Date of Filling      :  17.11.2014.

                                                                                            Date of Disposal  :  28.04.2016.

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.72/2014

(Dated this Thursday the 28^th day of April 2016)

K. Lenin,

S/o. Mr. E. Karunanidhi,

Social Activist,

Law Exposure,

Legal Awareness Organisations,

No.53, Kanniappan Koil Street,

Kanchina  Kuppam,

Chennai - 600 098.                                                                    … Complainant.

/ Versus /

1.  M/s. Pepsico India Holdings Pvt. Ltd.,

     No.6, G.S.T. Road,

     Mamandur,

     Madurantham Taluk,

     Kancheepuram.

2. M/s. Jam Jam Sweets & Bakery,

    No.181, M.T.H. Road,

    Padi,

    Chennai - 600 050.                                                           … Opposite parties.

This complaint is coming upon before us finally on 13.04.2016 in the presence of Thiru. Pari Gopal, Counsel for the complainant, Thiru. M. Kandasamy, Counsel for the 1^st opposite party and the 2^nd opposite party set Ex-parte for non filing of written version and for non appearance and  having perused the documents, evidences and written argument of the complainant and the 1^st opposite party sides, 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 1^st and 2^nd opposite parties for seeking Rs.10,00,000/- towards compensation for causing mental agony due to deficiency of service of the 1^st and 2^nd opposite parties with cost of Rs.10,00,000/-.

The brief averments of the amended complaint is as follows:-

          The complainant approached the 2^nd opposite party on 20.11.2012 at 6:00 p.m. to buy Miranda Cool Drinks and paid the charges.  The manufacturer of the above said cool drinks is the 1^st opposite party.  After getting the Miranda cool drinks bottle from the 2^nd opposite party, the complainant anxiously ready to open the bottle and found the obnoxious and hazardous materials inside the said cool drinks bottle which endangered the human life.  Immediately, after seeing the disastrous substances found in the bottle the complainant brought about the same to the knowledge of the 2^nd opposite party. 

2.       The 2^nd opposite party has given the address of the manufacturer and production unit of the 1^st opposite party.  Then, the complainant has sent the representation letters to the 1^st and 2^nd opposite party on 28.12.2012, but so far the complainant has not received any reply from both parties.  The complainant was caused mental agony after finding the spurious materials in the Miranda Cool Drinks bottle.  Hence, this complaint.

          3.       The contention of written version of the 1^st opposite party is  briefly as follows:-

          The complainant is claiming exorbitant amount without any reason or cause of action being in existence and therefore, liable to be dismissed in limini without going into the merits.  It is a well settled law that the consumer should prove and substantiate the loss suffered by him for claiming suitable compensation.  In the present complaint, the complainant has not even whispered a single word in the complaint about the loss or the mental agony suffered by him for claiming such huge and exorbitant compensation.  It is pertinent to note that on the own admission of the complainant the bottle was not opened and never consumed for causing loss or injury to the complainant.  In such circumstances the complaint is liable to be dismissed as frivolous and vexatious.

4.       The complainant is not a consumer within the meaning of section 2 (1) (d) of the Consumer Protection Act, 1986. In the present complaint there is neither any allegation nor any material on record to point out that the complainant purchased any goods for consideration from the 1^st opposite party.   It is not the case of the complainant that the 1^st opposite party sold any goods for consideration to the complainant.  Unless and until it is conclusively proved that the impugned bottle was manufactured by the 1^st opposite party no liability in law or on facts can accrue upon the 1^st opposite party.  The complaint is liable to be dismissed on this sole ground alone.

5.       It is impossible that such a bottle can be manufactured or marketed by the 1^st opposite party.   Assuming without admitting even if such a bottle had left the premises of the 1^st opposite party, even then it is difficult to believe that such bottle with the alleged impurities would have gone unnoticed by so many people right from the stage of filling when there is light and visual inspection for foreign matter before sealing and even after sealing, then at the time of loading in crate and then from there to delivery truck, during offloading at the Distribution location, at the time of sale from distributors location to the retail outlet and even from the retail outlet to the consumer.  The entire story is fictitious one for making pecuniary gains.

6.       The alleged bottle does not mention the batch no. batch of manufacture, etc., and therefore, the complaint is liable to be dismissed for bereft of details.  Even if impurity was found in any bottle, ideally the shopkeeper could have replaced the alleged bottle for another bottle, instead of handing over the bottle for replacement, only for the purpose of litigation with the malafide intention of harassing the opposite parties and to extract money from the opposite parties the complainant has preferred the complaint.

7.       The soft drinks are manufactured by the 1^st opposite party, in modern sophisticated plants which used a very high standard of hygiene and cleanliness.  The raw materials used are of the highest grade and quality and the water used in the manufacturing process is filtered, sterilized and is absolutely clean.   The bottles used in bottling each bottle is washed, disinfected and visually checked prior to filling.  The soft drink beverages undergo multistage cleaning process at the bottling plant where there is no scope of contamination.  It is very easy for anyone to mix spurious bottles of soft drink with genuine bottles and then to claim the spurious bottles to have been manufactured or sold by the original manufacturer purchased under bill for valid consideration.  The contents of the impugned bottle are not manufactured by the 1^st opposite party.

8.       The complaint is without any cause of action and is based merely on a figment of imagination.  The complaint is clearly an abuse of process of law and is liable to be dismissed with cost u/s 26 of the said Act.  It is clear that the complainant had not suffered any loss or injury and the alleged bottle was not taken for consumption purposes.  The averment made in the complaint is that the 2^nd opposite party given the address of the manufacturer and production unit of the 1^st opposite party itself can be asserted that there may be collusion.  It is denied that the act of the 1^st opposite party amounts to deficiency in service.  The reason or claiming a sum of Rs.20,00,000/- is neither explained nor substantiated by any material proof.  

9.       As per section 14(1) (d) of the Act, compensation may be awarded to the consumer if it is proved that any loss or injury has been suffered by the consumer due to the negligence of the opposite parties.  In the present complaint the complainant has failed to prove any negligence or deficiency on the part of the 1^st opposite party.  Hence, this complaint is liable to be dismissed.

10.       In order to prove the case on the side of the complainant, the proof affidavit submitted for his evidence and Exhibit A1 to A5 were marked.  While so, on the side of the  1^st opposite party, the proof affidavit is filed  and no document is marked on his side.

11.       At this juncture, the point for consideration before this Forum is:-

1. Whether there is any deficiency of service on the part of the opposite party as alleged in the complaint?

2. To what other reliefs, the complainant is entitled to?

  12.       Written arguments filed and oral arguments also adduced on the side of the complainant and the 1^st opposite party.

13.     Point no.1:-

According to the case of the complainant is that, he had purchased a Miranda Cool Drinks on 20.11.2012 from the 2^nd opposite party, manufactured by the 1^st opposite party.   When the complainant was anxious to open the bottle, he found that it contained obnoxious and hazardous materials which is endangered to human life and therefore, the complainant was immensely caused mental agony.

14.     On the other hand, the 1^st opposite party, being the manufacturer of the Pepsi Co India holding Private Limited contented that the cost price of the Miranda Cool drinks bottle was not mentioned in the complaint by the complainant and therefore, he cannot be considered as a Consumer u/s 2(1)(d) of the Consumer Protection Act, 1986.   It is contended that the alleged bottle does not have the batch number, date of manufacture etc.   It is further narrated that even if impurity was found in any bottle, ideally the shopkeeper could have replaced the alleged bottle for another bottle, instead of handing over the bottle for replacement, only for the purpose of litigation with the malafide intention of harassing the opposite parties and to extract money this complainant  has  preferred the above complaint.   Further the soft drinks manufactured in modern sophisticated plants, with very high standard of hygiene and cleanliness and similarly, the raw materials used are of highest grade and quality and therefore, contents of the impugned  bottle are not manufactured by the 1^st opposite party.  And it is very easy to anyone to mix spurious bottles of soft drinks with genuine bottles and then to claim the spurious bottles to have been manufactured or sold by the original manufacturer purchased  under bill for valid consideration and moreover it is very clear that the complainant has not suffered any loss or injury and the alleged bottle was not taken for consumption purposes and also the reason for claiming such a huge amount is not explained and in fact the deficiency in service on the part of the 1^st opposite party has not at all been proved.

15.     At this juncture on careful perusal of the rival submissions put forth on either side, it is needless to say that the foremost duty cast upon the complainant to prove the allegations made in the complaint against the opposite parties.  First of all, on careful perusal of the proof affidavit filed by the complainant, it is learnt that immediately after purchase of the Miranda cool drinks bottle along with some food materials through Ex.A2 he found the obnoxious and  hazardous materials in the said bottle, the complainant had taken photograph of the said cool drinks bottle on 20.11.2012 itself, which is marked as Ex.A1.   At this point of time, on seeing directly the alleged bottle along with the contents before this Forum produced by the complainant through naked eyes, it is clearly found that there is obnoxious and hazardous materials but infact, there is no such materials found in the Ex.A1, photograph.   At the outset this Forum, wants to enlighten that if the Ex.A1, photograph was taken by the complainant immediately after the purchase of this alleged Miranda cool drinks bottle from the 2^nd opposite party, certainly the said obnoxious and hazardous materials would have found in the Ex.A1, photograph also.  But on comparing the Ex.A1, photograph of the  full cool drinks bottle with that of the original bottle produced before this Forum it is quiet contra between them.   Actually there is no obnoxious and hazardous materials found in the photograph.  If it is so, it goes without saying that there is a suspicion arises as rightly pointed by the opposite party in his written version as well as in his proof affidavit and the same cannot be easily thrown out.  Moreso, there is no valid explanation on the side of the complainant that, How the cool drinks bottle found available all along with him since, it is an usual practice that after taking the drinks, the bottle would have returned to the shopkeeper / retailer.

16.     At this juncture, it is needless to say that the burden of proof is on the shoulder of the complainant to prove that the cork cap of the bottle produced before this Forum is in tight and sealed condition through relevant and expert evidence.  While so, the complainant has not taken any steps to prove the same by means of expert evidence.  So, there is every chance or possibility to open the bottle after purchase and again close the bottle by adding the obnoxious and hazardous materials by utilizing very well available mechanical process. Furthermore, it is noticed and seen with naked eyes the said bottle, it is clear that the obnoxious and hazardous materials is the last piece of burnt mosquito coil with the stand pin wholes with little ash .   Therefore, there is no possibility that the said obnoxious and hazardous materials put during the process of manufacturing industry itself.   At the same time, there is every possibility that obnoxious and hazardous materials had been mixed after purchase of the said bottle for wrongful gain as rightly pointed out by the 1^st opposite party.

17.     It is further seen that the said bottle does not contained the batch number and date of manufacturing etc.   Moreover, if for arguments sake, if it is taken that even if impurity was found in any bottle, ideally the shop keeper could have replaced the alleged bottle for another bottle.   But the complainant has not moved for the same.  Inspite of handing over the bottle for replacing the same, the complainant has come forward to prefer this complaint which clearly reveals the malafide intention of the complainant.  In this regard, the arguments adduced on the side of the 1^st opposite party holds good.

18.     In the light of the above facts and circumstances, this Forum wish to say  that it is very easy for anyone to mix suspicious bottles of soft drinks with genuine bottles and then to claim the spurious bottles to have been manufactured or sold by the original manufacturer purchased under bill for valid consideration.   At the outset, there is no concrete evidence to show that the alleged bottle produced before this Forum was supplied or distributed to the 2^nd opposite party by the 1^st opposite party.   In this aspect, the competent person to say the fact is the 2^nd opposite party who  remained Ex-parte.  Therefore, the allegation made in the 1^st opposite party has not been proved by the complainant through relevant and cogent evidence and also there is no cause of action against the 1^st opposite party.    Not only that, the reason for claiming a huge sum as compensation and cost  are not explained with material facts.

19.     Regarding the allegation of deficiency in service against the 2^nd  opposite party, it is the duty of the complainant to prove the allegations made against the 2^nd opposite party even though the he is remained ex-parte.   From Ex.A2, it is learnt that the Miranda Cool drinks bottle purchased from the 1^st opposite party for a sum of Rs.95/- along with some materials.   While so, there is no evidence to show that the alleged Miranda Bottle produced before this Forum was purchased along with the obnoxious and hazardous materials from the 2^nd opposite party.   If it is so, there is every chance to replace the said cool drinks bottle immediately, if any impurities found and get another cool drinks bottle from the 2^nd opposite party.   The complainant had not done so.   If he had attempted for replacing the suspicious bottle and denied to replace the same by the 2^nd opposite party, then only there is a gross default on the part of the 2^nd opposite party.  But to show that there is no averments found neither in the complaint nor in his proof affidavit.  Therefore, it is crystal clear that the complainant has not chosen to replace the impurity bottle which shows the malafide intention of the complainant only to prefer the complaint to extract huge amount from the opposite parties.  Moreover, there is no clear evidence to show that in what way the complainant sustained mental agony and incurred loss.  From the foregoing of other facts and evidences, it is clear that the deficiency in service of the 2^nd opposite party also not at all proved beyond all doubts.

20.     At this juncture, this Forum wants to state that there is every possibility, with the attitude of the complainant there is somewhat affected the reputation and goodwill of the 1^st opposite party in the market  and the same has to be compensated.  Therefore, the 1^st opposite party is only entitled for the exemplary cost from the complainant.  Thus the point.no.1 is answered accordingly.

21.     Point no.2:-

In view of the conclusion arrived in point no.1, the complainant is not entitled for any relief as prayed for in the complaint.

22.     In the result, this complaint is dismissed with exemplary cost of Rs.2,000/- (Rupees two thousand only) to be paid to the 1^st opposite party only by the complainant.

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 28^th   April 2016.

Sd/-****                                                                                        Sd/-****

MEMBER - I                                                                             PRESIDENT

List of documents filed by the complainant:-

List of documents filed by the 1^st opposite party:-

Nil.

Sd/-****                                                                                        Sd/-****

MEMBER - I                                                                             PRESIDENT