BEFORE THE DISTRICT CONSUMER FORUM : MEDAK AT SANGAREDDY

PRESENT: Sri Patil Vithal Rao, B.Sc., LL.B.,President

Smt. Meena Ramanathan, B.Com., Lady Member

Friday, the 8^th day of January, 2013

CC.No. 04 of 2012

Between:

Srikanth Reddy S/o Soor Reddy,

Aged: 27 years, Occ: Agriculture,

R/o Shivampet Village, Mandal Pulkal,

District Medak.                                                                        …..Complainant

And

1)              M/S Santosh Wines,

Shivampet Village, Mandal Pulkal,

District Medak.

2)              M/s [Brewed and Bottled] SKOL Breweries Ltd.,

Unit Charminar Breweries, Shivampet Village,

Pulkal Mandal, District Medak.                                   ...Opposite parties

This case came up for final hearing before us on 02.01.2013 in the presence of Sri M. Giridhar, Advocate for complainant, Opposite parties No. 1 remained exparte and Sri C. Narsing Raj, advocate for opposite party No. 2 and heard the arguments of both sides, on perusing the record and having stood over for consideration till this day, this Forum delivered the following:

O R D E R

(Per Se Smt. Meena Ramanathan, Lady Member)

1.                      This complaint is filed under Section 12 of the Consumer Protection Act, 1986 by the complainant and he submits that he had purchased Royal Challenge Beer bottle from opposite party No. 1 on 15.09.2011 for Rs. 71/- vide batch No. 105053, dated. 07.07.2011. Opposite party No. 1 had issued a receipt in his favour.

      On reaching home when he wished to open the bottle he found some insect and a Gemini label inside the bottle. Immediately he approached opposite party No. 1 but was told that the responsibility and fault was that of opposite party No. 2.

The complainant further states that opposite party No. 2 have not been diligent and have failed to supervise during the manufacturing process. Had he consumed the beer it would have caused grave damage to him and he could have been poisoned. Opposite party No. 2 have sold the bottles without proper care and a reputed company needs to know better.

He is entitled to claim damages for the mental agony caused by their negligence. He issued a legal notice to opposite party No. 2 on 20.09.2011 and the same was received by them.

Therefore in his prayer he claims Rs. 1,50,000/- as compensation for mental agony, Rs. 71/- towards cost of the beer bottle plus interest at the rate of 18% p.a., Rs. 20,000/- towards damages and costs under the circumstances to be awarded by this Hon’ble Forum.

2.         Notice was served on opposite party No. 1 on 21.01.2012 but they failed to appear and hence set exparte on 07.12.2012.

3.             The opposite party No. 2 submit that the complaint filed is false, a sham and of a frivolous in nature. Opposite party No. 2 is incorporated under the provisions of the companies Act, 1956 and that they have a ‘state of art’ plant, among others, located at Medak, all the products manufactured and packed through fully automated machines. Their quality control department has very stringent standards. They sell millions of bottles throughout the year and adhere to the principle of Zero defect. They understand and respect their customers and consumers and enjoy tremendous goodwill owing to their quality products.

                     The present complaint has been filed with mala-fide intentions and ulterior motives and therefore deserves to be dismissed u/s 26 of the Consumer Protection Act.

            As per Section 2 (1) (o) of the Act “Service means service of any description which is made available to potential users and includes, but not limited to, the provision of facilities in connection with banking, financing, insurance, transport, processing, supply of electrical or other energy, board of lodging or both, housing construction, entertainment, amusement, or purveying of news or other information, but does not in include the rendering of any service free of charge or under a contract of personal service”.

               Further the complainant did not consume the contents of the said bottle and did not suffer; there is no question of a dispute in regard to services not rendered between complainant and opposite party.

          They deny the allegations made by the complainant in that they failed to supervise the product during manufacturing. They deny that “some insect and

foreign material with Gemini label” was found in the beer bottle – Since the complainant did not consume the beer from the “said” bottle and therefore did not suffer any loss, no compensation need be awarded. As per clause 14(2) (d) of the C.P. Act states that – for any loss or injury suffered by the consumer due to negligence of opposite party and the onus is on the complainant to prove their negligence.

             They further add that they replied to the complainant’s legal notice and also informed him that one of their representatives of the company will visit him and was asked him to give the beer bottle to investigate into the issues raised by the complainant. Moreover they offered to replace the bottle during their visit. However these overtures were ignored by the complainant and he chose to file this present complaint.

 4.              Complainant submitted his chief affidavit reiterating the arguments in the complaint. He was also cross examined. On behalf of the complainant Ex. A1 to A5 are marked. The opposite party No. 2 also filed evidence affidavits. Complainant and opposite party no. 2 filed written arguments. Ex.A4 is to be referred as MO.1.

5.            Now the point for consideration is whether the complainant is entitled for the damages and compensation as prayed for?

Point:

6.               Complainant’s case is that he purchased four (4) Royal Challenge Beer Bottles on 05.09.2011 which is supported by the receipt marked as Ex.A1, from opposite party No. 1 (Santhosh wines). Subsequently he found in 1 beer bottle some insect and Gemini label, therefore the seal was not opened. He approached the wine shop (opposite party No. 1) who denied responsibility and was asked to approach opposite party No. 2, stating that he is the manufacturer. (M/s Brewed and Bottled by SKOL Breweries Ltd .,) The sealed beer bottle marked as Ex. A4 will be herein after referred to as MO.1.

              Ex. A1 – the receipt for the 4 beer bottles does not give details with regard, to batch no, but Ex.A2 – the legal notice issued by the complainant to opposite party No. 2 – gives the details vide batch No: 105053 dated 07.07.2011 and from Santhosh wines, Shivampet village, Pulkal Mandal, Medak district.

               Having given opposite party No. 2 all the necessary details, they responded by replying to the complainant. Ex. A5 is their reply wherein towards the end they offered to appoint a representative to visit the complainant’s place and requested him to handover the sealed Royal Challenge Beer bottle to enable them to investigate the problem. They offered him a free replacement of the alleged defective product.

                  The complainant chose to file the complaint in the Forum. The opposite party No. 2 did not pursue the matter to investigate the issue or the defective product. The defect is visible. When a foreign substance like straw was found is a Limca bottle, holding to be defective, the Hon’ble West Bengal State Commission ordered a compensation of Rs. 5,000/- considering the fact that such bottles are bought by thousands of people and consumed without suspicion, the Hon’ble State Commission observed that it was of utmost importance that the drink should be 100% pure.

                   Either refund of price or replacement or both is not adequate relief to a consumer in such a case. A loss under law is assumed whether the consumer suffered from any sickness or not by consuming it.

        [Tharun Kumar V Calcutta Soft Drinks Pvt Ltd 1997 (3) CPJ 205 (W.B).

             The complaint is pertaining to this forum under Section 14(1) clause d of the Consumer Protection Act, 1986 and comes under the jurisdiction. Hence the contention of opposite party No. 2 is not correct. The point is answered accordingly in favour of the complainant.

                Both the opposite parties are negligent [ and opposite party No. 2 sells his product to opposite party No. 1]. Hence both the opposite parties are jointly and severally liable to pay compensation to the complainant, and the same is reasonably settled at Rs. 10,000/- apart from cost of the bottle i.e. MO. 1 (EX. A4) Rs. 71/-. Further, in our opinion, the opposite party 2 is also liable to pay a sum of Rs. 5,000/- towards punitive damages to meet the ends of justice.

7.              In the result, the complaint is allowed, directing both the opposite parties to pay a sum of Rs. 10,071/- jointly and severally to the complainant. The opposite party No. 2 shall further pay a sum of Rs. 5,000/- towards punitive damages. A cost of RS.1,000/- is awarded as costs. The complainant is also entitled for an interest @ 9% p.a. on the said awarded amount of Rs. 16,071/- from this date till the date of realization. One month time is granted for compliance. MO.1 shall be destroyed after appeal time is over.

        Dictated to Stenographer, after correction the orders pronounced by us in the open court this the 8^th day of January, 2013.

                     Sd/-                                               Sd/-

                    LADY MEMBER                               PRESIDENT

         APPENDIX OF EVIDENCE

WITNESS EXAMINED

For the complainant:                                            For the opposite parties:-

PW.1 – C. Srikanth Reddy                                          Ms. Nisha Kiran

DOCUMENTS MARKED

For the complainant:                                                    For the opposite parties:-

                            Sd/-                                                      Sd/-

                   LADY MEMBER                                    PRESIDENT    

Copy to

1)     The complainant

2)     The Opposite parties

3)    Spare copy