Tamil Nadu

StateCommission

A/259/2015

Pepsi foods private ltd - Complainant(s)

Versus

Nehru - Opp.Party(s)

M. Kandasamy

03 Nov 2021

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI

 BEFORE   Hon’ble THIRU. JUSTICE. R. SUBBIAH                  ::      PRESIDENT                       

                Tmt.Dr.S.M.LATHA MAHESWARI                            ::      MEMBER

 

F.A. No. 259/2015

  (Against the Order in C.C. No.441/2010, on the file of the DCDRC, Chennai (South))

                         DATED THE 03^RD  DAY OF NOVEMBER 2021

 

1. The Chief Executive Officer,

Pepsi Foods Private Ltd.,

3B DLF Corporate Park,

“S” Block Qutab Enclave,

Phase III, Gurgaon – 122 002,

Haryana,

India.

 

2. The Manager,

M/s. Pepsico India Holdings Pvt. Ltd.,

Sudha Centre 3^rd & 4^th Floors,

New No.31, Old No.19, Radhakrishnan Road,

Mylapore,

Chennai – 600 004.                                          .. Appellants/Opposite Parties 1 and 2.

 

                                             

- Versus -

1. Mr. Nehru,

S/o. Mr. Edinbaro,

No.6/5, Duming Kuppam,    

Pattinambakkam,

Chennai – 600 020.                                                  .. 1^st Respondent / Complainant.

 

2. S.K. Shankar,

M/s. St. Bede’s Canteen,

Santhome,

Chennai – 600 004.                                          .. 2^nd Respondent / 3^rd Opposite party.

 

Counsel for Appellants/opposite parties 1& 2    : M/s M. Kandasamy

1^st Respondent / Complainant                         : Served called absent

2^nd Respondent / 3^rd Opposite party                 : Given up                                                                                                                                                            

 

This appeal coming before us for final hearing today, on 03.11.2021 and on hearing the arguments of Appellant and on perusing the material records, this Commission made the following order in open court :-

ORDER

Tmt. Dr. S.M. LATHA MAHESWARI:

          This appeal has been filed by the appellants/ opposite parties 1 and 2 under section 15  of the Consumer Protection Act 1986 against the order of the District Consumer Disputes Redressal Commission, Chennai |(South).

1. Brief facts culminating  in to  appeal is as follows:-

The complainant was working in ING VYSYA as Sales Executive and the 3^rd opposite party was the owner of the canteen which was present inside the school premises who used to sell snacks of different branded companies and Pepsi Co Cool Drinks with different flavours.  The complainant on 27.10.2010 for his friend one Mr. Vinodh who visited the complainant had purchased two Pepsi 200 ml bottles from the 3^rd opposite party.  The complainant’s friend who consumed a little of the drink started vomiting and then the complainant found a dead insect inside his bottle too.  Immediately, the complainant informed Mr. Shankar/ the 3^rd opposite party and requested him to provide the bill for the cool drinks which was provided immediately vide bill dated:27.10.2010 for an amount  of Rs.46/- and complainant paid the cash immediately. The Complainant further instructed the 3^rd respondent not to sell any Pepsi cool drink to any student and took his friend to the nearby hospital.  The 3^rd opposite party immediately informed the Distributor of the cool drinks and its Tamil Nadu Unit.   One Miss. K. Anitha, the Head of the Tamil Nadu Unit on the same day visited and inspected the 3^rd opposite party’s shop but left the shop saying that it is a simple issue.   Shocked by her act, the complainant was put to severe mental agony and hardship.  Thus the complaint was filed against the opposite parties for supplying hazardous substances diligently knowing to be injurious to the life and safety of the common public with a prayer to direct the opposite parties to pay a compensation of Rs.15,25,000/- for the mental agony and negligence committed by them along with a cost of Rs.25,000/-.  

2.       The 1^st opposite party had filed written version which was adopted by the 2^nd opposite party.  It was stated that they were not engaged in manufacturing any carbonated beverages and the complainant had without any cause of action impleaded them as parties to the proceedings.  Further, it was alleged that there is no nexus between the 1^st opposite party and the complainant in the sale of the cool drinks alleged to had been purchased by the complainant.  It was also submitted that the complainant had not pleaded any specific allegations against them.  Thus, they sought for the dismissal of the complaint.  

3.       Proof affidavit was filed by the complainant along with documents marked as Ex.A1 to Ex.A5.   The opposite parties 1 & 2 filed proof affidavit but no documents were marked on their side.  The 3^rd opposite party remained ex-parte.  The Certificate of Analysis by Food Analysis Laboratory, King Institute Campus, Guindy was marked as Court’s Exhibit, Ex.C1.

4.       The District Commission on perusal of the pleadings and documents submitted before it allowed the complaint in part holding that the opposite parties had committed deficiency in service and also directed the opposite parties to pay a sum of Rs.50,000/- towards compensation for mental agony and hardship and Rs.5,000/- as cost of the proceedings.

5.       Aggrieved against the said order the opposite parties 1 & 2 have preferred the present appeal.

6.      Points for consideration:-      

1. Whether the complainant is successful in proving the alleged deficiency in service and negligence on the part of the opposite parties?

2. To what relief the complainant is entitled to?                  

7.       Point No.1

          Heard the Counsel for the appellant.   Inspite of sufficient notice, the 1^st respondent did not appear and the 2^nd respondent was given up by the appellants.  It is the case of the complainant that he had purchased the alleged contaminated Pepsi Cool drink 200ml bottle from the opposite party No.3, on 27.10.2010  for serving it to the friend of the complainant who had come to visit him. However, when his friend consumed a little quantity of the drink, he started vomiting and when the complainant saw his bottle he found one dead insect inside the bottle.  Immediately, he requested the 3^rd opposite party to provide a bill for him and also advised him not to sell the cool drink to any other person. As per the instruction by the complainant, the 3^rd opposite party informed the Distributor and the Tamil Nadu Unit branch.  The Head of the Tamil Nadu Unit one Miss. K. Anitha inspected on the same day but left the premises saying that it is only a small issue.   

8.       On the other hand the learned counsel appearing for the appellant argued that the alleged disputed cool drink bottle which is the subject matter of the complaint was not at all manufactured by them and it is a spurious product.    Further, he argued that even if such a bottle was manufactured by them it is difficult to believe that such a bottle with the alleged impurities would have gone unnoticed by so many people right from the stage of filling when there is light and visual inspection for foreign matter before sealing and even after sealing at the time of loading in crate and then from there to delivery truck till it is sold in the retail outlet to the consumer.   He also submitted that the soft drinks are manufactured in modern sophisticated plants which has a very high standard of hygiene and cleanliness.   Further the manufacturing process involved strict quality checks at various stages and also the raw materials used is of highest grade and quality and the water used in the manufacturing process is filtered, sterilized and absolutely clean. It was further submitted by him that the soft drinks beverages undergo multistage cleaning process at the bottling plant where there is no scope for contamination.  Thus the learned Counsel submitted that the complaint filed against them was a clear abuse of process of law   and that they did not commit any deficiency in service and sought for the appeal to be allowed setting aside the Order of the District Commission.   

9.       On going through the pleadings and the submissions made by the appellants, it is seen that the factum of purchase of the Pespi Cool drinks by the complainant from the 3^rd opposite party which is supposed to be a canteen inside the school premises is not disputed. However, the main defence raised by the appellant/ opposite parties is that they are not the manufacturers of the subject contaminated cool drink bottle and hence they cannot be made responsible for any consequences or damages that was caused by any spurious cool drinks sold in the market in their name. Without prejudice to the above defence they also stated that there is no chance for the cool drink to be brought to the market in such a contaminated form as the preparation of the cool drink  undergoes various cleaning processes and procedures at all levels from preparation, bottling, distributing and selling by the retailer.  First of all we are unable to accept the arguments by the appellants that they are not the manufacturers of the subject cool drinks for the reason that the alleged cool drinks bottle contained the wrapper which clearly shows the name of the opposite parties 1 & 2.  This view is strengthened further by the Food Analysis Report which clearly states that “the sample sent for analysis is said to be a sealed glass bottle with metal lid with printed label declaration”.  The appellants did not produce any evidence except vague and bald submissions that they are not the producers of the disputed bottle.  When it is their specific contention that the disputed bottle is a spurious cool drink sold in the market it is their burden to prove the same.  Thus we are of the view that the appellant’s contentions that they are not the manufacturers of the disputed bottle has to be brushed aside for lack of evidence and we hold that the complainant had clearly discharged the onus of proving that the disputed bottle was produced by the opposite parties / appellants. 

10.     The 2^nd contention /defence raised by the appellants is that there is no chance for the cool drink bottle to have come to the market in a contaminated form as it undergoes various process and prepared out of high quality raw materials and clean water.  With regard to the same, when we observe the report submitted by the food Analysis Laboratory as Ex.C1 in accordance with the inspection done as per Section 13 (1)(c) of the Consumer Protection Act, 1986, the result of the analysis is clearly given  as the subjected cool drink was contaminated in the words as follows:-

          “Dark brown coloured turbid liquid – aerated.  The Lehar Pepsi bottle of soft drink eminates foul smelling and contain a big dead beetle with black sediments at the bottom of the soft drink”.

 

Thus, the report was given clearly in its words that “as per rule 2 (ia) (f) of PFA Rules, 1955 if the article consists wholly or in part of any filthy putrid, rotten, decomposed or diseased animal or vegetable substance it is deemed to be unfit for human consumption”.  

The photograph Ex.A2, produced by the complainant prima facie shows the presence of an insect inside the bottle. In such circumstances, it is sufficiently proved that the subject cool drink contains contaminated particles and that the opposite parties /appellants herein who are the manufacturers and the 3^rd opposite party who is the seller should be held responsible and liable for selling a product which is hazardous to the general public.  The complainant had acted in a diligent manner in proving his case by filing the complaint and sending the disputed contaminated cool drink to the food laboratory to prove that the Pepsi Cool drink purchased by him was a contaminated one.   Thus we answer this point in favour of the complainant and as against the appellants herein.

11.     Point No.2:-

With regard to the relief to be granted to the complainant, the District Commission has awarded Rs.50,000/- which we consider as a just and reasonable compensation for the mental agony and hardship suffered by the complainant. The findings of the District Commission is thus confirmed and the point No.2 is answered accordingly.

In the result, the appeal is dismissed.  No order as to costs.

 

 

S.M. LATHA MAHESWARI                                                                         R. SUBBIAH             

          MEMBER                                                                                           PRESIDENT