District Consumer Disputes Redressal Forum

Dakshin Dinajpur, W. Bengal

(Old Sub-Jail Municipal Market Complex, 2^nd Floor, Balurghat Dakshin Dinajpur Pin - 733101)

Telefax: (03522)-270013

Present          

Shri Sambhunath Chatterjee              - President

Shri Siddhartha Ganguli                      - Member

Consumer Complaint No. 60/2012

Sri Pulak Sarkar

S/o Late Sudhir Kumar Sarkar

Vill.& PO : Chakvrigu

P.S.: Balurghat,

Dist. Dakshin Dinajpur                      …………………Complainant(s)

V-E-R-S-U-S

1.   The Sales Manager,

      Himalayan Endeavour

      Tea Auction Road, Siliguri

      Dist.: Darjeeling    

2.   The Proprietor

      M/s. Balurghat Country Liquor Shop

      Tahabazar, PO & PS: Balurghat

      Dist.: Dakshin Dinajpur    

3.   Managing Director,

      Himalayan Endeavour Pvt. Ltd.

      Tea Auction Road,

      Dist.: Siliguri 734003, W.B.   ………………Opposite Party / Parties

Ld. Advocate(s):

For complainant          ………………  - Shri Bidyut Kr. Roy

For OP No. 1             ………………  - Shri Rathin Sarkar & Santanu De

For OP No. 2              ………………  - Shri Samit Bhowmick

For OP No. 3              ………………  - None

Date of Filing                                       : 11.12.2012

Date of Disposal                                 : 24.11.2015

                                                                                                Contd…P/2

Judgment & Order  dt. 24.11.2015

            The complaint case in brief is that the complainant purchased a bottle of Himalayan Gold 7-UP Country Spirit containing 600 ml. liquor from OP No.2 on 25.8.2012 with proper receipt bearing no. 10121. Before consumption of liquor the complainant noticed that a dead spider was found inside the bottle in the said liquor. The complainant after seeing the dead spider in the bottle did not open the same and bottle was kept lying intact in sealed condition. The OP No.1 is manufacturer of said product and OP No.2 is the retailer and both are jointly responsible for selling of the said poisonous liquor. The liquor was sold to the complainant exposing it for human consumption, but the same was not consumable. The complainant after purchase made contact with OP No.2 for praying for changing the liquor bottle but OP No.2 refused. Subsequently, the complainant sent a Lawyer’s letter in spite of receiving the letter the OP No.2 did not take any action for which the complainant had to file this case praying for compensation of Rs. 5 lakh.

            OP No.1 did not contest the case and the case has proceeded as ex-parte against the OP No.1.

            OP No.2 has contested the case by filing a written version whereby the OP No.2 denied all the material allegations made by the complainant in the complaint. It was specifically stated by the OP No.2 is a retailer and he is not a manufacturer, therefore, the entire responsibility lies on OP No.1. OP No.2 denied that the complainant purchased the country liquor from the shop of OP No.2. It was specifically stated that the complainant is a resident of Chakvrigu under Panchayat area and he has a shop at Tahabazar under Balurghat Municipality. There is another shop at beeline within Chakvrigu area nearest to house of the complainant. The OP No.2 asserted that the complainant had instigation of some other person / persons with a

                                                                                                Contd…P/3

motive to cause harm to the goodwill of the business of OP No.2 and collected the bottle of country liquor from elsewhere of the said liquor was never purchased from the shop of the OP No.2. In view of the said fact that the OP No.2 has prayed for dismissal of the case.

On the basis of the pleadings of the respective parties following points are to be decided :-

1. Whether the complainant purchased liquor from the shop of OP No.2?
2. Whether the said liquor was manufactured by the OP No.1?

3. Whether at the time of purchase there was any dead poisonous spider remained inside the bottle?
4. Whether the bottle was in sealed condition?

5. Was there any laches or deficiency in service on the part of OP No.1 or OP No.2?
6. Whether the complainant will be entitled to get relief as prayed for?

DECISION  WITH  REASONS

            All the points are taken together for the sake of brevity and avoidance of repetition of facts.

            The complainant in order to prove the case by filing an affidavit of deposition and he corroborated his case and he also filed some documents including the sealed bottled of country liquor as well as purchase voucher to substantiate his claim that the said liquor was purchased from shop of OP No.2. PW-1 an affidavit was challenged by swearing counter affidavit by OP No.2. On behalf of OP No.1 one witness was examined who supported the version of OP No.2 and he has stated that the country liquor is manufacture with grade-I rectified spirit and after processing the same it is sealed and delivered to the respective retailers – sellers. Quality of each bottle of liquor is examined by the Excise Officer posted in the plant. He has also stated that in the history of the Himalayan Endeavour such incident never arose. He also admitted that after purchased by retailer bill is given and he admitted that the OP No.2 is their vendor pertaining to under Licence of Govt. of

                                                                                                Contd…P/4

 West Bengal Excise and responsibility of selling the poisonous product is a matter of discussion. The OP No.1 also filed questionnaire against the evidence of the complainant and he admitted that the said liquor was manufactured by the OP No.1. OP No.2 also answered the questionnaire filed by the complainant.

            Considering the questionnaire and answer given by all the parties, it is admitted fact that the complainant purchased a bottle of liquor from the shop of OP No.2. It is also admitted fact that the said liquor was manufactured by the OP No.1, though the OP No.1 sent one representative and submitted questionnaire but no written version was filed and the case has proceeded ex-parte. Perhaps the OP No.2 brought the said person and submitted the answer to the questionnaire in order to evade his responsibility. The complainant has purchased the liquor from the shop of the OP No.2 and filed the cash memo which has established the fact that the country liquor was purchased from the shop of OP No.2.

            So far as the existence of the dead spider in the bottle is concerned answer as given by the representative of the OP No.1 is an evasive one and tried to pass their responsibility upon the inspector of Excise Department, Govt. of West Bengal. It is the duty of the inspector to see the quality of the liquor so that after consumption the consumers not to have face any difficulty in future. It is not a duty of inspector to see the each and every bottle of liquor and they do not remain present at the time of sealing the bottle. The complainant has produced the sealed bottle which has been produced before this Forum, which has clearly shown that the dead spider is still in existence inside the bottle. Suddenly, if consumption of liquor would have been consumed the life of the complainant could have been at stake. Since, the bottle was in sealed condition, therefore, the OP No.2 cannot be held responsible for existence of spider inside the bottle.

                                                                                                Contd…P/5

            Considering the facts and circumstances of the case and the case is pending since 2012 on the basis of trifle matter the OPs stood on the way for the disposal of the case and OP No.1 did not dare to come before this Forum to deny the allegation levelled by the complainant. Therefore, it is held that the responsibility of existence of dead spider inside the bottle of the liquor manufactured by the OP No.1, so it cannot shirk off their responsibility regarding the supply of liquor to the retailer in any such condition. The complainant ought to have taken note of the said liquor who also evaded his responsibility and afterwards he claimed fabulous amount of compensation without bringing any notice to the OP No.2.

            Considering the facts and circumstances of the case we hold that the OP No.1 is responsible for existence of the spider inside the bottle and the complainant will be entitled to get compensation of Rs.500/- and the said compensation is to be paid by the OP Nos.1 & 3 who were admittedly the manufacturer of the said liquor particularly when the complainant produced the liquor in sealed condition before this Forum and accordingly we do not find any fault from the side of the OP No.2. Thus, all the questions / points are disposed of accordingly.

             Hence, it is

                                                O R D E R E D

            that the instant petition of complaint CC No.60/2012 is allowed on contest against the OP No.2 and ex-parte against the OP Nos.1 & 3.

The complainant will be entitled to get the compensation to the tune of Rs. 500/- from the OP Nos.1 & 3 and  the OP Nos.1 & 3 are  directed to pay the amount as compensation within 60 days from the date, failing which the complainant will be entitled to get interest @ 9% p.a. till the realization of the amount.

                                                                                                Contd…P/6

            Let a plain copy of this order be furnished to the parties forthwith free of cost.

            Dictated & corrected

            ………Sd/-….…….                                                    

            (S. N. Chatterjee)                                                       

                President                                                                

            I concur,

            ……Sd/-..……                                                           

             (S. Ganguli) 

               Member                                                               

1. Date when free copy was issued                         ……………………
2. Date of application for certified copy       ……………………
3. Date when copy was made ready            ……………………
4. Date of delivery                                        ……………………

FREE COPY [Reg. 18(6)]

1. Mode of dispatch                                ……………………
2. Date of dispatch                                  ……………………

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