Consumer Complaint No.162 of 2015
Date of filing: 31.7.2015 Date of disposal: 19.8.2016
Complainant: Asit Kumar Das, S/o. Sri Ashoke Kumar Das, Shibmandir Road, Near Dharmasala, PO: Asansol, PS: Asansol (South), District: Burdwan, PIN – 713 301.
-V E R S U S-
Opposite Party: 1. Sanjoy Burnwal, S/o. Rajendra Prasad Burnwal, Asansol Fish Market, Opposite Subhas Cinema, PO: Asansol, PS: Asansol (South), District: Burdwan, PIN – 713 301.
2. The Managing Director, “Hindustan Coca-Cola Beverages Pvt. Ltd.”, 5 Kilometer, Masuri – Gulawati Road, Tehsil – Dhaulana, District – Hapur, Uttar Pradesh, PIN – 201 015.
Present: Hon’ble President: Sri Asoke Kumar Mandal.
Hon’ble Member: Smt. Silpi Majumder.
Hon’ble Member: Sri Pankaj Kumar Sinha.
Appeared for the Complainant: Ld. Advocate, Saugata Dey.
Appeared for the Opposite Party No. 1: Ld. Advocate, Ashish Banerjee & Debjyoti Banerjee.
Appeared for the Opposite Party No. 2: None.
J U D G E M E N T
This complaint is filed by the Complainant u/S. 12 of the Consumer Protection Act, 1986 alleging deficiency in service as well as unfair trade practice against the OPs as the OP-1 has sold spurious Maaza bottle manufactured by the OP-2.
The brief fact of the case of the Complainant is that on 05.06.2015 the Complainant purchased one 600 ml Maaza beverage bottle from the shop of the OP-1 bearing batch no-007111011, wherein manufacturing date is mentioned as 08.04.2015, manufactured by the OP-2. When the said Maaza was about to be served for consumption to the sons of the Complainant, he got shock as he noticed the said drink as spurious because there was some foreign substance which seems to be decomposed insect or reptile or some fungus in the naked eyes and the same was floating and corroded in the said bottle. The Complainant rushed to the OP-1 for complaining the same, but the OP-1 refused to take any complaint. The Complainant thereafter lodged a complaint in the Toll free number of the OP-2 on 06.06.2015 and the OP-2 provided the complaint number to the Complainant as 404051 for redressal of his grievance. But the OP-2 did not take any action in the matter inspite of receipt of an e-mail from the Complainant. Not only that the OP-2 did not bother to reply the said e-email. Thereafter the Complainant through his Ld. Advocate issued notice on 03.07.2015 upon the OPs through registered post with A/D, but no reply were given by the OPs, which proves to show their malafide intention. The Complainant has reason to believe that the said Maaza beverage bottle contains spurious and contaminated substance which is unfit, harmful for human consumption and had the sons of the Complainant consumed the same, they would have suffered severe health problems and their lives would have been at stake. According to the Complainant the OPs in connivance with each other, for the purpose of making wrongful gain by adopting unfair trade practice knowingly manufactured and sold adulterated beverages, which is dangerous for human consumption and as such the OPs are playing with the lives of the common people. The OP-2 through hoax in the form of misleading advertisements for making wrongful gain has been alluring the general people to purchase their products, but the OP-2 is manufacturing their products in a very negligent manner by violating the norms and procedures and adopting unfair trade practice. Not only the manufacturing process, the entire chain of supply, inspection, transportation, stocking and selling of the goods is done in a negligent and deficient manner. The said bottle is still intact sealed condition in the custody of the Complainant. As the grievance of the Complainant have not been redressed by the OPs before coming to this Ld. Forum, hence having no alternative the Complainant has approached before this Ld. Forum by filing this complaint praying for direction upon the OPs for making payment of Rs.15, 00,000=00 to him for humiliation, mental trauma, harassment and mental agony and litigation cost of Rs. 30,000=00.
The petition of complaint has been contested by the OP-1 by filing written version contending that he has his shop at Munshi Bazar and the same is more than 50 years of old. It is his family business. The house of the Complainant is situated far away from the shop of this OP. There are several shops used to sell beverages in the front of or immediate vicinity of the Complainant’s residence. The Complainant has never purchased any beverage from the shop of this OP at any point of time. It is mentioned by this OP that he does not deal predominantly in the business of beverages. It was primarily a stationery shop. Due to market condition this OP sometimes use to keep confectionary items and also a few beverages, mainly of Pepsi Company. This OP did not sell the alleged Maaza bottle to the Complainant. So the Complainant has made this OP-1 as party unnecessarily with mal-intention. This OP has no idea whether the Complainant had at all purchased any Maaza for consumption of his family members which is spurious one. The Complainant is under the obligation to prove the allegations as made out strictly in accordance with law. The OP-1 has denied all the allegations as made out by the Complainant against him.
The Complainant has adduced evidence on affidavit. The OP-1 has prayed for adopting his written version as his evidence on affidavit and as the written version has been filed by the OP-1, hence we have treated the written version of the OP-1 as his evidence on affidavit. The intact sealed Maaza bottle was submitted by the Complainant before this Ld. Forum praying for sending the bottle to the appropriate laboratory for analysis and to make direction to the laboratory to submit report. In view of the Section 13(1)(c) of the Consumer Protection Act, 1986 the said sealed intact Maaza bottle was sent to the Appropriate Laboratory after compliance with all the directions as mentioned in the Consumer Protection Act, 1986 and Rules framed thereunder. The Appropriate Laboratory has submitted the report dated 13.05.2016 in a sealed envelope and the order no-18, dated 31.05.2016 also reveals that the report is submitted. This complaint is running ex parte against the OP-2. It is evident from the record that after admission of this complaint notices were issued on the OPs. Though the OP-1 had appeared and filed written version for contesting the complaint, but the OP-2 inspite of receipt of the notice (postal track report shows) on 18.08.2015 chose neither to appear nor contest the complaint. As the OP-2 did not appear either personally or through his Ld. Advocate till the date of hearing argument, hence we took the final argument ex parte against the OP-1 and in presence of the Complainant and the OP-1.
In the report dated 13.05.2016 the Public Analyst (Food & Water) has mentioned that the sample was in a condition fit for analysis and has been analyzed on 13.04.2016 to 28.04.2016. The physical appearance of the sample was ‘Blackish-Yellow colored translucent liquid with obnoxious smell in a sealed & labeled PET container and declared as Maaza mango RTS Fruit Drink. The Public Analyst has opined that ‘the sample RTS Fruit Drink (RTS Beverage) does not conform to the standard as laid down in regulation 2.3.10:1 for thermally fruit drink requirement as laid down in Table-4 of Appendix B of FSS (FPS&FA) regulation 2011 due to high total plate count, high yeast & mould count & high coliform count. Moreover, the blackish mass found in the sample detected to be of fungal origin. Hence, the sample is substandard & unsafe food under clauses (zx), [(iii) & (x)] respectively of subsection (1) of section 3 of FSS (FPS & FA) regulation 2011.’
We have carefully perused the record, documents and the report of the Public Analyst. It is seen by us that there are some admitted facts in the case in hand i.e. the Complainant purchased one Maaza cold drink (Fruit Drink) bottle on 05.06.2015 contained 600 ml, batch no of the said product is 007111011, manufacturing date is mentioned as 08.04.2015, it was manufactured by the OP-2, it is written on the label of the bottle ‘best before six months from manufacture, store in cool and dry place away from sunlight’, the Complainant purchased the bottle much before its date of expiry, at the time of giving the fruit drink to his family members the Complainant found some foreign substance in it, the seal of the bottle was not broken by the Complainant and the liquid remained intact, the Complainant lodged a complaint with the OP-2 through toll free number on 06.06.2015, complaint number was provided by the OP-2 to the Complainant as 404051, the OP-2 did not take any step, an e-mail was sent to the OP-2 by the Complainant, no reply to that e-mail was given by the OP-2, legal notices was issued on 03.07.2015 by the Complainant upon the OPs through registered post with A/D, the OPs did not bother to reply the same, plate count, high yeast & mould count & high coliform count was detected during analysis of the fruit drink, the blackish mass found in the sample detected to be fungal origin, the fruit drink is substandard and unsafe and the OP-2 inspite of receipt of notice did not appear before this Ld. Forum.
The OP-1 has mentioned in his written version that he has no shop at the address as mentioned by the Complainant in the cause title of the complaint, rather his shop is situated at Munshi Bazar, which is far away from the residence of the Complainant and the Complainant did not purchase any beverage from him at any point of time. In this respect we are to say if that be so that the shop of the OP-1 is not situated at the address as mentioned by the Complainant in the petition of complaint, then how the OP-1 received the notice from this Ld. Forum whereby he was directed to appear for contesting the complaint. It is seen by us that the address of the OP-1 in the cause title does not reveal that the shop of the OP-1 is situated at Munshi Bazar. Admittedly the OP-1 upon receipt of the notice has appeared to contest the complaint. As this Ld. Forum did not issue notice at the address of Munshi Bazar, how the OP-1 has received the same, no satisfactory reply is forthcoming from the OP-1. Not only that though the OP-1 has stated that the shop is more than 50 years of old and it is his family business, then certainly the OP-1 used to maintain stock register, bill books, challans etc. for carrying on business. So it was the bounden duty of the OP-1 to produce the cogent papers and documents showing that actually his shop is not situated at the address as mentioned by the Complainant in the cause title of the complaint. As the OP-1 has merely mentioned the same in the written version without corroborating the same with cogent evidence, hence we are not in a position to accept such contention of the OP-1 as true. In the written version it is contended by the OP-1 that he does not deal predominantly in the business of beverages, but due to market condition this OP sometimes used to keep some confectionary items along with a few beverages, mainly of Pepsi Company. Regarding such submission of the OP-1 we are to say it was the duty of the OP-1 to produce cogent and convincing evidence in support of his contention that he did not keep Maaza Fruit Drink manufactured by the Coca Cola Company. Therefore the contention of the OP-1 as made out in the written version has no evidentiary value at all. It is further submitted by the OP-1 that he has no idea as to whether the Complainant purchased any Maaza for his family consumption or the same is spurious etc. In respect of such contention of the OP-1 we are to say that admittedly the Complainant issued legal notice upon the OP-1 on 03.07.2015, wherein the Complainant has mentioned the entire episode. As the OP-1 received the notice from this Ld. Forum, hence we can draw the conclusion that the OP-1 had duly received the legal notice issued by the Complainant, but did not bother to make any reply to that letter and kept himself silent over the matter. Therefore the OP-1 got knowledge about the incident before filing of the complaint. If for the sake of argument we hold that the Op-1 did not sell the questioned fruit drink to the Complainant then what prompted the OP-1 not to disclose the actual truth before initiation of this complaint by issuing reply stating that the Complainant had never purchased the question fruit drink from his shop. As the complainant has failed to produce any money receipt in respect of such purchase of the fruit drink from the OP-1, hence we are not in a position for coming to a conclusive conclusion that it is only the OP-1 from whom the Complainant purchased the questioned fruit drink bottle. Admittedly the Complainant did not produce any document/money receipt in connection of making payment of the consideration amount towards purchase of the bottle and stated that the seller/OP-1 did not issue any money receipt during purchase of the said bottle and generally the seller does not issue the same. Be that as it may the Complainant purchased the Maaza fruit drink. In support of his contention the Complainant has relied on the case of P.A. Pouran vs.Mc Dowell & Company & Another filed before the Hon’ble NCDRC, wherein the Complainant purchased one bottle of Mc Dowell’s Soda from the hotel on 03.09.1987, who did not issue any money receipt and there was some foreign solid body floating indie the bottle. Though the Complainant could not produce any document towards his purchase, inspite of this the Hon’ble National Commission was pleased to hold him a consumer, but dismissed the complaint on merit as he prayed for excessive amount as compensation which he could not quantified. Therefore having regard to that ruling we are of the view that the present Complainant is also a consumer as he purchased the bottle admittedly manufactured by the OP-2. Upon careful perusal of the written version of the OP-1 it is seen by us that the OP-1 has failed to make any prayer in its written version mentioning for dismissal of the complainant with cost or without cost whatever it may be, but there should be a prayer, which is absent in the said written version.
Now let us discuss the moot point as to whether the alleged Maaza fruit drink is a spurious item or not as claimed by the Complainant. The intact sealed bottle was sent to the West Bengal Public Health Laboratory for scientific analysis wherein the Public Analyst (Food & Water) analyzed the product from 13.04.2016 to 28.04.2016 and he found that the questioned product falls under Regulation No-2.3.10:1 of Food Safety and Standards (Food Products and Food Additive) Regulations, 2011. From the test report it is evident that the fruit drink (RTS Beverage) does not conform to the standard as laid down in the Regulation 2.2.10:1 for thermally fruit drink requirement as laid down in Table-4 of Appendix-B of FSS (FPS &FA) Regulation 2011 due to high total plate count, high yeast and mould count and high coliform count. Moreover, the blackish mass found in the sample detected to be fungal origin. Hence, the sample is substandard and unsafe food under clauses (zx), (zz) [(iii) and (x)] respectively of subsection (1) of Section 3 of FSS (FPS & FA) Regulation 2011. We have also noticed from the table as mentioned by the Public Analyst in the report that where the “plate count should be 50 per ml, in the existing item it is 1, 50,000, yeast and mould count should be not more than 02 per ml, in the questioned item it is 2,300 and coliform count (100ml) should be NIL, but in the bottle it is detected as 500.” Therefore it is clear that due to abovementioned reason the present Maaza fruit drink became substandard and unsafe food for human consumption. Moreover fungal origin has also been detected by the Public analyst in the said sample. But the OP-2 on the label of the said bottle did not mention the appropriate percentage of the abovementioned components/ingredients etc and provides false information in it and in this way the OP-2 has misled the people/consumers who upon perusal and on good faith base on the information on the label used to purchase such fruit drink. As the OP-2 has given misleading information on the label of the questioned Maaza bottle, hence the action of the OP-2 suffers from UNFAIR TRADE PRACTICE as well as DEFICIENCY IN SERVICE in view of the Consumer Protection Act, 1986.
It is an admitted fact that neither the Complainant nor his family members consumed the said spurious Maaza fruit drink and for this reason the quantity was intact and the cap of the bottle in sealed condition. The case of the Complainant is that after purchase of the said bottle while the Maaza was about to be served for consumption to his sons, then he detected and found some foreign substance in it and due to such finding he did not serve the same because according to him the Maaza fruit drink was spurious one. Therefore the facts reveal that there is no occasion that after consuming the substandard and unsafe food either the Complainant or his family members became ill and/or suffered from any health problem or whatever it may be. But in the prayer portion the Complainant has claimed a sum of Rs.15, 00,000=00 as compensation due to humiliation, mental trauma, attempted loss of life and health caused due to negligence, deficiency in service and unfair trade practice of the part of the OPs. Admittedly the OP-1 did not manufacture the same, it was manufactured by the OP-2 and the report shows that due to higher percentage of some components the fruit drink became substandard and unsafe for human consumption. Therefore due to deficiency in service, negligence and unfair trade practice of the OP-2 the fruit drink became unsafe and substandard and in this respect there is no role or liability of the OP-1. The cause for which the product became unsafe the same was cropped up during its manufacturing. In view of such exaggerated claim of the Complainant we are to say that where neither the Complainant nor his family members had to face any health hazards as they did not consume the same, so the Complainant is not at all entitled to get the amount towards compensation as sought for. But it is true that the Complainant and his family members got mental shock and trauma after finding the foreign substance in the fruit drink bottle and being a very vigilant and cautious citizen the Complainant has immediately filed this complaint and produced the alleged bottle before this Ld. Forum. For this reason the awareness and sense of social liability of the Complainant should be encouraged. It is true as his grievance have not been redressed by the OPs specially the OP-2, hence this complaint has been initiated by him and in this way he had to incur some expenditure. Therefore in our view the Complainant is very much entitled to get litigation cost. Admittedly the Complainant had to face mental harassment, agony and pain after finding the content of the bottle, so for this reason the Complainant also entitled to get some amount as compensation. It is seen by us that the Complainant did not disclose the cost of the Maaza Fruit Drink, purchased by him and did not also make any prayer for refund of the said amount. So we are not in a position to direct the OP-2 for making refund of the price of the said bottle to the Complainant. The Complainant had sought for compensation and litigation cost from the OP-1-seller of the product also. In this respect we are to say that there is no proof that the seller sold the product to this Complainant after the expiry date. The Complainant did not adduce any evidence that the seller had failed to keep/store the bottle properly. Moreover the where the OP-1 had denied that he does not keep the product of Coca-cola and used to carry on business with the product of Pepsi Company, hence it was the obligation of the Complainant to make an application for production of relevant documents, stock register, purchase register etc by the OP-1. If this step was taken by the Complainant , then it will be easy to prove as to whether the product was sold by the OP-1 or not and the OP-1 whether used to carry on business only with the product of the Pepsi Company or whether he purchased this Coca-cola product from the retailer or not.
As food adulteration is a serious crime against humanity and there is a legal necessity to eliminate danger to human life from the sale of unwholesome articles of food, realizing this, Prevention of Food Adulteration Act, 1954 was enacted to curb the social evil of food adulteration. The offence of adulteration is a socio-economic offence. Adulteration of foodstuffs is so rampant and this evil practice has become wide spread and common which causes irreparable damage to public morality and public health. It is true that adulteration is an unmitigated nuisance and menace to society. The definition of ‘Food’ is an interesting aspect under PFA Act. Generally, Food means any article used as Food or Drink for human consumption other than drugs and water. Unsafe food causes many acute and life-long diseases. WHO estimates that food borne and waterborne diarrheal diseases taken together kill about 2.2 million people annually, 1.9 million of them are children. Food borne disease has a significant impact not only on the health but also on development. In view of the problems of food safety and standards, the Indian Parliament passed ‘The Food Safety and Standards Act, 2006’. This Act is a comprehensive and modern piece of legislation and a step towards consolidation of different food laws. It aims at elimination of multi-level and multi-departmental controls. The objective of the new Act is to consolidate the laws relating to food and to curb Food Adulteration by prescribing higher penalties for violation of food laws. It aims to establish Food Safety Management System for ensuring availability of safe and wholesome food for human consumption and Food Safety and Standards Authority of India (FSSAI) to enforce the food safety standards.
We have mentioned earlier that the trade practice as adopted by the OP-2 can be termed as UNFAIR TRADE PRACTICE. As per the Consumer Protection Act, 1986 Unfair Trade Practice means a trade practice which, for the purpose of promoting the sale, use or supply of any goods or for the provision of any service adopts any unfair method or unfair or deceptive practice including any of the following practices namely:-
- The practice of making any statement, whether orally or in writing or by visible representation which-
- Falsely represents that the goods are of a particular standard, quality, quantity, grade, composition, style or model,
- ……………………………………………………………..
- ………………………………………………………………
(6) Manufacture of spurious goods or offering such goods for sale or adopts deceptive practices in the provision of services
In the instant complaint the Maaza Fruit Drink bottle has falsely represented the quality, grade, composition. On the label of the fruit drink the composition and quality which were mentioned has proved false because the report of the Public Analyst shows that the said product is an unsafe and substandard for human consumption. Moreover fungal origin has also been detected in the said fruit drink. Therefore it is proved that the alleged Maaza Fruit Drink is a spurious one and admittedly such spurious goods were manufactured by the OP-2. It is pertinent to mention that before marketing of such goods the OP-2 should be more cautious and vigilant, but with a view to promote its business the OP-2 did not bother to take more care during its trading. As the OP-2 used to manufacture spurious goods, hence against such manufacturer exemplary compensatory award should be given. As the OP-2 had adopted unfair means and method for manufacturing the same in our view for such unfair trade practice, deficiency in service and negligent action the OP-2 is under obligation for making payment of compensation and it will meet justice if we direct the OP-2 to make payment of compensation to the tune of Rs.2, 00,000=00 to the Consumer Legal Aid Account, Burdwan.
Going by the foregoing discussion hence, it is
O r d e r e d
that the complaint is allowed ex parte against the OP-2 with cost and the same is dismissed on contest without cost against the OP-1,
that the OP-2 is directed to make payment of compensation to the tune of Rs. 2, 000=00 (Rs. Two thousand) only for mental pain, agony and harassment of the complainant and litigation cost of Rs. 3, 000=00 (Rs. Three thousand) only to the Complainant and the OP-2 is further directed to pay compensation to the tune of Rs. 2, 00,000=00 (Rs. Two lack) only to the Consumer Legal Aid Account, Burdwan due to adopting unfair trade practice within 45 days from the date of passing of this order, failing which the complainant will be at liberty to put this order in execution in accordance with law,
that the OP-2 is directed to discontinue the unfair trade practice by supplying and manufacturing the hazardous goods to anybody.
Let plain copies of this order be supplied to the parties free of cost as per provisions of Consumer Protection Regulations, 2005.
(Asoke Kumar Mandal)
Dictated and corrected by me. President
DCDRF, Burdwan
(Silpi Majumder)
Member
DCDRF, Burdwan
(Pankaj Kumar Sinha) (Silpi Majumder)
Member Member
DCDRF, Burdwan DCDRF, Burdwan
