Complainant Preet Kalra through the present complaint filed under Section 12 of the Consumer Protection Act, 1986 (for short, ‘the Act’) has prayed that he is entitled to get compensation of Rs.1,00,000/- besides notice fee of Rs.5,000/-, cost of bottle Rs.18/- and cost of the institution of complaint and counsel fee of Rs.10,000/- total Rs.1,15,018/- along with interest at the rate of 18% per annum. Complainant has also claimed any other relief from this Forum.
- The case of the complainant in brief is that on 28.05.2016 he had purchased a Limca Bottle for Rs.15/- and paid Rs.18/- i.e. price of empty bottle from Lady Confectionery, Near Bridge Sarna, Pathankot and on that day he was accompanied with his friend namely Deepanshu. It was pleaded that complainant took the bottle in his house at Pathankot and next day when he began to use that soda he found that seal was intact and noticed that there was foreign body (Insect or worm) in the liquid of the bottle. It was further pleaded that complainant went to the shop and complained to the shopkeeper that bottle of Limca which he purchased a day before contains something in the bottle which can be seen with naked eyes and showed the bottle to the shopkeeper and shopkeeper also admitted that something is objectionable in the said bottle but he was not on fault as the bottle was sealed by manufacturing Company i.e. opposite party who can only tell what is in the bottle of Limca. It was also pleaded that it was the fault of the manufacturing Company and complainant told the shopkeeper that it was his duty to explain all the happening to the Company and complainant also shown to the opposite party on 29.05.2016 but the opposite party did not give any reply to the complainant. The complaint was registered vide call No.637370 on 29.05.2016. It was next pleaded that the manufacturing date of the bottle was 08.04.2016 which was within time and a legal notice was also served upon the opposite party on 14.06.2016 and Sh.Amarpreet Singh Grover Advocate Amritsar also gave its reply. In the said notice Rs.1,00,000/- was demanded by the complainant for injury to his health as well as user of liquid besides cost of Rs.18/-. It was pleaded that complainant cause to death by using this liquid or can be involved in serious diseases which could cause harm and loss to his health badly. Complainant is a law student and studying in IInd year and his life is very precious as he is the only son of his parents so the default liquid can badly damage and heavy loss to the complainant, hence this complaint.
- Notice of the complaint was served upon the opposite party but opposite party did not appear and was proceeded against exparte vide order dated 20.01.2017.
4. Complainant had tendered into evidence his own affidavit Ex.CW1/A, affidavit of Sh.Abhay Mahajan Ex.CW2/A, affidavit of Sh.Deepanshu Ex.CW3/A along with documents Ex.C1 to Ex.C-3 including original bottle of Limca Ex.C4 and closed his evidence.
5. We have examined all the documents/evidence produced on record and have duly considered and perused the arguments as put forth by the learned counsel for the present complainant while at the same time also taking the due judicial-notice of the opposite party’s (OP Bottling Plant) intentional absence (resulting into the ‘ex-parte’ participation) in spite of the ‘proven’ summons-service. Although, it has been a trite settled law that a titled party’s intentional absence/ex-parte participation gives rise to the judicial but discretionary presumption that the ex-parte/absentee litigant has no defense to prosecute; still, we have provided a judicious opportunity to the ex-parte participant(s) by way of a close examination and a fairly deduced ‘resume’ upon which to place/base the resultant award under the applicable adjudicatory Act.
6. We find that the present complaint has arisen as a result of purchase of a Bottle of Limca (Soft-Drink Beverage) @ Rs.18/- (inclusive of glass-bottle) by the complainant on 28.05.2016 from (Affidavits Ex.Cw1/A, Ex.Cw2/A & Ex.Cw3/A) a Road-Side Vendor (Laddi Confectioner) at the Sarna township of Pathankot. However, the next day, the complainant found a ‘foreign matter’ (insect/ worm/ fungus growth etc) Ex.C3 floating in the duly sealed bottle (marked 08.04.2016) by the opposite party bottler. Legal Notice Ex.C1 of 14.06.2016 was duly served upon the opposite party requisitioning suitable compensation with cost for the health risk run and mental agony suffered by the complainant. The opposite party did react to the above notice vide its legal reply Ex.C2 of 30.07.2016 rejecting the complainant’s allegations through counter-allegations of adoption of malicious and vexatious means for the sake of undue enrichment through frivolous litigations etc.
7. We further find that the OP Bottler vide its exchange of legal notices (as exhibited on records) and ex-parte participation (non-appearance before the forum) has impliedly admitted the sale of defective product (Limca Bottle with floating foreign matter) to the complainant and thus preferred/opted out of the instant proceedings since they did not have any ‘defense’ to prosecute and that amount to ‘admission’ of deficiency in service, itself; going by the proven trite law that incidental ‘admission’ has always been a good ‘evidence’.
8. We, find that the complainant could not consume/enjoy the contents of his purchased ‘cold-drink’ beverage much to his displeasure and in turn had also run a great health risk/ hazard to his health in the ‘acutest’ summer month of May’ 2016 and that surely entitles him to the statutory compensatory award of course in the light of the apex court’s trite guidelines that disfavor undue enrichments through so-called fruits of litigation (compensatory awards).
9. We are of the considered opinion that the titled opposite party Beverage Company did owe a great responsibility towards the General Public in general and to its consumers in particular since the ‘cold-drink’ beverage ‘Limca’ is of global name and fame and an innumerable people (of all age, color and creed) regularly consume/enjoy the same for the sake of taste, thirst and fashion (Sic!) and any bacterial infection (as found in the bottle-pack in question) can cause much damage on epidemic scale. We find it a matter of great human health concern besides being infringement of consumer rights of an innumerable number of unknown consumers. Thus, we also hold the titled opposite party liable to punitive damages.
10. In the light of the all above, we partly allow the present complaint and thus ORDER the titled opposite party to pay Rs.15,000/- to the complainant as cost & compensation for suffering loss of time and money (in the general interest of public health) besides to deposit Rs.10,000/- in the consumer legal aid account as maintained with the forum within 30 days of the receipt of the copy of these orders otherwise they shall also be liable to pay interest @ 9% PA on the aggregate awarded amount from the date of the present orders till actually paid.
11. Copy of the order be communicated to the parties free of charges. File is ordered to be consigned to the record room.
(Naveen Puri)
President.
ANNOUNCED: (Jagdeep Kaur)
MAY 15, 2017 Member.
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