BEFORE THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION AT PUDUCHERRY
THURSDAY, the 10th day of November, 2016
FIRST APPPEAL No. 22/2015
The Manager,
Pepsico India Holdings Pvt. Ltd.,
No.6, GST, Mamandur,
Maduranthagam Taluk,
Kanchipuram District, Tamilnadu …….. Appellant
Vs.
1. Jayakumar, S/o P.S. Rajagopal,
No.64, Perumal Koil Street,
Puducherry.
2. The Proprietor, M/s Dilip Kumar Agency,
Distributors for Pepsico India Holdings P. Ltd.,
6/4, Anna Nagar Main Road,
Anna Nagar Extension, Puducherry.
3. The Proprietor,
M/s Sri Varagi Stores,
No.29, Mahatma Gandhi Road,
Puducherry-1 ……… Respondents
(On appeal against the order passed in C.C.No.71/2010, dt.10.04.2015 of the District Consumer Disputes Redressal Forum, Puducherry)
C.C.No.71/2010
Jayakumar, S/o P.S. Rajagopal,
No.64, Perumal Koil Street,
Puducherry. ……… Complainant
Vs.
1. The Manager,
Pepsico India Holdings Pvt. Ltd.,
No.6, GST, Mamandur,
Maduranthagam Taluk,
Kanchipuram District, Tamilnadu
2. The Proprietor, M/s Dilip Kumar Agency,
Distributors for Pepsico India Holdings P. Ltd.,
6/4, Anna Nagar Main Road,
Anna Nagar Extension, Puducherry.
3. The Proprietor,
M/s Sri Varagi Stores,
No.29, Mahatma Gandhi Road,
Puducherry ………. Opposite Parties
BEFORE:
HON’BLE THIRU JUSTICE K.VENKATARAMAN,
PRESIDENT
TMT. K.K.RITHA,
MEMBER
THIRU S.TIROUGNANASSAMBANDANE,
MEMBER
FOR THE APPELLANT/O.P.1:
M/s R.Thirumavalavan, M.Kandasamy and
M.Murali Vinodh,
Advocates, Puducherry
FOR THE RESPONDENT/COMPLAINANT:
Thiru S.Vimal, Advocate, Puducherry
FOR THE RESPONDENTS/O.P.S 2& 3:
Exparte.
O R D E R
(By Tmt.K.K.Ritha, M.A., M.H.R., B.L., Member)
This appeal is preferred against the order of the District Consumer Disputes Redressal Forum, Puducherry (‘District Forum’ for short) made in C.C.No.71/2010, dated 10.04.2015 by the appellant against the respondents. The appellant and respondents 2 and 3 were the opposite parties and the respondent No.1 was the complainant before the District Consumer Disputes Redressal Forum.
2. The case of the complainant before the District Forum is that the complainant filed the complaint against the opposite parties that he had purchased a bottle of 200 ml cool drink, with the brand ‘SLICE’ on 07.04.20110 from 3rd O.P. for consumption by paying a sum of Rs.10/-. The said bottle contains an unusual foreign object, like Gutkha pouch which was visible to naked eye. Immediately, the complainant complained to the 3rd O.P. to replace the product or to refund the cost of it, but, he was advised to contact the opposite parties 1 and 2. The complainant was aggrieved by the defective product which is unworthy of human consumption. Even though the foreign particle was visible to naked eye, the complainant wanted a laboratory test/analysis to find out whether it was fit for human consumption. The defective product was manufactured by 1st opposite party had caused mental agony and sufferings to the complainant. Hence, the complainant has filed the complaint for unfair trade practice on the part of opposite parties.
3. The opposite parties 2 and 3 were remained absent and hence they were set exparte.
The 1st opposite party filed its reply version denying all the allegations in the above complaint leveled against them. At the outset, the opposite parties have stated that the complainant is not a consumer as per Section 2(1)(d) of Consumer Protection Act, 1986. There is no material on record to point out that the complainant had purchased the product for consideration from the opposite parties. Further, the soft drinks was manufactured by 1st O.P. in modern sophisticated plants by using very high standard of hygiene and cleanliness. It involves various stages of checking to rule out any possibility of foreign object in the bottle. Moreover, the soft drink beverages undergo multi-stage cleaning process at the bottling plant and there is no scope of contamination. It is very easy for anyone to mix spurious bottles of soft drink with genuine bottle and to claim as original product. The contents of the bottle produced by the complainant are not manufactured by the 1st opposite party. As such, the complainant cannot rely upon the impugned bottle and no claim can be sought from the opposite parties. When the complainant had found the adulterated drink, he had not chosen to approach the municipal authorities to file a complaint before them.
Though the bottle was purchased on 07.04.2010, he retained the bottle with him for more than a month which had deteriorated the shelf life of six months of the product from the date of manufacturing and rendered unfit for analysis. Thus, the complainant has failed to make out a case against the opposite parties and to justify the compensation of Rs.75,000/- prayed by him hence the opposite parties prayed to dismiss the complaint..
4. Before the District Forum, the complainant was examined himself as CW1 and Exs.C1 to C4 and M.O.1 were marked. On the side of 1st O.P., Mr.R.Senthilkumar, Accounts Development Co-ordinator was examined as RW1 and no document was marked on its side.
5. The complaint was allowed by the District Forum directing the opposite parties to pay jointly and severally Rs.25,000/- as compensation for negligent act and for unfair trade practice and a sum of Rs.5,000/- towards cost and directed the opposite parties to discontinue unfair trade practice and sale of hazardous food product.
6. Being aggrieved by the order of the District Forum, as stated already, the 1st opposite party has preferred the present appeal. The 2nd opposite party has been set exparte by the District Forum and remained absent before this Commission also. The 3rd respondent was set exparte before the District Forum, but, appeared before this Commission and explained the position. We are of the view that the order of the District Forum has to be stayed in respect of R3
7. We have heard the learned counsels appearing for the complainant and 1st opposite party and perused the documents available on record and the material object, marked as M.O.1.
8. Regarding Point No.1, the District Forum found that the complainant is a consumer since he had purchased the M.O.1 for Rs.10/- as per Ex.C1. We uphold the view of District Forum that the complainant is a consumer as per Consumer Protection Act.
9. The learned counsel for 1st opposite party staunchly refuted that an object like the alleged ‘Gutkha pouch’ found in the slice bottle cannot be un-noticed by so many people right from the stage of filling where there is light and visual inspection, to check if any foreign material is in it before sealing. Even after sealing, loading in crate, delivery to the truck, offloading at the distribution location, sale from distributor’s location to the retail outlet and even after the retailer outlet to the consumer, it is highly impossible that none of them had noticed such a foreign object in the particular bottle. The 1st O.P. contended that it is very easy for anyone to mix spurious bottle of soft drinks with genuine bottle and to claim the spurious bottles are that of the manufacturer. The contents of the bottle produced by the complainant are not manufactured by the 1st O.P. Merely by relying upon the impugned bottle; the complainant cannot make any complaint on the basis of the said bottle. Though the complainant purchased the bottle on 07.04.2010, he retained it with him for more than a month without taking any steps to analyse the contents of the bottle and thereby the shelf-life of six months had already expired. Moreover, the impugned bottle was not sent for analysis, which is in contravention of Section 13(1)(c) of the Act. Even though the complainant has mentioned about referring the product to laboratory for analysis/test at para 7 of the complaint, but not chosen to file any application, as contemplated under the Act, to prove his case. Further, the 1st opposite party opined that the soft drinks are manufactured in modern sophisticated plants using very high standard of hygiene and cleanliness. The bottles used in bottling is washed, disinfected and visually checked prior to filling and hence there is no scope for contamination. There is a widespread racket of manufacturing and selling spurious soft drinks by bottling spurious drink in glass bottle manufactured by renowned soft drink companies. According to the 1st opposite party, there is no conclusive proof that the contents of the impugned bottle was manufactured by them.
10. From the records, the arguments put forth by the learned counsels on both sides, the evidence of the complainant (CW1) and R.Senthilkumar, the witness on the side of O.P.1 (RW1), we have come to the following conclusion:
11. The allegation of the complainant is that he purchased the slice bottle which is spurious one, manufactured by the opposite parties. The findings of the District Forum is that the soft drink is a spurious one, unfit for human consumption. This observation was made by seeing a foreign particle, Gutkha Pouch in the bottle, which is visible with naked eye and hence the product was not sent for analysis. The District Forum had relied upon the decision reported in 2010 STPL (CL) 1441 NC and III 2010 CPJ 325 (NC).
12. To decide the merits of the case, cross examination of RW1 is vital and so the contents of it are reproduced below:
RW1 deposed that “We look into the liquid and content of the bottle to verify the product is ours. It is true that to identify the product, the batch number is necessary. The batch number refers to a particular product lot. M.O.1 refers to batch number. M.O.1 was manufactured on 11.03.2010. We are maintaining the records to show the lot produced by us. It is true that our product supposed not to contain ‘Gutkha pouch’. The liquid inside M.O.1 is not slice. Six months shelf-life for slice product manufactured by us. The slice product manufactured by us contains mango juice“.
13. From the above deposition of RW1, it is clear that he identified the batch number and date of manufacture as 11.03.2010. So it is explicit that the bottle belonged to O.P.No.1/appellant and the complainant purchased M.O.1 on 07.04.2010.
14. Now, the question is whether the contents of the bottle, i.e. slice, the cool drink has been bottled by 1st O.P. or not. In the appeal filed before this Commission, the 1st opposite party has reiterated throughout that the spurious soft drink are bottled in glass bottle manufactured by renowned soft drinks companies and sold. In turn, they have taken possible steps to eradicate such racket. The 1st O.P. has made a general statement and no steps have been taken to disprove the fact that the contents in the alleged bottle were not manufactured by them. We have observed in the past many cases filed before consumer forums with similar allegations. Under such circumstances, the 1st opposite party, as a reputed company, should ensure such malpractices does not occur now and then in order to safeguard the health and safety of public by consuming such drinks under the guise of their product. We have to accept the fact that the said contents in the bottle was bottled by 1st opposite party, when there is no cogent proof that the contents in the bottle was filled afterwards by any third person. Hence, we are of the considered view that the bottle and the contents in the bottle belonged to 1st Opposite Party.
15. Another plea put forth by 1st opposite party is that the complainant failed to conduct appropriate laboratory test to find out the contamination in the bottle as per Section 13(1) (c) of C.P.Act. During the course of arguments, we have seen the M.O.1 in which, a pouch with some foreign particles were floating in the said slice bottle. We observed that the cap of the bottle was in tact and teeth of the cap were not meddled with. Under such conditions, we feel when we can see with naked eye the pouch and some foreign particles floating, it is absolutely unnecessary to do a laboratory test to confirm whether the product is edible for human consumption or not. Hence, it is proved beyond doubt that the contents in the bottle was manufactured by 1st opposite party/ appellant and there was no tampering of the bottle to fill any spurious drink by any external forces.
16. In this connection, the complainant filed the following judgment to establish that there is no necessity to get a laboratory report when it is visible to naked eye that there is foreign object in the bottle.
III (2010) CPJ 325 (NC) wherein the complainant produced two sealed bottles one Slice Mango flavor of 250 ml. in which a house-fly lying in it is visible to naked eye. Another bottle Miranda lemon flavor of two litres has a foreign object lying in it. Hon’ble National Commission held that there is no necessity for sending the two bottles to laboratory for analysis.
17. In this connection, the appellant/1st opposite party filed the judgment reported in (1999) 8 Supreme Court Cases 190 – In this case, to get the sample analysed from CIL at the accused’s cost but the Inspector ignoring the same on the ground that such request could be made only to the court, and filing the complaint. But that time, the accused was summoned by the court to stand for trial. Shelf life of the insecticides expiring and sending of the sample to CIL at that stage become purposeless. Thus, the accused was deprived of the right to get the same tested.
18. In the case on hand, the above finding will not fit since the facts and circumstances differ from the case cited above.
19. The appellant/1st O.P. has filed the judgement in F.A.377/2005, F.A.414/2008 and F.A.279/2009 of State Commission, Chennai wherein the complaint was dismissed since the complainant failed to prove his case.
20. In the cross-examination of CW1, an allegation was made that the complainant and 3rd opposite party colluded together and filed the complaint before consumer forum. The 3rd opposite party, the couple, was present before this Commission and stated that they are running a petty shop for their livelihood at their ripe age without any help from their children. We feel there is absolutely no chance for this couple in their old age to collude with the complainant to make a complaint before the consumer forum. Hence, this plea put forth by the 1st opposite party has to be rejected
21. The appeal is dismissed, since unfair trade practice is proved on the part of complainant. In view of the above reasoning, we are of the view that the District Forum has rightly allowed the complaint. Regarding quantum of compensation for negligent act and unfair trade practice, we feel that the compensation of Rs.25,000/- awarded by the District Forum is on the higher side, since the monetary loss for the complainant was only Rs.10/-, being the cost of M.O.1. Hence, we feel an amount of Rs.1,000/- (Rupees One-Thousand only) would suffice as compensation and Rs.5,000/- (Rupees Five-Thousand only) towards costs of the proceedings.
Dated this the 10th day of November, 2016
(Justice K.VENKATARAMAN)
PRESIDENT
(K.K.RITHA)
MEMBER
(S.TIROUGNANASSAMBANDANE)
MEMBER
