IN THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI

BEFORE    Hon’ble Dr. Justice S.TAMILVANAN              PRESIDENT

                Thiru.K.BASKARAN                           JUDICIAL  MEMBER

                Tmt.Dr. S.M.LATHAMAHESWARI                         MEMBER

FA.NO.19/2015

(As against the order in CC.No.27/2010 dated 4.10.2011 on the file of DCDRF,Chennai(North)

                                                           WEDNESDAY THE 18^th DAY OF DECEMBER 2019

1.Pepsico India Holdings Pvt Ltd,

Corporate office,

DLF Corporate Park,

S Block Quotob Enclave,

Phase III Guargon 122 002                ..1^st Appellant/1^st opposite party

2. Pepsico India Holdings Pvt Ltd,

No.6, GST Road,

Mamandur,

Maduranthagam (T.K)

Kanchipuram                                   ..2^nd Appellant/2^nd opposite party

                                        Vs

1. R.Pradeep Kumar,

7/3, F.4 Hari Maduram Apartment,

Devar street,

Villivakkam,

Chennai – 49                                ..1^st Respondent/complainant

2. Mr.P.Krishnasamy,

Proprietor, P.K.S Cool Bar,

No.14, station Road,

Villivakkam,

Chennai – 49                              ..2^nd Respondent/3^rd opposite party

Counsel for Appellants/opposite parties 1 & 2 : M/s M.Kandasamy

1^st Respondent/complainant                          : PP Effected, called absent

2^nd Respondent/3^rd opposite party                  : Given up

This appeal coming up before us for hearing finally on  4.12.2019,  upon hearing the respective counsel, perusing the documents, other records, and the order passed by the District Forum, Chennai(North), this commission made the following order:

Delivered by Dr. JUSTICE S. TAMILVANAN,  PRESIDENT

1.      This appeal has been preferred by the appellants/ opposite parties 1 and 2  challenging the order passed by the District Consumer Disputes Redressal Forum, Chennai (North). The opposite parties 1 and 2, having suffered an order before the District Consumer Disputes Redressal Forum, Chennai(North)  filed this appeal, seeking to set aside the order of the District Forum dated 4.10.2011 in CC.No. 27/2010.

      For the sake of convenient, that the parties are referred to in this appeal as stated in the consumer complaint, before the District Forum.

2.       The case of the complainant is that he had purchased 3 bottles of slice beverage of 200 ML each on 1.7.2009 for a consideration of Rs.24/- from the 3^rd opposite party shop. On reaching home when the complainant offered the bottles to two of his guests, one of them immediately after consuming the contents of the slice bottle directly from the bottle vomited. When the complainant enquired about the same, the guest revealed that the contents of the bottle was smelled bad and something struck at her throat as such she had vomited. Immediately the complainant saw the other two bottles which contain some dead flies inside the same. Immediately the complainant took one opened bottle and another one unopened bottle with the seal intact to the 3^rd opposite party shop and enquired about the contamination. But the 3^rd opposite party without giving any proper reply sought the complainant to return all the three bottles to him. Hence the complainant filed a consumer complaint seeking relief as prayed in the complaint.

3.       The brief facts as stated in the written version filed by the opposite parties 1 and 2 are as follows :

          The complaint is false, frivolous and vexatious. The complainant is not a consumer as he had not produced any purchase bills. For that the contention of the opposite parties 1 and 2 would be that they are manufacturing the slice beverage product in a sophisticated, modernized method and subjecting the products with stringent quality, check up as such method, there is no chance for any such contamination or impurity. If there is any such contamination or impurity, it would not have gone unnoticed since it was checked at various stages. The opposite parties are not liable to pay any compensation to the complainant as he had not sustained any loss.

4.  Points for determination in this appeal are as follows:-

1. Whether the 1st Respondent/complainant has established the alleged unfair trade practice, negligence and deficiency of service as against the appellants/opposite parties 1 & 2?

2. Whether the appeal has to be allowed on the grounds raised by the appellants/opposite parties 1& 2?

Point No.1 :

5.       The respondent/complainant has filed a complaint stating that he had purchased 3 bottles of slice beverage of 200 ml each for a consideration of Rs.24/- on 1.7.2009 from the 3^rd opposite party as per the bill under Ex.A.1,  according to him, he went his house and served two of the said bottles containing beverages to his two guests after consuming the contents of the slice bottle, one of his guests got vomiting, on his enquiry, the said guests revealed that the contents of the bottle was smelled bad and something struck at her throat as such she had vomited.

6.       On hearing the same, the complainant saw the other two bottles which contains some dead flies inside the same. According the complainant took one opened bottle and other two bottles with the seal intact to the 3^rd opposite party shop and enquired about the contamination of the cool drinks. However the 3^rd opposite party did not give any proper reply asked the complainant to handover the bottles to him so as to close the issue involved in the matter. The complainant has further stated that on account of the unfair trade practice being followed by the opposite parties, subsequently issue legal notice dated 20.7.2008, Ex.A.3, calling upon the opposite parties to decide manufacturing of contaminated product and to pay Rs. 1 lakh as compensation. Though the opposite parties had received the legal notice, no reply was sent by them to the complainant.

7.         Ex.A.4, postal acknowledgment for serving notice to the opposite parties, subsequently the complainant had sent the sealed bottles to the Food Analysis Laboratory, Kings Institute Campus, Guindy. Ex.A.5,   is the receipt of the Food Analysis Laboratory, after the analysis of the contents of the bottle sent and given a certificate of analysis that has been marked as Ex.A.6.  The aforesaid documents Ex.A.1 to A.6, would show that on 1.7.2009,  the complainant purchased three bottles of slice

beverage of 200 ml for a consideration of Rs. 24/- each from the 3^rd opposite party. The 1^st and 2^nd opposite parties are Pepsico Holding India Pvt Ltd, Corporate office at Gurgaon and manufacturing place at Kanchipuram respectively. Ex.A.2 is the copy of the photographs showing that the contaminated slice bottle, subsequently the complainant  issued a legal notice dated 27.2.2019. As from the original of Ex.A.3, the legal notice was properly served and the acknowledgement got and produced evidence for the service of legal notice. Adversely, there was no reply from the opposite parties. Ex.A.6, Food Analysis Laboratory, King Institute campus, Chennai is run by the Department of Public Health and Preventive medicine and the Government Analyst of the King Institute has issued certificate of analysis dated 11.1.2010, wherein it is stated that the sample slice glass bottle was received with sealed metal crown lead and printed label, declaration regarding the chemical analysis, the Government Analyst has stated that the contents of the bottle was yellowish orange colour turbid liquid, non aerated none numbers dead flies on the parts of flies like legs found in the bottle and also get sample. As from the report, the Government analyst has stated that the glass bottle was handed over for the analysis properly with the metal crown lead and printed label declaration. In the report, it is categorically stated that as follows :-

          “ The sample on microbiological analysis is found to contain total count/ml more than the maximum permissible limit and coliform count/ml is also more than the maximum permissible limit which shall be absent.

          The presence of all the above makes the food unwholesome and not fit for human consumption.

          Hence the sample is deemed to be adulterated as per sec 2(1a) (a)(f) of PFA Act 1954”.

8.       The complainant has produced all supporting documents and materials to establish the three slice bottles were purchased by him, each for Rs.24/- on 1.7.2009 and he has also stated that while consuming one bottle, the guest has come to house, get vomiting. Since the bottle was smelled bad and something struck her throat, even the certificate of analysis, Ex.A.6, would clearly corroborate the case of the complainant. Subsequently, the complainant had issued a legal notice to all the three opposite parties stating that the aforesaid alleged occurrence, however the opposite parties did not reply for the reasons best known to them. In the written version, they contended that the slice beverages are the product manufactured under the sophisticated method. Hence the allegation made by the complainant would not be true. The conduct of the parties are also relevant in deciding these type of negligence, but the complainant has proved the purchase of the 3 slice bottles and taking photos of the bottles with dead insects and flies apart from issuing legal notice to the opposite party and sent one sealed bottle to the Food Analysis Lab, King Institute, a Government owned laboratory, even without sending reply or diligent step to deny the allegation. Mere to near, could not be accepted in the impugned order, the learned District Forum has discussed elaborately in the case of the complainant and the defence raised by the opposite parties 1 and 2 and also to impress based on the analytical report.

9.       Having considered the facts and circumstances, we are of the view that the respondent/complainant established the alleged negligence, deficiency of service and unfair trade practice against the appellant/opposite party who are the manufacturer of the slice beverage bottles.

Point No.2 :-

10.     The respondent/complainant has established the negligence and deficiency of service and also unfair trade practice of the appellants herein. Having considered the proof, negligence and deficiency of service and also unfair trade practice, the District Forum has ordered, the appellants/opposite parties should pay Rs.10,000/- as compensation for unfair trade practice and Rs. 10,000/- as compensation for mental agony and sufferings by the complainant and Rs. 6655/- towards litigation expenses.

11.     Having considered the quantum of compensation, we are of the view that the compensation awarded by the District Forum is not exorbitant and the same is only as reasonable minimum amount. The grounds raised in the appeal by the appellant are also not legally sustainable.

          Therefore points for determination No. 2 is also answered in favour of the Respondent/complainant as against the appellants/opposite parties 1 and 2.

          In the result, confirming the order passed by the District Consumer Disputes Redressal Forum, Chennai(North) made in CC.No. 27/2010 dated 4.10.2011, the appeal is dismissed and the appellants/opposite parties 1 and 2 are also directed to pay Rs.5000/- towards cost in this appeal.

S.M.LATHA MAHESWARI                     K. BASKARAN             S. TAMILVANAN                                                            

           MEMBER                                  JUDICIAL MEMBER.          PRESIDENT