BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, PONDICHERRY

                                        C.C.No.69/2010

Dated this the 10^th day of January 2017

(Date of Institution: 08.06.2010)

S. Arivazhagan, son of Sivalingam,                  

No.76, Eswaran Koil Street, Marie Oulgaret,

Puducherry – 605 010.        

….     Complainant

vs

1. M/s John Distilleries Limited rep. by its    

    Vice Chairman, having office at No.110,

    Patharapalya, Mysore Road, Bangalore -

    560 039.

2. M/s Ravikumar Distilleries Limited rep. by its

    Chairman, having office at No.17, Kamaraj Salai,

    Puducherry – 605 011.     

3. M/s Happy Wines, rep. by its Proprietor

    Having office at No.6, 100 feet Road,

    Jayam Nagar, Puducherry – 605 004.

                                       ….     Opposite Parties

BEFORE:

          THIRU.A.ASOKAN, B.A., B.L.,

          PRESIDENT 

Thiru V.V. STEEPHEN, B.A., LL.B., 

MEMBER

FOR THE COMPLAINANT:  Thiru S.S. Pajaniradja, Advocate   

FOR THE OPPOSITE PARTIES:  M/s Law Solvers, Advocates.

O R  D  E  R

(by Thiru A. Asokan, President)

              This is a complaint filed by the complainant u/s 12 of Consumer Protection Act for directing the Opposite Parties to pay jointly and severally to pay a sum of Rs.10,00,000/- as compensation with subsequent interest at 24% per annum from the date of filing this petition till realisation and for costs. 

2.  The case of the complainant is as follows:

The complainant purchased a 180 ml bottle of “Original Choice” brand brandy from the third opposite party for a sum of Rs.30/- vide receipt No. 28491 dated 3.3.2010.  While return to home the complainant was shocked and surprised by seeing a dead frog inside the content.  Immediately, the complainant got fainted and his family members came to his rescue.  It took few days to come to the terms with normal state.  The first opposite party who is the manufacturer is so careless who played with the health of the complainant and longevity of his life so also consumers in general.  The complainant stated that the second and third opposite parties joined the hands with the first opposite party for supplying such a hazardous content bottle to him.  The opposite parties ought to have followed prescribed norms before bringing the product to market.  The opposite parties committed gross negligence and followed unfair trade practice and the opposite parties 1 to 3 are jointly and severally liable for the loss and trauma underwent by the complainant.  The complainant further stated that he issued a lawyer notice dated 19.03.2010 putting forth the above facts and the same was acknowledged by the opposite parties and refused to give any reply.  The non- reply to notice which itself tantamount to negligence and reckless attitude of the opposite parties and further they should be punished severely, so that the opposite parties can be deterred from manufacturing such product in future.  Hence the complainant is constrained to file this petition for compensation for gross negligence, deficiency in service and unfair trade practice with costs.

3. The reply version filed by the second opposite party and adopted by Opposite Parties 1 and 3 briefly discloses the following:

This opposite party is in the business of manufacturing Indian Made Foreign Liquors form the year 1999.  This opposite party is producing nearly 75,000 bottles of various liquors per day.  This opposite party manufactures spirits and also purchases spirit form distilleries in Madhya Pradesh and Uttar Pradesh, who are pioneers in the trade.  The spirit is transferred to the blending tank and adding demineralised water and caramel and flavor is kept in the blending tank for maturation for more than five days depending upon the segment of the blend.  After maturation the blend is pumped into bottling hall through filter press and thereby even at the initial stage the dust and other foreign particles, if any, is completely removed.  From the bottling hall the blend goes to the filling machine and bottling operation thereafter starts.  Here also the liquor is filtered through filter cloth at the bottling section where prewashed bottles through jet washing machine are made ready for bottling.  Liquor is filled into the washed bottle through filling machine and sealed with PP caps with automatic and semi-automatic capping machines.  The liquor so bottled is checked before being transported to the warehouse by three persons manually and it is only after inspection the bottles would be sent to the labeling section and packing.  This opposite party takes all earnest and effective steps to ensure that there is no dust or foreign particle inside in the liquor packed in bottles.  While it is so, there is absolutely no possibility for any foreign particle getting into the bottle as alleged by the complainant.  This opposite party submits that they have a License cum Manufacturing Agreement with the First opposite party and the clauses therein are so stringent that the duties cast upon this opposite party do not permit to be even unknowingly negligent.  That apart from the above procedure followed, the quality observers of the first opposite party are also present on the site and hence the above process undergoes a double check before the product is dispatched.  The complaint is bereft of the details of the bottle like manufacturing date, etc.  There is absolutely no Unfair Trade practice or negligence, per contra this opposite party believes that it is the handiwork of the complainant to make unlawful gain.  Admittedly the complainant has not consumed the alleged liquor and hence the correlation to the relief is exorbitant and clearly brings to light the greed and malafide of the complainant to make unlawful gain.  If there were foreign particles  in the bottles purchased the complainant should have returned it to the third opposite party from whom he has alleged to have purchased for replacing the so-called defective goods.  There is absolutely no reason for the opposite party to suffer mental agony as alleged in the complaint under reply even without consuming the liquor. 

4. The Additional Counter filed by the second opposite parties discloses the following:

The bottle produced does not bear the manufacturing date and batch number and as such this Respondent denies that the said bottle is a product of this Respondent.  It is further seen that the seal has been broken and hence there appears to the tampering of the object.  Hence considering all aspect this Respondent denies that the object produced is a product of this Respondent Company.

          5.       On the side of the complainant, the complainant himself was examined as CW1 and Exs.C1 to C6 and MO1 were marked.  On the side of the opposite parties, one R. Rangabhashyam, the Factory Manager of second opposite party was examined as RW1 and Exs.R1 and R2 were marked. 

6.       Points for determination are :

1. Whether this complainant is a Consumer?
2. Whether the opposite parties attributed deficiency in service and unfair trade practice?
3. To what relief the complainant is entitled for?

7.   Point No.1:

          The complainant purchased one number of 180 ml. Original Choice Brandy bottle from the third opposite party on 03.03.2010.    To prove the same, the complainant has produced the Ex.C1 the cash bill No. 28491 dated 03.03.2010.    So, it is proved that the complainant is consumer for the opposite parties.

          8.       Point No.2:

          We have perused the pleadings, reply versions, the evidences adduced by the complainant and the second opposite party, the documents marked as Exs.C1 to C6 on the side of complainant and Ex.R1 and R2 on the side of second opposite party.  From the available records it is clear that on 03.03.2010 the complainant purchased one bottle of  180 ml liquor / brandy from the third opposite party vide Ex.C1 Cash Bill.  After he went to his house, found a dead frog inside the brandy bottle, due to which the complainant immediately lost consciousness and his family members rescued him.   The complainant issued a legal notice dated 19.03.2010  vide Ex.C3 to the opposite parties, for which, the opposite parties did not send any reply.    

          9. On the otherhand, the second Opposite Party alleged that their products are subjected to filtration  prior to bottling and stringent quality test was conducted by their Quality Controllers before it is brought to market for sale and hence there is absolutely no possibility of any foreign particle getting inside the brandy bottle.  Further alleged that the bottle produced does not bear the manufacturing date and batch number and as such, the alleged bottle was not of their product.  Further stated that the seal of the bottle has been broken and hence there appears to be a tampering of the object.  The opposite parties further alleged that the complainant has not consumed the alleged liquor and hence the correlation to the relief is exorbitant and in order to get unlawful gain, the complainant has filed this complaint.  The complainant has not suffered any mental agony.    

          10.     We have carefully considered the respective submissions and the documents.  On perusal of Ex.C1 the cash receipt dated 03.03.2010 it shows that the MO1 was purchased by the complainant from the third opposite party.  The opposite parties in their reply version have stated that without batch number and date of manufacturing, genuineness of the brandy bottle cannot be verified.  But, the OP2/RW1 in his evidence has admitted that the foreign particles found in MO1 and he denied that the product was not produced by them.    Further, the OP2 being the contesting party did not adduce any material evidence to establish their claim that the MO1 was not manufactured by them. 

11. The other allegation raised by the opposite parties is that the seal of the bottle has been broken and there appears tampering of the object.   The complainant has purchased the MO1 on 3.3.2010 vide Ex.C1 and found a frog inside the bottle.  Immediately on 19.03.2010 he sent legal notice vide Ex.C3 to the opposite parties narrating about the existence of foreign particle inside the bottle, the said notice was received by the opposite parties as per Exs.C4 to C6, the acknowledgement cards.  However, the opposite parties did not send any reply.  In the absence of any reply, the onus lies upon the opposite parties to prove their plea.  The complainant/CW1 also in his evidence has deposed that "When I gave the MO1 before Hon'ble Forum, the seal was intact but now I admit that the ring of the cork is broken.  I gave the MO1 as such and right before my eyes the bottle was put in a box and sealed".    It is pertinent to mention here that the MO1 was produced before this Forum with unopened condition.  Further, on perusal of Ex.C2 photograph and the MO1, the foreign material is visible to the naked eye.          It is quite natural that the MO1 sold by the opposite parties should not suffer from any kind of fault or imperfection or shortcoming in the quality, quantity, potency and standard which is required to be maintained.  But, in this case, the foreign particle is apparently visible to the naked eye in the MO1.  Hence, as per Section 2 (1) (f) of Consumer Protection Act the MO1 is a defective one.  Moreover, the OP2/RW1 in his evidence has also admitted that there are some foreign particles inside the bottle.  Further, nothing warranted this Forum to send the MO1 for laboratory analysis since the foreign particle is visible in naked eye. 

12. Further, the opposite parties have stated that the complainant has not consumed the MO1 and the correlation to the relief is exorbitant and clearly brings to light the greed and malafide of the complainant to make unlawful gain.  The complainant had not produced any evidence to show that he had fainted on seeing the foreign particle inside the MO1.  It is not the question of consumption of liquor, in case, the complainant would have consumed the product, then there should be chances of injury and loss.  Even though the MO1 was not consumed by the complainant, it will not discharge the opposite parties from the liabilities for the deficiency in service and unfair trade practice since the presence of the substance by itself is a defect in the goods in question. 

         13. Hence, the complainant established that the Opposite Parties have attributed the deficiency in service and Unfair trade practice by selling defective goods.  The complainant proved his case.  Hence the opposite parties are liable for the same and the complainant is entitled for the relief.

          14.     Point No.3:

          In view of the decision taken in point No.2, this complaint is hereby allowed.  The opposite parties are jointly and severally directed to:

1. Pay a sum of Rs. 20,000/- as compensation to the complainant.
2. Pay a sum of Rs. 5,000/- as cost of the proceedings.

The MO2 is ordered to be destroyed after appeal time.

Dated this the 10^th day of January 2017.

1. ASOKAN)

PRESIDENT

(V.V. STEEPHEN)

   MEMBER

COMPLAINANTS' WITNESS:

CW1           07.04.2014           S. Arivazhagan      

OPPOSITE PARTIES WITNESS:  

RW1           15.10.2014           R. Rangabhashyam

COMPLAINANTS' EXHIBITS:

OPPOSITE PARTY'S EXHIBITS:   

LIST OF MATERIAL OBJECTS: 

MO1           Original Choice Brandy Bottle

1. ASOKAN)

PRESIDENT

(V.V. STEEPHEN)

   MEMBER