DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,

PATIALA.

                                      Complaint No. CC/15/198 of 11.9.2015

                                      Decided on:        3.5.2016

Amanpreet Singh son of Sh.Sukhwinder Singh R/o Village Naurangwal, Tehsil & District Patiala, Punjab.

                                                                   …………...Complainant

                                      Versus

1.      M/s Sadioura Brother’s Sunam Road,Longowal, District Sangrur through its Proprietor.

2.      M/s Bansal Bewerages, Rajpura Road, Opposite Gurudwara Sahib, Bahadurarh, Patiala, through its proprietor.

                                                                   …………….Ops

                                      Complaint under Section 12 of the

                                      Consumer Protection Act.

                                      QUORUM

                                      Sh. A.P.S.Rajput, President

                                      Smt.Neelam Gupta, Member

                                      Smt.Sonia Bansal,Member

Present:

For the complainant:     Sh.P.S.Bajwa, Advocate

For Op No.1:                  Sh. P.S.Walia,Advocate    

                                         ORDER

A.P.S.Rajput, PRESIDENT

1. Complainant Amanpreet Singh son of Sh.Sukhwinder Singh R/o village Naurangwal, Tehsil & District Patiala, Punjab has filed this complaint against the opposite parties ( hereinafter referred to as the Ops) under Section 12 of the Consumer Protection Act,1986(for short the Act).The brief facts of the complaint are as under:
2. It is the case of the complainant that at the time of inauguration of his shop on 26.7.2015, he purchased 10 boxes of cold drink worth Rs.6500/- and 15 boxes of packed glasses of water worth Rs.825/- from OP no.2. The 200 ml water glasses were marked as FLAKE, manufactured by OP no.1.It is averred that OP no.2 refused to issue the bill of these items despite demand. It is also   averred that the complainant served the packed water glasses in the function organized by him at the time of inauguration of his shop to his relatives and friends. To the utter surprise of the complainant, a relative saw a mosquito in the sealed glass of water and gave the same to the complainant in the presence of his whole relatives and friends.
3. It is further averred that some of the relatives who drank that said water started vomiting after few hours and their health started deteriorating and Rs.500/- to 1500/- was spent on their treatment. The complainant intimated OP no.2 regarding the impurity of water. The complainant also made personal visits to the office of the OPs but to no effect .The complainant also got sent a legal notice dated 30.7.2015 upon the OPs but the OPs failed to redress the grievance of the complainant. Hence this complaint with a prayer for a direction to the OPs  to pay Rs.1,00,000/- by way of compensation on account of the harassment, humiliation and mental tension suffered by the complainant and Rs.25000/- towards the cost of litigation.
4. The cognizance of the complaint was taken against OP no.1 who appeared and filed the written version. It is denied that the complainant has purchased the alleged 15 boxes of 200ML glasses of packed water , marked FLAKE from OP no.2 and manufactured by OP no.1. It is alleged that the boxes of glasses of water are spurious .All other averments made in the complaint have also been denied and it is prayed to dismiss the complaint.
5. In order to prove his case, the complainant tendered in evidence  his sworn affidavit Ex.CA alongwith the documents Exs.C1 to C7, sealed glass of water Ex.C8 and his counsel closed the evidence.
6. On the other hand, on behalf of the Op, its learned counsel tendered in evidence Ex.OPA, the sworn affidavit of Sh.Rajneesh Kumar, Proprietor of the OP and closed the evidence.
7. The ld. counsel for the complainant has submitted that it is a admitted fact that the OP no.1 is the manufacture of FLAKE mineral water glass. The ld. counsel has further stated that it is visual from the naked eye that some foreign material i.e insect like mosquito is floating in the sealed water glass.The ld. counsel pleaded that his relatives and friends had also consumed the water manufactured by the OP no.1 and they had to take treatment for the same.The ld. counsel also pleaded that the OP no.1 has not been able to prove by placing any material on record, that the said water glass was not manufactured by OP no.1.The ld. counsel argued that in the present case there was no need of analysis, as the insect is visible to the naked eye and the same is established from the photographs i.e Ex.C-4 to C-7 and from the sealed mineral water glass i.e Ex.C-8 submitted before this Forum.The ld. counsel further argued that it is clearly established that OP no.1 acted negligently while inspecting the said water glass and supplied the same in the market, hence the OP no.1 has committed unfair trade practice. The ld. counsel also relied on the cases titled as Sameer Bhardwaj(Dr.) Versus Aradhana Soft Drinks Company & Ors,2010(2) C.P.J.47 of the Hon’ble Karnataka State Consumer Disputes Redressal Commission, Bangalore, wherein it has been observed by Hon’ble State Commission in para no.7 “The learned counsel appearing for the O.Ps contended that as there is no evidence to prove that the bottle in question i.e., MO1 is manufactured by the O.Ps. In support of this submission the learned counsel appearing for the appellants relying upon the decision in M/s. Pepsi Foods Ltd. and Another V .special Judicial Magistrate and others, VI (1998)SLT 102:1997 (2) FAC 107 (SC), submitted that the complainant had failed to establish that the O.Ps. are the manufacturers of the mineral water bottle in question. No doubt, the Supreme Court in the above decision has recorded a finding that the petitioner has not proved that the bottle in question was manufactured by the respondents on the basis of the evidence adduced in the said case. But in the instant case, RW 1 who is the Chemist of the O.Ps company himself has admitted that the bottle in question was manufactured by the O.Ps. company. Therefore, we are of the view that the said decision is of no assistance to the O.Ps.”
8. He also referred to case titled as Hindustan Coca Cola Berverages Pvt.Ltd.And Anr. Versus Ravishankar,2005(2)C.P.J.579, whereby it has been observed in para no.13 & 15,the same are reproduced; Para 13 “The learned Counsel appearing for the complainant submits that since the mineral water purchased by the complainant has not been sent to the laboratory for analysis to find out whether the contents of the bottle is a contaminated one or not is not appropriate to record a finding that the mineral water in the bottle is a contaminated one as required under Section 13 of the Act. No doubt Section 13 confers power on the DF to send the water for proper analysis or test to the concerned laboratory. But in the instant case, the water in the bottle contained foreign particles which resemble ants and is visible to a nacked eye. RW 1 in his evidence has also admitted that there are some  foreign particles inside the water. If that is so, in our view there is no need to send the contents of the bottle for any analysis or test since the O.Ps. are expected to sell good quality of water. It is generally known that most of the diseases are on account of drinking of adulterated or contaminated water. The general public purchase the mineral water manufactured by various companies in this country in order to avoid any possible diseases. Therefore, the O.Ps though it is a reputed company expected to sell the good quality of pure mineral water without any foreign particles.”

Para 15 “It is contended that since the complainant has not suffered any injury or hardship, he is not entitled for compensation. As per the amendment introduced to the Act, the DF, State Commission and the National Commission are conferred with the power to award  punitive damages. Normally, the punitive damages will be awarded taking into consideration the conduct of the O.P. In the instant case the conduct of the O.Ps are not  straight as the product purchased by the complainant is shown to be a contaminated one as it had contained foreign particles floating inside the bottle. Therefore, even though the complainant has not suffered any mental agony or hardship as he had not consumed the same, in our view what has been awarded by the DF as damages for mental agony and hardship should be treated as punitive damages. Further, the compensation awarded by the DF is also in our view is on a lower side. Since there is no appeal by the complainant as against the order of the DF, we do not propose to disturb the order of the D.F.”

9. On the other hand, the ld. counsel for the OP no.1 objected to the submissions made by the ld. counsel for the complainant. He stated that no loss or injury has been caused to the friends and relatives by consumption of the said water glass, as the complainant has failed to place on record any treatment or prescription slip nor the complainant has placed on record the affidavits of the persons who fell ill after consumption of the water from the glass. The ld. counsel also stated that there is no mosquito in the said water glass and also stated that the said glass placed on record is not manufactured by the OP no.1.The ld. counsel pleaded that as per the Prevention of Food Adulteration Act,1954 and The Consumer Protection Act, a report from Public Analyst is required in order to conclude that the same was adulterated. He also argued that the complainant has failed to establish that the water in the said glass was injurious to health. The ld. counsel also relied on the case titled as Mukesh Kumar Versus State of Haryana,1996(2) Prevention of Food Adulteration cases 29,whereby the Hon’ble High Court has held “Prevention of Food Adulteration Act,1954..Section 2(ia)(1) and (m)—sweetened carbonated water whether adulterated?—merely because some suspended matter was found in appreciable quantity and it was not found to be injurious to health, it would not be possible to state that the carbonated water was adulterated. It is not the case of the prosecution that the said matter was injurious to health. In the absence of any such assertions by the prosecution or reliance on any further evidence in this regard, plea of the petitioner must prevail—in the facts of the present case, it cannot be concluded that the carbonated water could be held to be sub-standard in quality or in other words adulterated. No useful purpose would thus be served in allowing the prosecution to continue.” 
10. After hearing the Ld. Counsel for the parties and going through the pleadings, evidence produced by the parties and the oral arguments as well as the written submissions, we are of the opinion that the OP no.1 failed to produce any evidence on record to prove that the said mineral water glass i.e Ex.C-8 was not manufactured by the OP no.1.Moreover the OP no.1had also failed to prove that the said water glass was a spurious one. In our opinion the OP no.1 could have produced a sample of the water glass which is being manufactured by it for comparison or should have  appointed an expert to prove, whether the said water glass was manufactured by them or it was a spurious one. It has come in our notice that the Hon’able National Commission in a case Hindustan Coca-Cola Beverages Pvt. Ltd  Vs Purushottam Gaur & Anr,Revision Petition No.1361/2014 decided on 21,March,2014 has held in para no.6 the relevant para is reproduced “  The manufacturer could not help as to where  the bottle  had  been opened  and re-packed  with a new cap.  The OPs could  have  appointed their own Expert  to find out,  whether, the bottle in question, belonged to them or not?.  The question is, who  could  manufacture  the  bottles on  behalf of OPs 1 to 3.  Such  like  incidences, come to light, immediately.  The petitioner is conspicuously  silent  about the same.  The silence on their part is pernicious.  The case against OPs 1 to3 stands proved.  The revision petition, being without merit, is hereby dismissed.  No order as to costs”.
11. We have personally examined the sealed mineral water glass i.e Ex.C-8 and we have seen from our nacked eyes an insect like mosquito floating in the said water glass. The water glass was properly sealed and no tempering could be seen.  In our opinion when the foreign material like mosquito/insect is clearly visible, then there was no need of Public Analyst Report. We are also of the conclusion that the complainant has not been able to establish that, the persons who had consumed the same water from different glasses fell ill and they had to take treatment for the same.
12. We find that it is established from the photographs i.e Ex.C-4 to C-7 and the sealed mineral water glass i.e Ex.C-8 that some foreign material is clearly visible. In our opinion negligence on the part of OP no.1 is proved being the manufacturer. It was the responsibility of OP no.1 to carefully inspect the product before sending the same for consumption to the retailer. The case referred by the ld. counsel for the OP no.1 is based on different facts and circumstances, hence the same is not applicable to the present case in hand.
13. Accordingly in view of our aforementioned discussion and the observation by Hon’able National Commission in a case Hindustan Coca-Cola Beverages Pvt. Ltd  Vs Purushottam Gaur & Anr(Supra),alongwith the case laws referred by the ld.counsel for complainant, case titled as; Sameer Bhardwaj(Dr.) Versus Aradhana Soft Drinks Company & Ors(Supra) and case titled as; Hindustan Coca Cola Berverages Pvt.Ltd.And Anr. Versus Ravishankar(Supra) . We find that the OP no.1 has committed unfair trade practice by manufacturing and supplying mineral water glass with foreign material  to the complainant. In the instant case we are not inclined to grant any compensation to the complainant as he has not been able to prove, as to what personal loss or injury had been caused to him, although he has acted for the interest of the General Public.   Hence we direct the OP no.1 to pay a sum of Rs.10,000/- as litigation cost, further we direct the OP no.1 to deposit Rs. 25,000/- in Consumer Welfare Fund of this Forum as exemplary damages, for indulging in unfair trade practice. 
14. The OP no.1 is directed to comply with the order of this Forum within 45 days from the date of receipt of this Order. In case OP no. 1  fails to comply the same, within the stipulated period, the OP shall be liable to pay 9 % interest per annum from the date of institution of the complaint, on the aforesaid awarded amount. The present complaint stands partly accepted.  
15. The arguments on the complaint were heard on  26.4.2016 and the order was reserved. Now the order be communicated to the parties. Copy of the order be sent to the parties free of cost and thereafter the file be consigned to the record room.

Pronounced

Dated:3.5.2016

               Sonia Bansal           Neelam Gupta                        A.P.S.Rajput

        Member                Member                                  President