Tamil Nadu

North Chennai

77/2014

P.Thalapathi,S/o.K.Pandian - Complainant(s)

Versus

Rep by its chief Executive Officer,Pepsico India, - Opp.Party(s)

m/S.v.MANISANKARAN

13 Apr 2017

ORDER

                                                                Complaint presented on:  13.12.2013
                                                                   Order pronounced on:  13.04.2017

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, CHENNAI (NORTH)
    2nd Floor, Frazer Bridge Road, V.O.C.Nagar, Park Town, Chennai-3

PRESENT: THIRU.K.JAYABALAN, B.Sc., B.L.,     PRESIDENT
                    TMT.T.KALAIYARASI, B.A.B.L.,      MEMBER II

THURSDAY THE 13th   DAY OF APRIL 2017

C.C.NO.77/2014

P.Thalapathi,
S/o  K.Pandian,
No.86, T.V.Amman Kovil Street,
Aminjikarai, Chennai – 600 029.
                                                                                    ….. Complainant 

..Vs..
1. Pepsico India,
Represented by CEO (Chief Executive Officer)
3B DLF Corporate Park,
‘S’ Block,
Qutab Enclave, Phase – III,
Gurgaon 122 002.
Haryana.

2.Tasmac Bar,
Represented by Manager,
Shop No:249,
65/67 Strahans Road,
Dashamakan,
Chennai .
                                                                                                                          .....Opposite Parties

   
    
     

Date of complaint                                : 17.04.2014
Counsel for Complainant                   : M/s. V.Manisekaran, R.Natarajan & 
                                                                    E.Maragatha Sundari

Counsel for 1st Opposite Party                : M.Kandasamy

Counsel for 2nd Opposite Party            : Ex - parte

O R D E R

BY PRESIDENT THIRU. K.JAYABALAN B.Sc., B.L.,
    This complaint is filed by the complainant to refund the cost paid by him and also compensation for mental agony with cost of the Complaint u/s 12 of the Consumer Protection Act.1986.
1.THE COMPLAINT IN BRIEF:
    The 1st Opposite Party is the manufacturer of the Mirinda soft drink. The Complainant visited the 2nd Opposite Party Tasmac shop on 27.07.2013 evening. He ordered to supply a chill Mirinda as the climate was very hot. The bearer supplied a Mirinda and asked the Complainant to check the cooling effect. The Complainant noticed sediments at the bottom of the bottle and also seen some insects like object floating inside the Mirinda bottle which was visible to his naked eyes. The manufacturing date found in the bottle as 26.09.2013 and batch No printed was B.No.525. The Complainant enquired with the Manager whether the Mirinda supply is a local brand. The Manager replied that the same was delivered by the authorized dealer of PepsiCo. The Complainant got the bottle without opening the soft drink supply to him was substandard in view of that sediment and insect were seen inside the bottle through his naked eyes.
    2. The Complainant informed the Mirinda customer care executive Ms.Anitha on 28.07.2013 and the bottle was verified Mr.David. After verification of the bottle by the company people no action was taken. Hence the Complainant informed the press people on 03.08.2013 and they also took photographs. The Opposite Parties supplied defective drink to the Complainant that they have committed Deficiency in Service. Hence the Complainant filed this Complaint to refund the cost paid by him and also compensation for mental agony with cost of the Complaint.
    3. The 2nd Opposite Party called absent and he was set ex-parte.
4. WRITTEN VERSION OF THE 1st OPPOSITE PARTY IN BRIEF:
    It is pertinent to note that the TASMAC owned by the State Government, they sell only liquors and not any other consumable product and as such the Complainant is put to strict proof that he purchased the “impugned bottle’ from the 2nd Opposite Party . Further the Complainant has not disclosed the amount for which he purchased the “impugned bottle” and therefore the Complaint is not maintainable as the Complainant is not a “Consumer”. The Complaint was filed on 13.12.2013 as can be seen from the docket sheet of the Complaint, the same was re-presented belatedly only on 26.03.2014 whereas the purchase was made on 27.07.2013 of the bottle bearing batch No. BN 525 with manufacturing date 29.06.2013, thereby approaching this Hon’ble Forum after the shelf life of the product which is six months from date of manufacturer. The consumer should prove and substantiate the loss suffered by him for claiming suitable compensation and in the present Complaint; the Complainant has not even whispered a single word in the Complaint about the actual loss or the extent of mental agony suffered by him for claiming such huge and exorbitant compensation and punitive damages. The Mirinda bottle contents alleged to have containing foreign material is not a product of the 1st Opposite Party and unless and until it is proved otherwise the Complaint itself is not maintainable. In the present Complaint there is neither any allegation nor any material on record to point out that the Complainant purchased any goods for consideration from the 1st Opposite Party. It is not the case of the Complainant that the 1st Opposite Party sold any goods for consideration to the Complainant. The entire story is fictitious and badly concocted for the sole purpose of misleading the Hon’ble Forum and making pecuniary gains as can be seen from the prayer clause. The soft drinks manufactured by the 1st Opposite Party are manufactured in modern sophisticated plants, which is a very high standard of hygiene and cleanliness. The manufacturing process involves strict quality checks at various stages of manufacturer, ruling out all possibility of any foreign matter in the bottled product as alleged by the Complainant. The raw materials used are of the highest grade and quality that the water used in the manufacturing process is filtered, sterilized and is absolutely clean. The bottles used in bottling each bottle is washed, disinfected and visually checked prior to filling. The 1st Opposite Party is not the manufacturer of the impugned MIRINDA bottle contents and moreover the ‘some sediment at the bottom of the bottle alleged to be found inside the soft drink bottle is unheard and unknown to this 1st Opposite Party. It is very easy for anyone to mix spurious bottle of soft drink with genuine bottles and then to claim the spurious bottles to have been manufactured or sold by the original manufacturer purchased under bill for valid consideration. The contents of the impugned bottle are not manufactured by the Opposite Party. The entire Complaint does not whisper about the MRP, or the payment made by the Complainant for purchase of the bottle etc., thus creating suspicion that it is well planned act for claiming huge monetary benefit in a manner unknown to law. The Complaint filed by the Complainant only to enrich himself even though there was no loss to him and the Opposite Party has not committed any Deficiency in Service and prays to dismiss the Complaint with costs.
5. POINTS FOR CONSIDERATION:
    1. Whether there is deficiency in service on the part of the opposite parties?
    2. Whether the complainant is entitled to any relief? If so to what extent?
6. POINT NO :1    
    The case of the Complainant is that on 27.07.2013 he went to the 2nd Opposite Party shop and asked the bearer to supply a chill Mirinda  bottle and he had also supplied the same and while checking the coolness of the soft drink he found inside the soft drink bottle that some insects and also sediments found at the  bottom of the bottle and he had also informed to Mirinda Customer Care Executive Ms.Anitha and the bottle was verified by their person Mr.David and no action was taken by him and hence he filed the Complaint and also through this Forum the soft drink was sent for analysis  and gave opinion that the dead insects fragments were found inside the bottle and hence the sample is unsafe  under section-3 (1) (22) (ii of FSS Act, 2006)  and therefore the product was not manufactured with caution and care and  further the 1st Opposite Party in manufactured such unsafe drink and 2nd Opposite Party selling the unsafe drink they have committed Deficiency in Service and hence prays to allow the Complaint.
    7. The 2nd Opposite Party remained Ex – parte. The 1st Opposite Party filed written version to the Complaint and contended that the Complainant has not purchased for consideration and therefore he cannot be considered as a consumer and the product is having been manufactured  by them with hygienic and cleanliness  manner and further the Complainant was not suffered any loss or injury due to that drink and hence he is not entitled for any damages and further only after  6 months the product was sent for analysis and therefore  the report could not be accepted and prays to dismiss the Complaint.
    8. The Complainant asked the 2nd Opposite Party bearer to supply a chill Mirinda bottle soft drink in the Tasmac shop and he supplied the same to him. The 2nd Opposite Party remained ex – parte. The Complainant also seeks in the prayer to refund the cost paid by him for the purchase of the soft drink. However he did not mention the cost paid by him. Further in view that the 2nd Opposite Party remained absent, the purchase made by the Complainant on payment of cost is accepted, since the 1st Opposite Party has no direct knowledge about the selling the soft drink by the 2nd Opposite Party to the Complainant.
    9. The 1st Opposite Party would contend that they are manufacturing the soft drink in a hygienic condition with all clean atmospheres. Admittedly the product was sent for analysis at the request of the Complainant and Ex.C1, report was received from the King Institute, Chennai – 32. The report says that the Mirinda bottle soft drink glass bottled sealed and found to be aerated with metal crown cap and found to contain dead insect and insects fragments of 0.41 gms and hence the sample is unsafe. The Complainant case also is that even through naked eye he found that insect like objects found inside the bottle and sediments found at the bottom of the bottle. Admittedly the 1st Opposite Party manufactured the Mirinda bottle soft drink. Since the analysis report says that dead insect and insect fragments found and the sample is unsafe leads to a conclusion that the 1st Opposite Party manufactured the product negligently and that is why inside the soft drink insect was found. 
 
    10. The 1st Opposite Party would contend that the drink manufactured is fit for consumption only from the date of manufacture for six months and after that the same is not fit for consumption and the case in hand the sample was sent for analysis only after 6 months that too nearly after one year 10 months and therefore Ex.C1 report has to be thrown out. The date of the manufacturing the product is on 29.06.2013   as per the printing in the bottle and it has to be used before 6  months that is up to 28.12.2013. Admittedly the Mirinda drink was sent only after 6 months and analysis report was received. However, in the sample bottle of Mirinda drink a dead insect was found inside the drink only evidences that such a soft drink is not fit for consumption. The insect and its fragments were found by the Complainant even on his own naked eye further the Mirinda Customer Care Executive Ms.Anitha was contacted by the Complainant and their persons Mr.David also examined the bottle and no action was taken by them. This fact of customer care person’s verified bottle was not denied by the 1st Opposite Party. Therefore this circumstances clearly proves that even before expiry period the 1st Opposite Party customer care persons verified the bottle and seen the insects inside the drink and that is why they have not taken any action are replied anything to the Complainant and therefore the analysis done after 6 months is no way affect the case, since the insect and its fragments are found in the Mirinda drink.  Therefore in view of the forgoing discussions, it is clear that the Complainant purchased the soft drink contains dead insect and its fragments and the same was unfit for consumption and the said soft drink was manufactured by the 1st Opposite Party in a negligent manner and such defective product supplied to the 2nd Opposite Party through the 1st Opposite Party dealer for sale and therefore the 1st Opposite Party has committed Deficiency in Service for manufacturing defective product. 
11. The 2nd Opposite Party is only a seller of the goods manufactured by the 1st Opposite Party and the defect has been found only at the time of manufacturing product and therefore, it is held that the 2nd Opposite Party has not committed any Deficiency in Service. 
    12. The 1st Opposite Party argued that the contents of the impugned bottle are not manufactured by him and even the 2nd Opposite Party would have tampered the bottle changed by filling another soft drink. In Ex.C1 report it has been stated that the glass bottle sealed and found to be aerated with metal crown cap. When the sample for analysis sent from this Forum specifically asked analyst to answer whether bottle is tampered or not. The analyst has not stated in the report that the sample was tampered. He only stated in the report that the glass bottle sealed. Therefore the arguments of the 1st Opposite Party that the 2nd Opposite Party would have tampered the bottle cannot be accepted.
13. POINT NO:2
    The Complainant seeks refund of the cost of the soft drink bottle purchased by him. However in the Complaint he has not specified the amount spent by him for the purchase of the soft drink and hence the same cannot be ordered. The 1st Opposite Party contended that the Complainant has not suffered any loss or injury and therefore he is  not entitled to get any relief. The manufacturer of the drink cannot escape its liability, if consumer finds dead insects in the drink. Therefore the Complainant suffered with mental agony and thereby entitled for compensation is accepted. There was no loss or injury to the Complainant is not a reason to refuse to pay the compensation to the Complainant. Therefore it would be appropriate to order a sum of Rs.10,000/- towards compensation for mental agony to the Complainant  besides a sum of Rs.5,000/- towards litigation expenses would be the appropriate relief to the Complainant. The Complaint in respect of the 2nd Opposite Party is liable to be dismissed.
    In the result the complaint is partly allowed. The 1st opposite party is ordered to pay a sum of Rs.10,000/- (Rupees ten thousand only) towards compensation for mental agony to the Complainant  and also to pay a sum of Rs.5,000/- (Rupees five thousand only) towards litigation expenses. The Complaint in respect of the 2nd Opposite Party is dismissed.
The above amount shall be paid to the complainant within 6 weeks from the date of receipt of the copy of this order failing which the above said amount shall carry 9% interest till the date of payment.    
    Dictated to the Steno-Typist transcribed and typed by her corrected and pronounced by us on this 13th   day of April 2017.

MEMBER – II                              PRESIDENT
LIST OF DOCUMENTS FILED BY THE COMPLAINANT:
Ex.A1 dated 03.08.2013            Stills published in Nakeeran online media
Ex.A2 dated 04.08.2013            Viduthalai on the media publication 
    
LIST OF DOCUMENTS FILED BY THE 1ST OPPOSITE PARTY :    
    
                                                             ….NIL……    
    
    
    
MEMBER – II                              PRESIDENT