DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, PALAKKAD

Dated this the 30^th day of April 2011

Present : Smt.Seena H, President

: Smt.Preetha G Nair, Member

: Smt.Bhanumathi A.K. Member Dt. Of filing : 10/12/2009

(C.C.No.163/2009)

1. Venu A

S/o.Vidhyadharan,

Mullaparambil House,

Kainoor (PO),

Thrissur – 680 014.

2. Vijay K.V.

S/o.Venugopal

Thattil House

Kainoor (PO),

Thrissur – 680 014.

3. Vaisakhan P,

S/o.Sasi,

Parambath House,

Kainoor (PO),

Thrissur – 680 014.

4. Vijay A,

S/o.Vidhyadharan,

Mullaparambil House,

Kainoor (PO),

Thrissur – 680 014. - Complainants

(By Adv.Prinstan K Joseph & Kamal Chand)

V/s

1. The Millennium Beer Industries Ltd.

(Rep.by the Managing Director)

United Breweries Ltd. and

Millennium Breweries Ltd.,

U.B.Tower, U.B.City, Vittal Mallya Road

Bangalore – 560 001.

2. United Breweries Ltd.

(Rep. by the Managing Director)

Premier Breweries, Kanjikode West.P.O.

Palakkad – 678 623

(By Adv.Ranjith Unni)

3. Kerala State Bewerages Corporation Ltd.

(Rep. by the Managing Director)

Sasthamangalam,

Thiruvananthapuram – 695 010

(By Adv.Raghudas S.G)

4. Kerala State Bewerages Corporation Ltd.

(Rep.by the Manager)

FL-1-09026

Vadakkenchery, Palakkad

(By Adv.Raghudas S.G). - Opposite parties

O R D E R

By Smt.SEENA.H, PRESIDENT

Case of the complainant in brief:

Complainants had gone to Vadakkenchery on 3/6/09 for attending the marriage function of their friend. Complainants purchased 12 bottles of ‘Zingaro’ brand beer from 4^th opposite party vide Invoice No.58931. Complainants consumed 11bottles of beer and while consuming the beer they felt some kind of distaste and bad smell. They also felt some kind of viscous contents in the bottle. After 1 ½ hours they started vomiting feeling abdomen pain. Since the condition continued the next day also, they were constrained to consult a Doctor at District Hospital, Thrissur. According to the complainants illness, discomforts etc. were caused because the products sold by the 4^th opposite party is out of expiry and all of poor quality. On examining the bottles, complainant noticed that out of 12 bottles 6 bottles were manufactured on 19/6/07, 2 of them on 18/10/07 and 2 of them on 28/12/07, 1 of them manufactured on 29/3/2000 and another one manufactured on 7/1/08 and as per labels on the bottles expire date of the product is seen noted that ‘best before 6 months from the date of manufacturing’. As the said product was manufactured on the aforesaid date the time expired on 19/12/07, 18/4/08, 28/6/08, 29/9/2000 and 7/7/08 respectively. The selling of the said beer after the expiry period i.e. on 3/6/09 is a punishable offense. Complainants could not properly attend and enjoy the marriage function due to the above said discomforts. Complainant has sustained great loss, hardships and mental pain due to the deficiency of service on the part of opposite parties. Complainant sent lawyer notice to all opposite parties seeking compensation of Rs.4,56,600/-, but opposite parties replied showing baseless statements. Hence the complaint.

Complainants prays for an order directing opposite parties to pay Rs.4,56,600/- as compensation and cost of the proceedings.

All opposite parties entered appearance. 1^st and 2^nd opposite parties filed version contending the following:

Opposite parties 1 & 2 submits that they are marketing their products exclusively through 3^rd opposite party who are their sole selling agents of their products in Kerala. They marketed their product through 3^rd opposite party with a clear mention on its label that their products have only a shelf life of 6 months. Further submits that they do not have any responsibility with regard to the sale since they do not have any direct dealing with the customer. Opposite parties 1 & 2 prays for dismissal of the complaint.

Opposite parties 3 & 4 filed version contending the following :

According to opposite parties 3 & 4 the alleged purchase of the beer as stated by the complainant is false. It is also submitted by that there was no old stock of the particular brand on the alleged date of sale. Further there is no chance to include 12 bottles with different manufacturing date in one case. It is also submitted that the noting that the contents of beer is 'best before 6 months from the date of manufacture' itself shows that there is no question of expiry of its contents. The main contentions of the opposite parties that bottle produced by the complainant before the Forum does not bear the security label. Hence the complaint is liable to be dismissed.

The evidence adduced by the parties consists of their respective proof affidavit. Ext.A1 to A16 except Ext.A4 were marked on the side of the complainant. Ext.B1 to Ext.B5 were marked on the side of the opposite parties. MO1 and MO2 series marked on the side of the complainant and MO3 marked on the side of the opposite parties 3 & 4.

Issues for our consideration are

1. Whether the beer bottles sold to the complainants is after the date of expiry and whether there is any deficiency in service on the part of opposite parties ?

2. If so, what is the relief and costs complainant is entitled to ?

Issue 1 & 2

The definite case of the complainant is that the 12 bottles of ‘Zingaro’ branded beer manufactured by the 1^st opposite party and sold by the 3^rd opposite party through their outlet of 4^th opposite party turn out to be date expired one and also contains some impurities.

Opposite parties 1 & 2 contented that they are marketing their products exclusively through 3^rd opposite party who are their sole selling agents. Opposite parties 1 & 2 has no direct connection with the complainant. Opposite parties 1 & 2 market their products through 3^rd opposite party with a clear inscription on the label that the products have only shelf life of 6 months from the date of manufacture.

According to Opposite parties 3 & 4 the alleged purchase of beer from opposite party is false. It is also submitted that as on the date of sale alleged by the complainant there is no old stock of the particular brand ‘Zingaro’. Also there is no chance to include 12 bottles with different manufacturing date in one case. It is also submitted that the noting that the contents of the beer is best before 6 months from the date of manufacture shows that there is no question of expiry of its contents. Opposite parties are denying the say of complainant that he had incurred any medical expense on account of consuming beer. The contention of opposite parties is that there is no security label on the bottles produced by the complainant before the Forum. Opposite parties does not sell any bottle without the security label.

12 bottle of ‘Zingaro’ beer purchased from 4^th opposite party is clearly revealed by Ext.A2. Even though sale of the same to the complainants is denied by the opposite parties. Ext.A.2 clearly shows that the complainant has purchased 12 bottles of “Zingaro’ beer from the 4^th opposite party on 03/6/2009. But it cannot be inferred that the 12 bottle produced by the complainant and marked as MO1 & MO2 series is the same bottles purchased from the 4^th opposite party. Opposite parties 3 & 4 has contented that on the date of alleged sale there is no old stock of the particular brand ‘Zingaro’. Ext.B1 is produced in this regard. On going through Ext.B1 series, it is seen that on 4/6/09 the number of Zingaro bottles sold is 13 and the balance is 12 nos. On the particular date, there is no old stock of the particular brand Zingaro is not born out from Ext.B1.

The 12 bottles of beer is produced by the complainant and marked Ext.MO1 & MO2 series. The said bottles of beer bear the batch numbers K16-6 bottles, K73 – 2 bottles, K49 – 2 bottles, K81- 1 bottle and K112 – 1 bottle. If the opposite party 3 has not sold the said bottles, they can very well produce evidence to the effect that the bottles bearing batch numbers K16-6 bottles, K73 – 2 bottles, K49 – 2 bottles, K81- 1 bottle and K112 – 1 bottle is not sold from their outlet on 3/6/09. It is true that the complainant has to prove his case, but since the opposite parties are in the party array and strongly contesting the matter they also have a bounden duty to adduce evidence to prove their case. Ext.A2 Shows 12 bottles beer are sold to the complainant on 3/6/09 by 4^th opposite party. The contention that the same is not sold by them is not proved also. Complainant was hospitalized due to consumption of beer is recorded in the OP ticket produced by the complainant which is marked as Ext.A3 series

Further regarding the contention that the sealed bottle produced by the complainant which is marked as Ext.MO1 does not bear the security label, it cannot be expected that the bottle manufactured in 2007 which is sold in the year 2009 shall bear the same. It is only a paper tag which might have been lost over a period of time.

In view of the above stated facts and circumstances of the case, we are of the view that Opposite parties 3 & 4 is liable to compensate the complainant. Opposite party 1 & 2 being the manufacturer has nothing to do with the sale of expired products by opposite party 3 & 4.

In the result complaint is allowed. Opposite parties 3 & 4 directed to pay complainants an amount of Rs.600/ (Rupees Six hundred only) being the price of the beer alongwith Rs.2000/- (Rupees Two thousand only) to each complainant as compensation and Rs.1000/ (Rupees One thousand only) as cost of the proceedings. Order to be complied within one month from the date of receipt of order failing which the whole amount shall carry interest @9% per annum from the date of order till realization.

Pronounced in the open court on the 30^th day of April 2011.

Sd/-

Smt.Seena.H

President

Sd/-

Smt.Preetha G Nair

Member

Sd/-

Smt.Bhanumathi A.K.

Member

APPENDIX

Exhibits marked on the side of the Complainant

Ext.A1 – Marriage Invitation

Ext.A2 – Invoice No.58931 dt.3/6/09 issued by KSBC, Vadakenchery

Ext.A3 series – OP ticket

Ext.A4 –

Ext.A5 – Lawyer notice sent to all opposite parties by the complainant

Ext.A6 series – Postal receipts

Ext.A7series – Acknowledgment cards

Ext.A8 – Correction Notice issued to all opposite parties by complainant's advocate

Ext.A9 series – Postal receipts

Ext.A10 series -acknowledgment cards

Ext.A11 – Reply to lawyer notice issued by GM, United Breweries Ltd. Dt.14/10/09

Ext.A12 - Reply to lawyer notice issued by MD, KSBC dt.16/10/09

Ext.A13 – Reply to lawyer notice issued by Advocate for United Breweries, Bangalore

Ext.A14 – Paper news of Kerala Kaumudi dated 22/2/2010

Ext.A15 - Paper news of Mathrubhoomi dated03/03/2010

Ext.A16 - Paper news of Malayala Manorama dated 22/3/2010

Exhibits marked on the side of the opposite party

Ext.B1 – Copy of Stock Register of KSBC FL1-shop No.9026 at Vadakkenchery

Ext.B2 – Copy of Stock Register of KSBC FL1-shop No.9026 at Vadakkenchery

Ext.B3 – Invoice No.22012 dt.16/1/11 issued by KSBC Vadakenchery

Ext.B4 – Copy of site mahazar

Ext.B5 – Paper cutting dt.29/5/10 of Malayala Manorama

Material Objects marked on the side of the complainant

MO1 – 1 bottle with beer

MO2 series – 11 bottles without beer

Material Objects marked on the side of the opposite party

MO3 – 1 bottle with beer

Cost – Rs1,000/- allowed as cost of proceedings.