Order by:
Sh.Amrinder Singh Sidhu, President
1. This Consumer Complaint has been received by transfer vide order dated 26.11.2021 of Hon’ble President, State Consumer Disputes Redressal Commission, Punjab at Chandigarh under section 48 of CPA Act, vide letter No.04/22/2021/4 C.P.A/38 dated 17.1.2022 from District Consumer Commission, Ludhiana to District Consumer Commission, Moga to decide the same in Camp Court at Ludhiana and said order was ordered to be affected from 14th March, 2022.
2. The complainants have filed the instant complaint under section 12 of the Consumer Protection Act, 1986 (now section 35 of Consumer Protection Act, 2019) on the allegations that he purchased one Drink namely Nimbooz 350 ML Bottle (Soft Drink) from Opposite Party No.3 vide bill No. 1857 dated 17.08.2017 which is manufactured by Opposite Parties No.1 and 2 with manufacturing date as 26.05.2017. Before opening the said bottle, the complainant surprised to see a huge contents of fungus/ dust in the said sealed bottle which is totally unhygienic for human body. Said floating of a fungus/ dust in the sealed bottle manufactured and packed by Opposite Parties reflect the negligence on the part of the Opposite Parties. The complainant approached Opposite Party No.3 from whom he had purchased the said bottle, but he told that it is not his responsibility as the bottle is sealed one and he has sold the same as he purchased from Opposite Parties No.1 and 2 and refused to admit the rightful claim of the complainant and as such, there is deficiency in service on the part of the Opposite Parties. Vide instant complaint, the complainant has sought the following reliefs.
a) The Opposite Parties may be directed to pay a sum of Rs.1 lakh as compensation/ damages for the mental as well as physical harassment, torture, given to the complainant due to irresponsible attitude of the Opposite Parties and also to pay litigation expenses.
3. Opposite Party No.1 appeared through counsel and contested the complaint by filing the written version taking preliminary objections therein inter alia that the complaint filed by the complainant is not maintainable and is liable to be dismissed as the complainant has attempted to misguide and mislead this District Consumer Commission. It is submitted that Opposite Party No.1 does not manufacture any soft drink in the northern region of the country and does not conduct any manufacturing business of soft drinks in northern region of the country including Punjab and Haryana, so the answering Opposite Party has been wrongly impleaded as a party. The present complaint deserves to be dismissed on the ground that when the bottle in question was manufactured, what are the exact details of the bottle in question if any he had. It is further submitted that the complainant has not mentioned any batch number of the product in question. Rather the same was procured from the open gray market to file this present complaint and to black mail the answering Opposite Party. It is further submitted that there is no explanation given in the complaint that how and in what condition the bottles in question were kept by the complainant till date. The product inside the bottle in question is of perishable nature and has its own shelf life of six months from the date of its manufacture. It is again submitted that the alleged bottle was not the product of the answering Opposite Party. The answering Opposite Party neither marketing nor manufacture, distribute or sell the bottle within the jurisdiction of this District Consumer Commission. On merits, Opposite Party No.1 took up the same and similar pleas as taken up by them in the preliminary objections. Hence, the complaint may be dismissed with costs.
4. None has come present on behalf of Opposite Party No.2, hence Opposite Party No.2 was proceeded against exparte.
5. Initially, Opposite Party No.3 appeared and filed written reply but lateron at the stage of evidence, none has come present on behalf of Opposite Party No.3 and rather proceeded against exparte. Opposite Party No.3 filed written version taking preliminary objections therein inter alia that the complaint filed by the complainant is not maintainable and is liable to be dismissed as the complainant has attempted to misguide and mislead this District Consumer Commission. Opposite Parties No.1 and 2 are the manufacturer and authorised persons for distribution of all the products of Pepsico India. Opposite Party No.3 is running his departmental store at Ludhiana. It is admitted that the complainant purchased the bottle in question from Opposite Party No.3 in a sealed condition. Moreover, the product in question is manufactured and distributed in market by Opposite Parties No.1 and 2 and Opposite Party No.3 is not responsible for the same. Hence, there is no deficiency in service on the part of Opposite Party No.3 and the complaint against Opposite Party No.3 deserves dismissal.
6. In order to prove his case, the complainants tendered into evidence his affidavit Ex.C-A alongwith copies of documents Ex.C1 to Ex.C2 and closed the evidence on behalf of the complainant.
7. On the other hand, to rebut the evidence of the complainant, Opposite Party No.1 also tendered into evidence the affidavit Ex.RA/1 and closed the evidence.
8. We have heard the ld.counsel for the parties and also gone through the documents placed on record.
9. During the course of arguments, ld.counsel for the Complainant has mainly reiterated the facts as narrated in the complaint and contended that he purchased one Drink namely Nimbooz 350 ML Bottle (Soft Drink) from Opposite Party No.3 vide bill No. 1857 dated 17.08.2017 which is manufactured by Opposite Parties No.1 and 2 with manufacturing date as 26.05.2017. Before opening the said bottle, the complainant surprised to see a huge contents of fungus/ dust in the said sealed bottle which is totally unhygienic for human body. Said floating of a fungus/ dust in the sealed bottle manufactured and packed by Opposite Parties reflect the negligence on the part of the Opposite Parties. The complainant approached Opposite Party No.3 from whom he had purchased the said bottle, but he told that it is not his responsibility as the bottle is sealed one and he has sold the same as he purchased from Opposite Parties No.1 and 2 and refused to admit the rightful claim of the complainant and as such, there is deficiency in service on the part of the Opposite Parties.
10. On the other hand, ld.counsel for Opposite Party No.1 has repelled the aforesaid contention of the ld.counsel for the complainant on the ground that Opposite Party No.1 does not manufacture any soft drink in the northern region of the country and does not conduct any manufacturing business of soft drinks in northern region of the country including Punjab and Haryana, so the answering Opposite Party has been wrongly impleaded as a party. The present complaint deserves to be dismissed on the ground that when the bottle in question was manufactured, what are the exact details of the bottle in question if any he had. It is further submitted that the complainant has not mentioned any batch number of the product in question. Rather the same was procured from the open gray market to file this present complaint and to black mail the answering Opposite Party. It is further submitted that there is no explanation given in the complaint that how and in what condition the bottles in question were kept by the complainant till date. The product inside the bottle in question is of perishable nature and has its own shelf life of six months from the date of its manufacture. It is again submitted that the alleged bottle was not the product of the answering Opposite Party. The answering Opposite Party neither marketing nor manufacture, distribute or sell the bottle within the jurisdiction of this District Consumer Commission. On the other hand, Opposite Party No.3 in its reply has specifically mentioned that he has sold the said product to the complainant vide bill in question, however Opposite Party No.3 has failed to produce any iota of evidence, vide which bill or consignment and under what batch number he has purchased the product from Opposite Parties No.1 and 2, because the main contention of the Opposite Parties No.1 and 2 is that Opposite Party No.1 does not manufacture any soft drink in the northern region of the country and does not conduct any manufacturing business of soft drinks in northern region of the country including Punjab and Haryana. Opposite Party No.1 further contended that when the bottle in question was manufactured, what are the exact details of the bottle in question if any he had. It is further submitted that the complainant has not mentioned any batch number of the product in question. Rather the same was procured from the open gray market to file this present complaint and to black mail the answering Opposite Party. Moreover, there is no explanation given in the complaint that how and in what condition the bottles in question were kept by the complainant till date. The product inside the bottle in question is of perishable nature and has its own shelf life of six months from the date of its manufacture. It is again submitted that the alleged bottle was not the product of the answering Opposite Party. The answering Opposite Party neither marketing nor manufacture, distribute or sell the bottle within the jurisdiction of this District Consumer Commission.
11. Undisputedly, there is fungus/ dust in the bottle in question which was purchased by the complainant from Opposite Party No.3 vide consideration and it is also not denied by Opposite Party No.3 that there is no such fungus/ dust in the bottle in question, hence we are of the view that Opposite Party No.3 must be penalized for selling such type of the product to the consumer. In his complaint, the complainant has prayed for relief before this District Consumer Commission to direct the Opposite Parties to pay compensation of Rs.1 lakh for harassment, mental agony, but we are of the view that the claim for compensation to the tune of Rs.1 lakh appears to be exorbitant and excessive. The rationale behind grant of compensation has been to compensate a party of the loss occasioned by it. It is none of the intention of the legislature while legislating the Consumer Protection Act to enrich a particular party at the cost of the other. The compensation has to be awarded in commensuration with the loss occasioned to the complainant. In our considered view, ends of justice would be fully met if the complainant is awarded lump-sum compensation to the tune of Rs.5,000/- and we award the same accordingly against Opposite Party No.3 who has sold the said product to the complainant because the Opposite Party No.3 has failed to prove that the said product was purchased by him from Opposite Parties No.1 and 2.
12. In view of the aforesaid facts and circumstances of the case, we allow the complaint of the complainant against Opposite Party No.3 and Opposite Party No.3 is directed to pay Rs.5,000/- (Rupees five thousands only) as lumpsum compensation to the complainant alongwith interest @ 8% per annum from the date of filing the complaint i.e. 14.09.2017 till its actual realization. However, Opposite Party No.3 is at liberty to claim this amount from the original manufacturer of this product. Compliance of this order be made by Opposite Party No.3 within 45 days from the date of receipt of the copy of this order, failing which the Complainant shall be at liberty to get the order enforced through the indulgence of this Commission. Copies of the order be furnished to the parties free of cost by District Consumer Commission, Ludhiana and thereafter, the file be consigned to record room after compliance.
13. Reason for delay in deciding the complaint.
This Consumer Complaint was originally filed at District Consumer Disputes Redressal Forum (Now Commission) at Ludhiana and it keep pending over there until Hon’ble State Consumer Disputes Redressal Commission, Punjab vide letter No.04/22/2021/4 C.P.A/38 dated 17.1.2022 has transferred the instant Consumer Complaint alongwith Other Complaints to District Consumer Commission, Moga with directions to work on this file onward from 14th March, 2022 and accordingly District Consumer Commission, Moga has decided the present complaint today i.e.23.05.2022 at Camp Court, Ludhiana, as early as possible as it could decide the same
Announced in Open Commission at Camp Court, Ludhiana.
