Haryana

Ambala

CC/218/2019

Harman Confectionary - Complainant(s)

Versus

PAN Agencies - Opp.Party(s)

Rohit Garg

03 Oct 2022

ORDER

 BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, AMBALA.

 

                                                          Complaint case no.         :     218 of 2019

                                                          Date of Institution           :     17.07.2019

                                                          Date of decision    :     03.10.2022.

Harman Confectionary, Shop No.1, Chota Khudda, Ambala Cantt through its owner Rajiv

                                                                                   ……. Complainant

                                       Versus

1. PAN Agencies, # 8, Main Kardhan Road, Prabu Prem Puram, Ambala Cantt through its Prop./ Owner/ Authorized Person
2. Patanjali Food and Herbal Park, Laksar Road, Padartha, Haridwar (Uttarakhand) through its Customer Service Manager
3. Suneer Enterprises, B-58, RIICO Industrial Area, Bassi Extension, BASSI, Jaipur, Rajasthan- 303301 through its Manager/ Authorized Person
4. Patanjali Peya Pvt. Ltd. Kripalu Bagh, Kankhal, Haridwar (Uttarakhand) through its Manager/ Authorized Person

….…. Opposite Parties No.1 to 4

 

5. Bureau of Indian Standards

Address-1- # C-Scheme, Ashok Nagar, Jaipur (Rajasthan) through its Authorized Person

Address-2- # Prithavi Raj Road, Opposite Bharat Overseas Bank Ltd., C-Scheme, Jaipur (Rajasthan) through its Authorized Person.

….…. Performa Party  No.5

Before:        Smt. Neena Sandhu, President.

                   Smt. Ruby Sharma, Member,

Shri Vinod Kumar Sharma, Member.

 

Present:       Shri Rohit Garg, Advocate, counsel for the complainant

                     Shri Shaurya Bhatia, Advocate, counsel for the OP No.1.

                   Shri Anil Mehta, Advocate, counsel for the OPs No.2 & 4

                   Shri Ripanjeet Singh, Advocate, counsel for the OP No.3.

                   OP No.5 ex parte.

 

Order:        Smt. Neena Sandhu, President.

1.                 Complainant has filed this complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter referred to as ‘the Act’) against the Opposite Parties (hereinafter referred to as ‘OPs’) praying for issuance of following directions to them:-

(i) To refund full amount of Rs.165/- which was paid by the complainant.

(ii) To cancel the BIS Mark issued to OPs No.2 to 4 by the OP No.5.

(iii) To pay Rs.50,000/- on account of unfair trade practice.

(iv)  To pay Rs.50,000/- as compensation for the mental agony and physical harassment suffered by the complainant.

(v)  To pay Rs.21000/- as litigation charges.

                                      OR

 (iv) Grant any other relief, which this Hon'ble Commission deems fit and proper as per the facts and circumstances of this case.

2.             Brief facts of this case are that the complainant is running a shop under the name and style ‘Harman Confectionery' at Chota Khudda, Ambala Cantt and is sole proprietor thereof, wherein he deals in confectionery items, for earning his livelihood. On 08-04-2019, the complainant purchased sealed water bottles- 'Patanjali Divya Jal'- four bottles of 1 litre each amounting to Rs.480/- and one bottle of 2 litre amounting to Rs.165/- from OP No.1 who is authorized dealer/ vendor of the OPs No. 2 to 4, against Bill No.4876, dated 08-04-2019. The said bottles were packed by the OP No.1 in a box and was handed over to the complainant for further sale. When the water bottles were taken out from the box, the complainant was shocked to see that some foreign particles were floating in one of the water bottle i.e. the water bottle of 20 litres bearing batch no.RJ0140009 bearing manufacturing date as 06-10 2018. The complainant approached the OP No.1 and showed the said sealed contaminated water bottle with some foreign particles, yet, it refused to take any action and suggested the complainant to consult OP NO.2. Thereafter, the complainant approached OPs No.1 to 4 in the matter, but to no avail. The complainant is facing great mental tension, agony, harassment, embarrassment and till today, has not been able to come out of this. Hence, the present complaint.
3. OP No.1 appeared through its counsel and filed its written version wherein it raised preliminary objections to the effect that the complainant did not fall under the definition of consumer; this complaint is maintainable under Food Safety and Standards Act, 2006 and not before this Commission etc. On merits, it has been stated that it is complainant's own case as established through record that the product was in original sealed condition when bought, therefore the OP No.1 was admittedly selling the bottles of the packaged drinking water in the same condition received from OPs No.2 to 4. No unfair trade practice can be alleged on account of alleged presence of "foreign particle" in the bottle of 'Patanjali Divya Jal' (net quantity 20 liters) as the OP No.1 is only an agent of OPs No.2 to 4 and not the bottler nor the packager of the alleged packaged drinking water. The complainant has failed to place on record any material to indicate that the alleged bottle had any foreign substance which is harmful for human consumption. Moreover, the complainant has failed to place any material on record indicating that he had suffered any loss on account of such sale of goods. The complainant cannot be considered as a consumer as it is evident that the said goods were bought for commercial purpose i.e. re-sale. Rest of the averments of the complainant were denied by the OP No.1 and prayed for dismissal of the present complaint with heavy and exemplary costs.
4.           Upon notice, OPs No.2 & 4 appeared and filed written version and raised preliminary objections with regard to locus standi, maintainability, not come with clean hands and suppressed the material facts etc.  On merits, it has been stated that the products of OP No.4 goes through strict quality checks and control. Automatic machinery is used for packaging the water bottles and are kept in hygienic areas. OPs No.2 and 4, after receiving complaint in the matter, visited the premises of complainant for the remedy but he denied the same. Rest of the averments of the complainant were denied by the OPs No.2 and 4 and prayed for dismissal of the present complaint with exemplary costs.
5.           Upon notice, OP No.3 appeared and filed written version and raised preliminary objections with regard to locus standi, maintainability, not come with clean hands and suppressed the material facts etc.  On merits, it has been stated that the products of OP No.4 manufactured by OPs No.3 goes through strict quality checks and control. Automatic machinery is used for packaging the water bottles and are kept in hygienic areas. Either the bottle in question is not of OP No.4 or the complainant himself has tempered it. No expert opinion has been placed on record by the complainant to prove his case.  Rest of the averments of the complainant were denied by the OP No.3 and prayed for dismissal of the present complaint with exemplary costs.
6.           Upon notice, none appeared on behalf of the OP No.5, before this Commission, therefore, it was proceeded against ex-parte vide order dated 30.08.2019.
7.           Learned counsel for the complainant tendered affidavit of Shri Rajiv, owner of Harman Confectionary, Shop No.1, Chota Khudda, Ambala Cantt. District Ambala (Haryana) as Annexure CW1/A along with documents Annexure C-B to C-D and closed the evidence on behalf of the complainant. On the other hand, learned counsel for the OP No.1 tendered affidavit of Shri Puneet Anand son of Shri Navratan Anand Proprietor of PAN Agencies, Ambala Cantt. as Annexure OP-1/A and closed evidence on behalf of the OP No.1. Learned counsel for OP No.2 and 4 tendered affidavit of Shri Mayanak Bahugana, Authorized Signatory of Patanjali Food and Herbal Park, as Annexure OP-2 & 4/A and closed evidence on behalf of the OP No.2 and 4. Learned counsel for OP No.3 tendered affidavit of Nishant Indal son of Jai Ram Indal, Authorized Signatory of Suneer Enterprises having its registered office at B-58, RIICO Industrial Area Bassi Extension, Bassi, Jaipur Rajasthan 303301 as Annexure OP-3/A and closed evidence on behalf of the OP No.3.

8.       We have heard the learned counsel for the complainant and learned counsel for the OPs No.1 to 4 and have also gone through the record very carefully.

9.       Learned counsel for the complainant submitted that the OPs No.1 to 4 were under obligation to compensate the complainant, as they are negligent and deficient in providing the service viz sale of contaminated water bottles which were not safe for human consumption and had the said bottles been consumed by his customers, anything would have happened. He further submitted that OP No.5 should be directed  to cancel the licence of  OPs No.1 to 4.

10.     On the contrary, the learned counsel for the OP No.1 to 4 while denying the allegations levelled by the complainant submitted that the complainant has failed to place on record any expert report/laboratory report to prove that  the water bottle in  question was contaminated or that the said bottle belongs to OPs No.1 to 4. He further submitted that since the complainant has not purchased the water bottle for self consumption therefore he did not  fall within the definition of consumer.  

11.     First coming to the objection taken regarding the status of the complainant as a consumer, it may be stated here that it has been clearly stated by the complainant in his complaint that the water bottles in question were purchased by him for his shop, for onward sale of the same to his customers, as he is running the said shop, for earning his livelihood. The OPs No.1 to 4 have failed to prove that by selling the said water bottles, the complainant was earning huge profits, rather than earning his livelihood. In this view of the matter, objection taken by the OPs No.1 to 4  stands rejected.     

12.     Now coming to the merits of this case, it may be stated here that the complainant by way of placing on record tax invoice dated 08.04.2019, Annexure CD has proved that the water bottles in question, which were manufactured by OPs No.2 to 3, has been purchased by him from OP No.1. It is significant to mention here that at the time of admission of this complaint, the bottle in question alongwith mineral water contained therein was produced before this Commission. On verification of the said bottle, very carefully and minutely, through naked eyes, some foreign substance/particles was/were found floating therein. Even the seal of the said bottle was also found intact and there was no mark of any tempering thereon. Thus, once it was evident from the naked eyes that the bottle in question, filled with mineral water, contained fungus particles floating therein, despite the fact that its seal was also intact, then there was no need for this Commission to send it to the laboratory for its testing. Our this view is supported by the ratio of law laid down by the Hon'ble State Commission, Delhi, in Skol Breweries Ltd. vs Amarjeet Singh Sahnl in Appeal No. F.A. 721/2006 wherein was held that ".. the District forum has seen and examined the bottle and it was crystal clear that it contained visible amount of dirt. If any product, which is for human consumption, is found to be unpalatable or not consumable even on physical examination by naked eyes it is not necessary for sending the same for chemical analysis" and in M/s. Moon Beverages Ltd., Vs. Vinod Gupta & Ors 2010 (3) CPC 114 wherein it was held that:- .... Dead flies in Maaza drink bottle Dead flies found in Maaza drink bottle Case of ab initio loquitur established No further evidence is required in support of claim OP directed to pay compensation, Rs. 5,000/- to complainant and to deposit a sum of one lac rupees in account of State Commission Welfare Fund by District Forum interference in appeal is not warranted…”.

13.     In the present case also, the water contained in the bottle in question is no doubt contaminated, as some foreign substance/particles is/are found lying therein, which is visible to the naked eyes. However, still if the OPs No.1 to 4 were not satisfied, the onus was upon them to prove to the contrary or to move an application before this Commission to get the water bottle inspected by any authorized laboratory, which they failed to do so. Thus keeping in view the above settled law and evidence placed on file and also the physical inspection of the bottle in question, this Commission concludes that OPs No.1 to 4 were bound to maintain the quality and standard of the product which they float in the market but in the case in hand, they have failed to do so and on the other hand, floated the product/bottle containing mineral water, which is not safe for human consumption, hence they are liable to be penalized for the same.

14.     As far as reliance placed by OP No.1 on Britannia Industries Limited Vs. Surendra Ramkishan Dhelia (Dr.), I (2022) CPJ 175 (NC) and Narendra Tomar Vs Bisleri International Pvt. Ltd. and others, RP No.42 of 2018, decided on 17.01.2018 is concerned, it may be stated here that in Britannia Industries Limited’s case (supra) the complainant failed to prove that the bread purchased by him  contained plastic pieces. Similarly, in  Narendra Tomar’s case (supra), the bottle in dispute was not produced before the District Forum for inspection. It was under these circumstances, that the  Hon’ble National Commission held that the complainant has failed to prove its case.

15.     However in the present case, as stated above, the  bottle in question alongwith mineral water contained therein  was produced before this Commission. On verification/inspection of the said bottle, very carefully and minutely, through naked eyes, some foreign substance/particles was/were found lying therein and even the seal of the said bottle was also found intact and there was no mark of any tempering thereon. Thus, no help can be drawn by  OP No.1 from the judgments referred to above.   

16.              Since no deficiency in providing service has been proved on the part of OP No.5, as such, the complaint filed by the complainant against the OP No.5 is liable to be dismissed.

17.              In view of the aforesaid discussion, we hereby dismiss the present complaint against OP No.5 and allow the same against OPs No.1 to 4. The OPs No.1 to 4, jointly and severally, are directed as under:-

1. To refund the amount of Rs.165/- i.e cost of the water bottle in question to the complainant alongwith interest @4% p.a. from the date of filing of this complaint i.e 17.07.2019, till realisation. 
2. To pay Rs.3,000/- as compensation for the mental agony and physical harassment suffered by the complainant.
3. To pay Rs.2,000/- as litigation expenses.

          The OPs No.1 to 4 are further directed to comply with the aforesaid directions within the period of 45 days from the date of receipt of the certified copy of this order, failing which the OPs shall pay interest  @ 6% per annum on the awarded amount besides litigation expenses, for the period of default, till realisation. Certified copies of the order be sent to the parties concerned as per rules.  File be annexed and consigned to the record room.

Announced on: 03.10.2022.

 

 

          (Vinod Kumar Sharma)  (Ruby Sharma)               (Neena Sandhu)

              Member                         Member                       President