DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, BATHINDA CC.No.313 of 15-07-2010 Decided on 23-12-2010
Kulwant Rai, aged about 49 years S/o Sh. Chanan Ram, resident of Mehraj Basti, near Water Works, Rampura, Tehsil Phul, Distt. Bathinda. .......Complainant
Versus
Nabha Food & Beverages, D-33, Ind. Focal Point, Nabha, Distt. Patiala. Lovely General Store, Bhai Rupe Wale, Bittu Di Hatti, opposite Animal Hospital, Rampura Mandi, Tehsil Phul, Distt. Bathinda, through its Proprietor.
......Opposite parties
Complaint under Section 12 of the Consumer Protection Act, 1986.
QUORUM
Smt. Vikramjit Kaur Soni, President. Dr. Phulinder Preet, Member. Present:- For the Complainant: Sh.Kulwant Rai, complainant in person. For Opposite parties: Sh.Puneet Garg, counsel for opposite party No.2. Opposite party No.1 exparte.
ORDER
VIKRAMJIT KAUR SONI, PRESIDENT:-
1. The present complaint has been filed by the complainant under Section 12 of the Consumer Protection Act, 1986 as amended up-to-date (Here-in-after referred to as 'Act'). The brief facts of the complaint are that the opposite party No.1 is manufacturer of cold drinks and supplies the cold drinks of Brand Funda, Flick Cola and Due. The opposite party No.2 is the distributor of the opposite party No.1 and the opposite party No.2 runs the shop at Rampura in the name and style of Lovely General Store. On 15.05.2010, the complainant purchased a box of Flick Cola drinks containing 9 bottles for Rs.960/- from the opposite party No.2. No date of manufacturing, batch number or expiry date has been mentioned on the said box. In one bottle out of 9 bottles, there was frog inside the bottle and the bottle was sealed and when the complainant noticed the frog inside it, he approached the opposite party No.2 and showed the said bottle, but the opposite party No.2 did not listen to the complainant. Hence, the complainant has filed this complaint for deficiency in service with prayer to refund of Rs.960/- besides Rs. 50,000/- as compensation and cost. 2. The opposite party No.2 has appeared before this Forum and filed written statement and pleaded that the opposite party No.2 is neither the distributor of the opposite party No.1 nor sells the Funda, Flick Cola or Due, he runs a very small general store. No bottle of cold drink has been purchased by the complainant from the opposite party No.2. Since the opposite party No.2 does not deal in sale and purchase of the cold drinks nor its agent or distributor of the opposite party No.1. He has no connection for the sale of the Flick Cola drink. With regard to date of manufacturing & expiry date or batch number, the opposite party No.2 has no concern with the same as whatever product is manufactured by a company, the company is liable for the same. The opposite party No.2 further pleaded that the seals of the bottles can be tampered at any time even an ordinary man can do so. The complainant had never come to the shop of the opposite party No.2 nor showed any bottle. He further pleaded that the complainant might have purchased the bottle in question from some where else and had concocted a false story of purchasing the bottle from Rampura, just to make the jurisdiction as Bathinda Forum. 3. Despite service of notice, the opposite party No.1 has failed to appear before this Forum. So, exparte proceedings are taken against the opposite party No.1. 4. Parties have led their evidence in support of their respective pleadings. 5. Arguments heard. Record alongwith written submissions submitted by the complainant and opposite party No.2 perused. 6. The complainant had purchased 9 bottles of Flick Cola Drinks for a sum of Rs.960/- on 15.05.2010, manufactured by the opposite party No.1 i.e. Nabha Food & Beverages, D-33, Ind. Focal Point, Nabha. He has purchased these bottles from the opposite party No.2. The complainant found that there was frog in one bottle. The bottle was sealed from the top. No date of manufacturing, batch number or expiry date has been mentioned on the said box. The complainant approached the opposite party No.2 i.e. dealer from whom, he has purchased the bottles of cold drink and asked him to exchange but the opposite party No.2 refused to do anything. 7. The opposite party No.2 has submitted that the opposite party No.2 is neither the distributor of the opposite party No.1 nor sells the Flick Cola or Due rather he runs a very small general store, the complainant had never purchased the cold drink bottles form it. The opposite party No.2 further submitted that the opposite party No.2 has no connection for the sale of the Flick Cola drink as he is neither the agent nor the distributor of the opposite party No.1 and has also never sold the Flick Cola drink to the complainant. The opposite party No.2 has submitted that with regard to date of manufacturing & expiry date or batch number, the opposite party No.2 has no concern with the opposite party No.1 as whatever product is manufactured by a company, the company is solely liable for the same. The complainant has produced Flick Cola bottle Ex.C-1 and Ex.C-2 in his evidence. The picture clearly shows that there is frog inside the bottle. The same bottle has been produced by the complainant in physical form before this Forum as Ex.C-4. 8. A perusal of this bottle shows that there is a frog inside the bottle. When the complainant filed the complaint, during preliminary hearing, it was observed that there was a frog inside the bottle and the bottle was properly sealed from the top. The bottle of Flick Cola drink is manufactured by Nabha Food & Beverages, D-33, Ind. Focal Point, Nabha, Distt. Patiala. On the cap of the bottle A 317 was written, date mentioned on this bottle 18.04.2010 and price as Rs.60/-. The opposite party No.2 has produced the affidavit Ex.R-1 of Gopal son of Darshan Lal who has deposed in his affidavit that no bottle of cold drink has been purchased by the complainant and it has no concern for sale of the Flick Cola drink. The opposite party No.2 has no concern with its date of manufacturing, batch number or expiry date. The deponent has deposed in his affidavit that the seals on the bottles can be tampered with any time even by an ordinary man. The complainant has never come to the shop of the deponent nor showed any bottle nor he has any concern with the same. The complainant might have purchased the bottle from some where else and has concocted false story of purchasing the bottle from Rampura. The opposite party No.2 had denied that neither he is distributor nor an agent of Flick Cola drink and Due rather he is running a very small general store. 9. It has been usually observed and a judicial notice can be taken that on very small general stores/shops, the products of sub-standard make are sold and they never issue any bill for any article to the customers. The opposite party No.1 has already proceeded exparte. No written statement has been filed on behalf of the opposite party No.1. The opposite party No.2 no where in his affidavit has mentioned that the complainant has any ill-will or any dispute with the opposite party No.2 that is why he has made him as a party to his complaint and has filed complaint against it. No such evidence has been placed on file to show that there is any dispute between the parties which can lead the complainant to file the complaint against the opposite party No.2. The contents of the bottle containing the frog can be seen with naked eye. The seal of the bottle in question was perused by this Forum which was intact and original one. The seal was not seemed to be tampered by any body from any angle. 10. Therefore, this Forum is of the considered view that there is deficiency in service and unfair trade practice on the part of manufacturer. The manufacturer i.e. opposite party No.1 is responsible for the products manufactured, floated, marketed and distributed by it in the open market. The opposite party No.2 has not produced any list of distributor or agents of the opposite party No.1 to prove his version that he is neither an agent or distributor of the opposite party No.1. The contents of the bottle containing frog can be seen without any help as the bottle produced by the complainant at the time of filling the complaint than in his evidence on 22.11.2010. The full body of the dead frog was visible to the eyes when evidence was perused at the time of closing the evidence by the complainant. The body was shattered into pieces and became debris which were also visible with the naked eye. The support can be sought by the law laid down by the Hon'ble National Consumer Disputes Redressal Commission, New Delhi in case titled Aradhna Soft Drinks Company & Anr. Vs. Dr. Sameer Bhardwaj & Anr. 2010 (III) CPJ, 325(NC), wherein, it has been held that:- “Consumer Protection Act, 1986 – Sections 2(1)(g), 2(1)(oo),14(1)(d), 21(b) – Food and Beverages – Spurious soft drinks – Foreign material present – District Forum directed Ops to pay Rs.2,000/- as compensation – Appeals by Ops dismissed – Appeal by complainant allowed, compensation enhanced – Hence revision – Contention, State Commission not justified in enhancing compensation in absence of test report, rejected – Foreign material visible from naked eye in sealed bottles – Forum observed sending to laboratory for analysis not necessary – State Commission fully justified in enhancing meagre amount of compensation from Rs.2,000/- to Rs.50,000/- - State Commission order upheld. Result: Revision Petition dismissed.” The support can be sought by the precedent laid down by the Hon'ble Rajasthan State Consumer Disputes Redressal Commission, Jaipur in case titled Varun Beverage Ltd. Vs. Santosh Sharma, 2010(III) CPJ 64, wherein, it has been held that:- “Consumer Protection Act, 1986 – Sections 2(1)(f), 2(1)(g), 14(1)(d), 15 – Food and Beverage – Cold drink adulterated – Carat of Pepsi bought by complainant – Foreign material found inside one bottle – Manufacturing defect and deficiency in service alleged – Complaint allowed – O.P. directed to refund price of bottle alongwith compensation of Rs.10,000 – Further directions to pay Rs. 1,50,000/- towards Rajasthan Consumer Welfare Fund – Hence appeal – Contention, bottle not sent for expert opinion, no foreign material proved, rejected – Bottle examined by Forum itself – Seal of bottle found intact – Foreign material inside bottle, proved – Order awarding Rs.1,50,000/- to be paid towards Rajasthan Consumer Welfare Fund set aside – Order modified.” 11. In such circumstances, this complaint is accepted against the opposite party No.1 with Rs.20,000/- as compensation and Rs.2,000/- as cost and the opposite party No.2 is directed to refund Rs.60/- which he has charged from the complainant on account of Funda, Flick Cola bottle. Compliance of this order be made within 30 days from the date of receipt of copy of this order. 12. A copy of this order be sent to the parties concerned free of cost and file be consigned for record. '
Pronounced in open Forum (Vikramjit Kaur Soni) 23.12.2010 President
(Dr. Phulinder Preet) Member
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