BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, PONDICHERRY

C.C.No.43/2011

Dated this the 9^th day of December 2016

(Date of Institution: 10.08.2011)

Chandramohan, son of Sarangapani,                   

No.40 Mullai Street, Bharathi Nagar       

Ariankuppam, Puducherry – 7.

….     Complainant

vs

1. The Proprietor                               

    D.R. Bar and Restaurant                 

    No.28 and 30 Ricemill Road,                

    Ariankuppam, Puducherry – 7.

2. The General Manager                 

    SICA Breweries                                

    Ayyankuttipalayam, Mettupalayam,   

    Puducherry – 605 009. 

3. The General Manager

    SKOL Breweries Ltd.,

    BKN Ambaram Estate,

    648/L, 1^st Main, 1^st stage

    Indira Nagar, Bangalore – 560 038,

    Karnataka.

                                       ….     Opposite Parties

BEFORE:

          THIRU.A.ASOKAN, B.A., B.L.,

          PRESIDENT 

Thiru V.V. STEEPHEN, B.A., LL.B., 

MEMBER

FOR THE COMPLAINANT:  Thiru P. Ilayaraja,  Advocate      

FOR THE OPPOSITE PARTIES:  OP1 – P. Arumugam, Advocate         

                                                          OPs 2 & 3: M/s Qui Prior Associates,

                                                                                    Advocates

O R  D  E  R

(by Thiru A. Asokan, President)

              This is a complaint filed by the complainant u/s 12 and 13 of Consumer Protection Act for directing the Opposite Parties to pay a sum of Rs.1,00,000/- jointly and severally as compensation to the complainant for all his sufferings and mental agony caused by supplying defective goods to the complainant due to highly irresponsible, negligent, unfair trade practice and deficiency in service and to direct the opposite parties to pay a sum of Rs.10,000/- towards cost of this proceedings. 

2.  The case of the complainant is as follows:

          The Complainant stated that on 03.02.2011 he purchased three bottles of Haywards 5000 strong beer from 1^st opposite party for Rs.174/- vide bill No. 16710 dated 03.02.2011 for his personal consumption.  At about  9.00 p.m. when he was about to consume the third bottle, he noticed a plastic spoon inside the beer bottle.  The complainant felt nauseated and had vomiting sensation as he feared that the other two bottles which he consumed earlier might also have been contaminated with foreign particles, due to which he and his friend could not sleep for the whole night and the complainant was mentally disturbed.  On 4.2.2011 he approached the first opposite party in person, he was totally indifferent and reckless as they did not bother to give any explanation for such glaring contamination.  The first opposite party refused to take back the bottle and the complainant tried to contact the second opposite party in person and through phone but it ended in vain.   The complainant further stated that the presence of a plastic spoon is visible even to the naked eyes.  This is a serious lapse on the part of second opposite party.  Further stated that it is possible that even the two other bottles consumed by the complainant and his friend could have been contaminated by the foreign particle inside the third bottle if they had been manufactured together.  The first opposite party as a retailer is bound to check all the bottles before selling it to the customers.  The first opposite party is also equally negligent and careless in selling the contaminated beer bottle to the complainant.  The complainant issued a legal notice on 16.02.2011 to the first and second opposite parties to pay a sum of Rs.1.00 lakh as compensation for his sufferings and mental agony by supplying defective goods to the complainant and the same was acknowledged by them.  On 24.02.2011 received a reply notice dated 18.2.2011 from the third opposite party as a Regional Office (South) of 2^nd opposite party stating that they had appointed one of their representatives, who shall visit the complainant's house and requested to hand over the sealed Haywards 5000 beer bottle to him to investigate the route cause of the defect if any.    On 7.3.2011 the complainant sent rejoinder to intimate prior when and where the 3^rd opposite party's representative will receive the said bottle from him.   For which, on 10.3.2011 the third opposite party sent reply stating that their representative visited the house of complainant on 11.03.2011 but found the house locked and on enquiry, they found the complainant is not in station.  The complainant stated that no such representative came to his house on 11.03.2011 which is well established from the reply notice dated 10.03.2011.   The complainant sent another rejoinder requesting the third opposite party to send his representative on 27.3.2011, for which the third opposite party stated that their representative would contact the complainant to fix up an appointment.  The third opposite party neither sent any representative to visit the complainant's house nor contact the complainant to receive the sealed Haywards 5000 strong beer bottle from the complainant.  Hence, this complaint. 

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

          This opposite party does not remember whether the complainant purchased three bottles of beer from his shop.  The complainant did not show the sealed beer bottle to the first opposite party to confirm that it contained plastic spoon.  There is absolutely no scope for a spoon measuring three inches to find place in the beer bottle  at the manufacturing place.  The second and third opposite parties are proper persons to explain the manufacturing process and whether there is any possibility for a spoon to enter a beer bottle which has small opening.  Even assuming there was a plastic spoon in the beer bottle, it is not possible for the first opposite party to identify the spoon in view of the dark colour of the beer  and also the colour of the bottle.  This opposite party is not liable for the presence of alleged spoon and the complainant has not followed the legal process to establish the presence of spoon in the beer bottle.  Only with such an ulterior motive and for unreasonable bargain, the complaint has been filed.  The complainant is not liable for any compensation from the first opposite party, since there is no fault on his side.  The complaint is based on imagination that the complainant would have been affected by the consumption of the other two beer bottles.  The complainant has not suffered any problem after consuming the other two bottles.  Even assuming a plastic spoon was in the third beer bottle which according to the complainant has not been consumed, it does not amount to contamination of the beer. 

          4. The reply version filed by the opposites parties 2 and 3 briefly discloses the following:

          The complaint is false, concocted and frivolous.  All the products manufactured by the company are made with latest technology and in most hygienic conditions and undergoes stringent quality control check.  Unless each product meets the prescribed quality standard the product is not cleared for sale by the quality control systems.  The complaint is filed with ulterior motives to cause unlawful gains to the complainant.  The complainant has not provided the batch number and the date of manufacturing of the beer bottles in the complaint.  It is further submitted that fake beer claiming to be "Haywards 5000 strong beer" are also at times sold in the open market.  Hence, without the batch number and the date of manufacturing, the genuineness of the beer bottles cannot be verified.  The complainant did not deposit the other two bottles purchased along with the beer in question on 3.2.2011, to establish the allegation that the complainant felt nauseated and had vomiting sensation after consuming the beer from these two bottles.  The complainant did not meet the company's representative on one pretext or the other and failed to hand over the beer bottle to him.  The onus lies on the complainant that he suffered physical injury/ailment so claimed; the same was only due to the consumption of the impugned product and the impugned product suffered from the defect alleged, which only was on account of the negligence of these opposite parties.  No medical prescription or any other evidence has been filed to establish the same.    The receipt produced by the complainant is a forged and concocted one since it did not contain the signature and stamp of the vendor, the receipt does not even mention the name of the beer.  If the beer was emitting pungent smell, the complainant should not have consumed the same, the entire sequence of event narrated by the complainant is devoid of truth and logic.  The beer is filtered thoroughly at least twice through imported filters before its being automatically packed in bottles, which are thoroughly washed in automatic washing machine with the help of hot water.  The filled bottles are checked again and then only label pasting and foil covering are done.  That even the complainant's apprehension about any alleged foreign substance in the beer bottle could have been tested only after its analysis.  No efforts had been made by the complainant to get the alleged beer analysed by competent authority.  The complainant has not given any basis for his alleged accusation of negligence and carelessness in production etc.  These opposite parties further stated that the legal notices sent by the complainant were duly replied vide reply notices whereby the complainant was requested to deliver the bottle to the representative of the company.  Further the company also offered a free replacement as a matter of goodwill gesture.  The entire complaint is totally motivated and is without any cause of action against these opposite parties.  The complainant is not entitled to any relief claimed in the complaint.  The claim of the complainant of Rs.1.00 lakh is exaggerated, baseless and imaginary.  No document has been attached by the complainant to substantiate the loss allegedly suffered by the complainant.  Hence, prayed for dismissal of the complaint. 

5.       On the side of the complainant, the complainant himself was examined as CW1 and Exs.C1 to C13 and MO1 and 2 were marked.  On the side of the opposite parties, the first opposite party was examined as RW1, however, no documents were marked. 

6.       Points for determination are :

1. Whether this complainant is a Consumer?
2. Whether the opposite parties attributed deficiency in service and unfair trade practice?
3. To what relief the complainant is entitled for?

7   Point No.1:

          The complainant purchased three bottles of 5000 beer from the first opposite party on 3.2.2011.    To prove the same, the complainant has produced the Ex.C1 the cash bill No. 16710 dated 03.02.2011.    So, it is proved that the complainant is consumer for the opposite parties.

          8.       Point No.2:

          We have perused the pleadings, reply versions, Exs.C1 to C13, the evidence adduced by the complainant and the arguments advanced by both the parties.  From the available records it is clear that on 03.02.2011 the complainant purchased three bottles of 5000 beer from the first opposite party vide Ex.C1 Cash Bill.  He stated that when the complainant was consuming the beer along with his friend in the night and finished two bottles and when he was about to open the third bottle, noticed a plastic spoon inside the beer bottle, due to which the complainant felt nauseated and had vomiting sensation as he feared that the other two bottles might also have been contaminated with foreign particles.  The complainant approached the first opposite party on 4.2.2011and stated about the presence of plastic spoon in the beer bottle but they did not bother to give any explanation.  The complainant issued a legal notice dated 16.02.2011 vide Ex.C2 to the first and second opposite parties, for which, the complainant received a reply dated 18.02.2011 from the third opposite party vide ExC3 stating that they will sent one of their representatives to the complainant's house.  Against the said letter, the complainant issued a reply dated 7.3.2011 vide Ex.C4  to intimate the date of visit of said representative for which the third opposite party sent another reply dated 10.03.2011 vide Ex.C5 stating that their representative visited the complainant's house on 11.03.2011, but the house was locked.  On 23.03.2011 the complainant sent another notice vide Ex.C6 to the third opposite party calling upon them to visit the complainant's house on 27.03.2011 for which the opposite party sent another reply stating that their representative will fix up appointment and will come vide Ex.C7.  Since nobody came from the opposite party, the complainant was constrained to file this complaint. 

          9. On the otherhand, the first Opposite Party alleged that they did not sell the beer bottle to the complainant and that the complainant did not show the bottle containing plastic spoon and that there is no scope for such big spoon finding place inside the bottle and that they could not identify the spoon due to dark colour of the bottle and that the complaint is filed with ulterior motive.  The second and third opposite parties alleged that all its products undergo stringent quality test before it is brought to market for sale and hence there is absolutely no possibility of any foreign particle getting inside beer bottle and that there are spurious products with identical brand name and bottle appearances that is being sold in the market and hence without batch number and date of manufacturing, genuineness of the beer bottle cannot be verified and that the alleged contaminated beer bottle was not handed over to the opposite party when their representative visited the complainant  and that the complainant has not taken any steps to send the product for lab analysis and that the possibilities of seal tampering in the impugned bottle cannot be ruled out and the complainant fail to prove that there was no tampering of seal and that the receipt dated 3.2.2011 contains no signature of the seller and it is forged and that the sequence of the event as narrated by the complainant regarding nausea, vomiting, illness after consuming beer are false and that the complainant has not produced any evidence to show that he has suffered any inconvenience or stress because of the products purchased by him and there is no proof of any injuries to complainant and the claim of compensation is highly exaggerated. 

          10.     We have carefully considered the respective submissions and the documents.  A perusal of Ex.C1 the cash receipt dated 03.02.2011 would show that the MO2 was purchased by the complainant from the first opposite party.  The opposite parties in their arguments have stated that there are spurious products with identical brand name and bottle appearances that is being sold in the market and hence without batch number and date of manufacturing, genuineness of the beer bottle cannot be verified.  In order to establish the same, the opposite parties 1 and 2 have not let in any evidence before this Forum.  Moreover, in their reply statement itself, the Opposite parties 2 and 3 stated that  they have requested the complainant to deliver the bottle to the representative of the company enabling it to investigate the alleged defect.  They have also stated that the Company was also offered a free replacement as a matter of goodwill gesture.  The evidence brought on record by the complainant was not rebutted.  In the absence of any evidence adduced by the opposite parties, inference can be taken that the alleged beer was manufactured by the Opposite parties 2 and 3 and sold by first opposite party. 

          11. The opposite parties 2 and 3 have taken another plea that the receipt dated 3.2.2011 Ex.C1 contains no signature of the seller and hence, it appears to be a forged one.  On perusal of reply version and the evidence placed before this Forum, it could assess that the complainant purchased the beer bottle from the first opposite party who is the retail seller of opposite parties 2 and 3.  Nowhere in the reply version as well as in the examination of first opposite party the RW1 has stated that the Ex.C1 is not issued to the complainant.  Therefore, the reply version as well as the evidence of RW1 is sufficient to prove that the complainant purchased the beer bottles from the first opposite party and they only issued the receipt Ex.C1 to the complainant. 

          12. The opposite parties 2 and 3 have taken a defence that the alleged beer bottle was not sent for lab analysis and the seal of the bottle could have been tampered.  Further there are duplicate products available in the market and the seal of the material object could have been tampered. This argument is devoid of merits for want of evidence.  The foreign material is visible to the naked eye.  It is therefore, not necessary for the complainant to send the MO2 to a laboratory for test.   Hence, this Forum hold that it was not necessary to send the bottle of beer to the laboratory because the same was in a sealed condition when produced before this Forum and the foreign materials was visible to the naked eye.  The same principle is also laid down in HINDUSTAN COCA COLA BEVERAGES PVT LTD AND ANOTEHR vs RAVISHANKAR decided by Hon'ble Karnataka State Consumer Disputes Redressal Commission reported in [II(2005) CPJ 579], wherein, it was held that "Foreign particles in bottle visible to naked eye no need to send contents of bottle for analysis".  Hence, the argument adduced by the learned Counsel for the Opposite Parties 2 and 3 in this regard cannot be accepted. 

          13. The learned Counsel for the opposite parties 2 and 3 argued that the complainant has not produced any evidence to show that he has suffered any inconvenience or stress because of the products purchased and consumed by him and hence, there is absolutely no proof of any injuries to the complainant.  It is pertinent to note that it is not the question of consumption. In case, the complainant would have consumed the product, then there were chances of injury and loss.  Even though the MO2 was not consumed by the complainant, it will not discharge the opposite parties from the liabilities since the presence of the substance by itself is a defect in the goods in question. 

         14. Hence, the complainant established that the Opposite Parties have attributed the deficiency in service and Unfair trade practice by selling defective goods.  The complainant proved his case.  Hence the opposite parties are liable for the same and the complainant is entitled for the relief.

          15.     Point No.3:

          In view of the decision taken in point No.2, this complaint is hereby allowed.  The opposite parties are jointly and severally directed to:

1. Pay a sum of Rs.15,000/- as compensation to the complainant.
2. Pay a sum of Rs. 5,000/- as cost of the proceedings.

The MO1 is ordered to be kept with case bundle.  MO2 is ordered to be destroyed after appeal time.

Dated this the 9^th day of December 2016.

1. ASOKAN)

PRESIDENT

(V.V. STEEPHEN)

   MEMBER

COMPLAINANTS' WITNESS:

CW1           26.06.2012           Chandramohan       

OPPOSITE PARTIES WITNESS:  

RW1           02.06.2014           D. Ravi

COMPLAINANTS' EXHIBITS:

OPPOSITE PARTY'S EXHIBITS:   NIL

LIST OF MATERIAL OBJECTS: 

MO1           Photos with CD

MO2           Haywards 5000 Beer bottle

1. ASOKAN)

PRESIDENT

(V.V. STEEPHEN)

   MEMBER