ORDER

13.11.2024

SH. RAJESH, MEMBER

1. Present complaint has been filed by complainant seeking cancellation of license of OPs and legal action against OPs.
2. It is stated in the complaint of complainant that the some days before complainant purchased “fountain Dew 200 ml Pepsi” in which pieces of glass and foreign material were found.
3. It is stated that the complainant that the complainant reported the matter to the OPs but OPs took no action in this regard.
4. Complainant has approached before this Commission seeking cancellation of license of OP and legal action against OPs.
5.  Notice was issued to OPs however only OP2 appeared and filed his detailed written statements denying the allegations made by the complainant.  OP1 neither appeared nor filed its written statement therefore proceeded as Ex-Parte vide order dated 24.11.2016.
6. It is stated by OP2 in his WS that the product “Fountain Dew 200 ml Pepsi is no product by the said name which is manufactured and sold thus the present complaint is not maintainable.
7. It is stated that complaint of the complainant is not maintainable as he has failed to file invoice on record payment details has also not been filed date of purchase and place of purchase has further not been specified batch no. , date of manufacturing and all other vital details have not been provided in the complaint thus the complaint is liable to be dismissed.  
8. It is state that there is no privity of contract between the complainant and the OP2 and therefore, the complainant is not maintainable either in law or in facts and thus is liable to be dismissed.
9.   On merits contentions raised in preliminary objections have been reiterated.
10. Complainant has led his evidence by way of affidavit reiterating the allegations made in the complaint.
11. Complainant has filed additional evidence by way of affidavit wherein he has clarified that he purchased “Mountain Dew 200 ml Pepsi”.
12. OP2 has led his evidence by way of affidavit reiterating their contentions raised in their respective written statement.
13. We have carefully perused the record and heard respective parties. The main issue which emerges from pleadings for our consideration is whether OPs are liable for deficiency in services and whether they have delivered a bottle of cold drink filled with pieces of glass and foreign element to complainant.
14. The main grievance of the complainant is that he purchased a Mountain Dew bottle of cold drink from OP1 whereas he was delivered a bottle of cold drink filled with pieces of glass and foreign element to complainant. Complainant reported the matter to OPs and made several follow ups with OPs but all in vain. Complainant has approached before us seeking cancellation of license of OP and suitable legal action against OPs.
15. Complainant has produced a sealed pack bottle of cold drink marked as Mountain Dew of 200 ml in which pieces of glass and some dirt is clearly visible. Though complainant has not pleaded in his complainant as to when he did purchase the same though it has been clarified in additional evidence filed by complainant that he purchased the same on 19.08.2016. Moreover there is no denial of the statement of complainant on oath that he purchased the product in question from OP1. There is also no denial by OP2 that the cold drinks of brand “Mountain Dew 200 ml” are produced by OP2.   
16. In view of above observations and submission we are of the considered view that OP2 is liable for selling defective item i.e. cold drink to complainant.  
17. Now we will discuss as to for what relieves complainant is entitled to. Perusal of prayer clause of the complainant shows that complainant has only sought cancellation of license of OPs and appropriate legal actions against OPs.
18. It is necessary to point out that this Commission has no power and authority to cancel the license of OPs if any. For this specific relief sought by complainant this Commission is not appropriate platform.  
19. There is no dispute about the fact that the Court has wide discretion in granting relief, but cannot keep aside the norms & principles governing grant of relief not even prayed by the Complainant. It is settled law that relief not found on pleadings should not be granted and if a court considers or grants a relief for which no prayer or pleading was made, it would lead to miscarriage of justice.
20. Therefore, in the facts and circumstances of the present exceptional case and in the interest of justice we deem fit that direction to OP2 to pay the suitable compensation in monetary terms to complainant will serve the ends of justice.
21. Further by prayer “appropriate action” against OP by the complainant in the complaint this commission appreciates that appropriate monetary relief in terms of compensation to complainant is sought which this Commission could legally grant to complainant as per provisions of Consumer Protection Act, 1986.
22.   It is well settled that the word 'Compensation' is of very vide connotation and once the Court is satisfied that the complainant has suffered harassment or mental agony and is entitled to compensation, it is obliged to adequately compensate him for the actual loss or expected loss, which would extend to compensation for the physical, mental or emotional sufferings. On the question of determination of compensation for the loss or injury suffered by a consumer on account of deficiency in service, the following observations by a three Judge Bench of the Hon'ble Supreme Court in  Charan Singh v. Healing Touch Hospital & Ors., - (2000) 7 SCC 668 are also apposite:-

"While quantifying damages, Consumer Forums are required to make an attempt to serve the ends of justice so that compensation is awarded, in an established case, which not only serves the purpose of recompensing the individual, but which also at the same time, aims to bring about a qualitative change in the attitude of the service provider. Indeed, calculation of damages depends on the facts and circumstances of each case. No hard and fast rule can be laid down for universal application. While awarding compensation, a Consumer Forum has to take into account all relevant factors and assess compensation on the basis of accepted legal principles, on moderation. It is for the Consumer Forum to grant compensation to the extent it finds it reasonable, fair and proper in the facts and circumstances of a given case according to the established judicial standards where the claimant is able to establish his charge."

23. On the basis of above observation and discussion we are of the considered view that OP2 is held liable for deficiency in service for the by complainant, therefore, present complaint is allowed and we direct the OP2 to pay a sum of Rs. 10,000/- on account of compensation for mental agony and harassment suffered by complainant which will include cost of litigation as well. The above amount shall be paid within 45 days of passing of this order failing which OP shall be liable to pay interest @9% per annum on the above amount.        
24. Copy of the order be given to the parties free of cost as per order dated 04.04.2022 of Hon’ble State Commission after receiving the application from the parties in the registry.

Order be uploaded on www.confonet.nic.in.

File be consigned to Record Room.

Announced in open Commission on 13.11.2024.

(SANJAY KUMAR)                              (RAJESH)

PRESIDENT                                       MEMBER