite party No.2 stated that as per facts of the complaint, the complainant purchased one 500 ML Frooti bottle for her personal consumption through Pardeep Kumar C/o. M/s. Madan Pandari and Kiryana Store but same has not been impleaded as opposite party in this case. Opposite party No.2 is the franchisee of opposite party No.1 and is the manufacture of Pet Frooti Mango and the basic ingredients of preparing the same are sugar, mango pulp, citric acid and water. Before preparing the Pet Frooti Mango, all the processing equipments are cleaned and sanitized (CIP is done), then the sugar solution is prepared by dissolving the sugar in water heated and filtered to avoid any foreign particles going through sugar in the product and also during syrup preparation, all the microorganism are killed during heat process of the syrup. Once the sugar solution is prepared, then as per batch size required quantity of solution is transferred into beverage blending tank also required quantity of pulp transfer into beverage blending tank aseptically through pump, water and other ingredient are also added into the tank and makeup the final volume of beverage and mix thoroughly and batch is standardized as per standard. This beverage is homogenized where the beverage particles get uniform sized and collected into the other tank i.e. called ready beverage tank. This product is now ready for pasteurization and fed to pasteurizer. The Pasteurizer is a process where product is heated up to 95^o C for 30 second and all the microbes are killed and is transferred to the filler for filing where filler is already get sanitize and before start of filling, pet bottle is blown by blowing machine at site and blown bottles are fed to the filler for filling pasteurized beverage automatically through air conveyor at filling area positive sterile air pressure is maintained to avoid any external contamination at filling area. At filler, bottle is automatically rinsed (sanitize filed an caped and then is transferred to the cooling tunnel where bottle is cooled and then it further move through conveyor for shrink levelling machine, where shrink level is placed and then the date coding is done on bottle automatically then the bottle passes through shrink tunnel where label get shrinked and then it is packed into cartons where the weight of each unit is done and then is palletized on wooden pallet and stored. In the packing process filled bottle is inspected at two stages on between filler and the cooling tunnel and one after shrink tunnel (after level shrinking).

                   According to opposite party No.2, the product Frooti is manufactured in the factory which is highly advance and no man handling is involved during the entire process, the product is manufactured in batch wise manner and each batch 3800 pet bottles are manufactured, before packing the finished product the product is tested and once the product is found as per specification then only the product is packed and sold in the market. The OP no.1 further state that till date not a single complaint is received in respect of the Product from any part of the Country, as the preparation of the entire batch is done together. In the preparation of Pet Frooti Mango, the preservative CO2 (Carbon Dioxide) is not used, as such, the question of any blast in Frooti bottle does not arise at all and the facts stated in the complaint are totally wrong, false and unbelievable regarding blast in the bottle at the time of its opening and its working as a poison in the mouth of the complainant as alleged in the complaint which is misuse of process of law and has been filed with some ulterior motive. Moreover, the complainant has not produced any Expert Opinion Report/Lab Report to establish any manufacturing defect or any other defect in the alleged “Frooti” in question, in the absence of which, it cannot be established that there was any manufacturing defect or any other defect in the Frooti in question.

                   On merits, opposite party No.2 reiterated the crux of averments made in the preliminary objections. Opposite party No.2 stated that the perusal of photocopy of computerized invoice dated 29.10.2018 shows that the same is having number of additions with pen made by the complainant as per her convenience in which the purchase of some other items has also been shown and same appears to have been prepared later on. Opposite party No.2 further stated that when through some source, it came to knowledge of opposite party No.2, then its representative namely Pardeep Singh s/o. Sh. Amarjeet Singh visited the house of complainant and asked from her about the incident on which she disclosed that she tried to open the bottle with her mouth due to which the neck of the bottle was broken and the cap of the bottle went inside her mouth for which she had to get treatment from the hospital.  Upon asking by said Pardeep Singh, the complainant showed the said broken bottle along with cap but she told that she has already destroyed the said bottle and also told that she was herself at fault and has no grievance against opposite party No.1 and 2. However, after expiry of one year, the complainant all of a sudden has filed the present complaint by unnecessarily dragging them in this false complaint with some ulterior motive to extract money from them.  Opposite party No.2 denied any deficiency in service on its part and in the end, prayed for dismissal of the complaint.

5.                In support of her claim, the complainant tendered her affidavit Ex. CA in which she reiterated the allegations and the claim of compensation as stated in the complaint. The complainant also tendered documents Ex. C1 is the copy of authority letter of the complainant, Ex. C2 is the copy of test report, Ex. C3 to Ex. C16 are the copies of the bills/receipts of hospital/medicine etc., Ex. C17 and Ex. C18 are the copies of discharge summary, Ex. C19 is the copy of complaint given to SHO, P.S. Shimlapuri, Ludhiana, Ex. C20 is the copy of invoice  of product, Ex. C21 is the copy of news item, Ex. C22 to Ex. C25 are the copies of photographs of bottle of frooti, Ex. C26 is the copy of legal notice dated 10.10.2019, Ex. C27 to Ex. C29 are the photocopies of postal receipts  and closed the evidence.

6.                On the other hand, counsel for opposite party No.1 tendered suffered statement that evidence tendered by opposite party No.2 may be read as evidence of opposite party No.1 and closed the evidence.

                    The counsel for opposite party No.2 tendered  affidavit Ex. RA of Sh. Pardeep Singh son of Sh. Amarjeet, R/o. VPO Mohra, Ambala Cantt, Ambala (Haryana) along with documents Ex. RW2/A is the copy of Aadhar card of Pardeep Singh and closed the evidence.

7.                We have heard the arguments of the counsel for the parties and also gone through the complaint, affidavit and annexed documents and written reply along with affidavit and documents produced on record by both the parties.

8.                The complainant claiming herself to be purchaser of one 500 ml Frooti bottle, has filed the present complaint and claimed a compensation as she suffered harm in the internal part of her mouth on account of alleged blast in the said bottle. She has pleaded that she purchased the frooti bottle through one Pardeep Kumar C/o. Madan Pansari and Karyana Store, Opposite Shiv Shakti Dairy, Daba Road, Ludhiana. She has also relied upon one invoice dated 29.10.2018 Ex. C20 stated to have been issued by opposite party No.3.

9.       The first and foremost question which requires adjudication whether the complainant is competent to file the present complaint or not?

10.               Section 2(5) of the Consumer Protection Act defines the word “complainant”, which reads as under:-

“Section 2 (5) "complainant" means –

1. a consumer; or
2.  any voluntary consumer association registered under any law for the time being in force; or
3.  the Central Government or any State Government; or
4. the Central Authority; or
5. one or more consumers, where there are numerous consumers having the same interest; or
6. in case of death of a consumer, his legal heir or legal representative; or
7. in case of a consumer being a minor, his parent or legal guardian.”

                   Further Section 2(7) of the Consumer Protection Act defines the word “consumer”, which reads as under:-

                 “Consumer” means any person who:-

(i) of the Consumer Protection Act, 2019 the consumer means a person who buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment, when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose; or

(ii)hires or avails of any service for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and include any beneficiary of such service other than the person who hires or avails of the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person, but does not include a person who avails of such service for any commercial purpose.”

Explanation. -For the purposes of this clause, -

(a) the expression "commercial purpose " does not include use by a person of goods bought and used by him exclusively for the purpose of earning his livelihood, by means of self-employment;

 (b) the expressions "buys any goods " and "hires or avails any services " includes offline or online transactions through electronic means or by teleshopping or direct selling or multi-level marketing;”

11.              Section 35 of the Consumer Protection Act, 2019 entitles the various legal entities who can file the complaint in relation to goods sold or delivered or agreed to be sold or delivered or any service provided or agreed to be provided. Bare provisions of Section 35 of the Consumer Protection Act, 2019 reads as under:-

                   “35. Manner in which complaint shall be made.

(1) A complaint, in relation to any goods sold or delivered or agreed to be sold or delivered or any service provided or agreed to be provided, may be filed with a District Commission by-

 (a) the consumer,-

(i) to whom such goods are sold or delivered or agreed to be sold or delivered or such service is provided or agreed to be provided; or

(ii) who alleges unfair trade practice in respect of such goods or service;

(b) any recognised consumer association, whether the consumer to whom such goods are sold or delivered or agreed to be sold or delivered or such service is provided or agreed to be provided, or who alleges unfair trade practice in respect of such goods or service, is a member of such association or not;

(c) one or more consumers, where there are numerous consumers having the same interest, with the permission of the District Commission, on behalf of, or for the benefit of, all consumers so interested; or

(d) the Central Government, the Central Authority or the State Government, as the case may be: Provided that the complaint under this sub-section may be filed electronically in such manner as may be prescribed.

Explanation.- For the purposes of this sub-section, "recognised consumer association" means any voluntary consumer association registered under any law for the time being in force.

 (2) Every complaint filed under sub-section (1) shall be accompanied with such fee and payable in such manner, including electronic form, as may be prescribed.”

 

12.              In the present case, a close scrutiny of invoice Ex. C20 which has been relied upon by the complainant shows that the product in question was sold by opposite party No.3 to M/s. Madan Pansari and Karyana Store which appears to be signed by one Pardeep. Neither Pardeep nor any person incharge and responsible for the conduct of business of M/s. Madan Pansari and Karyana Store has been examined as witness to provide missing link in the story of the complainant that the said product was purchased for the complainant by Pardeep Kumar. Assuming M/s. Madan Pansari and Karyana Store to be a seller of the product, he was necessary party to the present complaint and without its presence, the matter cannot be effectively and completely adjudicated upon. As such, all these circumstances are not sufficient to persuade this Commission for treating the complainant as consumer within the meaning of Section 2(7) of the Consumer Protection Act. Therefore, the complainant is not competent to file the present complaint.

                   Even otherwise, there is no batch number, manufacturing date is decipherable other from the invoice or from the photographs Ex. C22 to Ex. C25 produced by the complainant. In these circumstances, it cannot be said that it is the same bottle which was allegedly purchased vide invoice Ex. C20, was instrumental in causing the injury to the complainant. The product in question is a non-carbonated drink and there are no chances of its sealed pet bottle getting blasted. Further, the complainant has not opted for testing of contents of the product from the approved laboratory. There is no specific opinion of any expert or even that of treating doctor. Assuming the story propounded by the complainant to be a gospel truth, still it is far from the reality. Even if a blast occurs at the time of opening the bottle, it is highly unlikely to cause palate injuries inside the mouth without causing any injury on the lips or face of a person. At the most the liquid can spill over the other parts of the body or may spoil the clothes. . As such, the complainant has failed to discharge his initial burden of proving deficiency in service on the part of the opposite parties.

13.              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.”

In the given facts and circumstances, the complainant has failed to prove the deficiency in service on the part of the opposite parties by any cogent and convincing evidence.

14.              As a result of above discussion, the complaint is hereby dismissed being devoid of any merits. 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.

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

 

                             (Jaswinder Singh)                     (Sanjeev Batra)

                             Member                                       President         

 

Announced in Open Commission.

Dated:05.10.2023.

Gobind Ram.