ORDER

26.03.2024

Sh. Sanjay Kumar, President

1. In brief facts of the present case are that complainant purchased coca cola cold drink for its guests from M/s Sharma Sweets House E Block, Jahangirpuri for drinking. It is stated that when they started opening the bottle for drinking found that some bacterias in the bottles. It is further stated that on opening  the bottle very thick fungus was visible than the cold drink bottles were shown to the shopkeeper and kept with the complainant. It is further stated that shopkeeper Sh. Amit Sharma immediately sent a whatsapp photograph of the bottle to the company. The coca cola company even after did not take any steps, therefore, present complaint filed for selling infected cold drink to public at large which can cause even death. Hence, present complaint filed for seeking compensation.
2. OP1 appeared through his son Amit. OP2 appeared through counsel Sh. Amit Tyagi but OP3 failed to appear despite service and proceeded ex parte vide order dated 17.07.2017.
3. As per record OP2 filed WS and taken preliminary objection that the present complaint is misuse of the process of law and the same has been filed only to unnecessarily harass and humiliate the respondents and to extort money from the respondents. In fact, no cause of action has ever arisen in favor of the complainant or against the respondents for filing the present complaint. Hence, the present complaint is liable to be dismissed on this sole ground alone. It is stated that the present complaint is not maintainable in the eyes of law for want of mis joinder and non joinder of necessary parties. The complainant with ulterior motive unnecessarily dragged the respondents to harass and humiliate them and to extort money from them. Hence, the present complaint is liable to be dismissed on this ground sole.
4. It is stated that the complaint is wholly misconceived, groundless and unsustainable in law and is liable to be dismissed as such. It is further stated that this hon’ble court/forum has no jurisdiction to entertain and adjudicate upon the dispute involved in the complaint in as much as it is not a consumer dispute and does not fall within  the ambit of the provisions of the Consumer Protection Act, 1986,  and exclusively triable by Civil Court, therefore, present complaint is liable to be dismissed.
5. It is stated that complainant is neither the consumer nor present complaint involves consumer dispute and OP2 does not provided any services, therefore, present complaint is liable to be dismissed. It is further stated that present complaint is baseless and flagrant abuse of process of law to harass and blackmail the OPs, therefore, liable to be dismissed. It is stated that this hon’ble forum neither has territorial or pecuniary jurisdiction as per section 11 (1), section 17 (a) (i) and section 21 (a) (i), therefore, liable to be dismissed.
6. On merit all the allegations are denied and contents of preliminary objections are reiterated. It is stated that OP2 is not a retail supplier of the product. OP2 is authorized agency of coca cola and sold the goods to the retail shopkeeper against a valid receipt. It is stated that no contaminated product supplied by OP2. It is stated that present complaint is liable to be dismissed.
7. As per record OP3 ex parte vide order dated 17.07.2017. However, WS is also available. There is no order as per record available for  setting aside the ex parte order against OP3, therefore, WS of OP3 and evidence of OP3 cannot be read and relied as part of record.
8. Complainant filed rejoinder to the WS of OP2 and denied all the allegations made therein and reiterated contents of complaint. It is stated that the cold drink bottles purchased by complainant were sold by M/s North Beverages Pvt. Ltd., 153/1, Nirankari Colony, Delhi 110009 and refilled by M/s Moon Webers, A-32 Sector 4., Industrial Area, Sahibabad (Gaziabad UP). It is further stated that in the purchase bottle  one dead lizard was found. The lizard is a poisonous animal and in case any family member  of complainant had taken the drink then would have died. In case complainant had died than who would look after ten family members of  the complainant.
9. It is stated that on discovering dead lizard in the coca  cola bottle complainant telephoned at complaint no.18002082653 having number 01750081 dated 21.12.2016 at about 11:38 am. It is further stated that area supervisor Mr. Balbir paid several visits to complainant and offered Rs.2,5,10,20 ltr. Bottle of coca cola against 200ml bottle. Even general manager Sh.  Papal Thomas also visited  and demanded the 200ml coca cola bottle having dead lizard and offered 20 ltr bottle. It is further stated that when complainant declined the offer than threat was expanded to involve  in a false case. The complainant denied  the fact that the filling was done at Gurgaon. It is further stated that the sealed  coca cola bottle having batch number 918A of 26.09.2016 be sent to Government laboratory for  testing and video graphy and compensation of Rs.50 lacs may be granted.
10. The complainant filed evidence by way of affidavit and reiterated contents of complaint and rejoinder.
11. OP2 filed evidence by way of affidavit of Sh. Rajesh Choudhary Manager. In the affidavit contents of WS reiterated.
12. OP3 also filed evidence by way of affidavit of Sh.Ranjit Oberoi Manager and reiterated contents of the WS. However, OP3 was proceeded ex parte vide order dated 17.07.2017 and as per record ex parte order was not set aside, therefore, evidence of OP3 cannot be relied as part of record.
13. Written arguments filed by complainant as well as by OP2 and 3.
14. We have heard complainant in person. Despite  given opportunity OP1, 2 and 3 failed to address oral arguments. We have gone through the written arguments filed by the OPs.
15. The complainant alleged that he had purchased four bottles of Coca Cola  for Rs.48/- from Sharma Sweets  and Dairy on 20.11.2016. The complainant filed on record the receipt of payment. The complainant in addition to coca cola also purchased four  samosas. The receipt is duly signed by Amit Sharma Sweets and Dairy owner/authorized person. The complainant proved this  fact on the basis of the receipt. The complainant further proved the fact that Sharma Sweets OP1 purchased these bottles from North Delhi Beverages Pvt. Ltd. OP2 which is manufactured by Coca Cola Pvt. Ltd. OP3. The delivery challan is dated 19.11.2016. The OP2 North Delhi Beverages Pvt. Ltd. and OP3 Coca Cola Pvt. Ltd. although contested the present case, however there is no evidence brought on record that the Coca Cola bottles purchased by  complainant were not manufactured by  OP3 and not sold by OP2 North Delhi Beverages Pvt. Ltd. to Sharma Sweets House. The complainant also specified that he has lodged complaint on 21.12.2016 on consumer customer care. The complainant also specifically alleged that the officers of Coca Cola Company OP3 Mr. Balbir and one Sh. Pappal Thomas made an attempt to pressurize and also threatened him to return the bottle. It is pertinent to mention here that out of purchased four bottles one contains dead lizard as per the complainant version. During the proceedings the sealed Coca Cola Bottle was sent for Chemical analysis to the Department of Food Safety, Government of NCT of Delhi, A 20 Lawrence Road, Industrial Area, Delhi which is a food laboratory. Sh. S.M Bhardwaj Food Analysist submitted the report. According to the report the sealed closed bottle examined under Microscope and “Fungal Hyphae Structure was observed during microscopic examination which confirm the presence of fungus”. As per opinion the sample bottle is unsafe because it contains fungus. It is established on the basis of food analysis report that the Coca Cola Bottle was containing fungus which was unsafe, however, there was no dead lizard detected during the analysis. The OP2 and 3 failed to file any report of food analysis which contract the findings, observations, opinion  of Sh. S.M Bhardwaj. It is also not out of place to mention that the  Coca Cola bottle was examined at laboratory run by Government of NCT of Delhi, therefore, this report is admissible and can safely be relied to conclude that  the Coca Cola Bottle was containing fungus which was purchased by complainant from Sharma Sweets. The Coca Cola Bottle was  distributed by OP2 North Delhi Beverages Pvt. Ltd and manufactured by Coca Cola Pvt. Ltd. OP3. It is imperative on OP3 being manufacturer to maintain highest standard of food safety being renowned soft drink brand not of the India but  of the world. In this case the OP failed to maintain the optimum standard of food  safety as  the soft drink coca cola bottle was containing fungus which is unsafe for human consumption.
16. On the basis of above observation and discussion OP3 is guilty of deficiency of service and manufacture unsafe fungus infected soft drink Coca Cola which is purchased by complainant. Fortunately, complainant did not consume it and it remained sealed throughout till it was examined by food laboratory. The complainant established gross deficiency of service on the part of OP3. In these circumstances no liability can be imposed on distributor OP2 North Delhi Beverages Pvt. Ltd. and Retailer Shopkeeper OP1 Sharma Sweets House. Hence we direct OP3 Coca Cola Pvt. Ltd. to pay Rs.50,000/- compensation and Rs.5000/- litigation expenses. In case OP3 failed to comply  the order within 30 days from the date of receipt  of this order than to pay 9% p.a interest on  the compensation of Rs.50,000/-. File be consigned to record room.
17. Copy of the order be given to the parties free of cost as per order dated 04.04.2022 of Hon’ble State Commission after receiving an application from the parties in the registry. The orders be uploaded on www.confonet.nic.in.

Announced in open Commission on  26.03.2024.

SANJAY KUMAR                  NIPUR CHANDNA                       RAJESH

       PRESIDENT                             MEMBER                                MEMBER