Justice Pritam Pal, President

1.         The aforesaid two appeals have arisen out of  one and the same order dated 16.10.2007 passed by the District Consumer Forum-II, U.T. Chandigarh whereby complaint case No.880 of  2007  filed by Mrs. Sarika Chadha was allowed in the following terms ;

            “For the reasons recorded above, we accept the complaint against      OP-3 only and direct it to –

              a)  pay a sum of Rs.5,000/- to the complainant as          compensation on account of having sold soft             drink in question to                the complainant having foreign object.

              b)  pay a sum of Rs.1,500/- to the complainant   as costs of     litigation.

This order be complied with by OP-3 within two months of the receipt of its certified copy,  which be communicated to the parties free of charge, failing which it shall pay the aforesaid amount to the complainant with interest @ 9% per annum from the date of order till realization. The complainant against OPs 1 & 2 stands dismissed leaving the parties to bear their own costs.” 

 2.        In fact appeal No.1889 of 2008 has been filed by  the complainant for enhancement of compensation whereas appeal case NO.1884/2008 has been filed by Anupurna Departmental Store- OP NO.3 seeking dismissal of the complaint by setting aside the impugned order. Since, common questions of law and facts are involved in these two  appeals,  therefore, we propose to dispose of them  by  this common judgment.    The parties   hereinafter shall be    referred to as per their ranking before the District Forum.

3.     In nutshell, the facts culminating to the commencement of these  appeals  may be recapitulated thus ;

             M/s Coca Cola India Pvt. Ltd. (OP-2) is owner of brand name Limca and Kandhari Beverages Pvt. Ltd. (OP-1) is the franchise for manufacture and sale of soft drinks under the brand name Limca. The complainant purchased one 600 ml. plastic bottle of Limca on 8.7.2007 from OP-3. This bottle bore batch No.90 and manufacturing date as 11.6.2007-1301, bottled by OP-1. This fact was reported in the newspaper and photocopy of the cash memo issued by OP-3 is C-1 while the copy of news item is C-2. It was alleged  that before the complainant could serve the cold drink to her family members and grand children, she found a foreign object in the said bottle of Limca and had she served the contaminated drinks to her family members it would have an adverse effect on their health. The photographs of the bottle showing the foreign object are C-3. The complainant immediately brought this fact to the notice of OPs 1 & 2 who promised to look into it but to no avail.  Legal notice dated 17.7.2007 (C-4) was also got issued. The complainant alleged that the supply of defective and injurious health goods by the OPs tantamounted to deficiency in service for which compensation could  be   awarded.  Alleging that the supply of defective and highly dangerous goods by the OP caused mental agony and harassment, the complainant filed complaint before the District Forum seeking compensation to the tune of Rs.20,000/-for mental agony and harassment besides Rs.5000/- on account of costs of goods/expenses of legal notice and Rs.11,000/- as costs of litigation. 

3.            On the other hand the case of OP NO.1 before the District Forum was that   the complaint was completely vague and evasive as it completely failed to disclose as to which party was responsible   as  the complainant had failed to disclose the details of the manufacturer of the alleged bottle of Limca and OP-1 had no liability whatsoever to pay any sum to the complainant by way of compensation as compensation could be granted to make good the loss or damage suffered whereas  there was no averment or proof of the complainant having suffered any loss or damage as a direct consequence of the alleged sale and purchase of soft drink in question and filing of the complaint was a ploy to extract huge amount from the Ops on baseless, unreasonable and unjustified grounds. It was  pleaded that the   complaint was completely mischievous and filed with the intention to gain unnecessary and undue publicity by raising mischievous and frivolous pleas and the story narrated by the complainant was nothing but a concocted story which was based on false and incorrect facts as neither the bottle was contaminated nor any adverse effect was held on grandchildren of the complainant.  It was further pleaded that  that the products offered by OP NO.1 meet  the highest standards and services provided by it are as per the desired and satisfactory standards. Pleading that there was no deficiency in service on its part,  OP No.1 prayed for dismissal of the complaint with exemplary costs.

4.         However,  OP-2 in its reply  pleaded that Coca Cole Company USA was engaged in the business of manufacture and sale of certain concentrates and beverage bases. The Coca Cola company was also owner of various trade marks and distinguish these beverage bases, syrups and beverages.  The Coca Cola company had granted licenses to certain entities in India and Kandhari Beverages Private Limited was an authorized bottler of the company and was engaged in the preparation, packaging, sale and distribution of certain specified beverages of the Coca Cola Company in parts of Punjab and Himachal Pradesh and as OP-2 was not engaged in the manufacture of carbonated soft drink or the beverage in issue in the complaint, therefore, the complaint was liable to be dismissed as the bottle in issue was not sold to the complainant by the answering OP.  It was stated that Coca Cola India Pvt. Ltd.-OP No.2 had no liability whatsoever to pay any sum to the complainant by way of compensation as complainant did not suffer any loss or damages which was a direct consequence of the alleged sale of beverage. According to OP,  it is a well settled law that proof of loss or injury is a sine qua non for the award of compensation but in the case in hand the complainant suffered no such loss or damage. It was pleaded that there was no privity of service between the complaint and the answering party and as such the complaint was not maintainable against it. 

5.         The proprietor of OP-3 Sh.Abhinav Bakshi initially appeared  before the District Forum and sought time to file written reply and evidence.  However, on the date fixed nobody appeared on behalf of OP No.3,nor filed reply/evidence, therefore, it was proceeded  against ex-parte.

 6.          The learned District Consumer Forum after going through the  evidence  and hearing   learned counsel for the  parties  allowed the complaint as indicated in the opening part of this judgment.  This is how feeling aggrieved,  Anupurna Departmental Store-OP NO.3 as well as complainant    have come up in   their   respective appeals. 

7.            We have heard learned counsel for the parties   and gone through the file carefully.  It was argued on behalf of the   Anpurana Departmental Store    that although cash memo was issued by it for selling one bottle of Limca,  yet it could not be said that it was the same bottle of Limca which was allegedly purchased from it  and further it being a retailer had not installed a bottling plant to fill Limca bottles in its premises, therefore, manufacturer and bottler were   liable to pay the compensation.  It was further contended that the learned District Forum did not consider the  fact regarding batch No., date of manufacture and name of bottler given by complainant in her complaint and also did not take any step to get the alleged bottle of Limca produced and sealed before it and to send the same to laboratory for proper analysis and test . It was next argued that the contents of bottle were not served  and   no  loss  or injury was caused to the family members of the complainant, so, complainant was not entitled  to any compensation.  On the other hand, the learned counsel for complainant repelled the aforesaid arguments and submitted that the compensation awarded by the District Forum is inadequate and the complaint against manufacturer and bottler should not have been dismissed as they also indulged in unfair trade practice while manufacturing the bottle which contained some foreign particle  and ignored the safety of life of people.

8.              We have given our holistic view to the rival contentions of parties and find that  OP No.3 from whom the complainant had purchased the Limca bottle did appear before the District Forum but did not file any reply, nor evidence to substantiate its relationship with manufacture as no bills or invoice etc. were produced on file to establish that the Limca bottle in question was manufactured and bottled by Ops NO.1 & 2 and the same was purchased by it from them. Had OP NO.3 proved before the District Forum that he was the dealer or authorized agent of OPs NO.1 & 2 in respect of sale and manufacture of contents of Limca bottle, the liability would have been fastened upon them also. There is no evidence on the file to prove that the OP NO.3 had sold the same  Limca bottle which it had purchased from the manufacturer/bottler. Further the complainant also failed to prove that the Limca bottle in question  that was having some foreign object was manufactured and sold by Ops No.1 & 2 to OP No.3. As observed by the learned District Forum, the complainant had not been able to establish that there was privity of service between her and OP No.1 or   even with OP NO.2 in the matter of sale and purchase of Limca bottle in question. The learned District Forum observed that the Limca bottle in question on visual examination/perusal of the photographs contained some foreign object that is why the Forum did not send it to the laboratory for analysis.

9.         Admittedly the Limca soft drink was not served by the complainant to her family members ,so as such she was certainly not entitled to anticipated consequential loss. So far as compensation to a consumer for having been sold a defective good is concerned, the Hon’ble Supreme court in various judgments has widened the connotation of word ‘compensation’ that it includes each and every element of suffering like mental agony, harassment or physical discomfort, expected or actual loss, insult and other suffering, which a consumer suffers.  Thus, the learned District Forum rightly granted compensation of Rs.5,000/- and litigation costs of Rs.1500/-  to the complainant on account of having sold soft drink in question to the complainant having foreign object due to which she had to suffer mental tension.  In view of facts and  circumstances of the case ,we are of the considered opinion that the amount of compensation and costs  awarded  to the complainant   is quite reasonable and justified, so, no interference is called for therein.

 10.      In the result,  both appeals are hereby dismissed and parties are left to bear their own costs.

             Certified copies of this order be communicated to the parties, free of charge. The file be consigned to records.