Date of Filing :12.10.2011
Date of Disposal : 23.08.2024
BEFORE THE KARNATAKA STATE CONSUMER DISPUTES REDRESSAL COMMISSION, BENGALURU (PRINCIPAL BENCH)
DATED: 23rd Day of August 2024
PRESENT
Mr K B. SANGANNANAVAR: JUDICIAL MEMBER
(DIST. & SESSIONS JUDGE (R)
Mrs DIVYASHREE M: LADY MEMBER
APPEAL No.3464/2011
M/s. United Spirit Ltd., .
Regd. Office: UB Towers,
UB City No. 24,
Vittal Malya Road,
Bangalore 560001
Rep. by its Senior General Manager - Legal.
(By Mr Raghuram Cadambi, Advocate) Appellant
-Versus-
1. Sri. H.A. Raghavendra.
S/o. Appugowda,
Age: 33 years,
R/at Coffee Planter,
Adikhan Estate,
Mallandur-Talihalla,
Chickmagalur Tq.
(By Mr Gowthamdev C. Ullal, Advocate
for R1)
2. The Sale Manager
United Breweries Ltd.,
Plot No. 310, 311, 322B,
Industrial Area,
Baikampady,
New Mangalore 575011
3. M/s United Breweries Ltd.,
Regd. Office : UB Towers
UB City No.24, Vittal Malya Road
Bangalore-560 001
Rep. by its Managing Director
(By M/s S.A.Partners, Advocate for R2 and R3)
4. The Proprietor,
Preetam Bar & Restaurant,
Market Road, Chikmagalur. Respondents
-:ORDER:-
Mr. K B. SANGANNANAVAR: JUDICAL MEMBER:
1. This is an Appeal filed under Section 15 of Consumer Protection Act, 1986 by opposite party No.4 aggrieved by the Order dated 14.09.2011 passed in Consumer Complaint No.55/2011 on the file of District Consumer Disputes Redressal Forum, Chickmagaluru (for short, the District Forum).
2. The Parties to this Appeal will be referred to as the rank assigned to them by the District Forum.
3. The Commission examined the impugned order, grounds of Appeal, Appeal papers. Now the point that arises for consideration of this Commission would be:
Whether impugned order dated 14.09.2011 passed in CC No. 55/2011 does call any interference of this Commission for the grounds set out in the Appeal Memorandum?
4. At the very outset, we have to make mention herein that OP-3 is placed ex-parte, while OP-4 is represented by learned counsel. The Complainant in his complaint has stated, he had purchased a Director Special Black Deluxe Whisky measuring 370 ML on 21.06.2010 from OP-3 Bar and Restaurant, the said whisky is manufactured by OPs 1, 2 and 4. OP3 had issued a bill for Rs.180/- for having purchased whisky bottle on 21.06.2010. The Complainant alleged against the OPs after purchasing of whisky bottle, as he traced out some external particles in the sealed bottle and noticed some three big ants and paper pieces inside the bottle before opening, as such, he immediately, showed the bottle to OP 3, for which OP had told, bottle is sealed and he is nothing to do with the said bottle. The series of this bottle was released on market with batch No.24 and manufactured on 08.09.2009. The complainant alleged whisky is not safe for drinking and had he consumed, might have suffered ill health. In our view, such allegations could be said hypothesises, since his case itself is that, he had purchased 370 ml deluxe whisky on 21.06.2010 by paying Rs.180/-, which is sealed one and in such circumstances, OP3 has to be justified to say he is nothing to do with the said bottle, since the bottle was released on the market with batch number 24, manufactured on 08.09.2009 and if this bottle contained some three big ants and paper pieces inside the bottle could have been sent for chemical analysis under Section 13(1) (c) of Consumer Protection Act, 1986. In our view defect in the whisky bottle which could not be determined without proper analysis. It is not in dispute MO1 is produced before the District Forum and in such circumstances, same could have been sent to the analysis as contemplated under the provisions stated above. However, the District Forum itself has concluded on the ground that even on their naked eyes some external object are floating in the sealed whisky bottle which in our view is improper. Further in our view, if the said bottle was sealed complainant could have been sent to Department of Exercise with an information or at least could have requested the District Forum to send the sealed bottle purchased from OP3 for proper analysis or test, to ascertain, whether substance contained in the sealed bottle is safe for drinking. The District Forum has held, OP4, the manufacturer is to pay Rs.40,000/- as compensation along with Rs.5,000/- towards litigation expenses and Rs.50,000/- as punitive damages to the account of legal-aid-account of the District Forum within one month from the date of the order and on failure to comply with the order to pay interest at the rate of 9% p.a and proceed to exonerate OPs 1 to 3. In this regard, learned counsel for Appellant would submit, the District Forum itself assumed, alleged floating of particles in the sealed bottle is contaminated and it is unsafe to consume the substance. In our view learned counsel is right in contending, when no analysis report of an expert passing an adverse order against OP4 is unsustainable. The District Forum has relied on a decision reported in 2011(2) CPR 288 in the case between Sanjeev Kumar Vs M/s Coca Cola Co. And others wherein held ‘Soft Drink manufactured and marketed by the Respondents found having foreign particle visible inside the bottle report of public analyst that it was not fit for human consumption due to presence of empty polythene pouch of gutka, wherein District Forum awarded compensation of Rs.5,000/- is enhanced to Rs.1,00,000/-, out of which 50% shall be payable to Complainant and 50% to be deposited in the account of Legal Aid Fund of the Commission and further awarded interest at 9% p.a from the date of delay. It is this decision has been followed by District Forum and similarly awarded compensation of Rs.40,000/- along with Rs.5,000/- towards litigation expenses and Rs.50,000/- towards punitive damages to the legal –aid account of the District Forum and awarded interest at the rate of 9% p.a which in our view could not be applied to the case on hand since the District Forum, in the case on hand has failed to invoke Section 13(1) (c) of the CP Act, 1986. In the case relied on report of public Analyse was obtained and it was reported substance in the bottle was not fit for human consumption due to presence of empty polythene pouch of gutka.
5. Admittedly, complainant had purchased MO1 Whisky bottle from OP3, the Proprietor of Preetam Bar and Restaurant, Market Road, Chickmagalur, who had placed ex-parte. As already stated above he is nothing to do with the MO1 manufactured by OP4 and at the most he could have informed his distributor. It is found from enquiry that the whisky bearing batch No.24, purchased by complainant on 21.06.2010 contains some external objects which are floating in the sealed whisky bottle and he could have replaced with another bottle. The DF had exonerated OP3 which in our view is not correct.
6. In such view of the matter, considering the nature of the complaint and pendency of this appeal, since we are of the view not obtaining a report from chemical analyser as provided under section 13(1) (c) of CP Act, 1986 would go against the case of the complainant. Hence, proceed to allow the Appeal. Consequently, modify the impugned order and directed OP3 to refund Rs.180/- to the complainant towards purchase of MO1 Director Special Black Deluxe Whisky measuring 370 ML on 21.06.2010 and do pay Rs.5,000/- towards mental agony, physical inconvenience and litigation costs within 60 days and on failure to pay interest at the rate of 9% p.a from the date of complaint till realisation.
7. It is hereby directed OP4 to reimburse the award amount to OP3.
8. Amount in deposit in this Appeal is directed to be transfer to the District Commission to pay Rs.5,000/- plus Rs.180/- favour of the complainant on proper identification by his Advocate and refund the remaining amount in favour of OP4.
9. Return the LCR forthwith to the District Commission.
10. Send copy of this Order to the District Commission and the parties concerned.
Lady Member Judicial Member
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