BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MANGALORE

                                                                     Dated this the 15^th of September 2010

PRESENT

                                                   SMT. ASHA SHETTY           :   PRESIDENT

                                                                          SMT.LAVANYA M. RAI       :   MEMBER

COMPLAINT NO.126/2010

(Admitted on 17.04.2010)

Mr.Pradeep,

So. Rajanna,

Aged about 25 years

Residing at Kopatti Village,

Baga Mandala Post,

Coorg District, Madikeri.                 …….. COMPLAINANT

(Advocate for the Complainant: Sri.Shashiraj Rao, Kavoor).

          VERSUS

1. The Authorized Officer,

United Breweries Ltd.,

20 Mile, Tumkur Road,

Nelamangala Post,

Bangalore  562 123.

(Advocate for the Opposite Party No.1: Sri.Suraj Shetty)

2. The Proprietor,

Ullas Wine Centre,

Nanthur Cross,

Mangalore -2.                      ……. OPPOSITE PARTIES

(Opposite Party No.2: Exparte).

                                      ***************

ORDER DELIVERED BY PRESIDENT SMT. ASHA SHETTY:

1.       This complaint is filed under Section 12 and 13 of the Consumer Protection Act alleging defect in goods against the Opposite Parties claiming certain reliefs. 

The brief facts of the case are as under:

It is stated that, Opposite Party No.1 is the manufacturer of beverages such as beers and other alcohol products.  The Opposite Party No.2 is running a wine centre under the name and style “Ullas Wine Centre”. 

The Complainant submitted that, he is a permanent resident of Madikeri and he occasionally visits Mangalore to meet his friends and relatives.  On 03.02.2010, the Complainant and his friend visited Opposite Party No.2 and purchased some liquor and beverages for their party and Opposite Party No.2 issued a bill in that regard.  The said purchase included beer bottles bearing batch No.15:00 10A/10 manufactured on 08.10.2009 and the cost of the same was Rs.25/- each per bottle.  It is stated that, the Opposite Party No.1 is the manufacturer of the braveries and Opposite Party No.2 is running a wine centre at Mangalore. 

It is contended that, on the same day evening, the Complainant had consumed one of the beers and got stomach pain at regular intervals.  Immediately the Complainant opened the paper pack of the bottles, it was found that, one beer bottle was containing a tooth brush and some foreign particle inside the sealed beer bottle, the same were visible to the naked eye.  The Complainant also realized that, the problem he is facing due to consumption of the beer.   It is stated that, on 4.2.2010 as the Complainant got severe pain and approached his family doctor and took treatment and spent Rs.25,000/- and advised to take bed rest for many days. 

It is further submitted that, selling of such a product to the common public will not only be injurious to public health but also would amount to unfair trade practice besides deficiency in service.  The Complainant contended that, he has not sent the beer bottle for analysis or laboratory test because foreign particles are visible to naked eye.  Hence the above Complaint is filed under Section 12 and 13 of the Consumer Protection Act 1986 (herein after referred to as ‘the Act’) seeking direction from this Forum to the Opposite Parties to pay jointly and severally a sum of Rs.4,00,000/- as compensation towards the physical, mental and financial sufferings, to pay Rs.186/- towards the bill paid by him and also claimed Rs.25,000/- towards expenditure and cost of the proceedings. 

2.       Version notice served to the Opposite Parties by RPAD. Opposite Party No.2 despite of serving notice neither appeared nor contested the case till this date.  Hence, we have proceeded exparte as against the Opposite Party No.2.  The acknowledgement placed before the FORA marked as court document No.1.

Opposite Party No.1 appeared through their counsel filed version denied the entire allegation and contended that, there is no deficiency in service nor any unfair trade practice on the part of the Opposite Party.  It is stated that, the beer bottle produced by the Complainant alleged to have been manufactured by this Opposite Party is not a genuine bottle.  Any bottle of beer manufactured by this Opposite Party carries a paper seal/foil covering the crown cap.  Apart from that, every bottle of beer retained in the open market would also carry a seal of the Excise Department. The bottle produced by the Complainant does not bear any such seals and is therefore denied to have been supplied by this Opposite Party.  There is possibility of the exhibited bottle being tampered as a pretext to file the Complaint.

It is further contended that, the bottle produced by the Complainant is manufactured over a year ago and beyond shelf life of any beer bottle and this Opposite Party is not liable in the event of a product being sold beyond its shelf life.  It is further stated that, the Complainant had consumed other edible items and might have suffered stomach pain and not because of the above product. 

The Opposite Party further submitted that, the process of brewing beer would necessarily involve fermentation of certain sold ingredients, the process of fermentation is also bound to leave certain residuary particles in the beer, which is of common occurrence.  It is ruled out that, any such residuary particles possess any sort of health hazard to an individual who consumes the same and stated that, this Opposite Party has at all times maintained optimum levels of quality control.  It is further stated that, the Complainant has failed to get the contents of the exhibited bottle examined by a competent person/laboratory and stated that there is no merit in the complaint and prayed for dismissal of the complaint. 

3.       In view of the above said facts, the points now that arise for our consideration in this case are as under:

1. Whether the beer bottle purchased by the Complainant from the Opposite Party No.2 proved to be defective?

2. Whether the Complainant proves that the Opposite Parties committed deficiency in service?

3. If so, whether the Complainant is entitled for the reliefs claimed?

4. What order?

4.         In support of the complaint, Mr.Pradeep (CW1) filed affidavit reiterating what has been stated in the complaint and answered the interrogatories served on him.   Ex C1 and C2 were marked for the Complainant as listed in the annexure. The Complainant produced 1 bottle of Beer i.e., Upbeat Beer UB Export which was marked as MO1 as listed in the annexure.  One Sri.Shashidhar B (RW1), Working as Area Sales Manager of the Opposite Party No.1 filed counter affidavit but not answered the interrogatories served on him.  Both parties produced notes of arguments along with citations.

          We have considered the notes/oral arguments submitted by the learned counsels and also considered the materials that was placed before this Forum and answer the points are as follows:                          

                       Point No.(i): Affirmative.

                       Point No.(ii) to (iv): As per the final order.  

Reasons

5.  Point No. (i) to (iv):

In the instant case, the Complainant filed affidavit stated that, on 03.02.2010 he has purchased some liquor and beverages from the Opposite Party No.2 i.e., Ullas Wines Centre, Mangalore contained the beer bottle bearing batch No.15:00 10A/10 manufactured on 08.10.2009 by the Opposite Party No.1.  It is stated that, the Complainant had consumed one of the beer and got stomach pain and taken treatment from his family doctor and spent money for treatment and other incidental charges. The another bottle of beer was contained a tooth brush and foreign particles inside the sealed beer bottle.  As the beer bottle contained foreign particles, which is contaminated.  Selling of such product is injurious to the public would amounts to unfair trade practice and deficiency.

 The Opposite Party No.1 appeared through their counsel contested the matter, interalia on the ground that, no beer bottle manufactured by them is contaminated and denied the genuineness of the bottle and its contents exhibited by the Complainant.  It is also contended that, the bottle of beer manufactured by this Opposite Party carries a paper seal/foil covering the crown cap.  Apart from that, every bottle of beer retailed in the open market would also carry a seal of the Excise Department.  The bottle produced by the Complainant does not bear any such seals and denied that the same has been supplied by this Opposite Party.  And further contended that, the Complainant has failed to get the contents of the exhibited bottle examined by a competent person/ laboratory, without securing a report the false Complaint has been filed to make unlawful gain.

Now the point for consideration is that, whether the Complainant justified his Complaint stating that the beer manufactured by the Opposite Party No.1, sold by the retailer i.e., Opposite Party No.2 is contaminated in other words, is defective?

The Complainant filed affidavit in support of his case and produced Ex C1 and C2 and also produced a sealed beer bottle marked as MO-1.  The Opposite Party No.1 also filed evidence by way of affidavit. 

On considering all the oral as well as documentary evidence available on record and after hearing the counsels for the parties, we find that, the Ex C1 i.e., the bill issued by the Opposite Party No.2 who is the retailer of the above said product shows that, on 03.02.2010 the Complainant has purchased beer along with other items from the Opposite Party No.2 which includes the MO-1 produced before this Forum by paying Rs.25/- at Mangalore.  He has also stated that, the bottle containing the beer which is marked as MO-1 is manufactured by the Opposite Party No.1 Company.  Though the Opposite Party No.1 in their version stated that, there is a likelihood of bottle being tampered by the Complainant with an ulterior motive to harass the Opposite Parties and also contended that, the product being sold beyond its shelf life and this Opposite Party is not liable.

However, on careful scrutiny of the MO-1 i.e., the sealed bottle shows that, the product was manufactured on 08.10.2009.  The label also has the following printed on it “UPBEAT BEER EXPORT QUALITY AND THE OPPOSITE PARTY NO.1 BREWED AND BOTTLED BY UNITED BRAVERIES LIMITED AT BANGALORE” and also sealed as ‘BEST BEFORE SIX MONTHS FROM THE DATE OF MANUFACTURE’.  The said bottle also contains the seal of the UB Export.  The date of manufacture and purchase shows that the bottle of beer purchased by the Complainant was within the shelf life of the product. 

Further the Opposite Party No.1 stated that, the above said product has not manufactured/supplied by them and every bottle of beer retailed in the open market also carry a seal of the Department and the same is tampered.  But the Opposite Party No.1 failed to place any material/report before this Forum to support their contentions.  It is settled principle of law that, an allegation has to be proved by the one who alleges it, the Complainant cannot be expected to prove the negative.  As we know, the Opposite Party No.2 who is the retailer is the best person to speak whether the above said beer was purchased in the open market or through Excise Department who sold the beer to the Complainant.  In the instant case, the Opposite Party No.2 who is the retailer despite of receiving version notice not contested the matter nor appeared before this Forum till this date.  The Opposite Party No.1 being a manufacturer of the above said beer ought to have examined the Opposite Party No.2 who is the retailer sold the subject disputed product.  No attempt has been made by the Opposite Party No.1 in this case is fatal.  The bill i.e., the Ex C1 produced before this Forum is sufficient to hold that the bottle containing a beer purchased by the Complainant from the retailer and the same has been manufactured by Opposite Party Company which contained the foreign particles i.e., tooth brush which are said to be floating in the liquor inside the bottle. 

We further find that, Section 13 confers power on the District Forum to send the product for proper analysis or test to the concerned laboratory to find out that whether the contents of the bottle is a contaminated or not.  But in the instant case, the beer in the bottle contained foreign particles i.e., a big tooth brush is visible to a naked eye.  If that is so, in our view, there is no necessity to send the contents of the bottle for any analysis or test since the Opposite Parties are expected to sell good quality of product.  Therefore, we hold that, not sending to the laboratories will not wipe out the case of the Complainant. 

The Opposite Party submitted that, the Complainant had consumed other edible items, is precluded from contending that the alleged complications were due to consumption of beer.  No doubt, the Complainant is failed to produce any material before this Forum to show that the Complainant consumed another bottle of beer which also contained the foreign particles which resulted in stomach pain or other problems.  In the absence of the same, we are declined to hold that, the Complainant suffered stomach pain due to consumption of another bottle of beer.  But at the same time, we hold that, the Complainant has not consumed another beer which contained foreign particles purchased by him, he is not suffered any loss or injury, the Opposite Parties are not precluded from selling good/pure quality of beer without any contamination.  In the event, if the beer sold by the Opposite Parties contained any particles, it is open for the District Forum or State Commission or National Commission to prevent such sale of hazardous goods and it has also got power under Sub section (ha) of Section 14 (1) to seize the manufacturer of hazardous goods and to desist from offering such goods which are hazardous in nature as it amounts to deficiency in service keeping in view the interest of the general public.    In the instant case, no doubt, the Complainant has not consumed the beer which is in dispute as he found some foreign particles floating in the beer inside the bottle purchased by him.  It is not necessary for consumer/Complainant to consume the beer purchased by him so as to maintain a complaint as he is aware of the consequences.  The object and scheme of the Act is to prevent the sale of hazardous goods.  If he/Complainant comes across such hazardous goods when he purchased such goods, he can maintain a complaint in order to prevent sale of such hazardous goods.  Therefore, there is no substance in any one of the contentions raised by the Opposite Party No.1. 

In view of the above, we have been referred a similar case, wherein, our own State Commission i.e., Karnataka State Consumer Disputes Redressal Commission reported in CPJ 2005 Vol-II, 579 in a case Hindustan Coca Cola Beverages Pvt. Ltd. & Another Versus Ravishankar held as under:

1. “Consumer Protection Act, 1986 – Section 2(1) (g) and 14(1)(d) – Goods – Mineral water contaminated – Foreign particles floating inside the bottle – Bottle manufactured by O.P.’s Company admitted – Complaint allowed by Forum – Hence appeal – Contention, no privity of contract between Complainant and manufacturer company, Complaint against manufacturer not maintainable – Contention not acceptable –person closely and directly affected by any act can maintain Complaint – Foreign particles in bottle visible to naked eye, no need to send contents of bottle for analysis – Mineral water contaminated proved, not necessary for purchaser to consume it to maintain a complaint – Purchaser can maintain complaint to prevent sale of hazardous goods – O.P. liable to pay punitive damages even though no mental agony and hardship suffered by Complainant.                 

                                                       [Paras 12 to 15]

2. Consumer – Person who buys goods for consideration, is consumer.

                                                                                      [Para 11]”

Similarly in the present case, there has been negligence and carelessness in some corner of the 1^st Opposite Party who is the manufacturer of the said beer, may be while the bottling was being done some tooth brush got in the way while the process of bottling was going on.  Now the fact remains that, we find proof of negligence in the bottle containing the beer under the brand and name of the 1^st Opposite Party which is contaminated.  It is needless to point out that, it lacked requisite attention, care as well as proper supervision made during the process of filling the drink/beer which is produced before this Forum is contaminated and not consumable.  Opposite Party No.1 has failed to act with a concern for public safety and public health.  Therefore, we hold that Opposite Party No.1 being the manufacturer would be squarely liable and accountable. 

As we know, the manufacturer is not having directly access with the consumers.  It is only the retailer who sold the products to the consumer.  Hence even though there is a manufacturing defect on the part of the Opposite Party No.1 but the Opposite Party No.2 who is the retailer who deals with the consumers directly cannot escape from their responsibility while selling the products to the public.  Under the said circumstances, the Opposite Party No.1 and 2 both are jointly and severally liable to pay the damages in this case.

As per the amendment introduced to the Act, the District Forum, Hon’ble State Commission and the Hon’ble National Commission are conferred with the power to award punitive damages.  Normally, the punitive damages will be awarded taking into consideration the conduct of the Opposite Party.  In the instant case, it is proved by the Complainant that, the product purchased by him is shown to be a contaminated one as it had contained foreign particles floating inside the bottle.  Therefore, even though the Complainant has not suffered any mental agony and hardship as he has not consumed the same, in our view, the Complainant is entitled for punitive damages.  By taking into the conduct of the Opposite Parties, we award Rs.25,000/- as compensation to the Complainant by taking back the MO1 produced by the Complainant after realization of the amount.  Failing which Opposite Parties are liable to pay interest on the said amount at the rate of 12% p.a. from the date of complaint till payment. And Rs.1,000/- awarded as cost of the litigation expenses to the Complainant.  Payment shall be made within 30 days from the date of this order.

6.       In the result, we pass the following:                                       

ORDER

The complaint is allowed.  The Opposite Parties are jointly and severally hereby directed to pay to the Complainant a sum of Rs.25,000/- (Rupees twenty five thousand only) as compensation to the Complainant by taking back the MO-1 produced by the Complainant after realization of the amount.  Failing which Opposite Parties are liable to pay interest on the said amount at the rate of 12% p.a. from the date of complaint till payment. And Rs.1,000/- (Rupees one thousand only) awarded as cost of the litigation expenses to the Complainant.  Payment shall be made within 30 days from the date of this order.                                                            

The copy of this order as per the statutory requirements be forwarded to the parties free of charge and therefore the file be consigned to record.

(Page No.1 to 14 dictated to the Stenographer typed by her, revised and pronounced in the open court on this the 15^th day of September 2010.)

     PRESIDENT                                        MEMBER

ANNEXURE

Witnesses examined on behalf of the Complainant:

CW1 – Mr.Pradeep – Complainant.

Documents produced on behalf of the Complainant:

Ex C1 – 03.02.2010: Bill issued by the Opposite Party No.2.

Ex C2 – 04.02.2010: Doctor’s prescription.

MO1 – One bottle of beer i.e., UPBEAT BEER UB EXPORT produced by the Complainant.

Witnesses examined on behalf of the Opposite Parties:

RW1 – Sri.Shashidhar B, Working as Area Sales Manager of the Opposite Party No.1.

Documents produced on behalf of the Opposite Parties:

- Nil -

Dated:15.09.2010                               PRESIDENT