Per Mr B A Shaikh, Hon’ble Presiding Member
1. The three appeals, bearing Nos.FA/12/205, FA/12/206 & FA/12/207 are filed by common original opposite party No.2 and rest of the three appeals bearing Nos.FA/12/208, FA/12/209 & FA/12/210 are filed by the respective complainants, in three consumer complaints bearing Nos.CC/11/213, CC/11/214, CC/11/215. All these six appeals are filed against three identical orders passed by District Consumer Forum, Akola in the aforesaid three consumer complaints, by which the said three complaints have been partly allowed. Therefore, these six appeals are being decided by this common order. The parties in these six appeals are being referred as per their status in original complaints as complainants and opposite party Nos.1 to 4.
2. The common case of the aforesaid complainants in three complaints as set out by them in brief is as under.
a. Each of the complainant namely Hitesh Haribhau Bhanushali, Rupesh Harishankar Suroliya and Raju Shriniwas Ladniya, on 02.07.2011 purchased from opposite party No.2 one glass bottle of 200 ml of soft drink each of Lehar Mirinda each worth Rs.9.00. They also paid Rs.20/- each as an advance of each glass bottle and received the bills from the opposite party No.2. They were about to drink the said soft drink, but they found that the said soft drink contained fungus, harmful particles to the human body and insects, which were seen by naked eyes.
b. Therefore, they issued notice dated 20.07.2011 through their advocate to the opposite parties and demanded from them compensation of Rs.1.00 Lakh each. They did not give reply to the said notice. Therefore, they filed the aforesaid three consumer complaints against the opposite parties.
c. The opposite party No.1 is the distributor company of the said soft drink and opposite party No.2 is the retail dealer of the same and respondent No.3 is wholesaler of the said soft drink. The opposite party No.4 is having manufacturing / bottling plant of the said soft drink of opposite party No.1 at the address given in the complaint.
d. The complainants sought direction to aforesaid opposite party Nos. 1 to 4 to pay each of them compensation of Rs.1.00 Lakh for adopting unfair trade practice and for indulging in negligence and thereby causing physical & mental harassment to each of them and also to pay each of them notice charges of Rs.1,000/- and litigation cost.
3. The Forum below issued notice of the said three complaints to opposite party Nos.1 to 4. However, opposite party Nos.1, despite service of notice in two consumer complaint Nos. 213/2011 and 215/2011 failed to appear and therefore, the Forum proceeded exparte against opposite party No.1 in both the said complaint. However, the opposite party No.1 resisted the third complaint No.214/2011 by filing reply. The opposite party Nos. 2, 3 & 4 resisted all the three complaints by filing their reply.
4. The opposite party No.2 resisted the complaint Nos.213/2011 by filing independent reply. It admitted that the respective complainant purchased the aforesaid soft drink bottles from it and the notice was subsequently issued by the complainants. The contamination or adulteration in the said soft drink can be proved only after a report is received from Food & Drugs Administration department. It also submitted that it is only the retailer and it is not a manufacturer or distributor of the said soft drink and hence it cannot be held liable.
5. The opposite party Nos.3 & 4 filed their common reply to the complaint No.213/2011 and submitted in brief as under.
a. The complainant has not given Batch number and date of manufacturing of soft drink and that the complaint is filed after a delay of 36 days with mala fide intention. They also submitted that the complainants did not consume soft drink and therefore they cannot claim compensation for physical & mental harassment. The opposite party No.4 is the company which is a fully automated bottling plant of soft drink. Therefore, there is no question of contamination or adulteration in any way in that soft drink. The opposite party No.4 already made a complaint to the Assistant Commissioner of Food & Drugs Administration on 13.06.2009 and also to the Police, stating that a group of antisocial is involved in using the bottles of the reputed companies by selling therein adulterated drinks and the action is under progress on its complaint.
b. The opposite party No.3 is the wholesaler and the opposite party No.4 supplies its soft drink to opposite party No.3 after taking all the precautionary measures. There is every possibility that the bottles purchased by the complainants were manufactured from any other place and were supplied by such other manufacturer to opposite party No.2. There is also possibility that the complainants might have purchased the soft drink from some antisocial elements and therefore the complaint deserves to be dismissed.
6. The opposite party Nos.1, 3 & 4 in their common reply, filed to consumer complaint No.214/2011, reiterated the aforesaid defence raised by the opposite party Nos.3 & 4 in the aforesaid complaint No.213/2011 and submitted that the said complaint bearing No.214/2011 may be dismissed.
- The opposite party No.2 in its reply, filed to complaint No.214/ 2011 also reiterated its case as set out in the reply filed to the complaint bearing No.213/2011 and submitted that the said complaint may be dismissed.
- The opposite party No.2 in its reply filed to the complaint No. 215/2011 also raised the same defence, which raised in other two complaints bearing Nos. 213/2011 & 214/2011 and submitted that the said complaint may be dismissed.
- The opposite party Nos.3 & 4 in their reply filed to the complaint No.215/2011 also raised same defence, which they raised in other two complaints bearing Nos.313/2011 & 214/2011 and submitted that the said complaint No.215/2011 may be dismissed.
- The Forum below after hearing aforesaid contesting parties and considering evidence brought on record, partly allowed the said three complaints by passing identical impugned orders in each of the complaint on 28.02.2012. The Forum below concluded in the said orders as follows.
The complainants purchased the aforesaid three bottles from opposite party No.2 showing manufacturing date as 27.02.2011 and expiry date as 26.08.2011. The said bottles were purchased on 02.07.2011 by them and produced them before District forum before 15 days of the date of expiry. The said glass bottles of the soft drink by naked eyes showed therein fungus and foreign particles. Hence, it is not necessary to send any bottle for testing to any laboratory for report. The complainants produced purchase bills dtd.02.07.2011 as given by opposite party No.2 regarding purchase of the said soft drink bottles from it by the complainants. The opposite party Nos.1, 3 & 4 are respectively distributor, wholesaler and manufacturer. The opposite party No.2 – dealer / retailer has not produced any bill showing the name of the wholesaler or the distributor from whom it purchased the said bottles. Therefore, it cannot be accepted that the opposite party No.2 purchased the said bottles from opposite party No.3 – wholesaler. Hence, opposite party No.2 is liable to pay compensation to the complainant for selling contaminated soft drink to them and for causing them inconvenience, physical & mental harassment and economic loss. Therefore, the Forum below partly allowed these three complaints directing opposite party No.2 to pay to each of the complainant compensation of Rs.2,000/- with litigation cost of Rs.1,000/- on or before 15.04.2012. The Forum below also directed that if the said order is not complied with by opposite party No.2 on or before 15.04.2012, the opposite party No.2 will be liable to pay compensation of Rs.50/- per day from 16.04.2012 till the said order is complied with by opposite party No.2.
11. Thus, feeling aggrieved by the impugned order, the opposite party No.2 – dealer / retailer has filed three appeals bearing Nos. FA/12/205, FA/12/206 & FA/12/207. Moreover, the three complainants feeling dissatisfied by the said orders filed three appeals bearing Nos.FA/12/208, FA/12/209 & FA/12/210.
12. The learned advocate of opposite party No.2 / appellant filed Written Notes of Arguments. However, he did not appear for making oral submission at the time of final hearing. Advocate Mr B C Pal appeared for respondent No.4 / original opposite party No.4 – S.M.V. Beverage Pvt. Ltd. and filed Written Notes of Arguments and also advanced oral arguments. The learned advocate of opposite party Nos.1 appeared and adopted the Written Notes of Arguments of opposite party No.4 / respondent No.4 – S.M.V. Beverage Pvt. Ltd. by filing a Pursis. The respondent No.3 has filed Written Notes of Arguments. We have perused the Written Notes of Arguments filed in these appeals. We also perused the record & proceedings of these six appeals.
13. The learned advocate of the original complainants in his Written Notes of Arguments reiterated the aforesaid case of the complainants and submitted in brief that the Forum below did not apply its mind to the submission made in the complaints and evidence filed on record. According to him, it was necessary for the Forum to send the soft drink bottles for chemical analysis. Moreover, the Forum below ought to have held the opposite party Nos.1 to 4 jointly liable to pay the compensation of Rs.1.00 Lakh to each of the complainant, when the opposite party Nos.1 to 4 are respectively distributor, dealer / retailer, wholesaler and manufacturer / bottling plant of said soft drink. Moreover, the opposite party Nos.3 & 4 have not proved that the bottles were purchased from some antisocial elements by the complainants. The bottles were not opened by the complainants and they were in sealed condition. It was proved that the said bottles contained fungus and bacteria. Hence, it is requested by the learned advocate of the original complainants in his Written Notes of Arguments that compensation, claimed in the three complaints, may be granted from all the opposite party Nos.1 to 4.
14. On the other hand, the learned advocate of opposite party No.2 / appellant in appeal Nos.FA/12/205, FA/12/206 & FA/12/207 in his Written Notes of Arguments submitted in brief as under.
The Forum below erred in holding the opposite party No.2 – retailer / dealer liable for payment of compensation and cost. However, in fact, the soft drink was manufactured by opposite party No.4 and bottling of said soft drink is done by opposite party No.4. The Forum below erred in not considering the application of the complainant for sending the bottles of the soft drink to Food & Drugs Administration department for chemical analysis, which was necessary for proper adjudication of the complaints. Thus, the Forum below failed to exercise its jurisdiction vested in it, in not sending the bottles for chemical analysis. The report from the said department only could have proved the fact that the soft drink was manufactured by opposite party No.4 and contained the foreign particles and fungus at the time of manufacturing / bottling of the soft drink. There was no specific denial about supplying of the soft drink to opposite party No.2 by opposite party No.3 – wholesaler. The impugned order is a result of total non-application of mind. The wholesaler and the manufacturer of the said soft drink did not produce any evidence to show that the opposite party No.2 – dealer / retailer purchased the said bottles from any antisocial elements. The said bottles were not opened and therefore the foreign particles and fungus could not have been put in the bottle without opening the bottles and the said foreign particles went inside the bottles at the time of manufacturing of the soft drink due to negligence of opposite party No.4. Thus, the impugned orders passed against opposite party No.2 cannot be sustained in law and they deserve to be set aside.
- We find that there was no evidence before the Forum below to show that said soft drink was manufactured by opposite party No.1 or opposite party No.4 and sold to opposite party No.3 - wholesaler. There was no evidence before the Forum below to prove that opposite party No.2 had purchased the three bottles from opposite party No.3. It was necessary for opposite party No.2 to produce any bill or a document to establish that it purchased the said bottles from opposite party No.3 or from opposite party Nos.1 or 4. Therefore, it cannot be presumed without any evidence that the said bottles were purchased by opposite party No.2 from opposite party Nos.1, 3 or 4. Hence, the Forum below has rightly held that the opposite party Nos.1, 3 & 4 cannot be held liable for payment of any compensation to the complainants.
16. Moreover, admittedly, the three bottles containing contaminated soft drink were purchased by the complainants from opposite party No.2 by paying the cost of the same. Further more by naked eyes, it could be seen that those glass bottles contained foreign bodies i.e. fungus and particles. The photographs of the same were also filed before the Forum below and are also filed before this Commission. The three bottles were also produced before the Forum below by the complainants before period of expiry. Hence, it was not necessary for the Forum to send the said bottles containing contaminated soft drink to any laboratory for testing. We also find that the Forum below has rightly come to the conclusion that possibility cannot be ruled out that those three bottles were purchased from anti social elements by opposite party No.2, who were indulged in manufacturing such duplicate products under the bottles having the labels of opposite party Nos.1 & 4. As opposite party No.2 sold the said contaminated soft drink under the three bottles to the complainants, it cannot avoid its responsibility of paying compensation to the complainants. In our view, it was necessary for the opposite party No.2 to inspect the soft drink of the said bottles before selling the same when it contained fungus and other foreign particles, which could be seen by naked eyes. Hence, the opposite party No.2 cannot shift its responsibility on the manufacturer, the distributor or wholesaler of soft drink bottles.
17. So far as, the quantum of compensation is concerned, we find that opposite party No.2 is the dealer of the said soft drink, from whom the complainants purchased the said soft drink alongwith bottles for Rs.29/- each. Moreover, the soft drink was not consumed by the complainants and no harm was caused to them due to said contaminated soft drink. Hence, the Forum considering all the facts & circumstances of the case, has rightly awarded compensation of Rs.2,000/- and cost of Rs.1,000/- to each of the complainant from opposite party No.2. Moreover, the Forum below has also rightly granted further compensation of Rs.50/- per day from 16.04.2012 to be paid to each of the complainant by opposite party No.2, if that order is not complied with by opposite party No.2 on or before 15.04.2012. Hence, we are not inclined to enhance the said compensation in three appeals filed by the original complainants. Therefore, we are of the considered view that these appeals devoid of merits and they deserve to be dismissed.
ORDER
i. All these six appeals bearing Nos.FA/12/205, FA/12/206 & FA/12/207 filed by original opposite party No.2 and rest of the three appeals bearing Nos.FA/12/208, FA/12/209 & FA/12/210 filed by the original complainants, are hereby dismissed.
ii. No order as to costs in these appeals.
iii. Copy of the order be furnished to both parties free of cost.
