Tamil Nadu

South Chennai

248/2011

P.Sakthivel - Complainant(s)

Versus

Pepsico holdings India Pvt Ltd & others - Opp.Party(s)

P.Chandrasekaran & others

11 Apr 2019

ORDER

                                                                        Date of Filing  : 25.08.2011

                                                                          Date of Order : 11.04.2019

                                                                                  

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, CHENNAI (SOUTH)

@ 2^ND Floor, T.N.P.S.C. Road, V.O.C. Nagar, Park Town, Chennai – 3.

 

PRESENT: THIRU. M. MONY, B.Sc., L.L.B, M.L.                    : PRESIDENT

TR. R. BASKARKUMARAVEL, B.Sc., L.L.M., BPT., PGDCLP. : MEMBER

 

C.C. No.248/2011

DATED THIS THURSDAY THE 11^TH DAY OF APRIL 2019

                                 

Mr. P. Sakthivel,

S/o. Mr. K. Perumal,

No.3, New No.5,

Meeyan Sahib 2^nd Street,

Chepauk,

Chennai – 600 005.                                                      .. Complainant.                                                       

                                                                                           ..Versus..

1. Pepsico Holdings India Private Limited,

Rep. by its Vice President,

New No.31, Old No.19,

Sudha Centre, 3^rd Floor,

Dr. Radhakrishnan Salai,

Mylapore,

Chennai – 600 004.

 

2. Pepsico India Marketing Company,

No.19, 3^rd Floor,

Wellington Plaza,

Anna Salai,

Chennai – 600 002.

 

3. Pepsico India Holdings Private Limited,

Rep. by its Assistant Manager Maintenance,

No.6, GST Road,

Mamantur,

Maduranthakam,

Kanchipuram – 603 111.

 

4. Aroma Bakery,

Rep. by its Proprietor,

No.28.5, Harris Road,

Chennai – 600 002.                                                 ..  Opposite parties.

Counsel for the complainant                  : M/s. P. Chandrasekaran &

                                                                  another

Counsel for the opposite parties 1 to 3 : M/s. M. Kandasamy &

                                                                  another

4^th Opposite party                                      : Exparte

 

ORDER

THIRU. M. MONY, PRESIDENT

       This complaint has been filed by the complainant against the opposite parties under section 12 of the Consumer Protection Act, 1986 pray to a sum of Rs.1,00,000/- towards compensation for punitive damages  and cost of Rs.20,000/- to the complainant.

1.    The averments of the complaint in brief are as follows:-

The complainant submits that on 23.06.2011, he purchased a soft drink namely Pepsi 200 ml from the 3^rd opposite party’s shop on payment of Rs.9/-.  The expiry date is 6 months from the date of packing i.e. from 09.04.2011.  The complainant submits that immediately after purchasing the soft drinks, on inspection, the complainant found mentos (mint chocolate) wrapper floating inside the sealed bottle. Hence, the complainant immediately complained the same to the 4^th opposite party who in turn, informed the 1^st, 2^nd and 3^rd opposite parties who are the manufacturer, suppliers of the soft drinks Pepsico and the mentos wrapper floating inside the sealed bottle.   The complainant submits that he is a regular customer of Pepsico soft drinks seriously affected both mentally, physically and psychologically with regard to the consumption of Pepsico soft drinks continuously for several years.  The complainant submits that the foreign body namely; mentos wrapper seen inside the bottle which is hazardous to health and long life. Hence, the complainant issued legal notice dated:25.07.2011 for which, the 2^nd opposite party issued reply notice dated:09.08.2011 with untenable contentions.  The act of the opposite parties amounts to deficiency in service and unfair trade practice which caused great mental agony.  Hence, the complaint is filed.

2.      The brief averments in the written version filed by opposite parties 1 to 3 is as follows:

The opposite parties 1 to 3 specifically deny each and every allegations made in the complaint and put the complainant to strict proof of the same.    The opposite parties 1 to 3 state that the law is well settled that the consumer should prove and substantiate the loss suffered for claiming compensation.  The opposite parties 1 to 3 state that the allegation that the sealed bottle containing mentos wrapper is false.  Because it is impossible since such bottle can be manufactured and marketed by the opposite parties 1 to 3 after thorough inspection crossing several stages before delivery.  The opposite parties 1 to 3 state that the complainant could not have suffered any loss or injury as he noticed the alleged defects even before opening the alleged bottle.  Section 14 (1) (d) of the Act provides for compensation “For any loss or injury suffered by the consumer due to the negligence of the opposite party”.   It is clear that the complainant had not suffered any loss or injury and the alleged bottle was not taken for consumption purposes.  The opposite parties 1 to 3 state that the compensation claimed is exorbitant.  Therefore, there is no deficiency in service on the part of the opposite parties 1 to 3 and hence, the complaint is liable to be dismissed.

3.     In spite of receipt of notice the 4^th  opposite party has not appeared before this Forum and hence, the 4^th opposite party is set exparte.

4.     To prove the averments in the complaint, the complainant has filed proof affidavit as his evidence and documents Ex.A1 to Ex.A6 are marked.  Proof affidavit of the opposite parties 1 to 3 is filed and no document is  marked on the side of the opposite parties as their evidence.

5.      The point for consideration is:-

Whether the complainant is entitled to a sum of Rs.1,00,000/- towards compensation for mental agony, and punitive damages with cost of Rs.20,000/- as prayed for?

6.      On point:-

The 4^th opposite party remained exparte.   No claim made against him also.  The complainant and the opposite parties 1 to 3 filed their respective written arguments.  Heard the opposite parties’ Counsel also.  Perused the records namely; the complaint, written version, proof affidavits and documents.  The complainant pleaded and contended that on 23.06.2011, he purchased a soft drink namely Pepsi 200 ml from the 3^rd opposite party’s shop on payment of Rs.9/- as per Ex.A1, cash bill.  The expiry date is 6 months from the date of packing i.e. from 09.04.2011.  Further the contention of the complainant is that immediately after purchasing the soft drinks, on inspection, the complainant found mentos (mint chocolate) wrapper floating inside the sealed bottle. Hence, the complainant immediately complained the same to the 4^th opposite party who in turn, informed the 1^st, 2^nd and 3^rd opposite parties who are the manufacturer, suppliers of the soft drinks Pepsico and the mentos wrapper floating inside the sealed bottle.   Further the contention of the complainant is that he is a regular customer of Pepsico soft drinks seriously affected both mentally, physically and psychologically with regard to the consumption of Pepsico soft drinks continuously for several years.  Further the contention of the complainant is that the foreign body namely; mentos wrapper seen inside the bottle which is hazardous to health and long life.   Hence, issued legal notice as per Ex.A2 dated:25.07.2011 for which, the 2^nd opposite party issued reply notice dated:09.08.2011 as per Ex.A6 with untenable contentions. So, the complainant was constrained to file this case for claiming compensation of Rs.1,00,000/- with cost of Rs.20,000/-.  Further the contention of the complainant is that immediately after filing the case, CMP. No.502/2011 was filed on 25.08.2011 to sent the impugned Pepsi 200 ml bottle for chemical analysis and scientific report.  The Food Analysis Laboratory, Kings Institute Campus, Guindy, Chennai – 600 032 submitted a report Dated:26.09.2011.  After due analysis the report reads as follows:

“I am  of the opinon that the said sample is found to contain foreigh matter, namely “mint chocolate mintos wrapper” and also the “Total plate count per ml” of the sample is “2.0 x 10²cfu” the presence of these makes the sample “Un whole same and unfit for consumption” and hence deemed to be Adulterated.

The said report is marked as Ex.C1 which confirms the foreign body is unfit for consumption and adulterated shall cause harm to health which again created panic to the complainant.  Further the contention of the complainant is that across the world people having faith in the privilege of the soft drinks but they are contaminated. 

7.     The learned Counsel for the opposite parties 1 to 3 would contend that the law is well settled that the consumer should prove and substantiate the loss suffered for claiming compensation. In the present case, the complainant has not even whispered anything about the loss or mental agony resulting huge damage for claiming such exorbitant compensation.   But on a careful perusal of the records, it is seen that the complainant purchased Pepsi 200 ml soft drinks in which, there is a foreign body visible to naked eye is not denied.  It is also seen that the complainant is a regular consumer of the said Pepsico soft drinks.  Further the contention of the opposite parties 1 to 3 is that the allegation that the sealed bottle containing mentos wrapper; is not acceptable because it is impossible since such bottle can be manufactured and marketed by the opposite parties 1 to 3 after thorough inspection crossing several stages before delivery.   But the said contaminated, adulterated Pepsi 200 ml bottle was taken to the 4^th opposite party by the complainant and after noticing the adulteration filed this case and taken steps for expert opinion through the appropriate institute namely; Food Analysis Laboratory, Kings Institute Campus, Guindy, Chennai – 600 032 which also confirmed that the said soft drinks is not fit for consumption.  Further the contention of the opposite parties 1 to 3 is that the compensation claimed is exorbitant. The complainant would have returned the Pepsi 200 ml bottle and availed a new one; is not acceptable. Considering the facts and circumstances of the case, this Forum is of the considered view that the opposite parties 1 to 3 shall jointly and severally liable to pay a compensation of Rs.30,000/- for mental agony and cost of Rs.5,000/- to the complainant.  There is no claim made against the 4^th opposite party.

In the result, this complaint is allowed in part.   The opposite parties 1 to 3 are jointly and severally liable to pay a sum of Rs.30,000/- (Rupees Thirty thousand only) towards compensation for mental agony with cost of Rs.5,000/- (Rupees Five thousand only) to the complainant.   There is ‘No Claim’ made against the 4^th opposite party.

The aboveamounts shall be payablewithin six weeks from the date of receipt of the copy of this order, failing which, the said amounts shall carry interest at the rate of 9% p.a. to till the date of payment.

Dictated  by the President to the Steno-typist, taken down, transcribed and computerized by her, corrected by the President and pronounced by us in the open Forum on this the 11^th day of April 2019. 

 

MEMBER                                                                  PRESIDENT

 

COMPLAINANT SIDE DOCUMENTS:-

Ex.A1	23.06.2011	Copy of cash bill issued by the 4th opposite party
Ex.A2	25.07.2011	Copy of legal notice issued by the complainant
Ex.A3	10.08.2011	Copy of acknowledgment due of the 1st opposite party
Ex.A4	26.07.2011	Copy of acknowledgment due of the 2nd opposite party
Ex.A5	10.08.2011	Copy of acknowledgment due of the 3rd opposite party
Ex.A6	09.08.2011	Copy of reply notice issued by the 2nd opposite party

 

OPPOSITE PARTIES 1 TO 3 SIDE DOCUMENTS:-  NIL

Court Exhibits:-

Ex.C1

26.09.2011

Certificate of Analysis from Food Analysis Laboratory, King Institute Campus, Guindy, Chennai – 600 032.

 

 

 

MEMBER                                                                  PRESIDENT