Punjab

StateCommission

FA/12/122

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

Versus

Rimple Kumar - Opp.Party(s)

Vaibhav Sahni

24 Feb 2015

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB, DAKSHIN MARG, SECTOR 37-A, CHANDIGARH.

 

First Appeal No.122 of 2012

                                                          

                                                              Date of Institution  : 01.02.2012                                                          Date of decision  :   24.02.2015

 

Coca  Cola India Pvt. Ltd., Enkay Towers, Udyog Vihar V, Gurgaon,

Haryana, India through its Regional Manager.

 

                             ...Appellant/Opposite Party No.2

Versus

1.      Rimple Kumar s/o Sh. Jagan Nath, resident of Ward No.16, Jawaharke Road, Near Kewal Da Arra, Mansa.

 

.....Respondent/Complainant

2.      M/s Garg Sales, Sunni Gali, Mansa.

.....Respondent/Opposite Party No.1

3.      Akshay Kumar, Filmstar, 203 A Wing, Lokhandwala Complex, Andheri (W), Mumbai, Maharashtra.

 

…....Profoma Respondent/Opposite Party No.3

Present:-

 

          For the appellant                   :  Sh. Vaibhav Agnihotri, Advocate

          For respondent No.1   :  Sh. Navdeep Monga, Advocate

          For respondent No.2   :  Ex-parte

          For respondent No.3   :  Dispensed with

First Appeal No.1691 of 2011

                                                          

      Date of Institution : 21.11.2011

                                            Date of decision   : 24.02.2015

 

Rimple Kumar s/o Sh. Jagan Nath, resident of Ward No.16, Jawaharke Road, Near Kewal Da Arra, Mansa, Tehsil and District Mansa.

…...Appellant/Complainant

Versus

 

1.      M/s Garg Sales, Sunni Gali, Mansa, Tehsil and District Mansa.

2.      Regional Manager, Coca  Cola India Pvt. Ltd., Enkay Towers,          Udyog Vihar V, Gurgaon, Haryana, India.

3.      Akshay Kumar, Filmstar, 203 A Wing, Lokhandwala Complex, Andheri (W), Mumbai, Maharashtra.

 

.....Respondents/Opposite Parties

                                                                                                         

First Appeals against the order dated 21.09.2011 passed by the District Consumer Disputes Redressal Forum, Mansa.

 

Quorum:-

                   Hon’ble Mr. Justice Gurdev Singh, President

                    Shri. Baldev Singh Sekhon, Member

                   Mrs. Surinder Pal Kaur, Member

                  

Present:-

 

          For the appellant                   :         Sh. Navdeep Monga, Advocate

          For respondent No.1   :         Ex-parte

          For respondent No.2   :         Sh. Vaibhav Agnihotri, Advocate

          For respondent No.3   :         None

 

BALDEV SINGH SEKHON, MEMBER

 

          This order will dispose of the above mentioned two first appeals; namely, F.A. No.122 of 2012 (Coca Cola India Pvt. Ltd. Vs. Rimple Kumar and others) and F.A. No. 1691 of 2011 (Rimple Kumar Vs. M/s Garg Sales and others); which are directed against the same impugned order dated 21.09.2011 passed by District Consumer Disputes Redressal Forum, Mansa (in short “District Forum”), vide which the complaint filed by Sh. Rimple Kumar s/o Sh. Jagan Nath of Mansa against the opposite parties (in short 'OPs') was allowed against OP No.2 (Appellant in F.A. No.122 of 2012) and it was directed to pay Rs.50,000/- as compensation; out of which, Rs.20,000/- were to be paid to the complainant for deficiency in service, mental tension, harassment and inconvenience and the rest of the amount i.e. Rs.30,000/- was ordered to be deposited in the Consumer Welfare Fund of the District Forum. The complainant was further awarded Rs.5,000/- as costs of litigation. However, complaint qua OP No.1  was dismissed. The name of OP No.1 was deleted from the array of opposite parties by the District Forum, vide order dated 8.8.2011. 

2.      Briefly stated, the facts of the case are that the marriage ceremony of the sister of the friend of the complainant was scheduled to be held at DD Fort Palace, Mansa on 29.05.2010 and for the said occasion, the complainant purchased 5 boxes (45 bottles) of soft drinks  from OP No.1; out of which, 2 boxes were of 'Thumbs Up'  manufactured by Coca Cola India Company. When  these soft drinks were served to the guests on the said ceremony, the relatives of the groom's family complained of foul smell and sour taste of 'Thumbs Up' soft drinks. On checking, the complaint of the guests was found to be genuine and when the sealed bottles of 'Thumbs Up' were checked, it was found that those  bottles were containing some pieces of foreign material (kachra), that was visible to the naked eye. The complainant had to face a very shameful situation and he was humiliated before the relatives of groom's family. It was pleaded that Coca Cola Company manufactures and packs the bottles of 'Thumbs Up' and boosts that their soft drinks are full of energy. They are, infact, playing havoc with the health of consumers.  OPs No.1 and 2, by manufacturing/selling spurious and adulterated soft drinks to the customers/consumers are indulging in unfair trade practice.  OP No.3, by advertising such types of soft drinks, is also misguiding and enticing  the masses to purchase these  drinks  thereby  playing with the health of consumers. Therefore, alleging 'deficiency in service' and 'unfair trade practice' on the part of OPs, the complainant filed complaint before District Forum seeking directions to OPs to pay him Rs.10,00,000/- as compensation for suffering mental tension, physical harassment, inconvenience and loss of prestige, besides Rs.11,000/- as costs of litigation.

3.      Upon notice, OP No.1, in its written reply, took legal objection that the District Forum cannot entertain and try the complaint in a summary manner; as he has filed the complaint on unfounded and baseless grounds. It was pleaded that manufacturing date on the alleged bottle of 'Thumbs Up' is 10.5.2011 whereas the complainant allegedly purchased 5 boxes of soft drinks from it on 13.5.2011. It takes atleast five days from the date of manufacturing and sealing of the bottles in boxes till un loading of the same in the godowns of the OP No.1. Moreover, the bill No. 1654 dated 13.5.2011,  issued to the complainant, is only for 5 boxes of 'Coca Cola' whereas the complainant has alleged that he purchased 5 boxes, including 2 boxes of 'Thumbs Up'. The bottle produced by the complainant before the District Forum had tempered seal and there was leakage of gas. After the leakage of the gas, the reaction causes fungus in the bottle. The alleged 'kachra' is fungus, which occurs due to chemical reaction on the cork side of the bottle after gas leakage. It was further pleaded that the complainant, infact, learnt that one of his relatives, who resides in Sirsa, was having such a bottle with him who gave that bottle to the complainant and complainant  assured him that he would get the compensation by filing a complaint on false grounds. It was further pleaded that the complaint was bad for non-joinder of necessary parties. It was specifically reiterated that OP No.1 never sold 'Thumbs Up' bottles to the complainant vide bill No.1654 dated 13.5.2011 and that the products of the Coca Cola are world famous and having its registered trade mark which was given after compliance of Govt. formalities. Their  plant is automatic and the products are marked with proper manufacturing and expiry date with batch numbers. Denying all other allegations, dismissal of the complaint was prayed.

4.      OP No. 2 also strongly contested the complaint and took the preliminary objections that there is no entity by the name of 'Coca Cola India Co.' stricto-senso and that answering OP  is not even a party to the present proceedings. It was pleaded that answering OP is a subsidiary of the 'Coca Cola Company, USA' and  that complaint is bad for mis-joinder of the parties. The complaint has been filed against the party that does not exist and infact answering OP  does not have any connection with  manufacturing or selling of any beverage/drink let alone the drink, in question. The Coca Cola Company, USA has granted licence to certain entities in India, also called "the Bottlers", in connection with preparation and packaging of certain beverages. It is those bottlers that deal with the manufacturing, distribution and sale of  beverages in and throughout the geographical area authorized in the Bottler's agreement with the said Coca Cola Company of USA. These Bottlers are distinct  Indian Legal entities and are, in no way, their agents. Therefore, the  complaint is bad for mis-joinder of the parties and thus, no relief can be claimed against it.  It was further pleaded that concentrates and beverage bases,  which are a result of the procedure that Coca Cola Company, USA is engaged in, are neither meant for nor fit for direct human consumption. These concentrates and beverage bases are supplied by it to the authorized bottler's of the Coca Cola Company, who then use these concentrates and beverage basis for producing the beverage and selling it to the ultimate consumers. As such complainant is not its consumer  as defined under Section 2(1)(d) of the Consumer Protection Act, 1986. It was pleaded that  manufacturing process, adopted by the authorized bottler, is fully automated and  highly advanced/sophisticated and fully automated process is followed for cleaning the bottles, filling the beverages in the bottles and sealing them with the crowns. At no stage, the beverage is touched by human hands. With such strict international standards of quality, inspection, cleanliness and hygiene, it is highly improbable that any foreign body, pollutants, dirt and other matter could enter the bottle as alleged by the complainant unless the bottle has been tampered with after it has left the factory gates of the bottlers. The complainant has also failed to prove that the bottle is a genuine product as he has not provided details of the product such as batch number, name of manufacturer etc., which are always mentioned on the bottle itself.  There is also no proof of the fact that the bottle was not tempered with by the complainant or any other person after its purchase and before filing of the complaint. If the intention of the complainant is to proceed against the manufacturer of the said beverage, it cannot proceed against  it  as it does not manufacture any beverage/drink. It was also pleaded that the relief claimed by the complainant  in the complaint is not maintainable under the Act against it as it has no liability whatsoever to pay any sum to the complainant by way of compensation. There is no averment or proof that the complainant  suffered any loss or damage which may be a direct consequence of the sale of the alleged beverage. Dismissal of the complaint with heavy cost was prayed.

5.      Parties  led their evidence, by way of affidavits and documents, before the District Forum, which after going through the same, allowed the complaint, in aforesaid terms.

6.      Aggrieved by this order, OP No.2 has filed F.A. No.122 of 2012  on the ground that the impugned order is based on erroneous premise that the product has not been tampered with. The learned District Forum could not have been equipped to deal with the question of genuineness of the product as for verification of the same, the product was required  to be sent to the Central Laboratory, which could have checked the product to ensure that the contents of it are genuine. The impugned order is also erroneous as the District Forum has dismissed the defence of the OP No.2 on the ground that the affidavit was tendered by its advocate before District Forum. The District Forum has further wrongly held that complainant was master of the proceedings and the impleadment of necessary party and proper parties is onerous on the complainant and not on OP No.1. If the interpretation of the District Forum is to be upheld, there would be no occasion for any suit/complaint to be dismissed for non-joinder of proper and necessary parties. This premise is completely erroneous as despite the fact of the bottler being a necessary party to the proceedings, and that fact having been brought to the attention of the complainant as well as to the District Forum, no application was made nor any order was passed to implead the said bottler. The complainant intentionally did not implead the bottler and this act of complainant found ratification by way of impugned order. The learned District Forum could not have switched the burden of impleading the bottler on to OP No.2 especially in view of the fact that complainant was master of the proceedings. In the absence of the bottler, being made a party, the District Forum erred in holding OP No.2 responsible for the product without ascertaining the facts.  The District Forum did not follow proper procedure to verify the authenticity of the product and in complete deviation of the stipulated procedure, proceed on the assumption that the product was a genuine product without any corroborating evidence. The District Forum in an arbitrary and selective manner has given weightage to some documents and exhibits. The District Forum has further wrongly come to the conclusion on the basis of the print on the bottle i.e. 'a product of Coca Cola Company' and 'a product by  Coca Cola', that the said product belonged to the appellant. It was submitted that such finding was not only in direct contradiction to the submission of the OP No.2 that it being  a separate legal entity from Coca Cola Company but same is also factually incorrect as OP No.2 is not 'Coca Cola Company'. Impugned order is further erroneous as there was no evidence before the District Forum to come to the conclusion that the OP No.2 was trading by proxy and operating in a manner to circumvent liability. Acceptance of the appeal and setting aside of the impugned order was prayed.

7.      The complainant in his appeal (F.A. No. 1691 of 2011)  prayed for the enhancement of the compensation awarded by District Forum as same  was  inadequate as compared to the harassment suffered by him at the hands of the OPs and the loss of reputation caused to him. It was submitted that compensation be enhanced to Rs.10 lacs, as prayed in the complaint.

8.      We have thoroughly gone through the pleadings of the parties, carefully perused the evidence on record and heard the learned counsel for the parties on their behalf.

9.      The allegation of the complainant is that he purchased 5 boxes (45 bottles) of soft drinks  from OP No.1, which were manufactured by Coca Cola India Company, out of which, 2 boxes were of 'Thumbs Up'   and that  when those soft drinks were served to the guests on the marriage ceremony of the sister of the friend of the complainant on 29.5.2010, the bottles of the 'Thumbs Up' were found to be smelling and tasting sour and that on further verification, it was found that the one such bottle was containing some pieces of  foreign material (kachra), that was visible to the naked eye.  Though, the complainant has filed his own affidavit (Ex.C-1) alongwith affidavit of one Chandan Gupta (Ex. C-5) in support of his contentions that he bought the said bottles of 'Thumbs Up' from OP No.1 but this contention is categorically denied by the OP No.1. It also filed counter affidavit of its proprietor Sh. Rajesh Kumar as Ex.OP-3.  The receipt No.654 dated 13.5.2011 issued by OP No.1, vide which the Thumbs Up bottles were allegedly purchased by the complainant is proved as Ex.C-2. Perusal thereof  reveals that only 5 boxes of Coca Cola @ Rs.460/- per box were purchased for Rs.2300/-. There is no reference to the sale of two boxes containing bottles of 'Thumbs Up' as alleged by the complainant. Thus, the oral evidence proved by complainant is falsified by documentary evidence relied upon by the complainant himself.  Once the very fact that the complainant purchased the bottles of Thumbs Up that allegedly contained the alleged foreign material in it is not proved then the complainant cannot be said to be a consumer of OP No.1.  As such,  the complaint filed by the complainant alleging that one such bottle of 'Thumbs Up' was containing some foreign material in it, is not maintainable.

10.    The categoric stand of the OP No.2 is that it is not the 'manufacturer' or the 'bottler' of the product reportedly sold by OP No.1 to the complainant. It has specifically contended that it is a subsidiary of Coca Cola Company of USA and that the said company has granted licence to certain entities in India also called 'the bottlers' in connection with preparation and packaging of the beverage and further that it is only those bottlers who deal with manufacturing, distribution and sale of the beverage in the geographical area authorized in the bottler's agreement with the said company. It is further contended that the said   bottlers are separate Indian Legal entities and are, in no way, the agents of OP No.2. It was stated by OP No.2 that the concentrates and beverage bases, which are a result of a procedure that Coca Cola Company, USA is engaged, is neither meant for nor fit for direct human consumption and that these concentrates and beverage bases are supplied by it to the authorized bottlers of the said Coca Cola Company of USA who, then, use these concentrates and beverage bases for producing the beverage and selling it to the ultimate consumers.  Learned District Forum had inspected the bottle produced by the complainant before it and it was observed from the writing on the bottle that said bottle was 'a product by Coca Cola'  but the District Forum has not discussed how that reference of product by  'Coca Cola Company' given on the 'bottle' and 'crown of the bottle' is linked to OP No.2 i.e. Coca Cola India Pvt. Ltd. which is altogether an independent distinct legal entity from the 'Coca Cola Company of USA'. Holding OP No.2 responsible merely on the basis of writing on bottle cannot be sustained, more so, when the name of the manufacturer or bottler, as mentioned on it is not noted. OP  No.2  also contended that the complaint is bad for mis-joinder of necessary parties and that inspite of taking a specific legal objection, the District Forum failed to issue directions to the complainant to implead 'the bottler' i.e. 'M/s Amritsar Cold Drinks', by whom the alleged Thumbs Up cold drinks were manufactured and supplied to OP No.1. Thus, the complaint was not only bad for non-joinder of the necessary parties but the complainant is not even proved to be a consumer qua OP No.1 as defined in Section 2 (1)(d) of the Consumer Protection Act.

11.    In view of the above observations and findings, the complaint of the complaint is held to be not maintainable. Accordingly,  the appeal of the OP No.2 (F.A. No.122 of 2012) is allowed and the impugned order of the District Forum is set aside. Consequently, the complaint filed by complainant is dismissed.

12.    For the aforesaid reasons stated aboe, the First Appeal No.1691 of 2011, filed by the complainant for enhancement of compensation, is dismissed.

13.    A sum of Rs. 25,000/- was deposited by OP No.2 (the appellants in F.A. No.122 of 2012) at the time of filing of the appeal before this Commission. Another amount of Rs.30,000/- was deposited by it vide receipt No. 585102 dated 01.08.2012 as per directions of this Commission. Both these amounts, alongwith interest which has accrued thereon, if any, shall be remitted by the registry to OP No.2 i.e. Coca  Cola India Pvt. Ltd. by way of a crossed cheque/demand draft after the expiry of 45 days.

14. .    The arguments in these appeals were heard on 11.02.2015 and the order was reserved. Now the order be communicated to the parties.

15.    The appeals could not be decided within the statutory period due to heavy pendency of court cases.

16.    Copy of this order be placed in the file of F.A. No.1691 of 2011.

 

 

 

(JUSTICE GURDEV SINGH)

PRESIDENT

 

 

 

(BALDEV SINGH SEKHON)

MEMBER

 

 

 

(SURINDER PAL KAUR)

MEMBER

February 24 , 2015