BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MANGALORE
Dated this the 15th of September 2010
PRESENT
SMT. ASHA SHETTY : PRESIDENT
SMT.LAVANYA M. RAI : MEMBER
COMPLAINT NO.87/2010
(Admitted on 12.03.2010)
Sri.Bhoja Bhandary a.k.a Ramesh Bhandary,
So. Late Narayana Bhandary,
Aged about 27 years,
Volabiailu House, Punjalkatte Post,
Kukkala Village,
Belthangady Taluk,
Dakshina Kannada. …….. COMPLAINANT
(Advocate for the Complainant: Sri.Sushanth F. Sequeira).
VERSUS
1. Ms. United Breweries Ltd.,
‘UB Tower’ Level 3, 4 & 5,
U.B. City, No.24,
Vittal Mallya Road,
Bangalore – 560 001,
Represented by its Managing Director –
Dr.Vijay Mallya.
2. The Manager,
United Breweries Ltd.,
20th Mile, Tumkur Road,
Nelamangala Post,
Bangalore – 562 123.
(Advocate for the Opposite Party No.1 & 2: Sri.Ajith A. Shetty)
3. The Proprietor,
Poojary Wines,
Poonjalkatte, Belthangady Taluk,
Dakshina Kannada. ……. OPPOSITE PARTIES
(Opposite Party No.3: Exparte).
***************
ORDER DELIVERED BY PRESIDENT SMT. ASHA SHETTY:
1. This complaint is filed under Section 12 and 13 of the Consumer Protection Act alleging defect in goods against the Opposite Parties claiming certain reliefs.
The brief facts of the case are as under:
It is stated that, Opposite Party No.1 is the manufacturer of alcoholic beverages, the same was brewed and bottled by the Opposite Party No.2 and Opposite Party No.3 sold the same to the Complainant.
It is stated that, the Complainant purchased three bottles of ‘KINGFISHER STRONG’ ‘Premium Beer’ 330 ml (Pint) from the Opposite Party No.3 as per invoice No.16978 on 02.07.2009. The Complainant purchased the beer for his personal use. The said three bottles were wrapped in paper and handed over to the Complainant by the Opposite Party No.3 in a dark coloured plastic carry bag. The Complainant had no occasion to see and verify the contents of the said bottles at the time of purchase. Thereafter the Complainant consumed the contents of one of the bottles and also removed the paper wrapping of the remaining two bottles he was shocked to find that the contents of one of those bottles did not have the appearance of beer as compared to the other. It is stated that, the label on the bottle revealed that the bottles were manufactured on the same day and were of the same batch i.e., on 10.04.2009 21:56 4E/1. The Complainant contended that, he consumed the contents of one of the bottle, resulted in the Complainant getting severe bouts of nausea and diarrhea for which he consulted his doctor who informed him that his condition must have been due to consumption of contents of the said bottle of supposed beer. Thereafter the Complainant issued a Lawyer’s notice dated 26.09.2009 to the Opposite Parties calling upon them to compensate the same. The Complainant received a reply dated 15.10.2009 from the Opposite Party No.1 raising false and frivolous contentions. Hence the above Complaint is filed under Section 12 and 13 of the Consumer Protection Act 1986 (herein after referred to as ‘the Act’) seeking direction from this Forum to the Opposite Parties jointly and severally to pay a sum of Rs.1,10,000/- by way of compensation and damages towards harassment, stress and mental agony suffered by him due to he sale of defective goods by the Opposite Parties and also claimed compensation and cost of the proceedings.
2. Version notice served to the Opposite Parties by RPAD. Opposite Party No.3 despite of serving notice neither appeared nor contested the case till this date. Hence we have proceeded exparte as against the Opposite Party No.3. The acknowledgement placed before the FORA marked as court document No.1.
Opposite Party No.1 and 2 appeared through their counsel filed version denied the entire allegation and contended that, there is no deficiency in service nor any unfair trade practice on the part of the Opposite Party. It is stated that, the beer bottle produced by the Complainant alleged to have been manufactured by this Opposite Party is not a genuine bottle. Any bottle of beer manufactured by this Opposite Party carries a paper seal/foil covering the crown cap. Apart from that, every bottle of beer retained in the open market would also carry a seal of the Excise Department. The bottle produced by the Complainant does not bear any such seals and is therefore denied to have been supplied by this Opposite Party. There is possibility of the exhibited bottle being tampered as a pretext to file the Complaint.
It is further contended that, the bottle produced by the Complainant is manufactured over a year ago and beyond shelf life of any beer bottle and this Opposite Party is not liable in the event of a product being sold beyond its shelf life.
It is further stated that, the beer produced by the Complainant does not bear any description related to the bottle produced before this Forum and denied that the above said bottle manufactured by this Opposite Party.
It is further stated that, the Complainant had consumed other edible items and might have suffered stomach pain and not because of the above product.
The Opposite Party further submitted that, the process of brewing beer would necessarily involve fermentation of certain sold ingredients, the process of fermentation is also bound to leave certain residuary particles in the beer, which is of common occurrence. It is ruled out that, any such residuary particles possess any sort of health hazard to an individual who consumes the same. And stated that this Opposite Party has at all times maintained optimum levels of quality control. It is further stated that, the Complainant has failed to get the contents of the exhibited bottle examined by a competent person/laboratory and stated that there is no merit in the complaint and prayed for dismissal of the complaint.
3. In view of the above said facts, the points now that arise for our consideration in this case are as under:
- Whether the beer bottle purchased by the Complainant from the Opposite Party No.3 proved to be defective?
- Whether the Complainant proves that the Opposite Parties committed deficiency in service?
- If so, whether the Complainant is entitled for the reliefs claimed?
- What order?
4. In support of the complaint, Sri.Bhoja Bhandary (a.k.a) Ramesh Bhandary (CW1) filed affidavit reiterating what has been stated in the complaint and answered the interrogatories served on him. Ex C1 to C11 were marked for the Complainant as listed in the annexure. The Complainant produced 2 bottles of ‘KINGFISHER STRONG PREMIUM BEER’ which was marked as MO-1 and MO-2 as listed in the annexure. One Sri.Shashidhar B (RW1), Working as Area Sales Manager of the Opposite Party No.1 and 2 filed counter affidavit but not answered the interrogatories served on him. Both parties produced notes of arguments along with citations.
We have considered the notes/oral arguments submitted by the learned counsels and also considered the materials that was placed before this Forum and answer the points are as follows:
Point No.(i): Affirmative.
Point No.(ii) to (iv): As per the final order.
Reasons
5. Point No. (i) to (iv):
In the instant case, the Complainant filed affidavit stated that, on 02.07.2009 he has purchased three 330 ml (Pint) bottles of beer bearing brand name “KINGFISHER STRONG PREMIUM BEER” manufactured by Opposite Party No.1, brewed and bottled by Opposite Party No.2 and sold by Opposite Party No.3 who is the retailer/outlet at Mangalore. It is stated that, the Complainant had consumed one of the beer and about to open another bottle removed paper wrapping of the remaining two bottles, he was shocked to find that the contents of one of those bottles did not have the appearance of beer. The bottles purchased by the Complainant was of the same batch and manufactured on the same day. As the beer bottles contained foreign particles, he issued a legal notice dated 26.9.2009 as per Ex C3 enclosing a copy of the photographs of the bottles of the beer i.e., Ex C2 to the Opposite Parties calling upon them to pay compensation on the ground that the bottles which contained the beer is contaminated. The Opposite Parties having received the legal notice but not complied the demand therein, hence this complaint.
The Opposite Party No.1 and 2 appeared through their counsel contested the matter, interalia, on the ground that, no beer bottle manufactured by them is contaminated and denied the genuineness of the bottle and its contents exhibited by the Complainant. It is also contended that, the bottle of beer manufactured by this Opposite Party carries a paper seal/foil covering the crown cap. Apart from that, every bottle of beer retailed in the open market would also carry a seal of the Excise Department. The bottle produced by the Complainant does not bear any such seals and denied that, the same has been supplied by this Opposite Party. And further contended that, the Complainant has failed to get the contents of the exhibited bottle examined by a competent person/laboratory, without securing a report the false Complaint has been filed to make unlawful gain.
Now the point for consideration is that, whether the Complainant justified his Complaint stating that, the beer manufactured by the Opposite Party No.1, brewed and bottled by Opposite Party No.2 and sold by the retailer i.e., Opposite Party No.3 is contaminated in other words, is defective?
The Complainant filed affidavit in support of his case and produced Ex C1 and C11 and also produced a sealed two beer bottles which are marked as MO-1 and MO-2. The Opposite Party No.1 also filed evidence by way of affidavit.
On considering all the oral as well as documentary evidence available on record and after hearing the counsels for the parties, we find that, the Ex C1 i.e., the bill issued by the Opposite Party No.3 who is the retailer of the above said product shows that, on 02.07.2009 the Complainant has purchased the above beer bottles from Opposite Party No.3 for Rs.120/- at Mangalore. He has also stated that, the bottle containing the beer which is marked as MO-1 and MO-2 is manufactured by the Opposite Party No.1 and brewed and bottled by the Opposite Party No.2. Though the Opposite Party No.1 and 2 in their version stated that, there is a likelihood of bottle being tampered by the Complainant with an ulterior motive to harass the Opposite Parties and also contended that, the product being sold beyond its shelf life and this Opposite Party is not liable.
However, on careful scrutiny of the MO-1 and MO-2 i.e., the sealed bottle shows that, the product was manufactured on 10.04.2009. The label also has the following printed on it “KINGFISHER STRONG, INDIA’S LARGEST SELLING BEER IS BREWED FROM THE FINEST QUALITY MALTED BARLEY AND HOPS, IT CONTAINS THE UNIQUE TASTE AND QUALITY OF KINGFISHER IN A STRONG BEER and also sealed as ‘BEST BEFORE 6 MONTHS FROM THE DATE OF MANUFACTURE’. The said bottle also contains the seal of the UB Export. We find that, the contents of one of the bottles did not have any semblance or appearance of beer and which cannot be consumable. No doubt, the Opposite Party raised objection to mark the MOs by stating that, there is a leakage of liquid from the cap of the bottle. It is pertinent to note that, the MOs were produced before this Forum on 26.5.2010. The Opposite Parties raised an objection on 22.7.2010 raising a contention that there is a leakage of liquid from the cap, it seems to be a moisture. The said bottle is intact and sealed. We do not agree with the Opposite Parties that the bottles were tampered. If at all Opposite Parties so much sure about the tampering, then, definitely Opposite Parties should have taken steps to refer the bottle to the laboratory. No such attempt has been made by the Opposite Parties. Further, the date of manufacture and purchase shows that, the bottle of beer purchased by the Complainant was within the shelf life of the product.
Further, the Opposite Party No.1 and 2 stated that, the above said product has not manufactured/supplied by them and every bottle of beer retailed in the open market also carry a seal of the Excise Department and the same is tampered. But the Opposite Parties failed to place any material/report before this Forum to support their contentions. It is settled principle of law that, an allegation has to be proved by the one who alleges it, the Complainant cannot be expected to prove the negative. As we know, the Opposite Party No.3 who is the retailer is the best person to speak whether the above said beer was purchased in the open market or through Excise Department because he who sold the beer to the complainant. It is significant to note that, in the instant case, the Opposite Party No.3 who is the retailer despite of receiving version notice not contested the matter nor appeared before this Forum till this date. The Opposite Party No.1 being a manufacturer of the above said beer ought to have examined the Opposite Party No.3 who the retailer is sold the subject disputed product. No attempt has been made by the Opposite Party No.1 in this case is fatal. The bill i.e., the Ex C1 produced before this Forum is sufficient to hold that the bottle containing a beer purchased by the Complainant from the retailer and the same has been manufactured by Opposite Party Company which contained the beer is contaminated.
We further find that, Section 13 confers power on the District Forum to send the product for proper analysis or test to the concerned laboratory to find out that whether the contents of the bottle is a contaminated or not. But in the instant case, the beer in the bottle contaminated which is visible to a naked eye. If that is so, in our view, there is no necessity to send the contents of the bottle for any analysis or test since the Opposite Parties are expected to sell good quality of product. Therefore, we hold that, not sending to the laboratories will not wipe out the case of the Complainant.
The Opposite Parties submitted that, the Complainant had consumed other edible items, is precluded from contending that the alleged complications were due to consumption of beer. No doubt, the Complainant is failed to produce any material before this Forum to show that the Complainant consumed another bottle of beer which also contaminated which resulted in nausea and other problems. In the absence of the same, we are declined to hold that the Complainant suffered nausea or any other problem. But at the same time, we hold that, the Complainant has not consumed another beer which contaminated purchased by him, he is not suffered any loss or injury, the Opposite Parties are not precluded from selling good/pure quality of beer without any contamination. In the event if the beer sold by the Opposite Parties contained any particles, it is open for the District Forum or State Commission or National Commission to prevent such sale of hazardous goods and it has also got power under Sub section (ha) of section 14 (1) to seize the manufacturer of hazardous goods and to desist from offering such goods which are hazardous in nature as it amounts to deficiency in service keeping in view the interest of the general public.
In the instant case, no doubt, the Complainant has not consumed the beer which is in dispute as he found some foreign particles floating in the beer inside the bottle purchased by him. It is not necessary for consumer/Complainant to consume the beer purchased by him so as to maintain a complaint as he is aware of the consequences. The object and scheme of the Act is to prevent the sale of hazardous goods. If he/Complainant comes across such hazardous goods when he purchased such goods, he can maintain a complaint in order to prevent sale of such hazardous goods. Therefore, there is no substance in any one of the contentions raised by the Opposite Parties.
In view of the above, we have been referred a similar case, wherein, our own State Commission i.e., Karnataka State Consumer Disputes Redressal Commission Bangalore, reported in CPJ 2005 Vol-II, 579 in a case Hindustan Coca Cola Beverages Pvt. Ltd. & Another Versus Ravishankar held as under:
- “Consumer Protection Act, 1986 – Section 2(1) (g) and 14(1)(d) – Goods – Mineral water contaminated – Foreign particles floating inside the bottle – Bottle manufactured by O.P.’s Company admitted – Complaint allowed by Forum – Hence appeal – Contention, no privity of contract between Complainant and manufacturer company, Complaint against manufacturer not maintainable – Contention not acceptable –person closely and directly affected by any act can maintain Complaint – Foreign particles in bottle visible to naked eye, no need to send contents of bottle for analysis – Mineral water contaminated proved, not necessary for purchaser to consume it to maintain a complaint – Purchaser can maintain complaint to prevent sale of hazardous goods – O.P. liable to pay punitive damages even though no mental agony and hardship suffered by Complainant.
[Paras 12 to 15]
- Consumer – Person who buys goods for consideration, is consumer.
[Para 11]”
Similarly in the present case, there has been negligence and carelessness in some corner of the 1st Opposite Party who is the manufacturer of the said beer, may be while the bottling was being done some dirty things got in the way while the process of bottling was going on. Now the fact remains that, we find proof of negligence in the bottle containing the beer under the brand and name of the 1st Opposite Party which is contaminated. It is needless to point out that, it lacked requisite attention, care as well as proper supervision made during the process of filling the drink/beer which is produced before this Forum is contaminated and not consumable. Opposite Parties failed to act with a concern for public safety and public health. Therefore, we hold that Opposite Parties being the manufacturer would be squarely liable and accountable.
As we know, the manufacturer is not having directly access with the consumers. It is only the retailer who sold the products to the consumer. Hence even though there is a manufacturing defect on the part of the Opposite Party No.1, brewed and bottled by Opposite Party No.2 but the Opposite Party No.3 who is the retailer who deals with the consumers directly cannot escape from their responsibility while selling the products to the public. Under the said circumstances, the Opposite Party No.1 to 3 are jointly and severally liable to pay the damages in this case.
As per the amendment introduced to the Act, the District Forum, Hon’ble State Commission and the Hon’ble National Commission are conferred with the power to award punitive damages. Normally, the punitive damages will be awarded taking into consideration the conduct of the Opposite Parties. In the instant case, it is proved by the Complainant that, the product purchased by him is shown to be a contaminated one as it had contained foreign particles floating inside the bottle. Therefore, even though the Complainant has not suffered any mental agony and hardship as he has not consumed the same, in our view, the Complainant is entitled for punitive damages. By taking into the conduct of the Opposite Parties, we award Rs.25,000/- as compensation to the Complainant by taking back the MO-1 and MO-2 produced by the Complainant after realization of the amount. Failing which Opposite Parties are liable to pay interest on the said amount at the rate of 12% p.a. from the date of complaint till payment. Opposite Parties are further directed to pay Rs.1,000/- as cost of the litigation expenses to the Complainant. Payment shall be made within 30 days from the date of this order.
6. In the result, we pass the following:
ORDER
The complaint is allowed. The Opposite Parties are jointly and severally hereby directed to pay to the Complainant a sum of Rs.25,000/- (Rupees twenty five thousand only) as compensation to the Complainant by taking back the MO-1 and MO-2 produced by the Complainant after realization of the amount. Failing which Opposite Parties are liable to pay interest on the said amount at the rate of 12% p.a. from the date of complaint till payment. And Rs.1,000/- (Rupees one thousand only) awarded as cost of the litigation expenses to the Complainant. Payment shall be made within 30 days from the date of this order.
The copy of this order as per the statutory requirements be forwarded to the parties free of charge and therefore the file be consigned to record.
(Page No.1 to 15 dictated to the Stenographer typed by her, revised and pronounced in the open court on this the 15th day of September 2010.)
PRESIDENT MEMBER
ANNEXURE
Witnesses examined on behalf of the Complainant:
CW1 – Sri.Bhoja Bhandary (a.k.a) Ramesh Bhandary – Complainant.
Documents produced on behalf of the Complainant:
Ex C1 – 02.07.2009: Invoice No.16978 for Rs.120/- of the Opposite Party No.3.
Ex C2 – 04.08.2009: 5 Photos of the bottles along with C.D. and bill.
Ex C3 – 26.09.2009: Lawyer’s notice sent to the Opposite Parties.
Ex C4 – : Postal acknowledgements (3 in numbers).
Ex C5 – 15.10.2009: Reply by the Opposite Party No.1.
Ex C6 – 31.10.2009: Lawyer’s rejoinder to letter of Opposite Party No.1.
Ex C7 – 05.11.2009: Postal acknowledgement of Opposite Party No.1.
Ex C8 – 10.11.209: Reply by the Opposite Party No.1.
Ex C9 – 25.11.2009: Lawyer’s notice sent to the Opposite Party No.1.
Ex C10 – 01.12.2009: Postal acknowledgement of Opposite Party No.1.
Ex C11 – 22.12.2009: Reply through advocate of Opposite Party No.1.
MO1 & MO2 – Two bottles of 330 Ml (Pint) of beer bearing brand name “Kingfisher Strong Premium Beer” batch No.10-4-2009 21:56 4E/1 produced by the Complainant.
Witnesses examined on behalf of the Opposite Parties:
RW1 – Sri.Shashidhar B, Working as Area Sales Manager of the Opposite Party No.1 and 2.
Documents produced on behalf of the Opposite Parties:
- Nil -
Dated:15.09.2010 PRESIDENT
