BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, PONDICHERRY

C.C.No.53/2014

Dated this the 6^th day of April 2018

(Date of Institution: 12.08.2014)

Sriraman, S/o.Sreedharan,

No.14, Second Cross Street,

Devaki Nagar, Muthialpet,

Puducherry-605 003.

                                                ….     Complainant

Vs.

1. Bombay Breweries

   (A Unit of United Breweries Limited)

   Rep. by its Authorised Signatory

   Manufacturing Office at Plot No.M-1,

   MIDC Industrial Area, Taloja-410 208

   Raigad District, Maharashtra.

2. M.S.R. Wines, Rep. by its Authorised Signatory

    No.236, Kamarajar Salai, Puducherry.

3. Bombay Breweries

    (A Unit of United Breweries Limited)

   Rep. by its Authorised Signatory

   Having registered office at UB Tower,

   UB City, No.24, Vittal Mallya Road,

   Bangalore-560 001.             

                                       ….     Opposite Parties

BEFORE:

          THIRU.A.ASOKAN, B.A., B.L.,

          PRESIDENT 

THIRU.V.V. STEEPHEN, B.A., LL.B.,

MEMBER  

Tmt. D. KAVITHA, B.A., LL.B.,      

           MEMBER

FOR THE COMPLAINANT            :  Thiru.N.Baptiste Augustine, Advocate.

FOR THE OPPOSITE PARTIES:     :  Ex-parte

O R  D  E  R

(By Thiru.A.ASOKAN, President)

This is a complaint filed by the complainant under section 12 of the Consumer Protection Act, 1986 praying to:

1. Direct the opposite parties to pay a sum of Rs.120/- being the price of the two bottles of Heinken Lager Beer which was purchased on 29.03.2014 from the second opposite party.
2. Direct the opposite parties to pay a sum of Rs.10,00,000/- as a compensation to the complainant due to the negligence and deficiency in service on the part of the opposite parties.
3. Pay a sum of Rs.20,000/- towards cost of this litigation by the opposite parties.
4. Pass such other orders/relieves as this Forum may deem fit and proper in the nature and circumstances of the case.

2.  The case of the complainant is as follows:

          The first opposite party is the manufacturer, the second opposite party is the seller and the third opposite party is the registered office.  On 29.03.2014 at 09.00 p.m, the complainant has purchased two bottles of Heinken Lager Beer from the second opposite party at the cost of Rs.60/- per bottle and obtained cash bill for the same.  On the same day i.e. on 29.03.2014, the complainant consumed a portion in a bottle and found that the taste was not good and he also found small particles of fermentation inside the bottle.  When he saw the manufacturing date, it was found that the said product was manufactured on 13.09.2012 and it was also mentioned in the bottle that it is best to use within 6 months from the date of manufacture.  It is further submitted by the complainant that on the same day night the complainant got pain in his abdomen and was admitted by his friends in G.H. Puducherry for treatment. He got treatment and the doctor also gave medicines for his illness.  

3.       It is further submitted by the complainant that due to sale of the beer by the second opposite party after the expiry date, there is negligence on the part of second opposite party. The act of the second opposite party in delivering the expired beer to the complainant is a deficiency in service.  When the complainant approached the second opposite party and informed about the selling of the expired beer, he gave evasive reply and have not even the human attitude towards the complainant in replacing the expired beer with a new beer.  The complainant was put into untold hardship and misery which cannot be compensated in terms of money.   He has issued a lawyer's notice on 19.04.2014 and another notice on 30.05.2014.  The first opposite party received the notice on 05.06.2014 but failed to give any reply.  The second opposite party received the notice on 03.06.2014 for which a reply dated 25.06.2014 was given with baseless allegations.  The notice sent to the third opposite party returned as "Insufficient Address" on 03.06.2014.  The second opposite party is in the habit of selling expired beer bottles in its shop thereby causing untold hardship and misery to customers.  It is also based on the doctrine of "Caveat Venditor" which means "let the seller be aware". The second opposite party should not be allowed to continue this sort of unfair trade practice. Hence this complaint.

4.       The opposite parties remained absent and were set exparte.

5.       On the side of the complainant, he has chosen to examine himself as CW.1 and marked Exs.C1 to C9 and MO.1. Dr.G.L.Upadhyaya, Senior Public Analyst has been examined as CW.2 and Ex.X1 marked through him.

 6.      Points for determination are:

1. Whether the complainant is a Consumer?
2. Whether the OP has adopted unfair trade practice  by selling a defective product to the complainant?
3. Whether the complainant is entitled for any relief?

          7. Before going for discussion,  it is pertinent to state that the second opposite party filed a petition in M.P. No. 302/2014 for setting aside the ex parte order passed against them on 08.10.2014.  The said petition was dismissed on 17.02.2015.  Aggrieved by the same, they have preferred a Revision Petition before the Hon'ble State Consumer Disputes Redressal Commission at Puducherry in R.P. No. 1 / 2015.  The said Revision Petition was also dismissed on 24.08.2016 by the Hon'ble State Consumer Disputes Redressal Commission at Puducherry.  Likewise, the OPs 1 and 3 was also filed a petition in M.P. 116/2017 to set aside the ex parte order passed against them on 08.10.2014.  The said petition was also dismissed on 12.12.2017.  However, so far no revision was preferred against the said order by the OPs 1 and 3.

8. Point No.1:

          The complainant purchased two numbers of Heinken Beer Bottles manufactured by the first opposite party  from the second opposite party on 29.03.2014 for Rs.120/- as per Ex.C1.    Hence, the complainant is considered to be a Consumer as against the opposite parties.

          9. Point No.2:

 It is submitted by the complainant that the complainant has purchased two bottles of beer (Heinken Legar Beer) through Ex.C1 from the second  opposite party manufactured by the first opposite party and that after the consumption of a portion of beer in a bottle, the complainant found that the taste was not good and also found small particles of fermentation inside the bottle.  When the complainant saw the manufacturing date, it was mentioned that the beer was manufactured on 13.09.2012 and it was also mentioned that it is best within six months from the date of manufacture as per Ex.C3 the photographs.  It is alleged by the complainant that on the night of same day he got pain in his abdomen for which he got treatment in the General Hospital, Pondicherry as per Ex.C2 the Casualty slip.  The complainant informed the same to the second opposite party, who did not care to even replace the defective bottle with a good one.   The complainant issued a legal notices dated 19.04.2014 and 30.05.2014 vide Exs.C4 and C5 to the Opposite parties claiming compensation of Rs.10.00 lakhs.  The Opposite parties 1 and 2 acknowledged the same vide Exs.C6 and C7, however, the notice sent to OP3 was returned vide Ex.C8.  The second opposite party sent reply Ex.C9 dated 25.06.2014 for the Advocate Notice Ex.C5 stating that the bill produced by the complainant was issued by them for some other beer bottles which do not exceed the expiry date. 

          10. We have perused the complaint, evidence of CW1 and the documents marked as Exs.C1 to C9 and also perused the evidence of Expert / CW2 and his report Ex.X1.   On the perusal of records and evidence it is observed by the Forum that the complainant purchased two Heinken beer  bottles from the second opposite party through Ex.C1 the bills.  On perusal of Ex.C3 the photocopy of label pasted on the beer bottle, it is found that the alleged beer was manufactured on 13.09.2012 and also stated that "Best within 6 months from the date of manufacture".  But the second opposite party sold the beer to the complainant on 29.03.2014 i.e. after a lapse of 12 months from the date of expiry.  The plea taken by the OP2 in Ex.C9 that the Ex.C1 was issued for some other beer bottles which do not exceed the expiry date is not proved by any documentary or oral evidence.  Hence, the plea taken by the OP2 is not taken into consideration.  The evidence brought by the complainant was not rebutted by the opposite parties.  Hence, this Forum inclined to take the allegation of the complainant and inference that the alleged beer was manufactured by OP1 and 3 and was sold through OP2 after expiry date.  Apart from that,  this Forum sent the MO1 for analysis and report to the Department of Food and Drugs Testing, Government of Puducherry who in turn sent Expert Report (Ex.X-1) stating that "Sample was turbid and contained sedimented particles.  Hence, unfit for analysis and unfit for human consumption." 

Further, on perusal of Ex.C2 Casualty slip, the complainant took treatment in the General Hospital, Pondicherry on 30.03.2014 for abdomen pain.  Hence, this Forum could presume that due to the alleged consumption of beer, the complainant sustained health disorder for which, he took treatment in the General Hospital, Pondicherry. 

          11.  In view of the above said facts and circumstances, this Forum observed that the second opposite party has adopted Unfair Trade Practice in selling an expired / defective product  and on the request made by the complainant to OP2 not replaced the defective product to the complainant leads to deficiency in service.  Thus, the opposite parties are jointly and severally caused hardship and mental agony to the complainant.  Hence, the opposite parties are liable for their unfair trade practice and negligent act.    This point is answered accordingly. 

12. Point No.3:

          In view of the decision taken in point No.2, this complaint is hereby allowed and

1. The second  opposite party is hereby directed to return a sum of Rs.120/- being the cost of beer purchased by the complainant;
2. The opposite parties are jointly and severally directed to pay a sum of Rs.10,000/-

as compensation to the complainant for the deficiency in service and unfair trade practice.

3. The opposite parties are jointly and severally directed to pay a sum of Rs.5000/- as cost of the proceedings.

The MO1 is ordered to be destroyed after appeal time.

Dated this the 6^th day of April 2018.

1. ASOKAN)

PRESIDENT

(V.V. STEEPHEN)

MEMBER

(D. KAVITHA)

MEMBER

COMPLAINANTS' WITNESS:  

CW.1          08.04.2015           Sriraman

CW.2          21.04.2015           Dr.G.L.Upadhyaya, Sr. Public Analyst

OPPOSITE PARTY'S WITNESS:  Nil

COMPLAINANTS' EXHIBITS:

 Ex.X1        17.11.2014                    Expert Report

OPPOSITE PARTY'S EXHIBITS: Nil

LIST OF MATERIAL OBJECTS:

MO1           Beer bottles – 2 nos.

1. ASOKAN)

PRESIDENT

(V.V. STEEPHEN)

MEMBER

(D. KAVITHA)

MEMBER