BEFORE THE DISTT.CONSUMER DISPUTES REDRESSAL FORUM; FATEHABAD.

C.C.No.165 of 2015.

Date of Instt.: 21.08.2015.

Date of Decision: 31.03.2017.

Aakash Narang aged 22 years son of Sh.Satish Narang, resident of H.No.42/18 Jawahar Chowk, Fatehabad No.99927-76221.

                                                                             ..Complainant 

  Versus

1. Vicky son of Rakesh Kuamr c/o Punjabi Dhaba, near Jawahar Chowk, Fatehabad.

2. M/s S.K.Enterprises, Authorized Distributor Pepsi Cold Drinks Old Bus Stand, DSP Road, Fatehabad, Haryana

3. Varun Beverages Limited village Ali Assarpur, P.O.Ganjbar, G.T.Road, Panipat (Haryana)-132103.

                                                                        ..Opposite parties.

              Complaint under Section 12 of CP Act

Before:                 Sh.Raghbir Singh, President.

                             Smt. Ansuya Bishnoi, Member.

Present:                 Sh.Raman Sardana, Advocate for complainant.

                             Sh.Sanjay Ahuja, Advocate for OP No.1.

                             Sh.Kapil Nagpal, Advocate for OP Nos.2 & 3.

ORDER

                              Brief facts of the present complaint are that there was a family function in the house of the complainant on 21.05.2015 and in order to entertain the guests, the complainant had purchased 10 bottles of soft drinks (Slice) bearing batch No.953A28C15 with date of manufacturing as 29.03.2015 for a sum of Rs.200/- (150/- as costs and Rs.50/- as security refundable on returning of empty bottles) from OP No.1, which he had purchased from No.2 duly manufactured by OP No.3. It has been further averred that the complainant served said soft drinks to his guests and family members but after consuming the same they felt giddiness and started vomiting and became unconscious. Thereafter the complainant called the doctor at home as the ill persons were not in a position to move a bit. The doctor after examination had opined that they had suffered food poisoning on account of consumption of some unhygienic spurious and unclean food stuff. After that the complainant realized that it may be due to inferior quality of soft drinks therefore, he checked the empty bottles and found dead insects in seven bottles.  He checked the other three sealed bottles and also found dead insects in the same which were easily visible with naked eyes.   It has been further averred that the complainant and other persons remained ill for a period of about one week and during this period they had to undergo a pain and suffering besides spending a sum of Rs.20,000/-.  He brought all the facts to the notice of OPs and asked for compensation but to no avail.  Thereafter the complainant got served legal notices upon the OPs but all fell on deaf ears.  Hence, this complaint.  In evidence, the complainant has tendered his affidavit Annexure C1 and documents Annexure C2 to Annexure C9.  

2.                OPs appeared and contested the complaint of the complainant by filing separate replies. OP No.1 in its reply has taken preliminary objections such as maintainability, cause of action and complainant does not fall within the ambit of consumer etc. It has been further submitted that the answering OP had purchased 10 bottles of slice soft drinks from OP No.2 vide invoice No.2135 dated 20.05.2015 and further sold the same in sealed and packed condition, therefore, he has no concern with any kind of impurities in the alleged soft drinks. Other allegations made in the complaint have been controverted and prayer for dismissal of the complaint has been made.

3.                          OP No.2 in its reply has taken many preliminary objections such as cause of action, maintainability, complainant does not fall within the ambit of consumer and suppression of material facts from this Forum etc. It has been further submitted that the OP No.2 is not engaged in selling the soft drinks to the consumers directly and until and unless it is proved that the impugned soft drinks were manufactured by OP No.3 and marketed by OP No2 it cannot be held liable for any deficiency.  It has been further submitted that some spurious product in the same brand names of slice soft drink are being sold in the market from Hisar, Delhi and other districts, therefore, the Op No.2 cannot be held responsible for the same. The complainant cannot rely upon the alleged bottles as there is no laboratory   test and analyst report on the case file to confirm the allegations levelled by him in the complaint. There is no deficiency in service on the part of OP No.2 and prayer for dismissal of the complaint has been made.

4.                          OP No.3 in its reply has taken many preliminary objections such as maintainability, suppression of material facts, complainant does not fall within the ambit of consumer and cause of action etc. It has also been submitted that the bottles have not been tested from any laboratory, therefore, there is nothing on the case file to show that the bottles were having impurities. The process of manufacturing of bottles is full proof and there is no scope of entering of any foreign particle in the bottles, therefore, question of alleged impurities or containing foreign material in the same does not arise at all because soft drinks are manufactured in modern sophisticated plants having high standard of hygiene and cleanliness.  It has been further submitted that without getting the seal and contents of the bottle tested it cannot be determined as to whether the alleged foreign particle was the result of any negligence during the manufacturing process or the same has been inserted subsequently after tempering the seal of the bottles. It has been further submitted that the present complaint has been filed just to extract money as there is nothing on the file to show that the complainant suffered illness on account of consuming the contents of the bottles.  The OPs have tendered affidavit of Sh.Puran Chan as Ex.RW1/A and documents Ex.R1 and Annexure R2.

 4.               Heard. The counsel for the complainant reiterated the averments made in the complaint and prayed for its acceptance whereas the counsels for OPs reiterated the averments made in the reply and prayed for dismissal of the complaint.

5.                Learned counsel for the complainant has argued that the soft drinks purchased by the complainant from OP No.1 manufactured by Op No.3 were having some contraband/unwanted content (poison) in the same because after consuming it his family members and relatives felt ill and became unconscious, therefore, they remained under treatment for seven days and also spent Rs.20,000/- on their treatment. It was further argued that it all happened due to food poisoning on account of consumption of some unhygienic spurious and unclean food i.e. inferior quality of soft drinks.  Learned counsel for the complainant in support of his pleadings and arguments drew the attention of this Forum towards duly sworn affidavit of complainant Annexure C1 and documents Annexure C2 (Copy of legal notice), Ex.C3 to Ex.C5 (postal receipts), Annexure C6 (copy of reply to notice), Annexure C7 to Annexure C9 (copies of correspondence, e-mail sent by the complainant to OP No.3). 

6.                Per contra, learned counsels for the OPs have argued that the present complaint has been filed just to harass and defame the brand name as well as to extract money from them. Learned counsel for OP No.1 has argued that it had sold the 10 bottles of slice soft drinks to the complainant after purchasing the same from OP No.2 vide invoice No.2135 dated 20.05.2015 in sealed and packed condition and it has no concern with any kind of impurities in the said soft drinks. Learned counsel for the OPs No.2 & 3 argued that it was for the complainant to produce the case property/bottles of soft drinks before this Forum along with the complaint on the day of presentation but it was not done so, therefore, there is every possibility of tempering of the seal of the bottles. It was further argued that the complainant and his relatives might have fallen ill but it was not due to the reason of soft drinks allegedly consumed by the complainant and his relatives after purchasing the same from the OP No.2. It was further argued that the groups of people have filed frivolous complaints against Op No.3 with malafide intention and the present complaint has been filed just to extract money from OPs.

7.                          Arguments advanced by counsels for the parties have been duly considered, evidence led by the parties and documents on the record of the file have also been perused. A contaminated substance/ foreign object is clearly visible in the bottles from the naked eyes. Therefore, it is well established that contents in the impugned glass bottles of cold drinks are contaminated, spurious or sub-standard. Therefore, the contents of the bottles were not need to be sent to the laboratory for chemical examination. However, the samples of the impugned bottles were sent to the laboratory to examine as to whether the seals of the bottles are tampered or not. However, despite due efforts the examination report of laboratory could not be obtained. Thereafter, keeping in view the statement made by the complainant on 03.03.2017 the case was proceeded further. OP No.1 in its reply has admitted that he had sold the alleged bottles to the complainant after purchasing the same from OP No.2, therefore, it was for the OPs No.2 & 3 to rebut the same that the alleged bottles were neither manufactured by OP No.3 nor sold by Op No.2 to Op No.1 because Annexure C7 clearly reveals that the complainant had sent the details of the bottles such as Batch No.953A28C15, Date of Manufacturing 29.03.2015, Time of Manufacturing  17:26 and name of the manufacturing plant Varun Beverages Limited Village Asagarpur, PO Ganjbar, GT Road, Panipat 132103, Haryana  to the Op No.3. In response to the Annexure C7, Customer Service Manager of OP No.3 assured the complainant that the matter would be investigated with the quality teams. This correspondence between the complainant and OP No.3 is enough to show that it had taken the matter in a very casual manner despite the fact that the complainant and his relatives were felt ill after consuming the contaminated, spurious and sub-standard cold drinks as there is nothing on the file to show that what action the Op No.3 had taken after knowing the above facts.  It was open for the Op No.3 to rebut the pleadings of the complainant by producing evidence with regard to bottles of soft drinks bearing same batch number and date of manufacturing to show that the batch number mentioned in (Annexure C7) was not related to it.  Undisputedly, these products are in high demand and on a number of occasions the products are found to be spurious which may not be the act of manufacturing company but in the present case when the complainant had specifically provided the batch number with date of manufacturing and time of manufacturing to the Op No.3 therefore, the Op No.3 had opportunity to rebut the pleadings of the complainant by producing authentic evidence but it has not done. It is not disputed that contaminated substance/ foreign object is clearly visible in the bottles from the naked eyes, therefore, Ex.R1 and Annexure C2 are not cogent, authentic and sufficient piece of evidence to rebut the contentions putforth by learned counsel for the complainant

8.                          In view of the discussion as made above we are of the opinion that the complainant has been able to prove his case against the Ops, therefore, present complaint is allowed. The Ops are directed to pay............................ to the complainant as compensation for harassment, mental agony and litigation expenses in lump sum. Copy of this order be supplied to both the parties free of cost. File be consigned after due compliance.

Announced in open Forum.

Dated:31.03.2017

                                                                   (Raghbir Singh)

                                                                       President,

(Ansuya Bishnoi)                                Distt.Consumer Disputes

      Member,                                                 Redressal Forum, Fatehabad.