IN THE DISTRICT CONSUMERS’ DISPUTES REDRESSAL FORUM AT MYSORE<br /> <br /> PRESENT: 1. Shri.A.T.Munnoli<br /> B.A., L.L.B (Spl.) - President <br /> <br /> 2. Smt.Y.V.Uma Shenoi<br /> M.Sc., B.Ed., - Member<br /> 3. Shri. Shivakumar.J.<br /> B.A., L.L.B., - Member<br /> <br /> CC 344/09 DATED 11.11.2009<br /> ORDER<br /> <br /> Complainant Y.T. Manjunath S/o Thammaiah, R/at Kumbara Gudi, Yalandur town, Chamaraja Nagar District.<br /> <br /> (By Sri. Virendra Swamy, Advocate)<br /> <br /> Vs. <br /> Opposite Party 1. The Manager, Shanthala Bar and Restaurant, Vinobha Road, Mysore-01.<br /> 2. The Manager, Sri Venkateshwara Distilleries, Yalahanka New Town, Bangalore-64.<br /> (O.P.1 is exparte, By Sri.M.C.J. for O.P.2, Advocate,)<br /> <br /> Nature of complaint : Deficiency in service<br /> Date of filing of complaint : 10.09.2009<br /> Date of appearance of O.P. : 01.10.2009<br /> Date of order : 11.11.2009<br /> Duration of Proceeding : 1 Month 10 DAYS<br /> <br /> <br /> PRESIDENT <br /> <br /> <br /> <br /> MEMBER<br /> <br /> <br /> MEMBER<br /> <br /> <br /> Sri. A.T.Munnoli,<br /> President<br /> <br /> 1. Under Section 12 of the Consumer Protection Act the complainant has filed the complaint against opposite parties claiming compensation of Rs.1,00,000/-, from the first opposite party towards deficiency in service and a sum of Rs.4,00,000/- from the second opposite party for manufacturing and selling adulterated liquor. <br /> <br /> 2. In the complaint, it is alleged that the complainant with his friends had arranged a party on 30.07.2009, in the first opposite party bar. The complainant had purchased few beer bottles and a vodka liquor bottle manufactured by the second opposite party. While opening the bottle of the liquor manufactured by the second opposite party for consumption, the complainant and his friends noticed the some foreign body looking like rubber cap, floating in the bottle. When the complainant and his friends informed the same thing to the opposite party, he behaved irresponsibly stating that he is not concerned to the same and gave telephone number of the manufacturer i.e., second opposite party. When the second opposite party was contacted over phone and reported the matter, he also behaved improperly and denied that the bottle manufactured by them, contain such material. The second opposite party question how many people died by consuming the liquor and disconnected the telephone. Consequently the complainant and his friends did not consume the liquor and the party was stopped and they did not enjoy. The complainant sent notice to the opposite parties. There was no reply. However, the second opposite party through their advocate informed the complainant that compensation can be paid in case of death, on account of consuming liquor and for such petty instance cost of Rs.1,000/- would be paid in case the bottle is returned. Also it is alleged that, it is the duty of the second opposite party, manufacturer to provide good quality and pure liquor to the customers and it is the right of the customers get good quality liquor. On account of negligence and irresponsibility on the part of the opposite parties foreign material is found in the bottle. Due to manufacturing adulterated liquor and behavior of the opposite parties destroyed the happiness of the complainant and his friends and consequently, there is deficiency in service. Hence, it is prayed to allow the complaint.<br /> <br /> 3. The first opposite party in spite of due service of the notice, has remained exparte.<br /> <br /> 4. The second opposite party in the version, has denied all most all the allegations made in the complaint. Said denials are not repeated. It is contend that the complainant has not approached the Forum with clean hands. He has suppressed the material facts and filed the complaint with malafied intention to make unlawfull gain in collusion with the first opposite party. Also it is contend that, there is no sale of the liquor bottle in question and as such, the complainant is not a consumer and the complaint is not maintainable. Further, there is no deficiency in service. Also it is contend that, under the Karnataka Excise Act and Rules sale of liquor bottles in the bar is prohibited. Liquor is supplied in loose under peg system to the customers. Purchase of the liquor bottle in question is denied. Also it is contend that, the bottle in question is in custody of the complainant and there is every possibility of tampering the seal of the bottle. On these grounds, it is prayed to dismiss the complaint.<br /> <br /> 5. To substantiate the respective contentions, the complainant has filed his affidavit along with affidavit of his friend by name Shivaswamy. On the other hand, the director of the second opposite party has filed his affidavit. The second opposite party delivered interrogatories to the complainant and the complainant has replied the same. During the course of trial, the complainant has produced the liquor bottle in question. We have heard the arguments of both the learned advocates and the second opposite party and perused the material on record.<br /> <br /> 6. Now the points arises for consideration are as under:-<br /> 1. Whether the complainant has proved any deficiency in service, either on the part of both the opposite parties or any one of them and that he is entitled to the relief sought?<br /> 2. What order?<br /> 7. Our findings are as under:-<br /> Point no.1 : Negative<br /> Point no.2 : As per the order.<br /> <br /> REASONS<br /> <br /> 8. Point no. 1:- The second opposite party has contended that, the complainant is not a customer. Hence, the complainant shall have to prove that he is the customer. To prove that fact, the complainant has to establish that he has purchased the liquor bottle in question.<br /> <br /> 9. In the complaint, it is alleged by the complainant that he has purchased the liquor bottle in question from the first opposite party bar. To prove that he has purchased the said bottle, admittedly no bill or any documents are produced. In the absence of document regarding purchase of the liquor bottle in question, heavy burden lies on the complainant to prove the said fact.<br /> <br /> 10. The second opposite party had delivered interrogatories to the complainant, asking as to whether bill can be produced and if not, the reason. In the reply, the complainant admitted that, he has not produced the bill or any receipt and regarding the reasons for non production, it is stated, he is not in practice of obtaining receipt, whenever liquor is purchased. Considering the provisions of the Karnataka Excise Act and the Rules and Regulations there under without proper receipt, liquor cannot be sold. Hence, the statement of the complainant that, he had no practice of obtaining receipt for purchase of liquor, is just evasive reply. Under the circumstances, for non-production of the receipt, an adverse inference shall have to be drawn.<br /> <br /> 11. It is definite case of the complainant that, he had purchased the liquor bottle from the first opposite party. In this connection, advocate for the second opposite party with reference to the provisions of the Karnataka Excise Rules 9(b) submitted that, no sale of liquor removal from the premises shall be permitted under the licence. No liquor shall be sold to persons who have not part taken of meals or eatables served in the licenced premises. Thus the learned advocate submitted that, in the bar the liquor shall have to be served in the peg system only and sale of sealed liquor bottle to the customers is prohibited. Also he submits, taking away the sealed liquor bottle from the bar premises is prohibited. This aspect is not at all disputed for the complainant. Hence, under the said rule sale of sealed liquor bottle is prohibited and also taking away of such bottle from the licenced premises of the bar being prohibited, the claim of the complainant that, he has purchased the liquor bottle in question from the first opposite party, is not free from doubt.<br /> <br /> 12. The doubt regarding purchase of the liquor bottle from the first opposite party to the complainant, is further strengthened by the contention of the second opposite party that, the complainant has filed false complaint in collusion with the first opposite party. The first opposite party despite service of the notice, has remained exparte. When the complainant has made certain serious allegations against the first opposite party and has claimed damages amounting to Rs.1,00,000/-, the first opposite party remaining absent, creates doubt to substantiate the claim of the second opposite party on the point. The complainant has claimed compensation of Rs.1,00,000/- from the first opposite party and Rs.4,00,000/- from the second opposite party. This aspect also supports the contention of the second opposite party, regarding collusion, as alleged.<br /> <br /> 13. The complainant alleges that, after he purchased the liquor bottle in question from the first opposite party, were intended to consume the same and at that point of time, they noticed some foreign material in the bottle. The complainant questioned the first opposite party. The first opposite party gave telephone number of second opposite party and then he contacted the second opposite party over phone and the second opposite party asked how many people died on account of consumption of the liquor. Thus, according to the complainant his definite case is that, on the particular date and time he contacted the second opposite party over telephone. That fact is stated by the complainant in his affidavit and so also in the affidavit of his witness. The second opposite party has denied the said telephone call. The second opposite party in the interrogatories had called upon whether the complainant could furnish necessary proof having made telephone call. In the answer, the complainant has admitted and stated that he has not produced any document having telephoned to the second opposite party. If really, has claimed by the complainant he had called upon the second opposite party over phone, certainly he could have obtained and produced documents from the telephone department or the concerned telephone company. Not only that in the routine course the complainant did not produce the documents but, in spite of the interrogatories delivered, the complainant has not produced the documents. Under the circumstances, adverse inference against the complainant shall have to be drawn.<br /> <br /> 14. Further case of the complainant is that, after the issuance of the notice, the advocate for the second opposite party over telephone informed that, compensation can be paid only in case of death, on account of consumption of the liquor and in petty matters no compensation could be paid, but towards cost only a sum of Rs.1,000/- can be paid in case of return of the bottle. Thus, according to the complainant in this regard, he has received telephone call from the advocate of the second opponent. To substantiate this fact also the complainant has not produced any documents.<br /> <br /> 15. Till the second opposite party filed version, the bottle in question was not produced before the Forum. It is contended in the version by the second opposite party that, there is every possibility of tampering the seal of the bottle.<br /> <br /> 16. Irrespective of all above contentions, advocate for the second opposite party submitted that, as could be seen in the bottle in the question a plastic cap is floating. Hence, firstly, the learned advocate submitted that, when it is clearly visible, the complainant could have observed it before taking the bottle and even there after pointing out the same could have returned the bottle to the first opposite party. That was normal behaviour of the customer. Un the circumstances, said submission of the learned advocate cannot be brushed aside. Secondly, the advocate further submitted that, admittedly the complainant or his friends have not consumed the liquor from the said bottle and in the result absolutely no harm or injury has been caused to the complainant and his friends. This aspect also needs to be noted.<br /> <br /> 17. Learned advocate for the second opposite party relied on the ruling reported in (1994)1 Supreme Court Cases 397. Though the facts of that case are different, the Hon’ble Apex Court in that case, has held that in the absence of documents to hold there was privity of contract and consequently no deficiency in service and in the result complaint is not maintainable. In the case on hand also, the complainant has not produced any document to prove that he had purchased the liquor bottle in question. For non-production of receipt or documents regarding purchase of said bottle, no cogent reasons are assigned. Under the circumstances, considering the principle laid down by the Hon’ble Apex Court cited supra, we have to conclude that, the complainant has failed to prove that, he is the consumer and that the complaint is maintainable.<br /> <br /> 18. It is true, that the liquor bottle in question has been manufactured by the second opposite party. Also it is true that, the plastic cap is floating in the said liquor bottle. But these facts are not sufficient to hold the second opposite party liable to answer the claim of the complainant.<br /> <br /> 19. In the result, our finding on the point is in negative.<br /> <br /> 20. Point No. 2:- From the discussion made above and conclusion arrived at, we pass the following order.<br /> <br /> ORDER <br /> 1. The complaint is dismissed.<br /> 2. There is no order as to cost.<br /> 3. Give a copy of this order to each party according to Rules.<br /> <br /> (Dictated to the Stenographer, transcribed by her, transcript revised by us and then pronounced in the open Forum on this the day 11th November 2009)<br /> <br /> <br /> <br /> (A.T.Munnoli) <br /> President <br /> <br /> <br /> (Y.V.Uma Shenoi)<br /> Member<br /> <br /> <br /> (Shivakumar.J.)<br /> Member<br /> <br /> <br /> <br /> <br />