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. 67 of 2011

Between:

D. Bhikhsapathi S/o Rajaiah,

Aged: 35 years, Occ: Tailor,

R/o Shilampally village,

Mandal Kowdipally, Dist. Medak.                                                                                   …..Complainant

And

1)       M/S Tirumala Bar and Restaurant,

Main Road, Sangareddy town, Dist. Medak.

2)     The Manager,

        SKOL Breweries Ltd.,

        Unit Charminar Breweries Ltd., Shivampet village,

        Mandal Pulkal, Dist. Medak.                                       ...Opposite parties

This case came up for final hearing before us on 02.01.2013 in the presence of Sri Ch. Laxmi Narsimha Reddy, 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 Sri Patil Vithal Rao, President)

1.                      This complaint is filed under Section 12 of the Consumer Protection Act, 1986 by contending that when the complainant purchased one HAYWARDS 5000 beer bottle to consume at the bar and restaurant of opposite party No. 1 on 29.07.2011 for Rs. 95/-, he found a plastic cover and black dust in it and as such could not consume the same. The complainant further contended that when he complained about the said fact to the opposite party No. 1, he did not respond properly by stating that it was a defect of opposite party No. 2 and therefore he was not responsible for the contamination. Therefore, as per the complaint, he got issued legal notice on 25.08.2011 to both the opposite parties claiming compensation and damages on the ground of deficiency of service resulting in mental pain and agony to him to which

opposite party No. 2 sent reply denying the allegations as false and baseless. For these reasons the complainant has prayed to award compensation of Rs. 20,000/- and damages of Rs. 25,000/- against both the opposite parties apart from cost of the beer bottle with interest @ 18% p.a. and costs of the proceedings.

2.            The opposite party No. 1 remained exparte.

3.            The opposite party No. 2 filed a counter and opposed the complaint by stating, in brief, that it is a reputed manufacturing company of the beer commanding goodwill in the international and domestic markets but the complainant has filed the present case with false and frivolous allegations for wrongful gain by tampering seal of the beer bottle and ignoring the offers made by opposite party No. 2 in it’s reply notice to get investigated into the alleged contamination of the beer and the reasons therefor. Further, the opposite party No. 2 has contended that since the complainant did not consume the beer, he cannot claim the compensation or damages for want of any loss or injury. The opposite party No. 2 has also alleged that there is no cause of action to the complainant against it and as such prayed to dismiss the same with costs.

4.            The complainant got examined himself as PW. 1 and marked Ex.A1 to A3 and MO.1 to substantiate his claim. The opposite party No. 2 has examined its Assistant Manager (Legal) as RW.1 in defence.

5.            Heard the complainant and opposite party No. 2.

6.           Now the point for consideration is that whether there is any deficiency of service to allow the claim as prayed for? 

Point:

7.             It is not in dispute that the complainant purchased the beer bottle, MO.1 manufactured by opposite party No. 2, at the bar and restaurant of opposite party No. 1, under the receipt vide Ex. A1 on 29.07.2011. On bare examination of the bottle with naked eyes, the contamination therein with a plastic piece and some black dust is clearly visible. Therefore, there was no necessity to send the bottle to any appropriate laboratory for analysis as provided by Section 13(c) of the Consumer Protection Act, 1986. Further the

bottle is intact with it’s original seal. When the opposite party No. 2 alleged that there was tampering with the seal, it was obligatory on its part to get the same examined and establish but in this regard it did not take any steps. It is to be noted that the complainant, as PW. 1, during his cross examination, has clearly denied the suggestion that he tampered the seal of beer bottle, MO.1 and contaminated it for monetary gain. Obviously when the complainant found some suspended alien bodies / impurities in the beer bottle, he did not consume the beer and simply walked out from the bar after due protest by obtaining receipt, Ex. A1. The complainant, thereafter, got issued a legal notice, Ex.A2 to both the opposite parties claiming compensation, damages etc., on account of sustaining mental shock and agony due to aforesaid illegal act. The opposite party No. 1 did not choose to reply the same. However opposite party No. 2 sent reply under Ex. A3 with an offer to the complainant to handover the sealed beer bottle to its representative for the purpose of investigation to  know the cause of the defect if any and further offered free replacement of it with another beer bottle. No doubt the complainant did not respond to said offer and rushed this Forum with the present complaint, but in our opinion this itself is not sufficient to allege to opposite party No. 2 that there is no cause of action to file the present case for the simple reason that nothing prevented opposite party No. 2 to take steps in getting conducted investigation to find out root cause for the defect in it’s product i.e., MO. 1 during the course of enquiry in the instant case. This attitude itself amply establishes the bonafides in the offer of the opposite party No. 2 and in the circumstances a presumption can conveniently be drawn to the effect that said offer was nothing but only a futile eye wash. In this view of the matter there is no force in the contention of opposite party No. 2 that there is no cause of action to initiate the present proceedings. Further, the opposite party No. 2 did not adduce any sufficient and satisfactory evidence in defense, except the oral evidence of RW.1, to rebut the claim of the complainant.

                 In view of the aforesaid discussion, we hold that the complainant has successfully established deficiency of service on the part of the opposite party Nos. 1 and 2 on account of their unfair trade practice, to sustain his claim. Having regarded to the facts and in the circumstances, in our considered opinion, the complainant is entitled for a sum of Rs. 95/- towards cost of the beer bottle and a reasonable sum of Rs. 10,000/- towards compensation from both the opposite parties. The opposite party No. 2 is a manufacturing gaint in breweries commanding international and domestic

markets. Despite said fact the defective product emerged from it’s unit which is certainly a life threat to human beings when consumed. Therefore, in the circumstance the opposite party No. 2 is liable to pay a sum of Rs. 5,000/- to the complainant towards punitive damages. The amount awarded shall carry an interest @ 9% p.a.

8.               The point is answered accordingly.

9.               In the result, the complaint is allowed directing both the opposite parties to pay a sum of Rs. 10,095/- towards compensation and Rs. 1,000/- towards costs jointly and severally to the complainant. The opposite party No. 2 shall further pay a sum of Rs. 5,000/- to the complainant. The complainant is also entitled for an interest @ 9% p.a. on the said awarded amount of Rs. 16,095/- from this date till the date of realization. Time for compliance is one month. 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 – D. Bikshapathi                                            Ms. Nisha Kiran

DOCUMENTS MARKED

For the complainant:                                                    For the opposite parties:-

                            Sd/-                                                              Sd/-

                   LADY MEMBER                                             PRESIDENT            

Copy to

1)     The Complainant

2)     The Opp.Parties

3)     Spare copy