BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, LUDHIANA.

       C.C. No: 542 of 07.08.2014

                                                                      Date of Decision:30.04.2015

Kunal Sofat, 57 Friends Colony, Pakhowal Road, village Daad, Ludhiana. 

……Complainant

                                                    Versus          

1.M/s Shree Ji Enterprises, Vrindavan Appartment Hambran Road, Ludhiana-1.

2.M/s Raju Cold Drinks, Pakhowal Road, V.P.O.Village Daad Ludhiana-142002.                                                                                  

                                                                             ……...Opposite Parties

        Complaint under section 12 of the Consumer Protection Act,1986.        

Quorum:     Sh.R.L.Ahuja, President.                 

                   Ms.Babita, Member.

Present:       Complainant in person..

Sh.Sanjeev Sood, Adv. for OP1.

Sh.K.K.Bagai, Adv. for OP2.

                             ORDER

R.L.AHUJA, PRESIDENT

1.                Complainant Sh.Kunal Sofat, has filed the present complaint under Section 12 of the Consumer Protection Act, 1986 (herein-after in short to be described as ‘Act’) against M/s Shree Ji Enterprises, Vrindavan Appartment Hambran Road, Ludhiana-1 and others(herein-after in short to be described as ‘Ops’)- alleging deficiency in service on their part.

2.                In brief, the case of the complainant is that the complainant had purchased one crate of Mango Sip of 500 ML from Op2 by paying the bill amount of Rs.450/- on 8.6.2014, to serve at a small party at his residence on 9.6.2014. After using first ten bottles from crate, one of his relative complaint about some fungus in bottle and he throws that bottle and then he checked the remaining bottles and found the big size fungus was therein in one bottle and the complainant handed over that sealed bottle with this Forum. Complainant had purchased this Mango Items for his guests coming to his house to attend the some official meeting and due to this, complainant had to face a great humiliation in the front of his guests. Complainant immediately contacted OP2, who simply delivers the copy of bill of the distributor and when the complainant contacted the distributor regarding this matter but with no result. Rather, he told that he delivered 1500 crates daily, which answer was not justified as by selling the fungus ridden consumer able liquid to public is more than a crime. The complainant had submitted the complaint regarding this matter to Civil Surgeon and he had sent the team under District Health Officer to take the sample and after taking the samples, the officer sent the same to Chandigarh for Lab test./ Hence, by filing the present complaint, complainant has prayed that Ops be directed to refund his Rs.450/- alongwith Rs.1,95,000/- as compensation to the complainant.

3.                Upon notice of the complaint, OPs were duly served and appeared through their respective counsels and filed their separate written replies.

4.                OP1 filed the written reply through Sh.Sanjeev Sood, Advocate, in which, Op1 took up certain preliminary objections that the present complaint is not maintainable and is liable to be dismissed. The present complaint is bad for non-joinder of the parties. The complainant has not impleaded the manufacturer and packer of the Mango Sip as a party to the present complaint and in the absence of the manufacturer and packer of the Mango Sip, the present complaint against the answering OP is not maintainable and is liable to be dismissed. The answering OP has simply distributed the Mango Sip in the same condition as it was received by the answering OP from the manufacturer and packer and it has no role to play in the manufacturing or packing of the Mango Sip and it cannot be made to suffer on account of any lapse or any deficiency in services or unfair trade practice on the part of the manufacturer. The answering OP is only receiving the commission. Moreover, the complainant has not directly purchased/received the Mango sip from the answering OP. Moreover, the alleged Mango Sip bottle has been alleged to be opened by the complainant after about 2 months from its purchase. Thus, there is inordinate delay which is unexplained and thus, the complaint is liable to be dismissed on this ground also. This Hon’ble Forum has no jurisdiction to entertain, try and decide the present complaint and the complainant has not come to this Hon’ble Forum with clean hands and he is guilty of suppression of true, actual and material facts and the complainant is stopped by his own act and conduct from filing the present complaint. On merits, it is submitted that answering OP is not liable for any alleged fungus in the bottle as it is only the manufacturer and packer of the bottle who are liable for the same and give the best answering of the complaint and in their absence, the present complaint does not lie and is liable to be dismissed. Otherwise, similar pleas were taken as taken in the preliminary objections and at the end, denying all other allegations levelled by the complainant in his complaint against the answering OP, answering OP made prayer for dismissal of the complaint with costs.

5.                Op2 filed the separate written statement through Sh.K.K.Bagai, Advocate, in which, it is submitted in the preliminary objections that the present complaint is not maintainable in the present form as false, frivolous and vexatious. The complainant has no locus standi to file the present complaint. The complainant has not come to this Hon’ble Forum with clean hands as the complainant has concealed the material facts of the case as the real facts are different from the version of the complainant. The answering OP2 purchased the said bottles from OP1. So, the OP2 has not committed any offence by selling the fungus bottles to the complainant. On merits, it is admitted to the extent that the complainant purchased the crate of Mango Sip of 500 ML from the answering OP by paying the bill as alleged. However, it is denied that there was any fungus in the bottles. The complainant had not handed over the sealed bottle to the answering OP. There is no fault on the part of the answering OP as the story as alleged by the complainant is false and made up story. The answering OP has not committed any crime by selling the bottles with fungus. At the end, denying all other allegations levelled by the complainant in his complaint against the answering OP, answering OP made prayer for dismissal of the complaint with costs.

6.                In order to prove his case, the complainant tendered into evidence his affidavit as Ex.CA, in which, he has reiterated all the allegations made by him in the complaint and further, he has proved on record the documents Ex.C1 to Ex.C5.

7.                On the other hand, in order to rebut the case of the complainant, learned counsel for the OP1 adduced evidence by placing on record affidavit Ex.RA1 of Sh.Pardeep Sharma, its authorized signatory, in which, he has reiterated all the contents of reply filed by OP1 and refuted the case of the complainant.

8.                Similarly, in order to rebut the case of the complainant, learned counsel for the OP2 adduced evidence by placing on record affidavit Ex.RA2 of Sh.Anil Kumar, its Proprietor, in which, he has reiterated all the contents of reply filed by OP2 and refuted the case of the complainant. Further, learned counsel for the OP2 has proved on record the documents Ex.R1 and Ex.R2.

9.                We have heard the learned counsel for the parties and have also gone through the record on file very carefully.

10.              Perusal of the record reveals that it is proved fact on record that the complainant had purchased the one Crate of Mango Sip of 500 ML from OP2 for a sum of Rs.450/- vide bill dated 8.6.2014. Further, it is a proved fact that after using first ten bottles from crate, one of the relative of the complainant had complained about some fungus in bottle and he had thrown that bottle and then the complainant had checked the remaining bottles and he had found the big size fungus was therein one bottle.

11.              Perusal of the record further reveals that sample of one Mango Sip bottle was sent to the Food Analyst, Punjab, Chandigarh, who after his thorough analysis, submitted his report which was received by this Forum on 12.9.2014 and the same is exhibited as Ex.C5. Perusal of this report reveals that the Food Analyst, Punjab, Chandigarh had given his opinion that from examination of the sample and the result obtained by analysis, he was of the opinion that the contents of the sample marked here as P-130-Aug-14 contain jaala like substance. Hence, unsafe for human consumption.

12.              Though, on the other hand, learned counsel for the OP1 has strongly contended that OP1 is only the distributor and it is the responsibility of the manufacturer and no fungus is found in the bottle which was supplied by the manufacturer to the distributor who further sold the same to the retailer like OP1. Similar is the contention of learned counsel for the OP2 that OP2 had purchased the bottle from distributor of Mango Sip vide retail invoice Ex.R1 and had sold the same to the complainant for Rs.450/- vide retail invoice Ex.R2.

13.              Since, it is a proved fact on record that Mango Sip bottle which was purchased by the complainant, contained jaala like substance as per the report of the Food Analyst, Punjab, Chandigarh Ex.C5. As such, the said bottle was not fit for human consumption which clearly amounts to deficiency in service and unfair trade practice on the part of the Ops.

14.              In view of the above discussion, we hereby allow this complaint and as a result, direct the Ops to make refund of Rs.450/- to the complainant qua the costs of the crate of Mango Sip Bottles purchased by the complainant and further, Ops are directed to pay Rs.5000/-(Five thousand only) as compensation to the complainant on account of mental pain, agony and harassment suffered by him and Rs.2000/-(Two thousand only) as litigation costs to the complainant. Order be complied within 30 days from the date of receipt of copy of this order. Copies of the order be sent to the parties free of cost and thereafter, file be consigned to the record room.

                   (Babita)                                   (R.L.Ahuja)

                   Member                                   President    

Announced in Open Forum

Dated:30.04.2015

Gurpreet Sharma.