Kerala

Idukki

CC/15/369

Mr.Nibin James - Complainant(s)

Versus

The Manager United Spirits Ltd - Opp.Party(s)

Adv.Jomon T J

26 Jul 2019

ORDER

DATE OF FILING : 14.12.2015

IN THE CONSUMER DISPUTES REDRESSAL FORUM, IDUKKI

Dated this the 26^th day of July, 2019

Present :

SRI. S. GOPAKUMAR PRESIDENT

SMT. ASAMOL. P MEMBER

CC NO.369/2015

Between

Complainant : Nibin James, S/o. James,

Nedumkallel House,

Olamattam, Thodupuzha.

(By Adv: Jomon T.J.)

And

Opposite Parties : 1. The General Manager,

United Spirits Ltd.,

Registered Office, GB Tower 24,

Vittal Mally Road,

Bangalore – 560 001.

2. The Manager,

Elite Distilleries and Beverages

Co. Ltd.,

Kiraloor, Mundoor, Thrissur.

(Both by Adv: Peter V. Joseph)

3. The Managing Director,

Kerala Beverage Corporation,

Thiruvananthapuram.

4. The Manager,

KSBC No.6002,

Opposite CADS, Thodupuzha.

(Both by Adv: P.S. Biju)

O R D E R

SRI. S. GOPAKUMAR, PRESIDENT

 

Case of the complainant is that :

 

The complainant had purchased 2 bottles of Mac dowel MC Rum for Rs.550/- each and one litre of MC Brandy amounts Rs.590/- from 4^th opposite party retail shop, managed by 3^rd opposite party, blended and bottled by 2^nd opposite party and manufactured by 1^st opposite party, on 4.9.2015, for celebrating a birthday party. On the same day at 9 pm, the complainant alongwith his friends assembled in his room and started birthday party. For that, the complainant opened one bottle MC Rum and

(cont......2)

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when he poured to the glasses, he noticed that some sediments of white powder like substances in the bottle. He emptied the bottle by pouring the liquor to the wash basin, on the firm belief that, the objects contained in the bottle is injurious to health, by confirming it is a spurious liquor. Moreover, he smelt a foul odour when he opened the bottle. The complainant noticed such white sediments in 2^nd bottle also. They had not opened the 2^nd bottle. It is produced before the Forum. The complainant further averred that, due to the non-consumption of liquor, the birthday party was failed and his close friends who had gathered there had ridiculed him and he felt humiliated at the hands of his friends and he caused much mental agony and sufferings.

 

Hence the complainant approached this Forum alleging deficiency in service and unfair trade practice against the opposite parties for marketing and selling spurious liquor to the general public. In this complaint, the complainant prayed for getting relief such as to direct the opposite party to repay Rs.1100/- alongwith cost and compensation.

 

Upon notice, opposite parties entered appearance and opposite parties 1 and 2 resisted the allegation of the complainant by filing reply version. In their version, opposite parties 1 and 2 contended that the allegation that complainant smelt foul odour, when he opened the bottle and poured into the glasses is absolutely false. The further allegation that sediments of white powder like substances at the bottom of the bottle was noticed also false. Under this circumstances, such sediments would have been presented in the MC Rum bottles, manufactured by 1^st opposite party and blended and bottled by 2^nd opposite party. The opposite party further contended that, the complainant had noticed the sediments of white powder like substances at the bottom of the 2^nd bottle also and hence it was not opened and kept intact is admitted. The allegation that these liquor which is not fit to human consumption is wanton wild allegation, without any factual basis. The complainant so vigilant, should have sent it for chemical examination, instead of emptying the bottle into wash basin. The onus to prove such a grave allegation is heavily upon the complainant.

 

Opposite party further contended that from the bill produced by the complainant, it is seen that these 2 bottles belonged to batch No.33/5

(cont......3)

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consigned to the 3^rd and 4^th opposite party from 2^nd opposite party. This consignment contained 300 cases of 9 bottle each. As such 2700 bottles were consigned to the 4^th opposite party on 12.6.2015 and sold there. Out of the buyers of 2700 bottles, nobody else other than this complainant has so far raised any complaint. Before releasing the bottled rum for sale, the excise department has to collect the relative samples from every batch and sent it to for chemical examination to the Regional Chemical Examination Laboratory at Kakkanad, Ernakulam. Accordingly, samples were collected from this batch and examined the above laboratory and such samples were found to be free from noxious ingredients to health and hence fit for human consumption. Hence the opposite parties are filing an application for sending the bottle produced by the complainant for chemical examination. Opposite party further contended that, since the liquor contained in the bottle produced before the Forum is fit for human consumption, the complainant is making an attempt to depict it as adulterated / spurious so as to invent a cause of action for deficiency in service and the complainant has not caused any loss, injury or hardship on account of alleged foreign body found in the instant bottle. Hence the Forum be pleased to upheld the contention of the reply version and dismiss the complaint with cost.

 

Evidence adduced by the complainant by way of proof affidavit and documents. Complainant was examined as PW1 and Ext.P1 bill issued by the Kerala State Beverages Corporation, Thodupuzha, dated 4.9.2015 marked.

 

From the defence side, one Ravi Krishnan Vijayakumar, Manager of 2^nd opposite party examined as DW1. Exts.R1 and R2 marked. Ext.R1 is the Chemical Analysis Report issued by the Regional Chemical Examination Laboratory, Kakkanad, Ernakulam dated 5.6.2015 and Ext.R2 is the copy of invoice issued by the 2^nd opposite party to the Beverages Corporation, Thodupuzha dated 12.6.2015.

 

Heard both sides.

The point that arose for consideration is whether there is any deficiency in service from the part of opposite parties and if so, for what relief the complainant is entitled to ?

(cont......4)

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The POINT :- We have heard the counsels for both the parties and had gone through the evidence. The undisputed fact is that, the complainant purchased two bottles of MC Rum and one bottle of MC Brandy from the outlet of Kerala Beverages Corporation. The version of the complainant is that one of the Rum bottle was opened and when he tried to pour it to the glasses, he noticed that there is some white coloured powder sediments in the bottom of the bottle and hence he emptied the bottle, without consuming it, on a firm belief that the sediment found in the bottom of the bottle may be poisonous and is injurious to health. The counsel for the complainant argued that when the complainant and his friends realised that 2^nd Rum bottle also contains the noxious ingredients. Hence it was not opened and kept intacat and produced it before the Forum. In the complaint, complainant raised a contention that the liquor contained in the bottle produced before the Forum, contained some poisonous chemicals, which if consumed, could have caused even death. Then allegation is raised in the last sentence of the 4^th paragraph of the complaint. While on trial, the complainant filed a memo stating that he is withdrawing such a contention which is raised as the last sentence of the 4^th para of the complaint. Hence the Forum deleted such a contention from the complaint.

 

In this case, the main point raised by the opposite party is that, the complainant has not raised any complaint before the authorities against this allegation, like excise, police etc.. The opposite party vehemently argued that the burden of proof is on the part of the complainant, to prove the alleged liquor is not fit for human consumption.

 

The next point raised by the learned counsel for the opposite parties 1 and 2 that eventhough the complainant produced one sealed bottle of MC Rum, allegedly having some foreign objects inside it, the complainant had not cared to send it for chemical examination.

 

At this juncture, it is very pertinent to note that, the 2^nd opposite party filed an application before the Forum for sending the MO1 liquor bottle for chemical examination. The petition is numbered as IA No.102/2016 and after hearing both sides, the Forum passed order directing the complainant to take steps for sending the MO to the Government Analyst's Lab,

(cont......5)

- 5 -

Thiruvanandapuram, on 30.10.2017. But the complainant failed to take steps for that purpose. For finding a solution to this issue, Forum had gone through the evidence on record including the MO1, MC Rum bottle. On examining it, Forum found that the bottle is sealed and the bottom of this bottle is having some sediments of white powder like substances. This can be seen by any human being. But we cannot ascertain that whether it is injurious for human consumption, without having an expert opinion. At the same time, the Forum is of a considered view that the public cannot expect such a thing in a liquor bottle. This object may be entered at the time of blending or bottling. Whether it is injurious to health or not is not a question herein. But the people who purchased it usually / normally withdrawn from using it. Since the public is well aware that the liquor itself is injurious to health, then we can assume that what will be the view of the public on seeing a foreign object in a bottle of liquor. At the same time, it is to be considered that this batch of liquor had undergone chemical laboratory test and certified that it is fit for public consumption. But the fact of white coloured sediments are admitted by the DW1, who is the manager of 2^nd opposite party also admitted that the MO1 bottle is sealed intact. But he cannot find out how such an object is entered in the bottle.

 

Except the purchase of two bottles from the KSBC, Thodupuzha on 4.9.2015 and out of that one bottle which is produced before the Forum containing some foreign objects, the complainant failed to prove other allegation levelled against the opposite parties. No evidence is produced by the complainant, whether the bottle which he allegedly was opened contains some foreign element type of sediments. Since the contents of the MO1 bottle can be seen by anybody, which is not expected to be happened. Opposite parties 1 and 2 cannot absolved of their laboratory in regard to spurious products. No expert opinion is needed in this matter. The legal dictum of Res ipsa loquitur can be applied herein. It is also evident that the product was not consumed and consequently no harm was caused.

 

Under the above circumstances, the Forum is of a considered view that, the opposite parties 1 and 2 are liable to compensate the complainant to some extent for the supply of bottles containing foreign element to the

(cont......6)

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outlet of Beverages Corporation, for the mental agony caused to him due to the purchase of the MO1 bottle.

 

Hence the complaint allowed in part. Opposite parties 1 and 2 are directed to pay Rs.550/- being the price of the MC Rum bottle as per Ext.P1 and also directed to pay Rs.5000/- as compensation for the mental agony and Rs.2000/- as litigation cost to the complainant jointly within 30 days from the date of receipt of a copy of this order, otherwise the above said amount except the cost will carry 12% interest per annum from the date of default, till its realisation.

 

Pronounced in the Open Forum on this the 26^th day of July, 2019

 

Sd/-

SRI. S. GOPAKUMAR, PRESIDENT

Sd/-

SMT. ASAMOL. P., MEMBER

 

 

APPENDIX

Depositions :

On the side of the Complainant :

PW1 - Nibin James

On the side of the Opposite Party :

DW1 - Ravi Krishnan Vijayakumar.

Exhibits :

On the side of the Complainant :

Ext.P1 - bill issued by the KSBC, Thodupuzha, dated 4.9.2015.

On the side of the Opposite Party :

Ext.R1 - Chemical Analysis Report issued by the Regional Chemical

Examination Laboratory, Kakkanad, Ernakulam dated 5.6.2015.

Ext.R2 - copy of invoice issued by the 2^nd opposite party to the Beverages

Corporation, Thodupuzha dated 12.6.2015.

 

 

Forwarded by Order,

 

 

 

 

SENIOR SUPERINTENDENT