AT HYDERABAD.

F.A.  169/2007  against C.C. 79/2005, Dist. Forum, Ranga Reddy      

Between:

J. Satyanarayana Reddy

S/o.  Venkata Swamy Reddy

Age: 43 years, Pvt. Service

Plot No. 54, Kakatiyanagar

HMT Road, Chinthal

Ranga Reddy Dist.                                      ***                         Appellant/

                                                                                                Complainant.

                                                                   And

1. M/s. Vijaya Wines

L. Veera Swamy (Proprietor)

Guddivanimetta,

Opp. IDPL  Colony

Balanagar, Hyderabad.

2.  Sri Venkateswara  Winery & Distillers

Pvt. Ltd. Satyanagar, Nagole

Ranga Reddy Dist.

3.  The Commissioner            

Prohibition & Excise

Govt. of A.P., Near Goshamahal

Jambagh Road, Hyderabad.                       ***                         Respondents/                                                                                                      Ops.

Counsel for the Appellant:                          M/s.  S. Bhasakara Reddy

Counsel for the Resp:                                 M/s.  M. Krishna Rao (R2)

CORAM:

HON’BLE SRI JUSTICE D. APPA RAO, PRESIDENT

&

                 SMT. M. SHREESHA, MEMBER

FRIDAY, THIS THE SIXTEENTH  DAY OF  JULY  TWO THOUSAND TEN

Oral Order: (Per Hon’ble Justice D. Appa Rao, President)

                                                          *****

1)                Appellant is unsuccessful complainant.

2)                The case of the complainant in brief is that he purchased  a  whisky bottle of 90 ml under receipt Ex. A10 on payment of money on 24.12.2004 from R1 manufactured by R2.  It was embossed with excise seal of 11/2004.   To his surprise he found iron mesh was floating  in the sealed bottle.   It was hazardous to health.     It was visible to the naked eye.   Due to fear of adulteration he did not open the bottle and asked R1 to replace with some other bottle which he refused to do so.    Having reported the matter to various authorities, Excise, Police and others  and as there was no reply he approached the Chief Public Analyst, State Food Laboratory, Government of A.P, Hyderabad after paying Rs. 200/- towards analysis vide Ex. A2 who in turn gave report under Ex. A1 that it was adulterated.    R2 manufacturer has been supplying  and selling their products through R1 & R3 Commissioner, Prohibition & Excise without proper care and caution.    It was negligent in its attitude.   In fact he belongs to a poor family and has two daughters besides his parents and all of them are dependents  on him.    Had he consumed the alcohol his life and health would have been under threat.    The legal notices issued to the respondents did not evoke any reply and therefore sought compensation of Rs. 3 lakhs. 

3)                 R1 dealer resisted the case.    It denied that R2 supplied President Whisky bottle to him.   The complainant did not furnish correct details.   He denied having sold the bottle, nor the complainant approaching him alleging that there was iron mesh visible to the naked eye.  The complaint appears to have been filed by the complainant at the instance of competitive wine shop owners.    Since he did not consume, the question of getting health problems would not arise.   He did not mention the name of the person who had issued the bill.    He must have created the cash bill.  The complainant’s intention was to cause damage to his reputation as well as to his business.    Therefore he prayed for dismissal of the complaint with costs. 

4)                 R2 manufacturer equally resisted the case.    It also denied each and every allegation made in the complaint.    However, it admitted that it was a manufacturer of   President Whisky.   However, it never supplied any such products to R1.    As per the agreement dt. 1.10.2004 with M/s. Liquors India Ltd.  it was holding necessary license and other facilities for production of Indian Made Liquor (IML).    As per the procedure all the manufactured products   after due inspection and seal by the Excise Department will be delivered to the statutory body of Government of A.P. viz., A.P. Beverages Corporation Ltd.  which in turn sell the products to licensed retailers as well as wholesalers.    There was no direct access between R2 & R1.    There was no scope for adulteration.    R1 and the complainant must have filed a false case in order to make wrongful gain.     While denying complainant’s approaching, chemical analysis and its report it alleged that no loss or damage was caused to the complainant.    At any rate each bottle bears   statutory warning “consuming liquor/alcohol is injuries to health”  he cannot say that it could be  injurious to health  had he taken  the drink,  and therefore prayed for dismissal of the complaint with costs. 

5)                 R3   the Commissioner, Prohibition & Excise   equally resisted the case.  The complainant cannot be held to be a consumer.   While admitting that R1 is a dealer and R2 is the manufacturer of President, Whisky bottle, however, denied that there was iron mesh in the bottle.    It also denied the notice given by the complainant.  On receipt of legal notice it was referred to Station House Officer (Excise), Qutubullapur directing the complainant to approach the said officer.    The complainant did not hand over the bottle.    He did not co-operate to investigate the matter.  Since it has responded to the complaint, it cannot be said that there was negligence on its part.  Therefore it prayed that the complaint be dismissed.

6)                 The complainant in proof of his case filed his affidavit evidence and got Exs. A1 to A11 marked, while the respondents except filing counter by way of counter affidavit did not file any documents. 

7)                 The Dist. Forum after considering the evidence placed on record opined that the complainant did not consume  the liquor and therefore there was no injury caused to him, and consequently dismissed the complaint.

8)                 Aggrieved by the said decision, the complainant preferred the appeal contending that the Dist. Forum did not appreciate either facts or law in correct perspective.    It ought to have seen that he has purchased the President Whisky bottle  under Ex. A10 valid bill from R1 which in turn was produced before the Chief Public Analyst, State Food Laboratory, Government of A.P, Hyderabad   when the respondents did not take any action and the Chief Public Analyst in his report Ex. A1 categorically opined that it was ‘adulterated with foreign object iron mesh’.  The detection of iron mesh even before consuming has saved his life but that it should not deter the Dist. Forum from awarding compensation. 

9)                 The point that arises for consideration is whether the order of the Dist. Forum is vitiated by mis-appreciation of fact or law?

10)               It is an undisputed fact that R1 is a dealer of alcohol products manufactured by R2 through R3 the Commissioner, Prohibition & Excise.  The complainant had purchased a whisky under the brand name of President from R1 under receipt Ex. A10 dt. 24.12.2004. The complainant before consuming the alcohol observed that there was iron mesh a foreign article in the bottle and immediately he asked R1 to replace it,  however R1 did not agree.  There upon he gave notices to R1 to R3 evidenced under Ex. A3 which the respondents received under acknowledgements Exs. A4 to A6.  The respondents except denying could not explain as to why they kept quiet.   He also complained to  the  Director, Institute of Preventive Medicine, Public Health Labs & Food (Health) Administration, Hyderabad  marking copies to   the Excise  Superintendent,  Prohibition & Excise Department, Ranga  Reddy Dist,  the Station House Officer,  Balanagar,  and the Asst. Health Officer,  Ranga Reddy vide Ex. A8.   He got photographs taken under Ex. A9.  He even reported to the newspaper evidenced under news item Ex. A11.    Since there was no response from any of these persons he paid Rs. 200/- to the Chief Public Analyst, State Food Laboratory, Government of A.P, Hyderabad vide Ex. A2 and got it analyzed wherein the analyst was of the opinion that the sample contains “a metal piece which is injuries to health, and therefore adulterated.”   In spite of informing the said fact none of the respondents responded and there upon he filed the complaint. 

11)               At the outset, we may state that the respondents except denying each and every allegation made by the complainant could not positively deny or disprove any of the documents filed by the complainant.    When he produced Ex. A10 purchase bill issued by R1,  he did not deny that it was not issued by him.    On the other hand, in his counter he alleges that the bill was brought into existence and  that he did not mention the particulars of the person who issued the cash bill.    He did not dispute the bill nor alleges that it does not pertain to him.     When the complainant by filing irrefutable documentary evidence proved that he purchased the bottle, it cannot be said that he did not purchase it.    Evidently the bottle was manufactured by R2.  The complainant had mentioned   Excise Depot Seal No. 124642 and Batch No. 11 of 11/2004 of R2.    R2 the manufacturer equally could not deny that it was not manufactured by it.  It  did not verify  the product from its registers.   What all it stated was that   M/s. Liquors India Ltd. has permitted it  (the O.P.No. 2)  to manufacture the whisky for the Excise Year 2004-2005 with the approval of the Excise Commissioner, Hyderabad to be marketed only through A.P. Beverages Corporation Ltd.  They were sealed after due inspection by the   Excise Department consisting of various officials.   They will be sold through a regulatory body of the Government of A.P. viz., A.P. Beverages Corporation Ltd.  which in turn sells to retailers as well as wholesalers.    

12)              We may state that despite all this procedure the bottle that was sold by R1 was somehow escaped the scrutiny and landed in the shop which was purchased by the complainant.    Except bare denial neither R1 nor R2 gave explanation as to why they could not respond to the notices issued by the complainant.   They conveniently did not give any explanation.   Non-issuance of reply would itself entail an adverse inference.  They do not want to disclose their defence as they had no material to deny the facts alleged by the complainant.    Even in their counters the denial is of general nature.    They could not mention as to how such a foreign material find a place,  confirmed by the Chief Public Analyst. R3 Excise Commissioner no doubt mentioned that they informed the complainant to pursue the matter with the Station House Officer (Excise), Qutubullapur, however the complainant did not respond.    If really they were interested in finding out the truth or otherwise of the complaint, it could have issued written notice directing  complainant to deposit the said bottle.   On oral instructions even if such bottled is deposited as rightly pointed out by the learned counsel for the complainant, they would deny  that it was deposited with it.    The conduct of R3 in this regard cannot be said to be above board.    It did not even respond to the notice issued by the complainant.    Assuming without admitting that R3 directed the Station House Officer (Excise) to investigate and when the complainant has admittedly produced the bottle with Chief Public Analyst    evidenced under Ex. A1, the Excise Inspector could have taken a copy of the report and in the light of Ex. A10 receipt, enquired into the matter, and filed his report.  Nothing was happened.    This shows that each individual intends to escape from the deficiency of their services in this regard. 

13)               To sum up,  the complainant had purchased  President Whisky bottle  under  Ex. A10 receipt from R1  manufactured by R2  and when the complainant found that there was iron mesh a foreign object, after issuing notices to all the concerned, produced  the said bottle  for analysis and got it confirmed that  it was adulterated.    No doubt the complainant did not consume having found that there was some foreign material for which he should not be found fault with.    When the Chief Public Analyst reported that it was adulterated undoubtedly had he taken it would be a health hazard.   In the light of overwhelming documentary evidence, we are of the opinion that the whisky bottle supplied to the complainant was adulterated.      Even after filing of the complaint with all necessary documents none of these parties had tried to find out as to how such foreign object could find place.  They did not make any investigation.  They knew full well that it was because of  their negligence and deficiency. 

14)              Section 14(i)(d) of the Consumer Protection Act empowers the Consumer Fora to award  compensation to the consumer for any loss or injury suffered by the consumer due to the negligence of the opposite party.  In the instant case the complainant having not consumed he did not suffer from any injury.   However, undoubtedly there was negligence.  He sustained loss in the sense, he was made to spend Rs. 16/- for purchase of whisky bottle, Rs. 200/- towards analysis.   The basis for awarding compensation for negligence is the breach of duty to take care which results in damage to the consumer.  In the absence of such care, skill and diligence in rendering the service as it expected of or required of a reasonable man.    It is omitting to do something that a reasonable man would do or something which a reasonable man would not do.    It is to be noted that the compensation could be granted only when loss or injury caused due to negligence.    The compensation in legal sense may constitute actual loss or expected loss and may extend to compensation for physical, and mental or even emotional suffering, insult or injury or loss.   

The Consumer Protection Act is intended to redress the injustice suffered by the consumer.    Since the complainant did not suffer any injury, what all the amounts spent in order to prove that the goods purchased by him was defective, he would be entitled to viz., Rs. 16/- towards purchase of whisky bottle, Rs. 200/- towards analysis and the registered notice issued through his counsel for which he could have paid a fee of Rs. 500/-. Despite his repeated complaints, neither the manufacturer nor the dealer had responded putting him in mental agony for which adequate compensation could be awarded. However, we may state R3 Commissioner of Excise cannot be found fault with for processing and sealing of whisky bottle.    R1 & R2 are undoubtedly guilty of negligence for which the complainant had undergone un-necessary mental agony, insult and loss.    Considering the nature of claim and the conduct of the parties that too a manufacturer of alcohol that could be distributed throughout India, we are of the opinion that an amount of Rs. 10,000/- could be awarded.    We feel it is moderate and modest  in all Rs. 10,716/- could be awarded.

15)               In the result the appeal is allowed setting aside the order of the Dist. Forum, consequently the complaint is allowed in part.    Opposite Parties 1 & 2 are directed to pay Rs. 10,716/- together with costs of Rs. 5,000/-. The case against R3 is dismissed but without costs.  Time for compliance four weeks. 

1)       _______________________________

PRESIDENT                 

2)      ________________________________

 MEMBER          

   Dt.   16.  07.  2010.

*pnr

“UP LOAD – O.K.”