IN THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI

BEFORE :       Hon’ble Thiru Justice R. SUBBIAH               PRESIDENT

                     Tmt  Dr. S.M.LATHA MAHESWARI                           MEMBER

F.A.NO.233/2014

(Against order in CC.NO.33/2011 on the file of the DCDRC, Cuddalore)

      DATED THIS THE 4^th DAY OF OCTOBER 2021        

The Proprietor

Pepsico India Holdings Pvt. Ltd.,                                 M/s. M. Kandasamy

No.6, GST Road, Mamandur,Village                                        Counsel for

Madurantagam Taluk 603 111                                  Appellant / 1^st Opposite party

                                                         Vs.

1. V.Sudhakar

S/o. Vairamani,

• te                                                  M/s. Manimuthu Kumaraswamy Mannan

68, Nethaji Road, ManjakuppamCounsel for

Cuddalore- 607 0011^st Respondent/ Complainant

2. M. Karthikeyan  

MKS Maligai StoreM/s. K.S.Selvarathinam

Saalakarai, ThiruvanthipuramCounsel for

Cuddalore Taluk 2^nd Respondent/ 2^nd opposite party

          The 1^st Respondent as complainant filed a complaint before the District Commission against the opposite parties praying for certain direction. The District Commission allowed the complaint. Against the said order, this appeal is preferred by the 1^st opposite party praying to set aside the order passed in by the District Commission dt.16.10.2012 in CC.No.33/2011.

          This appeal coming before us for hearing finally today, upon hearing the arguments of the counsel appearing for appellant and on perusing the documents, lower court records, and the order passed by the District Commission, this commission made the following order in the open court:

ORDER

JUSTICE R. SUBBIAH,  PRESIDENT  (Open court)

1.       This appeal has been filed by the appellant/ 1^st opposite party as against the order dt.16.10.2012 in CC.No.33/2011 passed by the District Consumer Disputes Redressal Commission, Cuddalore, by directing the 1^st opposite party herein to pay a sum of Rs.25000/- towards compensation and the 2^nd opposite party to pay a sum of Rs.10000/-. The District Commission also further directed that out of Rs.35000/-, a sum of Rs.15000/- shall be paid to the complainant and rest of the sum of R.20000/- shall be deposited in the legal aid account of the District Commission, on the ground that there is deficiency in service on the part of the opposite parties.         

2.       The brief facts which are necessary to decide the appeal is as follows:

          The complainant is a practicing advocate at Cuddalore.  On 1.6.2011 to host his relatives, he has purchased 10 Mini bottles of Nimbooz Cool Drinks from the 2^nd opposite party.  But in one of the bottle bearing S.Mo.8, Batch No.3 dt.16.4.2011, there was a sticker affixed inside the bottle, so he could not use the said bottle.  Due to the manufacturing defect, the materials inside the bottle can be seen with naked eye.  When he approached the 2^nd opposite party, the 2^nd opposite party had replied that he could not do anything because he is not the manufacturer.  Therefore, he filed a complaint claiming a refund of Rs.11/- towards the cost of the Cool drink bottle alongwith compensation of Rs.1 lakh as compensation for mental agony. 

3.       Though notice was served the 2^nd Respondent/ 2^nd opposite party   remained absent, and was set exparte before the District Commission.

4. The appellant/ 1^st opposite party had filed their version stating that the complaint has been filed only with a view to enrich himself in an undue manner by claiming exorbitant amount, without any cause of action, therefore liable to be dismissed.  The complainant should prove and substantiate the loss suffered by him for claiming compensation.  There is no single word about the loss suffered, therefore the complaint is liable to be dismissed.  The complainant is not a consumer within the meaning of Sec.2(1)(d) of Consumer Protection Act.  It is impossible that such a bottle can be manufactured or marketed by the 1^st opposite party.  It is difficult to believe that such bottle with alleged impurities have been unnoticed by so many people right from the stage of filling when there is light and visual inspection for foreign matter before sealing and even after sealing and then at the time loading in the delivery truck and offloading at the distributor location to retail outlet and even from the retail outlet to the consumer.  The complaint is filed with the sole purpose of misleading the Forum and making pecuniary gain.  If impurity is found in any bottle, the shop keeper could have replaced the alleged bottle for another bottle, instead of handing over the bottle for replacement for the purpose of litigation with the malafide intention of harassing this opposite party and to extract money.  The soft drinks are manufactured in modern sophisticated plants, by using a very high standard of hygiene and cleanliness.  The manufacturing process involves strict quality checks at various stages of manufacture.  The raw materials used are of the highest grade and quality and the water used in the manufacturing process is filtered, sterilized and is absolutely clean.  Each bottle is washed, disinfected and visually checked prior to filling and undergo multistage cleaning process at the bottling plant, where there is no scope of contamination.  Therefore the complaint is filed with an ulterior motive to obtain undue pecuniary gain, and thus prayed for dismissal of the complaint. 

5.  In order to prove their respective cases, proof affidavits were filed by the parties and the documents filed by the complainant were marked as Ex.A1 to A6. No documents were filed on the side of the 1^st opposite party.  The Nimbooz Cool drinks bottle was marked as MO1. 

6.       The District Commission, after analyzing the evidence has allowed the complaint directing the appellant/1^st opposite party to pay a sum of Rs.25000/- towards compensation, and the 2^nd opposite party shall pay a sum of Rs.10000/-.  The District Forum further directed that out of the total amount of Rs.35000/-, Rs.15000/- shall be paid to the complainant and the balance amount of Rs.20000/- shall be deposited to the legal aid account of the District Commission. Aggrieved over the said order, the 1^st opposite party has filed this appeal praying to set aside the order of the District Commission. 

7.       The learned counsel for the Respondents though entered appearance, have neither filed their written arguments nor appeared for arguments.  Hence we have heard the learned counsel appearing for the appellant, perused materials placed on record as well as the order impugned.

8.       The leaned counsel for the appellant has made a detailed submission adverting to the defense raised in the version.  It is the specific submission that such a bottle with sticker inside can never be manufactured or marketed by the appellant.  It is also further submitted that it is difficult to believe that the alleged bottle had not been noticed by the quality control department, as well as at the time of loading and unloading.   Further it is easy for anyone to open the bottle and pour the spurious liquid inside.  Therefore, respondent cannot blame the appellant/ 1^st opposite party.  Thus sought for dismissal of the complaint.

9.       Be it as it may, though the submission of the learned counsel for the appellant is appreciable, the fact is that the bottle was produced before the District Commission and marked as MO1.  But the opposite parties had not taken any effort to establish that the bottle was not manufactured by them, except merely making a statement by explaining their production process and the quality check etc.,     When the alleged bottle was produced before the District Commission, and the sticker affixed inside the bottle could be seen in the naked eye, the District Commission has no other option, except to allow the complaint.  The opposite parties ought to have taken some steps to prove that the drink containing bottle was not produced and marketed by them, by comparing the batch number as well as date of manufacture etc., which admittedly they failed.  Therefore absolutely we do not find any infirmity in the order of the District Commission, in fixing deficiency in service on the part of the opposite parties.

10.     However, we feel that the complainant had not sustained any adverse effect due to the deficiency committed by the opposite parties.  Therefore, we are of the considered opinion that awarding compensation to the extent of Rs.35000/- is on the higher side.  Therefore, we feel that awarding a sum of Rs.3000/- towards compensation for deficiency in service and a sum of Rs.2000/- towards litigation expenses would meet the ends of justice.  

11.     In the result, the appeal is allowed in part, by modifying the order of the District Commission in CC.No.33/2011 dt.16.10.2012, by reducing the compensation to Rs.3000/- instead of Rs.35000/-, which shall be paid jointly and severally by the opposite parties 1 and 2 to the complainant. The cost awarded @ Rs.2000/- by the District Commission is hereby confirmed.   There is no order as to cost in this appeal.  Time for compliance two months from the date of receipt of the order.

  S.M.LATHAMAHESWARI                                                              R. SUBBIAH

               MEMBER                                                                               PRESIDENT