BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, MYSORE-570023

CONSUMER COMPLAINT NO.265/2017

DATED ON THIS THE 11^th August 2022

      Present:   1) Sri. B.Narayanappa

M.A., LL.B., - PRESIDENT   

                     2) Smt.Lalitha.M.K.,

M.A., B.A.L., LL.B., - MEMBER  

                        3) Sri Maruthi Vaddar,

                                                B.A., LLB (Special)  - MEMBER

Sri MARUTHI VADDAR,

MEMBER

1. The present complaint has been instituted by the complainant Sri M.S.Santhosh Kumar, resident of Ashokpuram, Mysuru under Section 12 of the C.P.Act, 1986 against the opposite parties – United Spirits Limited and Sri Mamballi K.Papegowda, Proprietor of Shiva Wines, directing the opposite party Nos.1 and 2 to pay consolidated sum of Rs.4,50,000/- as compensation to the complainant and Rs.50,000/- to the Consumer Welfare Fund and such other reliefs as this Hon’ble Commission deems fit to grant in the interest of justice and equity.  
2. The brief facts of the complaint is as under:-

It is alleged in the complaint that first opposite party is the manufacturer of Mc Dowell’s Whisky (No.1) and the said whisty is a blend of imported scotch and Indian malt Whiskies.The said Mc Dowell’s Whisky (No.1) is sold in several countries apart India including Africa, Canada, Far East etc., That the said Mc Dowell’s Whisky is the largest selling and has been continuously achieving roaring retail sales. That to market the Whisky, the first opposite party has mainly used the Bollywood and Cricket, as well as sports and music events.These advertisements have created a brand image in the minds of all the persons who actually consume liquor specifically Mc Dowell’s Whisky.

It is further alleged in the complaint that the complainant is also regularly consuming the same Whisky and is a regular customer of the second opposite party who is an authorized dealer permitted to sell the Whisky manufactured by the first opposite party.On 07.07.2017, the complainant approached the second opposite party and requested for one bottle Mc Dowell’s Whisky (No.1) 180 ML and paid the demanded sum and the bottle was wrapped in a newspaper and given which is the usual mode of packing, the complainant then and there heard an unusual sound coming out from the bottle in the premises of the second opposite party.Since it was quiet surprising sound, the complainant took a look and could notice that there was a foreign object i.e. a metal object of not less than 5 inches and that metal object was making the said sound inside the said bottle.

It is further averred that being shocked and surprised with a foreign object inside the Whisky bottle, the complainant immediately informed the same to the second opposite party who inspected the same and was surprised to see the metal object inside the said bottle.The complainant who was a regular customer of both opposite parties and questioned the quality of the Whisky sold to him and the second opposite party did not give any answer and dodged the matter by stating there are other customers to be attended to.The complainant immediately addressed to the customer care cell of the first opposite party and clearly narrated that the Whisky bottle sold to him contained the foreign object which should not be there and presence of such an object makes the drinks spurious and also unfit for consumption.The customer cell informed the complainant that they would be meeting the complainant regarding the issue, but there was no response.Hence, after issue of legal notice, this complaint has been filed.

3. After registration of the complaint, the notices were ordered to be issued to the opposite parties and in spite of service of the notices, the first opposite party was appeared through its counsel and filed vakalath and version and also additional version.  But, the second opposite party did not appear, hence, he was placed exparte.
4. In the version of first opposite party, it denied all the allegations made in the complaint and further submitted that he admitted the manufacturing alcoholic beverages in Karnataka, he has got no authority to sell the same directly in the market in Karnataka, the Government has formed an agency by name Karnataka Beverages Corporation Limited (KBCL) to handle the sales in alcoholic beverages manufactured by the companies.  The said KBCL authority receives the alcoholic beverages from the first opposite party including other companies.  The entire process of production/dispatch, loading sealed cases to respective vehicles for transporting various destinations are monitored by excise officers deputed at the Unit.  The KBCL authority supplies the liquor to the license holders at the rate fixed by them.  The said authority will maintain the track record of the products that being transported by them to various license holders.  Before dispatching the packed commodity, the KBCL will verify the commodity stored in their godown.  Therefore, the Karnataka Beverages Corporation Limited is a necessary party to the above case.  There is no record to show that the complainant has purchased the alleged product stated in the complaint by paying the price offered under packed commodity. Hence, first opposite party prays to dismiss the complaint with costs.   
5. Thereafter, the first opposite party has filed additional version and in the same, the first opposite party stated in para No.c of the additional version, that Mr.Dinesh Mallya, Senior Manager from Quality Department had verified the alleged Whisky in open court and on his verification, he observed that the Excise adhesive label and the cap of the bottle have been tampered and the bottle was found wet due to the leakage of blend.  Moreover, the whisky bottle in court was not manufactured in accordance with standard operative procedure and there are rival competitors in market who are involved in sales on similar kinds of bottle products. It is learnt that the complainant is attached to some manufacturers of sealed bottles product similar to business of first opposite party and the complainant has good experience in cap fitting and removing and also pasting of labels on the bottle products. Hence, first opposite party prays to dismiss the complaint.
6. The complainant has filed his affidavit by way of examination in chief and the same was taken as P.W.1 and produced certain documents.  On the other hand, the first opposite party has filed his affidavit by way of examination in chief and the same was taken as R.W.1 and did not choose to produce any documents.   
7. Heard the arguments of first opposite party’s counsel and perused the documents placed on record.
8. The points that would arise for our consideration are as here under:-  

1. Whether the complainant proves the alleged deficiency in service on the part of the opposite parties and thereby he is entitled to the reliefs as sought for?
2.  What order?

9.       Our findings on the aforesaid points are as follows:

      Point No.1 :- In the negative

      Point No.2 :- As per final order for the following

:: R E A S O N S ::

10.       Point No.1:- It is the specific case of the complainant that the complainant is regularly consuming the Mc.Dowell’s Whisky and he is the regular customer of second opposite party who is an authorized dealer permitted to sell the Whisky manufactured by first opposite party and on 07.07.2017 the complainant approached the second opposite party and requested for a bottle of Mc Dowell’s Whisky (No.1) 180 ML and paid the demanded sum.  When the bottle was wrapped in a newspaper and given which is the usual mode of packing, the complainant then and there heard the unusual sound coming out from the bottle in the premises of second opposite party.  Since it was quite surprising sound, the complainant took a look and noticed that there was a foreign object i.e. metal object of not less than 5 inches and that metal object was making the said sound inside the said bottle.  To prove this particular aspect, the complainant has been examined himself as P.W.1 and not marked any documents in support of his case and thereafter, first opposite party has filed affidavit towards chief examination and the same is taken as R.W.1 and did not chosen to mark any documents on his side.  Both the complainant and first opposite party have reiterated their pleading averments in their respective affidavits.  After the affidavit of both parties, only first opposite party has filed written arguments and addressed the oral arguments.  The complainant also addressed his arguments.  After carefully looking into the rival contentions of both the parties, there is a presumption arises as to the purchase of the whisky bottle by the complainant.  But, no documents have been produced by the complainant except the photocopies of the whisky bottle.  These are not held sufficient to prove the case of the complainant.  The complainant is required to produce more reliable documents like cash bill etc., from which he supposed to have purchased the said bottle from the second opposite party.  Here in this case, no such bill or document has been produced by the complainant. It is the contention of the first opposite party that in page Nos.14 and 15 of the version of the first opposite party, that the first opposite party said that there is no regard to show that the complainant has purchased the alleged product stated in the complaint by paying price offered under packed commodity and in page 15 that the incident narrated by the above complainant about purchase of product throws suspicious upon the conduct of the complainant.  Such being the contention of the first opposite party, the initial burden of proving the case lies on the complainant when he discharged the said burden, it automatically shifts on the opposite party side.  Hence, the complainant failed to discharge the initial burden lies on him.  Hence, the question of proving the opposite parties case does not arise.  When the complainant failed to produce the reliable documents like cash bill etc., merely producing the photocopies of the Whisky bottle, producing the bottle before this Commission and issuing of legal notice hold no water.  Hence, we are of the considered opinion that the complainant has failed to produce sufficient cogent evidence to come to the conclusion that there is alleged deficiency in service and unfair trade practice on the part of the opposite parties.  Hence, the complainant failed to prove his case and thus the complaint of the complainant is devoid of merits and it is sans merit.  Hence, we answer the point No.1 in the negative.
11. Point No.2:- For the aforesaid reasons, we proceed to pass the following

:: ORDER ::

1. The complaint filed by complainant is hereby dismissed.
2. There shall be no order as to cost.
3. Furnish the copy of order to both parties at free of cost.

(Dictated to the Stenographer transcribed, typed by her, corrected by us and then pronounced in open Commission on this the 11^th August, 2022)