RESERVED
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
UTTAR PRADESH, LUCKNOW
APPEAL NO. 2636 OF 2007
(Against judgment and order dated 06-11-2007 in Complaint
Case No. 290/2003 of the District Consumer Forum, Rampur )
M/s. PepsiCo India Holdings Private Limited
A-2, UPSIDC Industrial Area, Site II,
Bazpur, Udham Singh Nagar
Uttranchal
Through its authorized signatory
...Appellant
Vs.
- Nazis Shamshi
S/o Sri Shakil Ahmad
R/o Mauja Punjviyaon Degree College Road
Rampur, U.P.
- Madan Traders
Pepsi Distributors, Radha Road
Rampur
Through Proprietor Pepsi Distributor
Sri Raj Kumar Madan, Radha Road
State Bank of India (Krishi Branch)
Civil Lines, Rampur
...Respondents
BEFORE:
HON'BLE MR. JUSTICE AKHTAR HUSAIN KHAN, PRESIDENT
HON’BLE MRS. BAL KUMARI, MEMBER
For the Appellant : Sri Vikas Singh, Advocate.
For the Respondent : Sri Isar Husain, Advocate.
Dated : 30-03-2017
JUDGMENT
PER MR. JUSTICE AKHTAR HUSAIN KHAN, PRESIDENT
Present appeal has been filed under Section-15 of the Consumer Protection Act 1986 before State Commission against judgment and order dated 06-11-2007 passed by District Consumer Forum, Rampur in Complaint Case No. 290 of 2003 Nazis Shamshi V/s Madan Traders, Pepsi Distributors and M/s. PepsiCo India Holdings Private whereby District Consumer Forum has allowed complaint partially on cost of Rs.1,000/- with direction that within one month from the date of judgment said opposite parties shall pay damages of Rs.5,000/- failing which its amount shall swell to its double and on it 8% per annum interest shall become payable from 06-05-2003 till date of payment.
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Learned Counsel Mr. Vikas Singh appeared for appellant.
Learned Counsel Mr. Isar Husain appeared for respondent.
We have heard learned Counsel for the parties and perused impugned judgment and order as well as records.
Learned Counsel for appellant has contended that impugned judgment and order passed by District Consumer Forum is against law as well as evidence. He has further contended that the complainant is not a consumer of appellant.
Learned Counsel for the respondent/complainant has opposed appeal and contended that the impugned judgment and order passed by District Consumer Forum is in accordance with law and evidence. The appellant is manufacturer. As such respondent/complainant is consumer of his product.
We have considered the submissions made by learned Counsel for the parties.
According to complaint version of complainant/respondent is that he bought 72 bottles of Pepsi, 20 bottles of Mirinda and 48 bottles of Soda from opposite party no.1 Madan Traders who was Distributor of opposite party no.2 now appellant for consumption in his birthday celebration on 06-05-2003. During celebration pepsi bottles were served to guests and complainant also took one bottle of Pepsi. He found that contents of bottle were less than prescribed quantity. Therefore the bottles were not consumed due to which the function of his birthday celebration was disturbed and he was faced to hear taunt of his guests.
Both opposite parties no. 1 and 2 appeared before District Consumer Forum and filed written statements.
In written statement it has been admitted that opposite party no.1is distributor of opposite party no.2. In written statement it has been further stated by opposite parties that two complaints bearing No. 272/2003 and 290/2003 have been filed by complainant before District Consumer Forum, Rampur on same facts with similar prayer. In written statement it has been further stated by both opposite parties that whole story narrated by complainant is false and concocted .
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Both parties have filed affidavits in evidence.
After having gone through pleadings of the parties as well as evidence on record the District Consumer Forum has accepted the version of complaint. The District Consumer Forum has allowed complaint partially and passed order as mentioned above.
We have examined the judgment and order passed by District Consumer Forum carefully.
Perusal of impugned judgment shows that disputed bottle has been produced before District Consumer Forum on the date of filing of complaint but there is no note or observation of Forum to the effect that the content of bottle is less than prescribed quantity. Content of bottle has not been put on test of measurement or weight. District Consumer Forum has not recorded observation or finding of shortage of content of bottle after making inspection of bottle at the time of judgment also. The allegation of shortage of content of bottle made by complainant and witnesses is vague. It has not been stated by complainant and witnesses as to what was the quantity of content found in bottle and to what extent it was falling short.
Indisputably bottle has not been sent for chemical examination as required by Section 13(1)(c) of the Consumer Protection Act 1986.
In view of discussion made above after having gone through evidence on record we are of the view that the judgment and order passed by District Consumer Forum is erroneous and against evidence.
In view of above appeal is allowed and impugned judgment and order is set aside.
Rs.3,000/- deposited under Section-15 of the Consumer Protection Act 1986 in this appeal shall be refunded with interest to appellant.
Let copy of this order be made available to the parties positively within 15 days as per rules.
( JUSTICE A H KHAN )
PRESIDENT
( SMT. BAL KUMARI )
MEMBER
Pnt.
