Chandigarh

StateCommission

A/176/2015

Coca Cola India Pvt. Ltd. - Complainant(s)

Versus

Raj Jacob - Opp.Party(s)

Kohli & Sobti, Advocates

07 Sep 2015

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

                                                                 

First Appeal No.	:	176 of 2015
Date of Institution	:	30.07.2015
Date of Decision	:	07.09.2015

 

Coca-Cola India Pvt. Ltd., Enkay Towers, Udhyog Vihar, Phase-V, Gurgaon – 122001.

 ……Appellants/Opposite Party No.2.

Versus

 

1. Raj Jacob S/o Sh. Ram kishan, General Secretary of People Human Rights Council Resident of #1067, Sector 24-B, Chandigarh.

…..Respondent/Complainant.

 

2. Ludhiana Beverages Private Limited, 185, G.T. Road, Ludhiana, Punjab – 141003.
3. D. K. Juice Bar, SCO 38-39, Sector 17-A, Chandigarh.

  

….Respondents/Opposite Parties No.1 and 3.

 

 

Appeal under Section 15 of the Consumer Protection Act, 1986.

 

Argued by: 

 

Sh. Ajay Kohli, Advocate for the appellant.

Sh. Kulwant Singh, Advocate for  respondent No.1 alongwith Sh.Raj Jacob, respondent No.1 in person.

Sh. Gaurav Bhardwaj, Advocate for respondent No.2

Sh. Darshan Kumar, Proprietor of  respondent No.3 D.K. Juice Bar, in person.

                                                                  

First Appeal No.	:	177 of 2015
Date of Institution	:	31.07.2015
Date of Decision	:	07.09.2015

 

 

Ludhiana Beverages Private Limited, 185, G.T. Road, Dhandari Kalan, Ludhiana, through its Chief Executive Mr. S. D. Chhabra.

 

 ……Appellant/Opposite Party No.1.

Versus

 

1. Raj Jacob S/o Sh. Ram Krishan, General Secretary of People Human Rights Council, Resident of #1067, Sector 24-B, Chandigarh.
2. Coca-Cola Company, India Head Office Enkay Tower, Industrial Area, Udyog Vihar, Phase-V, Gurgaon, Haryana.
3. D. K. Juice Bar, SCO 38-39, Sector 17-A, Chandigarh.

….Respondents/Opposite Parties No.2 and 3.

 

 

Appeal under Section 15 of the Consumer Protection Act, 1986.

 

BEFORE:  MR. DEV RAJ, MEMBER.

        MRS. PADMA PANDEY, MEMBER

 

Argued by: 

 

Sh. Gaurav Bhardwaj, Advocate for the appellant.

Sh. Kulwant Singh, Advocate for  respondent No.1 alongwith Sh.Raj Jacob, respondent No.1 in person.

Sh. Ajay Kohli, Advocate for respondent No.2

Sh. Darshan Kumar, Proprietor of  respondent No.3 D.K. Juice Bar, in person.

 

PER DEV RAJ, MEMBER.

              This order shall dispose of two appeals bearing Nos.176 of 2015 filed by the appellant/Opposite Party No.2 and 177 of 2015 filed by the appellant/Opposite Party No.1, against the order dated 28.05.2015, rendered by the District Consumer Disputes Redressal Forum-II, U.T., Chandigarh (hereinafter to be called as the District Forum only), vide which, it allowed consumer complaint bearing No.554 of 2014, filed by the complainant, qua the Opposite Parties, and directed them as under: -

“17. In the light of above observations, the present complaint of the Complainant deserves to be allowed against the Opposite Parties, and the same is accordingly allowed, qua them, jointly and severally. The Opposite Parties are directed to:-

[a]  To pay compensation amount of Rs.25,000/- to the complainant on account of deficiency in service;

[b] To pay Rs.10,000/- as cost of litigation;

The above said order shall be complied within 45 days of its receipt by the Opposite Parties; thereafter, they shall be liable for an interest @18% per annum on the amount of compensation from the date of filing of the complaint till it is paid, apart from paying the cost of litigation of Rs.10,000/-.”

2.           The facts, in brief, are that on 30.07.2014, the complainant ordered five bottles of cold drink (Maaza), during one of the board meetings conducted by him, from Opposite Party No.3, which were consumed by the members attending the said meeting. It was stated that the complainant again ordered two bottles of the same cold drink. It was further stated that Opposite Party No.3 brought two cold drinks (Maaza) bottles, which were sealed and kept on the table. It was further stated that the complainant noted that one of the said bottles contained some housefly (musca domestica), floating therein. It was further stated that at the same time, the other members, who had consumed the cold drinks, started vomiting. It was further stated that the matter was reported to Opposite Party No.3 and complaint was also lodged with Opposite Party No.1 and 2. It was further stated that the complaint against Opposite Parties No.1 and 2 was also lodged with the Superintendent of Police, U.T., Chandigarh but it did not yield any result. It was further stated that the complainant gave a written complaint to the Food Safety Officer, Sector 16, Chandigarh, to verify the contents of the said bottle. It was further stated that on 22.08.2014, analysis report of said cold drinks (Maaza) was received by the Food Officer, wherein it was clearly held that “contents contain one dead fly. Hence, unsafe for human consumption”. It was further stated that the Opposite Parties were selling the cold drinks to the general public, containing housefly, which was very harmful for their health. 

3.           It was further stated that the act and conduct of the Opposite Parties, amounted to deficiency, in rendering service and indulgence into unfair trade practice. When the grievance of the complainant, was not redressed, left with no alternative, a complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter to be called as the Act only) was filed, claiming various reliefs.

4.            Opposite Party No.1, in its written statement, stated that the purchasing of Maaza 200 Ml bottles, as alleged, in the complaint was not proved by way of documentary proof.  In fact, there was no allegation made in the complaint for purchasing of the alleged bottles for consideration and, as such, the complainant was not a consumer qua it. The Opposite Party took the preliminary objection that the complaint was bad for non-joinder and mis-joinder of necessary parties.  It was further stated that the complainant never approached the answering Opposite Party nor showed the bottle to it or the Forum. It was further stated that the complainant by using fake/spuriously filled bottle managed to get the bottle sent for analysis with an ulterior motive to conceal, destroy the identity, nature, condition of the same without issuing any notice to it thereby without complying with the provisions of Section 13 (a) (f) of the Consumer Protection Act, 1986.  It was further stated that the complainant gave some duplicate bottle manufactured by small time manufacturer who infringed the trade mark of the answering Opposite Party and the report of the CFSL was of duplicate bottle only and it had no concern with the same. It was further stated that the details of maaza bottle 200 ml as mentioned in the complaint were LB1B No.02 dated 02.07.2014 time 13.46 but the entire information was lacking in the report. It was further stated that the report was procured by the complainant by using his influence and, as such, the same was liable to be ignored.  It was further stated that from the analysis report, it was not proved that the bottle containing alleged fly related to answering Opposite Party.  It was further stated that neither there was any deficiency, in rendering service, on the part of Opposite Party No.1, nor it indulged into unfair trade practice. The remaining averments, were denied, being wrong.

5.           Opposite Party No.2, in its written statement,  took up the preliminary objection with regard to mis-joinder of parties and that the complainant was not a consumer under the provisions of the Act. It was stated that Coca Cola Company, USA had granted license to certain entities in India (hereinafter referred to as the “Bottlers) in connection with the preparation and packing of certain beverages. It was further stated that these bottlers are independent legal entities and are in no way the agents of the Coca Cola Company. It was further stated that Coca-Cola India Pvt. Ltd. is in no manner related to the process of manufacturing, sale or distribution of any beverage/bottle to the consumers. It was further stated that at no stage, the beverage was touched by human hands. The averment with regard to the board meeting etc. was denied.  It was further stated that the complainant intentionally did not inform the seller or the manufacturer and the answering Opposite Party before submitting the bottle for alleged analysis test.  It was further stated that the answering Opposite Party had no liability whatsoever to pay any sum to the complainant by way of compensation. It was further stated that neither there was any deficiency, in rendering service, on the part of Opposite Party No.2, nor it indulged into unfair trade practice. The remaining averments, were denied, being wrong.

6.           Opposite Party No.3, in its written statement, denied that the complainant had purchased the bottle of Maaza and specifically the bottle, in question, from it. It was also denied that any incident happened on 30.07.2014. It was further stated that the complainant never complained about giving of unhygienic cold drinks.  It was further stated that the complainant himself approached it to join hands with him and asked it to admit the purchase of bottle from Ludhiana Beverages Company and further selling it to the complainant.  It was further stated that on refusal thereof, the complainant gave the temptation of money offer but it flatly refused for the same. It was further stated that neither there was any deficiency, in rendering service, on the part of Opposite Party No.3, nor it indulged into unfair trade practice. The remaining averments, were denied, being wrong.

7.           The parties led evidence, in support of their case.

8.           After hearing the Counsel for the parties and, on going through the evidence, and record of the case, the District Forum, allowed the complaint, vide the impugned order, as stated above.

9.           Feeling aggrieved, Opposite Party No.1 as also Opposite Party No.2, have filed the instant appeals.

10.         We have heard the Counsel for the parties, and have gone through the evidence and record of the case, carefully.

11.         The Counsel for the appellant/Opposite Party No.2 (Coca-Cola India Pvt. Ltd.), in appeal bearing No.176 of 2015, submitted that no invoice in token of having purchased the product has been placed, on record, by the complainant. He further submitted that averment of complainant that a complaint was given to the Sr. Superintendent of Police on 30.7.2014 is not supported by any documentary evidence. He further submitted that certificate of registration of the People for Human Rights Council is dated 01.12.2014 i.e. after the date of incident. He further submitted that no doubt, the complainant placed, on record, report of the Food Analyst but the said alleged lab report was not sought by the District Forum acting under provisions of Section 13(1)(c) read with Section 13(4) of the Consumer Protection Act, 1986, but obtained by the complainant on his own, prior to filing of the complaint. He further submitted that the seller of the product has denied that the product was sold and stated that the complainant asked it to collude with him. He further submitted that Coca Cola India Pvt. Ltd. (appellant) and The Coca-Cola Company, USA are two separate entities and M/s Ludhiana Beverages Private Limited (bottler) has been granted license by Coca-Cola Company, USA. He further submitted that these authorized bottlers are independent legal entities and are in no way the agents of the appellant.  It was also submitted that Coca-Cola India Pvt. Ltd. was in the business of sale and supply of the concentrates/beverage bases to the authorized bottlers of the Coca-Cola Company, USA and indirectly wholly owned subsidiary of Coca-Cola Company, USA.

12.         The Counsel for Opposite Party No.1, (appellant in appeal bearing No.177 of 2015), submitted that no bill/invoice was placed, on record, by the complainant. He further submitted that Opposite Party No.3, from whom the product is alleged to have been purchased, has denied sale of the same. He further submitted that the territory for supply of product by Opposite Party No.2 was not Chandigarh but the same was Districts of Ludhiana, Jalandhar, Sangrur,  Hoshiarpur, Moga, Nawanshahr and Phagwara Tehsil of Kapurthala District (Exhibit RW-1/A). He further submitted that no medical report that anybody suffered on account of consumption of spurious product was placed on record. He further submitted that the complainant alongwith another person had earlier filed a consumer complaint but the same was withdrawn.

13.         The Proprietor of Opposite Party No.3 (respondent No.3 in both the appeals) in person, submitted that the product, in question, was not sold by it. 

14.         The Counsel for the complainant (respondent No.1 in both the appeals) submitted that the order passed by the District Forum is based on true appreciation of facts and law and it (District Forum) rightly allowed the complaint. He further submitted that it was only office of the appellant/Opposite Party No.2, which looked after the business of Coca-Cola Company, U.S.A in India. He further submitted that the appellant/Opposite Party No.2 did not place any documentary proof in support of its averment that Coca-Cola India Pvt. Ltd. had no concern with the process of manufacturing, sale etc. He further submitted that both the appeals filed by Opposite Parties No.1 and 2, referred to above, deserve dismissal.

15.         The main argument put forth by the Counsel for the appellant Coca-Cola India Pvt. Ltd., in appeal No.176 of 2015, is that Opposite Party No.1 (Bottler) was granted license by Coca-Cola Company U.S.A, which is a separate entity and it had no connection with the license granted to Opposite Party No.1 viz. Ludhiana Beverages Private Limited (bottler). No doubt, it is evident from the contents of Para 6 of the complaint wherein the complainant has stated that he lodged complaint to the SSP, Chandigarh dated 30.07.2014 against Ludhiana Beverages Pvt. Ltd., 185 G.P. Road, Ludhiana and Coca-Cola Company, Coca-Cola Plaza Atlanta LA 30313 U.S.A. It has, however, been admitted by the appellant that it was in the business of sale and supply of the concentrates/beverage bases to the authorized bottlers of the Coca-Cola Company, USA and was indirectly wholly owned subsidiary of Coca-Cola Company, USA.

16.         Respondent No.1/complainant has not adduced documentary evidence in support of his averment that he (respondent No.1/complainant) filed a complaint with the Police on 30.07.2014, the date on which, one maaza bottle was found containing a dead fly. There is also no documentary evidence that the general body meeting of People for Human Rights Council was held on 30.07.2014. The complainant has also not placed any invoice/bill in token of purchase of Maaza Cold drink bottles and it even did not mention the price paid to Opposite Party No.3. It is also a fact that the spurious product was not consumed and, consequently, the same did not have any adverse impact on any person. The fact remained that respondent No.1/complainant even got the Maaza bottle containing dead fly tested from the Food Analyst Punjab and the report thereof, cannot be overlooked.

17.         No doubt, registration of the People for Human Rights Council, as per evidence adduced by the complainant, is dated on 1.12.2014. It means that on the date of alleged incident, the Council was not registered. But a Council may exist even without registration. Opposite Party No.1 (appellant in appeal No.177 of 2015), in its written statement, has submitted that Chandigarh was not the territory where it was to supply its product. It, however, did not place, on record, any cogent documentary evidence that the batch number appearing on the bottle was not pertaining to its products. Even if Chandigarh did not fall within its territory, unless it is proved by cogent evidence that the batch number inscribed on it was not the product of the appellant/Opposite Party No.1, it has to be assumed that the maaza bottle, in question, was the product of the appellant/Opposite Party No.1, more so when contents of the laboratory report (Annexure C-2) reveal that crown cork of the bottle, in question, was printed as Maaza, Mfd by – Ludhiana Beverages PVt. Ltd., 185, G.T. Road, Luahiana – 141003, Punjab.

18.         Nevertheless, the report of the Food Analyst Punjab, Chandigarh (Annexure C-2) clearly depicts that a dead fly was found in the bottle and the product was unsafe for human consumption. Respondent No.1/complainant has also even produced photographs to the effect that bottle, in question, was purchased from Opposite Party No.3. The probability is that maaza bottle containing dead fly was purchased by the complainant from Opposite Party No.3/Respondent No.3 and feeling aggrieved, he got the same analysed from Food Analyst Punjab. As per report (Annexure C-2), the said maaza bottle contained one dead fly and same was unsafe for human consumption. Thus, in these circumstances, the Opposite Parties cannot be absolved of their liability in regard to spurious product viz. 200 ml Maaza bottle which was not fit for human consumption. It is also evident that product, in question, was not consumed and, consequently, no harm was caused. On the face of facts and circumstances, we are of the considered opinion that compensation granted by the District Forum in the sum of Rs.25,000/- and cost of litigation of Rs.10,000/- is clearly on the higher side. In our considered opinion, compensation in the sum of Rs.7,500/- and cost of litigation in the sum of Rs.7,500/-, if granted, would be sufficient, to meet the    ends of justice. Further, the interest allowed by the     District Forum @18% per annum, in the event of non-compliance of the order within the stipulated period, is also on the higher side. Interest @12% per annum, if awarded, shall  be   just  and  adequate.  Therefore,  both  the  appeals

bearing No.176 of 2015 and 177 of 2015, filed by Opposite Party No.2 and Opposite Party No.1 respectively, deserve to be partly accepted and the impugned order passed by the District Forum needs to be modified to the extent indicated above.    

19.          No other point, was urged, by the Counsel for the parties.

20.          For the reasons recorded above, both the appeals bearing No.176 of 2015 and 177 of 2015, are partly accepted. The order of the District Forum is modified to the extent as under:-

[i]    The Opposite Parties are directed to pay an amount of Rs.7,500/- as compensation for mental agony, physical harassment, deficiency, in rendering service and unfair trade practice, to the complainant, instead of Rs.25,000/- as awarded by the District Forum.

[ii]   The Opposite Parties are, further directed to pay an amount of Rs.7,500/- to the complainant, as cost of litigation, instead of Rs.10,000/-, as awarded by the District Forum.

[iii]  The order shall be complied by the Opposite Parties, jointly and severally, within a period of 45 days from the date of receipt of a certified copy of the order, failing which, they (Opposite Parties) shall pay interest @12% per annum, instead of 18% per annum as directed by the District Forum, on the amount mentioned in Clause (i) above from the date of filing the complaint i.e. 30.10.2014 till its actual payment, besides payment of cost of litigation of Rs.7,500/-.

21.         Certified copy of this order be placed in First Appeal No.177 of 2015.

22.         Certified Copies of this order be sent to the parties, free of charge.

23.         The file be consigned to Record Room, after completion.

Pronounced.

September 07, 2015.

                   Sd/-       

[DEV RAJ]

MEMBER

 

Sd/-

[PADMA PANDEY]

MEMBER

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