Chandigarh

DF-I

CC/860/2014

Raman Singla - Complainant(s)

Versus

Pepsico India Holdings Pvt. Ltd. - Opp.Party(s)

Vishal Garg Narwana

09 Nov 2015

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-I, U.T. CHANDIGARH

============

Consumer Complaint  No	:	CC/860/2014
Date  of  Institution	:	29/12/2014
Date   of   Decision	:	09/11/2015

 

 

 

 

 

Raman Singla son of Sh. Pawan Singla, House No. 767, Ward No.2, Vikas Nagar, Naya Goan, District Mohali (Punjab).

…............. Complainant.

 

Vs

 

 

[1]  Pepsico India Holdings Pvt. Limited, Village Aliasgarpur, Post Ganjbar Panipat, GT Road, Panipat, Haryana, through its Manager.

 

[2]  Grace Drinks Pvt. Limited, Distributor of Pepsico Beverages, Railway Station Road, Village Daria, Chandigarh, through its Manager.

 

[3]  Relax Café House, Shop No.14, New Shopping Complex, Sector 12, P.G.I. Chandigarh, through its Shopkeeper.

….......... Opposite Parties

 

BEFORE:   SH.P.L. AHUJA                PRESIDENT

MRS.SURJEET KAUR             MEMBER

SH. SURESH KUMAR SARDANA     MEMBER

 

For Complainant	:	Complainant in person.
For OP No.1	:	Sh. Manvender Rathee, Advocate.
For OP No.2	:	Ex-parte.
For OP No.3	:	None.

 

PER P.L.AHUJA, PRESIDENT

 

 

          Sh.Raman Singla has filed this Consumer Complaint under Section 12 of the Consumer Protection Act, 1986, against M/s Pepsico India Holdings Pvt. Limited & Others (hereinafter called the Opposite Parties), alleging that he had purchased a bottle of ‘Slice’ (a product of Pepsico), for Rs.10/- from Opposite Party No.3, on 10.12.2014 vide cash memo (Annexure C-1). It has been averred that when he was about to open the cap of the said bottle, for the purpose of consumption, he found that there was a black colour material floating inside the bottle, and on careful observation, he was shocked to see that the material floating inside the sealed bottle was indeed a dead insect. The Complainant showed the said bottle to the Opposite Party No.3, but he told that it was not his fault, as it was a sealed bottle. Eventually, the Complainant sent a legal notice dated 13.12.2014 to the Pepsico India Holdings, but the same failed to fructify. Alleging that the aforesaid acts amount to deficiency in service and unfair trade practice on the part of the Opposite Parties, the complainant has filed the instant complaint.

         

2.      Notice of the complaint was sent to Opposite Parties, seeking their version of the case. However, nobody appeared on behalf of Opposite Party No.2, despite service, therefore, it was proceeded ex-parte on 18.02.2015.

 

3.      In its written reply, Opposite Party No.1 has taken a number of preliminary objections including that the Complainant has not mentioned any date of manufacturing/ batch number of the product. It has been pleaded that the answering Opposite Party is not the manufacturer of the bottle in question. Some individuals/forged manufacturers are manufacturing various soft drink beverages using brand name of the answering Opposite Party and FIRs have been lodged against them. It has been denied that the Complainant had purchased the alleged cold drink (Slice) and that he found a dead insect inside the said bottle. Pleading that there is no deficiency in service or unfair trade practice on its part, prayer for dismissal of the complaint has been made.  

 

4.      In its separate written reply, Opposite Party No.3 has also taken a number of preliminary objections including that there was no fault on its part, as it is running the Shop/Café on the instance of Opposite Party No.2 as the whole sealed material was supplied to it by Opposite Party No.2. A copy of the receipt of sealed material purchased by the Opposite Party No.3 from Opposite Party No.2 has been annexed as Annexure C-1. Denying all other allegations Opposite Party No.3 has prayed for dismissal of the complaint. 

 

5.      During the pendency of the Complaint, an application, for the chemical analysis of the bottle and drink present in it and the dead insect, was filed by the Complainant, which was opposed by the Opposite Party No.1. After hearing the arguments of both the sides, that application was allowed, vide our order dated 26.03.2015, and the bottle was ordered to be sent to the Food Analyst, Punjab, Chandigarh, for chemical analysis and report.

 

6.      The Food Analyst, Punjab, Chandigarh, submitted his opinion as under: -

 

“1.  The seal of the bottle was found to be intact.

2.   The contents of the sample contain one dead insect.

3.   The contents of the sample are unsafe for human consumption.

4.   The product has not been labelled as per the provisions of Regulation 2.2.2(8) & (9) of Food Safety and Standards (Packaging and Labelling) Regulations 2011, as Batch/Lot No. and Date of Mfg./ Packing has not been mentioned on the label. Hence Misbranded also.”

    

7.      Opposite Party No.1 submitted its objections against the report alleging that the report does not bear the manufacturing number or the manufacturing date and the best before date which is printed on the neck of the bottle and the report is defective. It has also been alleged that as per the report of the Food Analyst, the bottle in question is misbranded, therefore, no liability can be fastened on Opposite Party No.1, because no Company would sell its product as misbranded. It has also been contended that since the ground/cap of the bottle was found to be intact as its original condition, therefore, there was no occasion for any insect to have been found in the said bottle during the process of bottling. Further, the details of the insect have not been given, in the absence of which it is difficult to fix any liability of Opposite Party No.1. It has also been stated that the possibility of the said sample not being a genuine, but a counterfeit/fake cannot be ruled out. 

 

8.      In reply to the objections, the Complainant has contended that he had given snaps of the bottle, which were marked and exhibited and which show manufacturing date and expiry date as well. It has been averred that the Chemical Laboratory was never asked whether the bottle was misbranded, therefore, it had no authority to say that the bottle was misbranded. It has been stated that the objections raised by Opposite Party No.1 do not contain any value.

 

9.      We have appraised the entire evidence, written arguments submitted by the parties and oral arguments in the main Complaint, as well as the objections against the report of the Food Analyst, Punjab, Chandigarh.

 

10.      It is the admitted case of Proprietor of Relax Café House (OP No.3) that on 10.12.2014, the Complainant purchased a Slice bottle from him, for a sum of Rs.10/-, vide receipt photocopy of which is Annexure C-1, and a black colour material was floating inside the bottle which was indeed a dead insect. According to Opposite Party No.3 whole sealed material was supplied to him by Opposite Party No.2 (Distributor of Pepsico Beverages), and he is not at fault. Opposite Party No.3 has also produced a receipt photocopy of which is Annexure C-1 of the sealed material purchased by him from Opposite Party No.2. Since Opposite Party No.3 has also marked its retail invoice as Annexure C-1, therefore, the same is being marked as Annexure R-3/1 by us to distinguish it from the receipt Annexure C-1 produced by the Complainant. The retail invoice/ cash memo (Annexure R-3/1) produced by Opposite Party No.3 shows that M/s Grace Drinks Pvt. Limited (Distributor of Pepsico Beverages) Opposite Party No.2 sold one case of Slice for                   an amount of Rs.200/-, with one bottle free on 20.11.2014 to Opposite Party No.3. Pertinently,                  the  Opposite  Party  No.2  (the Distributor)  has not

indicated any Batch/ Lot No. and the date of Manufacturing/ Packing on the retail invoice/cash memo (Annexure R-3/1). Opposite Party No.2 did not appear despite service and was proceeded ex-parte. It has not dared to come to contest the case, meaning thereby it has nothing to say in its defence. In view of the affidavit filed by Mr. Subhash Chand, Shopkeeper of M/s Relax Café House, it is proved that the whole sealed material (Slice bottles) was supplied to him by M/s Grace Drinks Pvt. Limited. It becomes clear that it was Opposite Party No.2 who had supplied the sealed material, vide receipt Annexure R-3/1 to Opposite Party No.3, after receiving a sum of Rs.200/-. Thus, there is ample evidence on record that the Complainant purchased one sealed bottle of Slice for consideration from Opposite Party No.3, and that sealed bottle of Slice, along with other bottles, was purchased from Opposite Party No.2 by Opposite Party No.3, vide receipt Annexure R-3/1. One dead insect was floating in the sealed bottle sold to the Complainant, vide receipt Annexure C-1. That sealed bottle was sent to the Food Analyst, Punjab, Chandigarh for analysis, and according to his report dated 17.04.2015, the seal of the bottle was found intact and it was containing one dead insect, and the contents were unsafe for human consumption. Furthermore, as per report, the product was not labelled as per the provisions of Regulation 2.2.2(8) & (9) of Food Safety and Standards (Packaging and Labelling) Regulations 2011, as Batch/Lot No. and Date of Mfg./ Packing had not been mentioned on the label and it was also misbranded. So, the evidence clearly shows that a bottle which was misbranded and was containing a dead insect and the contents of which were unsafe for human consumption, was sold by the Opposite Party No.3 to the Complainant and that bottle along with other bottles was actually sold by the Opposite Party No.2 to Opposite Party No.3.  

 

11.      The last question that survives for consideration is whether the bottle in question was manufactured by M/s Pepsico India Holding Pvt. Limited – OP No.1 or not?

 

12.      Significantly, Opposite Party No.1 has raised a specific objection in the written statement that it is not the manufacturer of the bottle in question. In the objections against the report of the Food Analyst, Punjab, Chandigarh, Opposite Party No.1 has also raised an objection that it does not bear the manufacturing number or the manufacturing date and the best before date which is printed on the neck of the bottle, therefore, the report is defective.

 

13.      A perusal of the report of the Food Analyst reveals that the product has not been labelled as per the provisions of Regulations of Food Safety and Standards (Packaging and Labelling) Regulations 2011, as Batch/Lot No. and Date of Mfg./ Packing have not been mentioned on the label. We may also mention that when the bottle was produced before the Forum, it was not bearing any date of manufacturing and batch number on its neck. However, the Complainant stated that those particulars were mentioned on the cap of the bottle. Therefore, the Complainant was directed to produce photographs of the bottle, including a separate photograph of the cap, showing clearly the date of manufacturing and batch number before sending it to the Food Analyst, Punjab, Chandigarh. However, those photographs also do not clearly show the date of manufacturing and batch number of the bottle in question. The Food Analyst also could not find the same on that bottle. Opposite Party No.2 has not come forward to tell as to what were the batch numbers and dates of manufacturing of the bottles which were sold by it to Opposite Party No.3 vide receipt Annexure R-3/1. Therefore, in all probabilities, it was Opposite Party No.2 who supplied fake/misbranded cold drinks to Opposite Party No.3. In the absence of any documentary evidence produced by Opposite Party No.2, it cannot be stated that the said bottle of Slice was manufactured by Opposite Party No.1. In other words, there is no concrete evidence to link Opposite Party No.1 with the bottle in question.     

 

14.      It is a matter of common experience that the business of manufacturing spurious cold drink is on the rise. One cannot get genuine cold drinks at busy places like bus stands, railway stations, cinema halls etc. Though the packing from outward appearance is of genuine cold drink but when one consumes it he finds that the cold drink is spurious but in order to avoid any botheration he leaves that place without making any Complaint. The learned Counsel for Opposite Party No.1 has produced before us the copies of newspaper cuttings and the FIRs to show that some of the factory owners are engaged in the business of manufacturing spurious cold drinks to earn easy bucks and the authorities turn blind eye to them for the reasons best known to them. The learned Counsel for Opposite Party No.1 has brought our attention to Pepsi Cola India Marketing Co. Versus Ashok Kumar Gupta, reported in 2002 Judicial Reports Consumer 382, wherein, it was held as under: -

 

“…………The products of the brand companies are sold through a large network of distributors and dealers. These products are in high demand and it is a matter of common knowledge that on a number of occasions the products are found to be spurious which may not be the act of the bottler or manufacturing company.”

 

15.      For the reasons recorded above, we are of the opinion that in the instant case the evidence on record points out that the bottle bearing the name ‘Slice’ contained a dead insect and the same was unfit for human consumption and it was sold by Opposite Party No.2 to Opposite Party No.3, who sold it further to the Complainant. Since Opposite Party No.3 has produced a photocopy of a valid receipt, and Opposite Party No.2 has not come forward to contest the case, it is proved that it is Opposite Party No.2 who is guilty of indulging in unfair trade practice and deficient in rendering service. Accordingly, the present Complaint is partly allowed against Opposite Party No2 only. The Objections filed by the Opposite Party No.1 against the report of the Food Analyst, Punjab, Chandigarh, are allowed partly to the extent mentioned above. The Opposite Party No.2 is directed to:-

[a]  To make payment of Rs.30,000/- as compensation to the Complainant for unfair trade practice and deficiency in service;

 

[b]  To make payment of Rs.10,000/- towards costs of litigation.

 

          The Complaint against Opposite Parties No.1 and 3 is dismissed.

 

16.      The above said order be complied with by the Opposite Party No.2, within 30 days from the date of receipt of its certified copy, failing which the amount at Sr. No.[a] above shall carry interest @12% per annum from the date of filing of the present Complaint, till actual payment, besides payment of litigation costs.

 

17.      Certified copy of this order be communicated to the Complainant, free of charge. After compliance file be consigned to record room.               

Announced

09^th November, 2015                                    

Sd/-    

(P.L. AHUJA)

PRESIDENT

 

 

Sd/-

 (SURJEET KAUR)

MEMBER

 

 

Sd/-

(SURESH KUMAR SARDANA)

MEMBER

“Dutt”