Haryana

Sonipat

CC/31/2016

Ashish Garg S/o Ghanshyam Dass - Complainant(s)

Versus

M/s Pepsico India Holding Pvt. Ltd. - Opp.Party(s)

Ravi Shanker Garg

22 Jul 2016

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,

SONEPAT.

 

               

                                Complaint No.31 of 2016

                                Instituted on:25.01.2016

                                Date of order:22.07.2016

 

Ashish Garg son of Ghanshyam Dass Garg, resident of H.No.654/23, Aggarsain Nagar, Rohtak road, Sonepat.

                                           ...Complainant.

                           Versus

 

1.M/s Pepsico India Holding Pvt. Ltd. (Beverages Division), 3-B, DLF Corporate Park, ‘S’ Block, Qutab Enclave, Phase III, Gurgaon-122002, Haryana.

2.M/s Varun Beverages Ltd., village Tajpur (Ujina) tehsil Nuh, Distt. Mewat, Haryana.

3.M/s Swami Enterprises Old Hari Rice Mills, Kakroi road, Sonepat.

4.M/s Goyal Tea Company, Aggarsain Nagar, near Post office, Rohtak road, Gur Mandi, Sonepat.

                                            ...Respondents.

COMPLAINT UNDER SECTION 12 OF

THE CONSUMER PROTECTION ACT,1986

Argued by: Sh. R.S. Garg Adv. for complainant.

           Respondents no.1 and 3 ex-parte.

           Sh. Parveen Kaushik, Adv. for respondent no.2.

           Respondent no.4 in person.

BEFORE-    NAGENDER SINGH………………………………………………PRESIDENT.

          SMT.PRABHA WATI……………………………………………MEMBER.

          J.L. GUPTA……………………………………………………………MEMBER.

O R D E R

            The complainant has filed the present complaint against the respondents alleging therein that on 21.10.2015, the complainant purchased a bottle  of Nimbooz Sode (7 UP) on consideration from respondent no.4.  On 22.10.2015 on the festival of Dushehra, some guest has come to the house of the complainant and he has to serve some cold drinks to his guests and he put the bottle of Nimbooz Masala Soda (7 up) and when the complainant tried to open the bottle, he suddenly saw 5 infected infectious substance in the bottle.    The complainant has made a complaint in this regard to the respondent no.4, but of no use.  The complainant has also tried to contact the respondent no.1 and 2, but none has entertained the complainant.  The presence of infected infectious substance in the intact sealed bottle clearly shows the negligence and carelessness on the part of the respondents no.1 and 2 and that also amounts to a grave deficiency in service on the part of the respondents. So, he has come to this Forum and has filed the present complaint.

2.        The respondent no.2 and 4 have appeared and they have filed their reply separately, whereas respondents no.1 and 3 were proceeded against ex-parte.

          The respondent no.2 in its written statement has submitted that these days the market is full of counterfeit/spurious products to the leading and popular brands of cold drinks.  In the absence of prove of fact that the alleged bottle has been manufactured and sold by the respondent no.2, no liability can be fastened on it on account of alleged bottle.  The complainant has purchased the alleged bottle on 21.10.2015 and submitted 5 photographs which reveals the date of manufacturing of the bottle as 3.6.2015.  The said bottle also bear the declaration Best Before 4 Months form the date of manufacturing.  The alleged bottle has been sold by respondent no.4 and purchased by the complainant after expiry of its shelf life for which the respondent no.4 is liable.  Without getting the seal and contents of the bottle tested, it is impossible to opine as to whether the alleged foreign particle is the result of any negligence during the manufacturing process or the same has been inserted subsequently after tampering the seal of the bottle and the contents of bottle are not fit for consumption.  Without analysis and testing seal and contents of alleged bottle by the authorized lab during the shelf life of the alleged bottle, no positive inference could be drawn against the respondent no.2.  Thus, it cannot be said that there is any kind of deficiency in their service and prayed for the dismissal of the present complaint.

          The respondent no.4 has submitted that he used to purchase the cold drinks from respondent no.3.  On 21.10.2015, the complainant has purchased a bottle of cold drinks i.e. NImbooz Masala Soda 7 UP and further he has contacted the respondent no.4 regarding the infected infectious substance in the bottle easily seen by the necked eyes.  The respondent no.4 is not liable in any manner and the complainant is not entitled to get any kind of compensation from the respondent no.4 thus, he has prayed for the dismissal of the present complaint.

3.        We have heard the arguments of both the ld. Counsel for the parties at length and we have also gone through the entire relevant material available on the case file carefully & minutely.

4.       Ld. Counsel for the complainant has submitted that the respondent no.4 has sold infected infectious substance cold drink bottle i.e. Nimbooz Masala Soda to the complainant and the said infected infectious substance can be easily seen by the necked eyes and this act of the respondents have caused unnecessary mental agony and harassment to the complainant.

         On the other hand, ld. Counsel for the respondent no.2 has submitted that the complainant has purchased the alleged bottle on 21.10.2015 and submitted 5 photographs which reveals the date of manufacturing of the bottle as 3.6.2015.  The said bottle also bear the declaration Best Before 4 Months form the date of manufacturing.  The alleged bottle has been sold by respondent no.4 and purchased by the complainant after expiry of its shelf life for which the respondent no.4 is liable.  Without getting the seal and contents of the bottle tested, it is impossible to opine as to whether the alleged foreign particle is the result of any negligence during the manufacturing process or the same has been inserted subsequently after tampering the seal of the bottle and the contents of bottle are not fit for consumption.  Without analysis and testing seal and contents of alleged bottle by the authorized lab during the shelf life of the alleged bottle, no positive inference could be drawn against the respondent no.2. 

         The respondent no.4 has admitted that on 21.10.2015, the complainant has purchased a bottle of cold drinks i.e. NImbooz Masala Soda 7 UP and further he has contacted the respondent no.4 regarding the infected infectious substance in the bottle easily seen by the necked eyes.  The respondent no.4 is not liable in any manner and the complainant is not entitled to get any kind of compensation from the respondent no.4.

         Now the main question arises for consideration before this Forum is whether the complainant is entitled to get any relief against the respondents or not and if so, who is liable to compensate the complainant and for what amount?

         In our view, complainant is not entitled to get any relief qua any respondents no.1 to 3 as it is admitted by the complainant himself that he has purchased the bottle in question on 21.10.2015 from respondent no.4.  The complainant at his own has submitted 5 photographs which reveals the date of manufacturing of the bottle as 3.6.2015.  The said bottle also bear the declaration Best Before 4 Months from the date of manufacturing.  The alleged bottle has been sold by respondent no.4 and purchased by the complainant after expiry of its shelf life.  In our view, it was incumbent upon the complainant to check the date of its manufacturing/date of bottling before its purchase.  The respondent no.4 has not placed on record any receipt to prove that he has purchased the bottle in question from respondent no.3.  In the absence of any receipt, it cannot be proved that the respondent no.4 has purchased the infected bottle from the respondent no.3. Further more, the bottle in question has not been got tested from the lab.  The complainant has also not come forward for getting the bottle in question tested from the appropriate lab by moving separate application.   Without getting the seal and contents of the bottle tested, it is impossible to opine as to whether the alleged foreign particle is the result of any negligence during the manufacturing process or the same has been inserted subsequently after tampering the seal of the bottle and the contents of bottle are not fit for consumption.  Without analysis and testing seal and contents of alleged bottle by the authorized lab during the shelf life of the alleged bottle, no positive inference could be drawn against the manufacturer/respondent no.2. 

         However, in our view, it is the respondent no.4 who has sold the bottle in question after its perishable life expired, to the complainant.  Whereas it was the duty of the respondent no.4 to keep the said expired bottle in any corner to avoid its sale to any innocent person.  But in the present case, he himself has admitted that he has sold the said infected bottle in question to the complainant. Thus, the respondent no.4 is liable for his own acts and deeds and he only is liable to compensate the complainant for selling infected and perishable life expired bottle.  Accordingly, the present complaint stands dismissed qua respondent no.1,2 and 3, but it is partly allowed qua respondent no.4 with the directions to pay compensation to the tune of Rs.10,000/- (Rs.ten thousand) for indulging himself into unfair trade practice, for causing unnecessary mental agony, harassment and under the head of litigation expenses.

          Certified copy of this order be provided to both the parties free of costs.

File be consigned to the record-room.

 

 

(Prabha Wati)        (JL Gupta)                 (Nagender Singh-President)

Member DCDRF        Member DCDRF                   DCDRF, Sonepat.

 

Announced: 22.07.2016