Punjab

Sangrur

CC/545/2014

Balvir Singh - Complainant(s)

Versus

Shri Bala JI Agency - Opp.Party(s)

Shri J.S. Sarao

07 May 2015

ORDER

BEFORE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SANGRUR.

               

                                               

                                                Complaint No.    545

                                                Instituted on:      16.09.2014

                                                Decided on:       07.05.2015

 

 

Balvir Singh son of Pritam Singh, resident of Village Sanghreri, Tehsil and Distt. Sangrur.

                                                        …Complainant.

                                Versus

1.     Shri Balaji Agency, Kaula Park, SCO 1, Near Fire Brigade, Sangrur, Tehsil and Distt. Sangrur.

2.     Pepsico India Holdings Pvt. Ltd. Village Aliasgarpur, PO Ganjbar, GT Road, Panipat 132 103 (Hry).

                                                        …Opposite parties

 

For the complainant    :       Shri J.S.Sarao, Advocate.

For OP No.1              :       Shri S.P.Sharma, Adv.

For OP No.2              :       Shri SS Ratol, Adv.

 

 

 

Quorum:    Sukhpal Singh Gill, President

                K.C.Sharma, Member

                Sarita Garg, Member

 

Order by : Sarita Garg, Member.

 

1                      Shri Balvir Singh, complainant (referred to as complainant in short) has preferred the present complaint against the opposite parties (referred to as OPs in short) on the ground that on 30.8.2014, the complainant purchased five create of gold drinks of 300 ml from OP number 1 vide cash memo number 11275 dated 30.8.2014 for Rs.1275/-. It is further averred that when the complainant wanted to open one bottle of cold drink slice he found that there was one needle with pipe, which is very injurious to health. It is further averred that as per the date printed on the said bottle the same was manufactured on 1.2.2014 and it is further mentioned that the bottle was to be used before six months. It is further stated that the OP sold the complainant the expiry bottle of cold drink. The complainant thereafter approached OP number 1 for replacement of the bottle in question, but nothing happened. Thus, alleging deficiency in service on the part of the OPs, the complainant has prayed that the OPs be directed to replace/change the above said bottle and further to pay a compensation of Rs.4,70,000/- for mental tension and harassment and Rs.16,500/- on account of counsel fee and  litigation expenses.

 

2.             In reply filed by OP number 1, legal objections are taken up on the ground of maintainability and that the complainant has filed a false and frivolous complaints.  On merits, it is stated that OP number 1 is only the dealer of OP number 2 and supplies the goods that are being ordered by the consumers of OP number 1. Hence, OP number 1 has no concern with the needle or pipe that were found in the bottle of Slice.  It is further stated that the complainant never approached OP number 1 and the OP number 1 would have replaced the bottle.  The complainant has concocted a false story and filed a false complaint only to grab money from the OPs.  It is stated further that the OP is still ready to replace the bottle of Slice cold drink.  The present complaint is nothing except misuse of process of law. Lastly, OP number 1 has prayed for dismissal of the complaint.

 

3.             In reply filed by Op number 2, preliminary objections on the grounds that the complaint is false, frivolous and vexatious and that the complainant is not a consumer of the OP are taken up. On merits, it is stated that OP number 2 is not the manufacturer of the bottle in question and there is no relationship between the complainant and OP number 2.  It is stated that OP number 2 is selling the products to its valuable customers in marketable and consumable condition as prescribed on the bottle.  It is stated further that the impugned bottle in the instant case was not tested by any laboratory and in the absence of any expert evidence/ laboratory report to confirm the fact that impugned bottle is product of the OP. On merits, the contents of the complaint are denied being false and incorrect. It is also denied that the bottle in question was manufactured by Op number 2. It is stated further that the complainant never approached OP number 2 and has filed the present complaint just to blackmail the OP.

 

4.             The learned counsel for the complainant has produced Ex.C-1 affidavit, Ex.C-2 copy of email, Ex.C-3 copy of bill and Ex.C-4 bottle of cold drink in question and closed evidence. On the other hand, the learned counsel for the OP number 1 has produced Ex.OP1/1 affidavit and closed evidence. The learned counsel for OP number 2 has also produced Ex.OP2/1 affidavit and closed evidence.

 

5.             We have carefully perused the complaint, version of the parties and heard the arguments of the learned counsel for the parties. In our opinion, the complaint merits part acceptance, for these reasons.

 

6.             It is an admitted fact that the complainant purchased the cold drink in question from OP number 1 vide bill number 11275 dated 30.8.2014, a copy of which on the file is as Ex.C-3. 

 

7.             In the present case, the only dispute arose on the ground that when the complainant was to use the cold drink and found that in one bottle of Slice there was one needle with pipe, which are injurious to the health and the same were not fit for human consumption.  The learned counsel for the complainant has contended vehemently that after finding the needle with pipe in the bottle of Slice, he immediately approached OP number 1, but nothing happened.   It is further contended that the OP number 1 is itself deficient in rendering service by supplying the defective cold drink and even not replaced the same when the complainant approached OP number 1.

 

8.             On the other hand, the learned counsel for the OP number 1 has contended that the complainant has filed a false complaint only to grab the unwanted money, as the complainant never approached OP number 1 for replacement of the bottle in question.  The learned counsel for OP number 2 has also contended that the complainant never lodged any complaint with OP number 2 nor the complainant ever approached it for replacement of the bottle in question.

 

9.             A bare perusal of the bottle clearly reveals that there is needle with pipe in the bottle in question.   We further find that the seal of the bottle is intact.    Since the seal of the bottle was intact, there is no question of filling of spurious contents in the bottle by the complainant, meaning thereby the bottle in question was containing the needle and pipe at the time of filling of the contents in the bottle and the bottle in question was not checked properly at the time of filling. We are unable to accept the contention of the learned counsel for the OPs that the complainant has filed this complaint by procuring or using spuriously filled cold drink.  It is well settled law that if any thing is visible to the naked eye, compensation can be granted to the complainant even in the absence of any report of laboratory.   The learned counsel for the complainant has cited Aradhna Soft Drinks Company and another versus Dr. Sameer Bhardwaj and another 2011(2) CPC NC 38, wherein the Hon’ble National Commission found that there was foreign material in the bottle and the District Forum allowed the complaint by granting a compensation of Rs.2,000/- and the Hon’ble National Commission enhanced the compensation from Rs.2000/- to Rs.50,000/-. 

 

10.            The learned counsel for OPs has contended vehemently that the bottling plant of the OPs is very sophisticated one and is of international standard.  We are unable to accept this contention of the learned counsel for the OPs  that even if the bottling plant is of international standard, there is also possibility that the empty bottle at the time of filling of the contents may not be washed properly and contains foreign particles in it.  The Hon’ble Punjab State Commission in Kandhari Beverages (P) Ltd. versus Robin Verma and another 2012(3) CPC 604, wherein it was held that the bottling plant is of international standard is no defence and absence of laboratory test is also not relevant because fungus was visible with naked eye.  Awarding of compensation by the District Forum was upheld.  In the present case also, the foreign material/particles in the cold drink bottle in question are visible in the naked eye, as such, the case of deficiency of service against the OPs stands proved. 

 

11.            It is worth mentioning here that since the bottle in question is manufactured and filled by OP number 2, as such, no compensation can be granted against opposite party number 1. 

 

12.            In view of our above discussion and circumstances of the case, we allow the complaint partly and direct OP number 2 to pay to the complainant a consolidated amount of compensation to the tune of Rs.10,000/- within a period of thirty days from the receipt of copy of this order, failing which the OP number 2 shall pay to the complainant the above said amount of Rs.10,000/- along with interest @ 12% per annum from the date of pronouncement of the order till payment. OP number 2 shall also pay to the complainant an amount of Rs.2000/- on account of litigation expenses.

 

13.            This order be ours be complied with within a period of thirty days of its communication. A copy of this order be issued to the parties free of charge. File be consigned to records.

 

                Pronounced.

                May 7, 2015.

                                                        (Sukhpal Singh Gill)

                                                           President

 

 

                                                              (K.C.Sharma)

                                                                Member

 

 

                                                                (Sarita Garg)

                                                                    Member