Jammu and Kashmir

Jammu

CC/300/2017

SOURABH ANAND - Complainant(s)

Versus

PEPSICO INDIA LTD. - Opp.Party(s)

AK SAWHNEY

10 Feb 2018

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM JAMMU

(Constituted under J&K Consumer Protection Act1987)

                                                          .

 Case File  No                83/DFJ           

 Date of  Institution       05/06/2013

 Date of Decision           14/02/2018

 

Sourabh Anand

S/O Sh.Naresh Anand

R/O Qtr.No.9 New Plots

Jammu.

                                                                                                                                                Complainant

                 V/S

1.Pepsi Co.India Head Office

  3B DLF Corporate ParkS Block

Qutab Enclave Phase-III Gurgaon 122002

Haryana through its Managing Director.

2. Jai Beverages Pvt.Ltd.

SIDCO Industrial Complex

Phase 1 Bari Brahmana,Jammu.

3. . Jai Beverages Pvt.Ltd.

   Regd.52 Janpath New Delhi

Through its Managing Director.

                                                                                                     Opposite party

 

CORAM:-

                  Khalil Choudhary   (Distt.& Sessions Judge)    President

                  Ms.Vijay Angral                                                     Member

                  Mr.Ghulam Sarwar                                              Member

 

In the matter of   Complaint under section 10 of J&K Consumer

                      Protection Act 1987.

Mr.Aseem Sawhney Advocate for complainant present .

Mr.Vishal Kapoor Advocate for OP1 present.

M/S Pranav Kohli & Associates Advocates for OP present.

 

ORDER.

 

                                  Allegation of complainant as disclosed in the complaint is that on 01.06.2013 he purchased 14 number of beverages which included six Lehar Mountain Dew four Lehar 7Ups and four Pepsi for a sale consideration of Rs.194/copy of hand written receipt is annexed as Annexure-B.That the complainant was offering his friends with the cold drinks/beverages being a brand of OP1 he was  shocked to notice that three bottles which include one Pepsi one 7Up and one Mountain Dew were containing foreign material in the sealed bottles and the said beverages which are company sealed were containing adulterated matter which was visible with naked eye and the cold drinks sold to him were adulterated and hazardous for health. Complainant further submitted that all the three bottles have the proper branding on its crown and the name and address of OP2&3 and the same have been manufactured by M/S Jai Breverages Ltd.having its manufacturing unit at SIDCO Industrial Complex, Phase 1 Bari Brahmana Jammu and registered office at 52 Janpath New Delhi copies of photographs of cold drink bottles and crowns are annexed as Annexure C. Complainant further submitted that a reputed multinational company like Pepsi Co-respondent No.1 who owns these brands and OP2 & 3 Jai Beverages Pvt.Ltd.which is manufacturing these beverages are supplying adulterated food material/beverages to the consumers. In their accelerated pace to reap profits in the summer season they have become so negligent careless and callous that they have totally forgotten about the health of the consumers. The Ops have displayed sheer negligence towards the health of consumer. The Ops have displayed sheer negligence towards the health of consumers and if these adulterated cold drinks had been consumed the consumer would have suffered worst of health problems . Therefore for alleged unfair trade practice complainant approached this Forum seeking direction to OP for compensation and also litigation charges.

           On the other hand OP1 filed objections and resisted the complaint on the ground that OP No.1 is neither manufactures nor distributes or sell any beverages within the jurisdiction of this Honble Forum. It is stated that OP1 sells concentrate raw material to different bottles who are separate legal entity and manufacture Pepsi range of beverages under license from Pepsico Inc.U.S.A.and further it is impossible that the foreign matter inside the sealed bottle was due to the concentrate raw material sold by the OP1.It is also submitted that every bottle bears the mark of the manufacturer and the complainant has unnecessarily dragged OP1 to the present complaint. The OP1 further submitted that complaint deserves to be dismissed as the complaint of the complainant is bad for mis-joinder and non-joinder of parties. It is submitted that the complainant has not made the retailer a party to the present complaint. Lastly it is prayed that complaint may be dismissed on this ground alone.

                  On the other hand OP2 and 3 caused appearance and filed their written version and resisted the complaint on various accounts including complainant is not a consumer as  defined under section 2d of J&K Consumer Protection Act. According to Ops 2&3 the complaint is liable to be rejected as the controversy raised by the complainant involves complicated questions of fact and law which requires details probe by way of details evidence to be produced by both the parties which is beyond the ambit of Consumer Protection Act and is triable by Civil Courts only. That the complainant has not made the owner of the canteen as necessary party to prove, whether the alleged bottles have been purchased from him or not and he has issued any bill in favour of complainant. The handwritten bill doesnt have the buyers name nor is sellers name there on the bill book. The Ops have further submitted that it is virtually impossible for any foreign material to be present in the bottles. It is denied that the bottle in question is manufactured by Company. The Ops have denied that the complainant has suffered any mental harassment or loss of reputation or humiliation before his friends .It is significant to note that it is not the case or any of his friends suffered any kind of loss as the bottles in question were never consumed by the complainant or his friends. The complainant has suffered no loss/damage at all .Lastly it is prayed that the complaint may be dismissed with heavy costs in the interest of justice equity and fairplay.

                       Complainant adduced evidence by way of duly sworn evidence affidavit and affidavits of Abhishek Gupta Rajesh Gupta and Akshat Gupta respectively.Complainant has produced copy of bill on plain paper and copies of photographs.

                 On the other hand OP1 adduced evidence by way of duly sworn evidence affidavit of Luv Kapil Asstt.Manager Legal of OP1 Company.

                    At the same time Ops 2&3 adduced evidence by way of duly sworn evidence affidavit of Rajeev  Kotwal.

                         We have perused case file and heard L/Cs for the parties at length.

                     Briefly stated grievance of complainant is that; on 01.06.2013 he purchased 14 number of beverages which included six Lehar Mountain Dew four Lehar 7Ups and four Pepsi for a sale consideration of Rs.194 but he was  shocked to notice that three bottles which include one Pepsi one 7Up and one Mountain Dew were containing foreign material in the sealed bottles and the said beverages which are company sealed were containing adulterated matter which was visible with naked eye and the cold drinks sold to him were adulterated and hazardous for health. Complainant further submitted that all the three bottles have the proper branding on its crown and the name and address of OP2&3 and the same have been manufactured by M/S Jai Breverages Ltd.having its manufacturing unit at SIDCO Industrial Complex Phase 1 Bari Brahmana Jammu and registered office at 52 Janpath New Delhi copies of photographs of cold drink bottles and crowns are annexed as Annexure-C. Complainant further submitted that a reputed multinational company like Pepsi Co-respondent No.1 who owns these brands and OP2 & 3 Jai Beverages Pvt.Ltd.which is manufacturing these beverages are supplying adulterated food material/beverages to the consumers. In their accelerated pace to reap profits in the summer season they have become so negligent careless and callous that they have totally forgotten about the health of the consumers. The Ops have displayed sheer negligence towards the health of consumer. The Ops have displayed sheer negligence towards the health of consumers and if these adulterated cold drinks had been consumed the consumer would have suffered worst of health problems

                    

                     L/C appearing for OP1 contended that he is neither manufacturer nor service provider, it only sells concentrate raw material to different bottlers who are separate legal entity and manufacture Pepsi range of beverages under license from Pepsico Inc.U.S.A.and further it is impossible that the foreign matter inside the sealed bottle was due to concentrate raw material sold by OP1 therefore complaint is bad for non-joinder and mis-joinder of necessary party. At the same time L/C appearing for OP2&3 inter alia would submit that complainant has not made the owner of the canteen as necessary party to prove whether the alleged bottles have been purchased from him or not and he has issued any bill in favour of complainant. The handwritten bill does not have the buyers name nor sellers name there on the bill book therefore complaint is liable to be dismissed for nonjoinder and misjoinder of necessary party.

                            L/C for Ops also placed reliance on the judgment passed by Honble National Consumer Disputes Redressal Commission,New Delhi in case titled Pepsi Foods Pvt.Ltd.V/S National Consumer Protection wherein it has been held as under

 10.Ld.State Commission in Para 10 of impugned judgment observed that as Pepsi Food India was providing concentrate of the cold drinks in question there was relationship of principal and agent between Pepsi Food India and Dhillon Kool Drinks. Merely by supplying one of the ingredient of cold drink supplier does not become principal or agent of the person to whom that ingredient is supplied.Ld.Counsel for the complainant could not place any law on the point by which it can be presumed that relationship of principal and agent between Pepsi Food India and Dhillon Cold Drink was established. There cannot be any relationship of principal and agent merely by supplying one of the ingredient of product.For eg. if automobile Company who manufactures particular brand by assembling different components of the car purchased from different persons different persons supplying the parts cannot be held responsible for any manufacturing defect in the vehicle. There cannot be any relationship of principal and agent between the manufacturer of car and supplier of one of the part of the car.However if supplier of concentrate is responsible supplier of sugar water and other thing necessary for preparation of cold beverage will also be held responsible and they have not been impleade as opposite party in the complaint and in such circumstances complaint is not maintainable against Pepsi Food India. It cannot be ruled out that dead insects were not supplied by supplier or sugar water etc.

11.As far foreign matter in the cold drink bottle is concerned, counsel for the complainant submitted that as per public analyst composite testing laboratories report there were nine dead insects in the MIRINDA cold drink. As per the complaint complainant purchased cold drink bottle of MIRINDA whereas public analyst report analyzed cold drink bottle of MIRINDA which apparently does not tally with the bottle purchased by the complainant. Not only this this report does not contain any batch number date description of manufacturer of aforesaid cold drink bottle and also does not contain any report that seals were intact on the bottles and in such circumstances this report looses its significance.

                         But herein this case OP1 is neither manufacturer nor distributor or sells any beverages and as per above mentioned settled preposition of law we are of the opinion that OP1 is not liable for any deficiency in service .

                   Be it noted that complainant relied upon handwritten bill which is on record but on careful perusal of this handwritten bill it is found that there is neither mention of owner of canteen nor the name of complainant who has purchased these cold drink bottles from him. At the same time complainant did not support his allegations by any documentary evidence so much so complainant failed to produce the said witness from whom the complainant has purchased these cold drink bottles. It has also been revealed from the complaint that complainant has not made the owner of canteen as necessary party to prove whether the alleged bottles have been purchased by him or not and who issued the bill in favour of complainant. The handwritten bill does not have the buyers name nor is sellers name there on the bill book. It has also revealed from the bill that there is no mention of batch number of any bottle. No affidavit of such a witness has been filed by complainant. No explanation has further come forth as to why such witness was not examined and his affidavit taken. There is absolutely no evidence available on the file to show that the handwritten bill has been issued by the owner of the canteen in favour of complainant. It was incumbent upon the complainant to produce the evidence that the complainant has purchased cold drink from him. Moreover complainant also failed to make owner of the canteen as necessary party so the complaint also suffers from nonjoinder and misjoinder of necessary party.

                 The burden to prove that complainant had purchased these cold drink bottles from the canteen was on complainant, but he failed to discharge the  initial onus therefore question of deficiency in service do not arise resultantly we are of the opinion that in view of failure of complainant to substantiate his allegations renders the complaint perfunctnary and  tall tale story unworthy of reliance.

                  Therefore we are of the opinion that complainant has failed to prove his case against the Ops therefore proceedings are not initiated in terms of law.

                   In afore quoted back drop complaint fails accordingly same is dismissed. Keeping in view the above said discussion the complainant is at liberty to file a fresh complaint if he desires so. However in the facts and circumstances of the matter parties are left to bear their own costs. File after its due compilation be consigned to records.

 Order per President                                              Khalil Choudhary

                                                                         (Distt.& Sessions Judge)

Announced                                                              President

 14/02/2018                                                   District Consumer Forum

Agreed by                                                                Jammu.

 

Ms.Vijay Angral          

Member        

 

Mr.Ghulam Sarwar Chauhan

Member