BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, PONDICHERRY

                                          C.C.No.28/2015

Dated this the 18^th day of August 2017

(Date of Institution:08.04.2015)

A. Thamotharan, son of D. Anandhan   

No.18, Manaveli Street, T.N. Palayam Pet,

Ariyankuppam Commune, T.N. Palayam,                 

Puducherry – 605 007. 

…      Complainant

Vs

Amudhasurabi Co-Operative Super Market               

Self Service Section rep. by its Manager          

No.288, M.G. Road, Puducherry – 605 001.         

…      Opposite party

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 Dr. L. Solomon Raja, Advocate

FOR THE OPPOSITE PARTY      :  Thiru. B. Mohandoss, Advocate

O R  D  E  R

(By Thiru.V.V. STEEPHEN, Member)

This is a complaint filed by the complainant under section 12 of the Consumer Protection Act, 1986 praying to direct the opposite party to pay the cost of the bottle Thumps Up i.e. Rs.26/-; to pay the complainant Rs.25,000/- towards compensation for the hardship and mental agony suffered by the complainant and to pay a sum of Rs.10,000/-  towards cost of this proceedings.   

          2.  The case of the complainant is as follows:

The complainant purchased a Soft Drink of the brand in the name and style of "Thumps Up" (600 ml) along with Gatsby Hair Gel 55 gm. on 01.10.2013 from the opposite party.  The said Thumps Up bears the batch No. 587 with a manufacturing dated 15.06.2013 with an expiry caution of "Best Before Two and half months from the date of manufacture".  The opposite party had sold the above said "thumps Up" which is an expired one (the date of expiry is 30.08.2013) and the same was noticed by the complainant after the billing.  Immediately, when he enquired about the same, their staff had given evasive reply and not even cared about the query made by the complainant.  The above said act of selling the expiry goods is highly illegal and punishable under the provisions of law.   The complainant stated that on 30.08.2014 a lawyer notice was issued to the opposite party and the same was received and acknowledged by the opposite party and the opposite party did not reply till date thereby causing mental agony to the complainant.  The complainant is entitled for compensation for his mental agony and purchase of the expired goods.  Hence, this complaint. 

3. The reply version filed by the opposite party briefly discloses the following:

          The complaint is not maintainable in law or on facts.  The opposite party while admitting the purchase of soft drink namely Thumps Up (600ml) along with Gastby Hair Gel 55 gm on 01.10.2013 by the complainant, denied the allegation that the  Thumps Up sold by it pertains to batch No.587 with manufacturing date 15.06.2013 with an expiry caution of  “ Best before two and half months from the date of manufacture”.  The opposite party further denied that it had sold the above said Thumps Up which is an expired one, the date of expiry being 30.08.2013 and the dame was noticed by the complainant after the billing.  Similarly there is no truth in the allegation that immediately when the complainant enquired about the same, their staff / employees had given evasive reply and not even cared about the query made by the complainant.  The complainant suppressed the material facts and has made the claim with false averments.  The fact remains that the complainant has purchased one Thumps Up bottle which was fit for consumption and another item under bill No.007586 dated 01.10.2013 from the opposite party without any complaint or murmur.  It is stated by this opposite party that they are a co-operative institution and functions under the administrative control of the Registrar of Co- operative Societies, a highly responsible Government Department Official.  The opposite party society functions without profit motive and it takes care of welfare of the consumers.  For the proper functioning of the Co-operative Society, Administrative Officials of the Co-operative Departments supervise the activities of the Society.  Moreover the supervisory and Administrative staff of the O.P. Co-operative society made a regular check of the business activities of the society to see that the quality of the product sold by it is no sub-standard or otherwise defective.  In that process there has been a thorough check by the officials of the opposite party over the products purchased, stocked and sold with the result no time expired product is sold to any consumer.         The entire stock of Thumps Up have been purchased by it from time to time from one stockiest and wholesale dealer by name “Aqua Marketing” of Pondicherry.  The said dealer and supplier of  Thumps Up to the opposite party uses to make regular visit to the business place of the opposite party to collect time expired product kept separately and replace the same with fresh products.  The matter was brought to the attention of the above referred stockiest and supplier of Thumps Up.  He took up some time for verification whether the stock under batch No.587 with manufacturing date 15.06.2013 was supplied by him to the opposite party.  Due to some unavoidable circumstances like huge volume of work involved and some administrative exigencies verification work could not be completed in time for the purpose of giving reply.  Subsequently with the responsible officers getting retired from the OP society the reply could not be finalized.  The non-issue of reply for advocate notice cannot lead to adverse inference against the opposite party.  The opposite party further stated that there is no chance for it to sell time expired Thumps Up  to the complainant or to any other customers and this submission is made after a thorough enquiry with its officials and also with its stockist and supplier referred to above.  However, from the facts that the complainant has purchased one Thumps Up bottle of 600ml on 01.10.2013 under Bill No.007586, the opposite party has reason to believe that the complainant is trying to take undue advantage of the fact that the bill number referred to above cannot be correlated with the Batch No.587 for which the complainant has managed to produce a label without the bottle.  That the conduct of the complainant also strongly suggests foul play on the part of the complainant.  The purchase bill is dated 01.10.2013 and has the Thumps Up bottle covered under that Bill been time expired one, he would have immediately sent notice of objection legal notice within a reasonable time.  From the facts that for the first time the complainant alleges sale of time expired goods, only after a long gap of about 11 months is an afterthought.  It is highly probable that the complainant must have  either purchased a time expire Thumps Up elsewhere and trying to link the same with the purchase of the Thumps Up from the opposite party on 01.10.2013 by producing the bill supplied by the opposite party or must have purchased Thumps Up on earlier occasion elsewhere and from the empty bottle kept by him must have torn the label pasted on the same with the bad motive of linking the same with the purchase of Thumps Up from the opposite party on 01.10.2013.  Hence, It is clear that the label produced by the complainant was not the one that was pasted on the Thumps Up bottle purchased from the opposite party on 01.10.2013.  Every  bottle of Thumps Up and also other soft drinks sold by this opposite, the bottle or the container carries the label “ Amudhasurabi” in Tamil,  product code maintained by the OP and also the selling price fixed by the OP.  However the complainant has not produced the label that was found on the Thumps Up bottle sold by it.  Further, the empty bottle container pertaining to the Thumps Up purchased from the opposite party has also not been submitted for perusal of this Hon’ble Forum and also by this opposite party.  Under such circumstances the burden lies on the shoulders of the complainant to prove that the Thumps Up bottle purchased by the complainant on 01.10.2013 from the opposite party relates to Batch No.587 with the manufacturing date of 15.06.2013 and that the label filed as document No.4 had been affixed on the Thumps Up bottle sold by the opposite party to the complainant on 01.10.2013.  There is no cause of action for the complaint and there is no deficiency in service rendered by the opposite party.  Hence, prayed for dismissal of the complaint. 

 4  The complainant was examined as CW1 and Ex.C1 to C4 and material Object MO1 were marked through CW1 and on the side of the OP, Thiru K. Sampath, Deputy Manager was examined as RW1, Thiru
M. Ramesh, Salesman was examined as RW2 and Ex.R1 was marked through him and Thiru R.T. Gunasegaran, Deputy Manager was examined as RW3 and Exs.R2 to R32 were marked through RW3. 

5.  POINTS FOR DETERMINATION:

1. Whether the complainant is a Consumer and whether the OP has attributed any negligent act to the complainant?
2. Whether the complainant is entitled for any relief?

 6. POINT No.1 :

          The complainant submitted that he has purchased soft drink of the brand in the name of ""Thumps UP"" along with Gastby Air Gel on 01.10.2013  (Ex.C1) from the OP.  The complainant further submitted that the ""Thumps UP"" marked as MO(1) bearing batch No. 587 with manufacturing date 15.06.2013 having expiry caution of "Best before 2-1/2 months from the date of manufacture" was sold to the complainant and it was an expired product as on the date of purchase (Ex.C1) and the same was noticed by the complainant only after billing.  It was submitted by the complainant that the OP never cared to respond for the complaint of defective product MO(1) sold by OP, hence, aggrieved by the act of OP, the complainant has filed this complainant claiming compensation for mental agony and hardship for the defective product sold by the OP. 

          7. The OP denied the allegation of defective goods being sold by the OP to the complainant and alleged that it is a foul play of the complainant and prayed for the dismissal of the complaint. 

          8. Both side records and evidences were carefully perused and observed by this Forum as follows:

          The OP admits the averments relating to the purchase of soft drink namely "Thumps UP" along with Gatsby Air Gel on 01.10.2013 (Ex.C1) from the OP by the complainant but denies the allegation that the MO(1) marked in this case is not sold by the OP through the cash bill dated 01.10.2013 (Ex.C1).  In support of the contention of the OP, the OP has filed           purchase register, stock form and invoice for the period from January 2013 to July 2013 and marked as Ex.R1 to R32.  On the perusal of the Exhibits and from the evidence of RW3, it was observed that there was purchase of "Thumps UP" bottle by the OP on 29.07.2013 from the Aqua Marketing who is the distributor of Soft drink to the OP concern, as per the purchase register (Ex.R30), invoice Bill (Ex.R31) and stock Form (Ex.R32) all dated 29.01.2013 and the purchase register, stock form and invoice bill for the period from January 2013 to June 2013 marked as Ex.R2 to R29 does not reflect the purchase of "Thumps UP" by the OP from the Aqua Marketing and RW3 also deposed during cross examination that there was no purchase of "Thumps UP" through Ex.R2 to Ex.R29.  The evidence of RW3 is "it is true that there is no purchase of "Thumps UP" bottle through Ex.R2 to R29". 

          9. It is pertinent to note that except for the product "Thumps UP" purchased by OP on 29.07.2013 as per Ex.R30 to Ex.R32 no other product in the brand of "Thumps UP" was purchased by OP till the date of sale of ""Thumps UP"" mentioned in Ex.C1 to the complainant on 01.10.2013 by the OP and no documents were produced by OP disclosing that OP had made purchase of Soft Drinks in the brand of "Thumps UP" after 29.07.2013.  From the light of these facts, it can be safely concluded that the product "Thumps UP" purchased by the complainant from the OP on 01.10.2013 as per Ex.C1 is from the stock purchased by the OP on 29.07.2013 from Aqua Marketing who is the distributor of Soft Drink to the OP as per Ex.R30 to Ex.R32. 

          10. It is pertinent to note from the evidence of Deputy Manager of OP concern examined as RW1 wherein, he states that the soft drink purchase in the brand of "Thumps UP" by OP from Aqua Marketing had manufacturing date inscribed on the bottle as 15.06.2013 and expiry date as 30.08.2013.  The evidence of RW1 is as follows:

          " We purchased "Thumps UP" bottle with manufacturing date 15.06.2013 from Aqua Marketing …….  The expiry date is 30.08.2013"

From these facts, it is clearly established that since there was no purchase of "Thumps UP" bottle by the OP except for those purchased on 29.07.2013 as per Ex.R30 to R32, the "Thumps UP" MO(1) purchased by the complainant from the OP through Ex.C1 is that of the product manufactured on 15.07.2013 and expires on 30.08.2013.

          11. Further the Salesman of the OP examined as RW2 who witnessed the incident as pleaded by the complainant in the complaint admits that the complainant had returned the MO-1 to the OP complaining that it was an expired one and wanted for a new one.  The evidence of RW2 "it is true that the complainant returned the MO-1 alleged as an expired one and wanted a new one and this incident is known to me".  Hence, it is crystal clear from the evidence of RW2 and other facts discussed above that the product of "Thumps UP" MO(1) sold by the OP to complainant through Ex.C1 is a defective product and expired one and it also proved that it is the complainant who had purchased the defective product MO-1 from the OP. 

          12.  It is submitted by the complainant that the batch number in the MO-1 is inscribed as 587 and it is for the OP to prove that the MO(1) was not that of the stock sold by OP under batch No. 587 and the OP has not taken any steps to disprove the contention of the complainant. 

          13. It is submitted by the OP that the complainant had purchased the alleged MO-1 on 01.10.2013 but initiated action regarding the complaint of defective product MO-1 only on 30.08.2014 i.e. one year after the alleged date of incident.  Even though it is true that the legal action on the defective product was raised only after one year by the complainant, the complaint has been filed within the period of limitation as stipulated under Consumer Protection Act. 

          14. It was contended by the OP that there was no negligent act and there is no loss or injury to the complainant by the OP.  In support of his contention, the OP has relied upon the citations reported below:

1) Consumer Unity and Trust Society vs. The Chairman & Managing Director, Bank of Baroda (CDJ 1995 SC 188) wherein, it was held that

        "the provision of section 14 (1) (d) are attracted if the person from whom damages are claimed is found to have acted negligently and such negligence must result in some loss to the person claiming damages……"

          2) Ravneet Singh Bagga vs M/s KLM Royal Dutch Airlines (CDJ 1999, SC 675) wherein, it was held that

        For proving deficiency in service the complainant has to establish any willful default, imperfection, shortcoming or inadequacy in the service of the Respondent……and considered all relevant facts and circumstances in the course of the transaction and that their action or the final decision was in good faith, it cannot be said that there had been any deficiency in service.  If the action of the Respondent is found to be in good faith, there is no deficiency in service entitling the aggrieved person to claim relief under the Act."

          3) Indian Airlines vs Shri Rajesh Kumar Upadhayay, 1991 (1) MWN (CP) 117 (NC) wherein, it was held that

          The jurisdiction of Consumer Forums under Section 14 (d) of the CP Act 1986 to award compensation to the consumer is only for any loss or injury suffered by the Consumer due to the negligence of the Opposite Party – Proof of Negligence and Consequent loss or injury is a "Sinequa Non" – in the absence of proof compensation cannot legally be awarded under the said section of the Act. 

                    The gist of the judgments cited by the OP is that the person from whom the damages are claimed must have acted negligently and the loss or injury must have nexus to the negligence and should have committed willful default against the complainant to suffer any loss or injury. 

         15. On the perusal of evidence of RW2, it is observed that RW2 has witnessed the incident stating that the complainant has returned the MO-1 to the OP as expired one and wanted  a new one for which the OP turned deaf ears to the complainant.  The evidence of RW2 clearly reveals that the Opposite Party having known that MO-1 is expired and defective one at the time of purchase by the complainant from the Opposite Party, the act of the Opposite Party, refusing to replace the MO-1 clearly shows the wayward attitude of the Opposite Party.    From the evidence of RWs and the exhibits R30 to R32, it is clearly proved that the OP has committed the act of selling the expired and defective product MO-1 to the complainant through the cash bill Ex.C1 negligently which caused mental agony to the complainant.  Hence, the judgment relied upon by the OP does not help them in any way in this case. 

          16. It is further contended by the OP that the complainant has not suffered any injury or loss due to the act of the OP for which it is observed by the Forum that since the product MO-1 being a expired one and defective product, unfit for consumption, the contention of OP that the complainant has not suffered any injury does not make any sense and cannot be taken into consideration.   The indifference and callous attitude of OP in not responding to the complaint of the complainant itself constitutes mental agony and thereafter, the act of complainant taking legal course of action for the relief would have caused hardship, loss and mental agony to the complainant and has to be compensated reasonably. 

          17. In view of the discussions held in the paras supra, it is held that the complainant is a consumer as against the OP and the OP is liable for the negligent act committed against the complainant and this point is answered accordingly.    

          18. POINT No.2:

          In the result, the complaint is hereby allowed and the OP is directed

1) to pay a sum of Rs.26/- towards the cost of the soft drink "Thumps UP"

          2) to pay the complainant a sum of Rs.10,000/- as compensation for the hardship and mental agony suffered due to the negligent act of the OP. 

          3) to pay a sum of Rs.5000/- towards cost of this proceedings. 

19. The MO1 is ordered to be destroyed after appeal time is over.

  Dated this the 18^th day of August 2017.

1. ASOKAN)

PRESIDENT

(V.V. STEEPHEN)

   MEMBER

(D. KAVITHA)

   MEMBER

COMPLAINANTS' WITNESS:  

CW1           04.08.2015           A. Thamotharan

OPPOSITE PARTY'S WITNESS:   

RW1           27.10.2015           K. Sampath, Deputy Manager

RW2           27.01.2016           M. Ramesh, Sales Man

RW3           03.05.2017           R.T. Gunasekaran, Deputy Manager

COMPLAINANTS' EXHIBITS :

OPPOSITE PARTYS' EXHIBITS:  

LIST OF MATERIAL OBJECTS: 

MO-1 Thumps Up bottle (600 ml) – 1 no.

1. ASOKAN)

   PRESIDENT

(V.V. STEEPHEN)

   MEMBER

(D. KAVITHA)

   MEMBER