BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, PONDICHERRY

C.C.No.9/2015

Dated this the  5^th  day of April 2017

(Date of Institution: 03.02.2015)

Rene, son of Dass,                                 

No.85, Ambedkar Nagar, Attupatti          

Puducherry.             

….     Complainant

vs

1. The Proprietor                                 

    M/s Anandu Branch Shop                           

    Wholesale and Retail Liquor Merchants        

    461-A, Baharathi Street,  Pondicherry – 1.

2.  The Managing Director

     M/s Carlsberg India Pvt Ltd.,            

     5^th Floor, Paras Twin Towers              

     Tower B, Sector-54, Gurgaon          

     Haryana – 122 002.

3. The Consumer Manager

    M/s Carlsberg India Pvt Ltd.,

    Plot 52, Sector 32, Gurgaon

    Haryana – 122 001.

                                       ….     Opposite Parties

BEFORE:

          THIRU.A.ASOKAN, B.A., B.L.,

          PRESIDENT 

Thiru V.V. STEEPHEN, B.A., LL.B., 

MEMBER

FOR THE COMPLAINANT:  Thiru V. Annamalai, Advocate

FOR THE OPPOSITE PARTIES:   OP1 – Thiru H.D. Kumaravelu, Advocate

                                                          OP2 – Thiru N. Baptiste Augustin, Advocate

                                                                        OP3 – Ex parte.

O R  D  E  R

(by Thiru A. Asokan, President)

              This is a complaint filed by the complainant u/s 12 of Consumer Protection Act for directing the Opposite Parties to pay jointly and severally a sum of Rs.5,00,000/- as compensation with interest @ 12% from the date of filing of the complainant and cost for selling of defective products which amounts to dereliction of duty, unfair trade practice, mental agony and for deficiency of service on the part of the opposite parties;  direct the first opposite party to rectify and plead regret for refusal of any remedy, for scolding the complainant with filthy language and harsh words; and for cost of Rs.20,000/- of this complaint.    

2.  The case of the complainant is as follows:

          The Complainant is working as a Coolie. On 8.6.2013 at 6.30 p.m. the complainant purchased a bottle of beer from the first opposite party  and the attender of the first opposite party shop packed the bottle in a black plastic carry bag and delivered the same with bill.  The complainant reached home with beer bottle and while trying to open the bottle by lifting it, to his shock and surprise found some foreign materials (some metal lids of same kind as used in the bottle) deposited inside bottom of the bottle.  As he has not consumed the second bottle of beer particularly the same at spot after immediate purchase, he was under the grip of though, that he had been saved by the almighty and he gained a re-birth as otherwise his life would have met an end.  The complainant further stated that on the next day he went to the shop owner the OP1 and questioned for such selling of defective products.  The first opposite party neither responded nor replied in a satisfactory manner and reluctant to receive back the same and also scolded with filthy language.  The complainant returned back and again approached on the next day, however, the first opposite party did not exchange the same.  The faulty manufacturing, marketing and selling of products with such defects has caused untold misery, mid-nightmares and betrayal of trust in the complainant's mind and it is beyond a rightful though of an ordinary prudent man.  The selling of defective products amounts to dereliction of duty, unfair trade practice on the part of all the opposite parties.  Hence, this complaint. 

            3. The Reply Version filed by the first opposite party briefly discloses the following:  

The complaint filed by the complainant is most unjust and unsustainable.  The 1^st Opposite party stated that there was no any complaint regarding any foreign material in the product sold by him till date.  The Complainant is a mischief monger who has given this notice with false and unwanted allegation only for ransom.  There is no any cheating or sale of products with defects to complainant or anybody else.  There is no any dereliction of duty, unfair trade practice on the part  of  the 1^st opposite party in the sale of products in his shop.  The alleged bottle of beer which contains a black plastic carry bag based on which complainant has filed the complaint is not the product sold by this opposite party.  The complainant should have created such a product to suit is allegation and claim made as per the complaint.  Complainant retaliates that had there been any foreign material as per the complaint that he would have been immediately replace with a fresh one without any murmur or mutter on the spot of sale.  The complainant is trying to malign the 1^st opposite party's reputation in the field of liquor with notice mentioned false allegation knowing fully well that they are false.  This opposite party is a retailer selling the products of opposite party No.2 and 3.  All products are sealed and sold after due verification by the Excise Department, Puducherry and then only released for sale.  There has been no complaint from any person much less than the complainant herein in the sale of the product.  Hence, prayed for dismissal of the complaint.

          4. The reply version filed by the second opposite party discloses the following:

The complaint is neither maintainable in law nor on facts.  This complaint has been filed with intent to make unlawful gain from the opposite parties by harassing and causing hardship to them.  The complainant has not come before this Hon'ble Forum with clean hands and he is therefore, not entitled for any relief from this Hon'ble  Forum.  The complainant is put to strict proof that the Tuborg beer was purchased by him form OP1 and that the cash bill produced by him before this Hon'ble Forum relates to the sale of that particular bottle of beer from the stock of OP.No.1 on 08.06.2013.  As per Para.2 of the complaint as well as in the lawyer's notice issued by the complainant it is invariably stated that he drifted into the wine shop of O.P.No.1  and placed order for only one  bottle of beer and the attender in the shop also packed the bottle of beer in a black carry bag.  Even in the cause of action column, the complainant has stated as if he has purchased only one bottle of beer.   Subsequently, in Para.4 of the complaint, the complainant has developed his version to say as follows: As he has not consumed the second bottle of beer particularly the same at the spot after immediate purchase''.  He has filed an illegible cash bill issued by O.P.No1, which has no relevance to the present case, since in first column of the bill intended for quantity, it is mentioned as '2' and in the second column the item purchased and in the third column the rate have been scribbled.  The complainant would further stated in Para.6 of the complaint that he was run pillar to post for exchange of the bottle or for refund of money and finally it was only O.P.No.1, who instructed him, to prefer complaint against these O.Ps.2 and 3.  These opposite party would stoutly deny such an allegation made against them by their retailer. They even do not believe that the local retailer O.P.No.1 in his response to the legal notice of the complaint has stoutly denied that it instructed the complainant to prefer complaint against these O.Ps2 and 3.  Further it is pertinent to highlight that the O.P. No.2 and 3 in response to the legal notice dated 07^th October 2013 of the complainant had already has a gracious gesture, without accepting any allegations but with an aim to reinstate the complaints faith in the brands of the Opposite Parties already offered to replace the bottle or refund the money, on facts being established.  The O.P No.3 has requested the complainant to handover the sealed bottle alongwith the Invoice copy to fairly investigate the matter further.  However the complainant after lapse of more than a year preferred this complaint with intention of making wrongful gains.   The complainant is admittedly residing in Attupatti, Which is hardly one kilometer distance from  O.P.No.1 wine shop.  The complainant had admittedly purchased the beer bottle at 6.30 p.m.,  which is also never too late.  The complainant alleges that immediately on going home, he found the contents to be contaminated.  Any person either prudent or reckless would naturally get irritated if he really sees a foreign material in the beer bottle and automatically his tendency would be to rush to the wine shop of O.P. No.1 at the very next moment seeking remedy of either exchange of the bottle or to get refund of money.  In this case, when the complainant has found that consumption of beer is a matter of comfort, soothing of mind and enjoyment, what prompted him to brood over the matter and spend a sleepless night and go to the wine shop of O.P.No.1 only on the next day at his convenience.  Therefore, the allegation leveled by the complainant against the O.P.No.2 is something a hard pill to swallow and not easy to digest.   M/s Carlsberg India Private Limited is a company registered under the provisions of the Companies Act, 1956 and is part of Denmark based Carlsberg Group which is the 4^th largest brewing group in the world since 1847 whose products are sold in more than 150 countries.  The manufacturing facilities of the said Company are certifies with ISO-22000 for Food Safety Management Systems and ISO-9001 for Quality Management Systems, which certifications are only awarded after following stringent norms of quality manufacturing and checks.  This opposite parties further submit that their complainant applies adopts and uses latest and highly advanced techniques in the manufacture of its products, which products are put to stringent quality control/tests/processes/checks before the same are released in the marked for consumer consumption.  The State-of-art laboratories/research and development centers of these  opposite parties company are consistently working not only to develop new products through scientific research but also to develop new and advanced quality checks and quality control processes to maintain the quality of this products.  The company has got an ultra modern well equipped high technology manufacturing plants, where bottle washer machines with Programmable  Logical Control (PLC) System are installed through which automatically the bottles are washed and thoroughly cleaned before the same are put to further use of filling process.  The filling process of  the company is counter pressure filling which ensures that the product is filled without any contamination.  The whole manufacturing process is carried out through an automated system leaving no scope of physical handling of the liquid by workers and all the beer bottles/cans pass through meticulous inspection process just to provide best quality product to the customer leaving no scope for any adulteration whatsoever in the manufacturing process.  It would not be out of place to mention here that the water used for manufacturing beer is treated several times and all the impurities are removed completely before the same is put to brewing use/process.  After filling process is completed, the finished product is kept under examination at plant warehouse where random sampling is done to ensure that the quality product reaches into the market and further to the customer.  Further it is pertinent to point  out that the labels on the bottles are affixed only after getting approval from the respective State Excise Authorities and after complying with all other statutory declarations and information as required to be disclosed under respective State Laws and the Company follows the highest standards of ethics in its operations world over and is known globally as Quality Beer manufacturing Company .  Opposite party No.3 is the consumer complaint cell of the company and that OP.No.2 is the Managing Director of the Company who is not directly involved in the process of manufacturing the beer and that the complainant has made O.P.No,2 as a party with malafide intention.    In the above backdrop it is rather san sense for the complainant herein to allege that there were contaminations in the beer bottles purchased by him from opposite party No.1.    Even according to the complainant, he has purchased the bottles from OP.No.1 and consumed the beer in his house, where anything could have happened.  These opposite parties have their own doubt that the complainant himself or someone close to him should have either played mischief or else the product allegedly purchased by complainant would not have been the original product supplied by the O.P. No.3's company, but some duplicate products sealed in the used bottles of O.P.No.3 company should have been purchased by the complainant.  Therefore, these opposite parties humbly submit that in asmuch as there is no cogent and trustworthy evidence in support of the allegations leveled in the complaint, the complaint is per se liable to be dismissed.  These O.Ps.2 reiterate that the question of there being a ''foreign material'' in the beer bottle purchased by the complainant does not arise, since the products are manufactured with utmost care and caution as mentioned above and are thoroughly checked before they are dispatched into the market/consumers.  There is no cause of action at all for the complainant to file the present complaint before this Hon'ble Forum and the complaint has been filed solely to harass these Opposite Parties  with a view to make unlawful and wrongful gain to the complainant and cause wrongful loss and disrepute to OP Nos.2 and 3.

          5. The third opposite party remained ex parte.

6.       On the side of the complainant, the complainant himself was examined as CW1 and Exs.C1 to C7 and MO1 were marked.  The Ex.C1 and MO1 are marked with objection.  On the side of opposite parties, no witness was examined and no documents were marked. 

7.       Points for determination are :

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

8. Point Nos.1 and 2:

It is alleged by the complainant that on 08.06.2013 he purchased a bottle of beer  by name Tuborg from the first opposite party and the attender of the OP1 shop packed the same in a black plastic carry bag and delivered the same to the complainant along with bill.  When the complainant reached home and while trying to open the bottle, to his shock and surprise, he found some foreign materials inside the bottle.  The further allegation of the complainant is that as he has not consumed the second bottle of beer after immediate purchase, his life was saved.  On the next day, the complainant went to the OP1 shop and questioned about the selling of defective products for which, the owner of the shop neither responded nor replied in a satisfactory manner, but scolded with filthy words due to which he sustained mental agony.  Hence, the opposite parties are indulged in unfair trade practice and deficiency in service. 

              9. The first opposite party alleged that there was no report of any complaint regarding any foreign material in the product sold by him till date.  The alleged beer bottle is not the product sold by this opposite party.  The complainant created such a product to suit his allegation and claim made for illegal gain and also spoil the reputation of the first opposite party in the field of liquor.  Further alleged that if there was any foreign material, the complainant ought to have immediately replaced it with a fresh one.  All the products of second and third opposite parties are sealed and sold after due verification by the Excise Department, Puducherry. 

          10. The second opposite party alleged that the complaint is filed with intent to make unlawful gain from the opposite parties.  The complainant in his complaint at para 2 and also in the cause of action has stated that he went to the OP1 shop and placed order for only one bottle of beer.  In para 4, he has stated that "he has not consumed the second bottle of beer particularly the same at the spot after immediate purchase". The Ex.C1 bill has been scribbled with something illegible.  Further alleged that the opposite parties offered to replace the bottle or refund the money and requested to handover the sealed bottle along with invoice copy, but the complainant after lapse of more than a year preferred this complaint with intention of making wrongful gains.  The complainant is residing in Attupatti which is one kilometer from OP1 shop and also purchased at 6.30 p.m.  If he found the contents to be contaminated, at the very next moment, he would be rushed to the OP1 shop either for exchange of bottle or to get refund of money.  Further alleged that their products are subjected to filtration  prior to bottling and stringent quality test was conducted by their Quality Controllers before it is brought to market for sale and hence there is absolutely no possibility of any foreign particle getting inside the brandy bottle.  Further, the labels on the bottles are affixed only after getting approval from the respective State Excise Authorities and after comply all statutory declarations under respective State Laws.  This opposite party further alleged that the complainant might have purchased some duplicate products sealed in the used bottles of their company. 

          11.     We have perused the pleadings, reversions, the evidences adduced by the complainant and the documents marked as Exs.C1 to C7.    On perusal of Ex.C1 the cash receipt dated 08.06.2013 it shows that the MO1 was purchased by the complainant from the first opposite party.  The learned Counsel appearing for the first opposite party has contended that the left side of the bill Ex.C1 was tampered and the description is not clear and the amount is also illegible.  Further, it does not contain the name of the purchaser also.  Hence, the genuinety of the bill itself a questionable one.  Further contended that the complainant himself in his complaint has stated in one para as he has purchased a bottle of beer from the first opposite party and in another para, he has averred that he has not consumed the second bottle of beer.  This Forum carefully perused the Ex.C1.    The product mentioned in particular column, it is illegible and the amount is also not clear and the quantity column also tampered.   Moreover, there is overwriting of month in the date of purchase.  The CW1 also admitted in his cross examination that "there is no mention of the year in Ex.C1".  Further admitted that "It is true that in my complaint as well as in the Chief affidavit, I have mentioned in para 2 that there is only one bottle of beer.   It is true that in the cause of action para of the complaint, it is only mentioned as one bottle of beer only".  The illegible writings and over writing in Ex.C1 makes a doubt about the genuineness as to whether the complainant has purchased the alleged beer bottle.   Further the versions in the pleadings also make a doubt as to whether the complainant has purchased one bottle of beer or two. 

          12. From the above facts and evidences, though there seems to be a foreign object in the MO1 and exhibited through photos vide Ex.C2, the corrections and overwriting of the bill Ex.C1 and contradictory version of the complainant in the complaint with that of his evidence before this Forum creates doubt regarding the purchase made by the complainant from the OP1 and in the midst of ambiguous evidence, this Forum finds hard to believe the genuineness of the purchase bill Ex.C1 and in this context, it is observed by this Forum that  the complainant failed to establish the status of 'consumer' as against the OP1 and in consequence of which the allegations of the complainant regarding the deficiency of service and Unfair Trade Practice of the Opposite Parties is not taken into consideration by this Forum.    This point is answered accordingly.

          13. Point No.3:

In view of the discussion and decision held in Point Nos.1 and 2, this complaint is liable to be dismissed. 

 14. In the result, this complaint is dismissed. No costs.

          15.  The MO1  one sealed beer bottle is ordered to be destroyed after appeal time. 

Dated this the 5^th  day of April  2017.

1. ASOKAN)

PRESIDENT

(V.V. STEEPHEN)

   MEMBER

COMPLAINANTS' WITNESS:

CW1           14.03.2016           Rene                 

OPPOSITE PARTY'S WITNESS:  NIL

COMPLAINANTS' EXHIBITS:

OPPOSITE PARTYS' EXHIBITS:   NIL

LIST OF MATERIAL OBJECTS: 

MO1           One sealed beer bottle (Copenhagen Denmark Strong Batch No. 623,

Manufacturing Date 08.01.2013, Computerised Code No. 8906018940111)

1. ASOKAN)

PRESIDENT

(V.V. STEEPHEN)

   MEMBER