BEFORE THE DISTT.CONSUMER DISPUTES REDRESSAL FORUM; FATEHABAD.

C.C.No. 350 of 2015.

Date of Instt.: 16.12.2015.

Date of Decision: 27.03.2017.

Rohit aged 27 years son of Sh.Chiranji Lal, Caste Jat, resident of House No.123, Green Park Colony, Ward No.17, Bhattu Road, Fatehabad Tehsil & District Fatehabad.    

                                                                             ..Complainant 

  Versus

1.Varun Beverages Limited village Ali Assarpur, P.O.Ganjbar, G.T.Road, Panipat (Haryana)-132103.

2.M/sS.K.Enterprises, Authorised Distributor Pepsi Cold Drinks Old Bus Stand, DSP Road, Fatehabad, Haryana 125050.

                                                                        ..Opposite parties.

              Complaint under Section 12 of CP Act

Before:                 Sh.Raghbir Singh, President.

                             Smt. Ansuya Bishnoi, Member.

Present:                 Sh.Mohit Boora, Advocate for complainant.

                             Sh.Kapil Nagpal, Advocate for OP No.1.

                             Sh.Mohan Sharma, Advocate for OP No.2.

ORDER

                              Brief facts of the present complaint are that the complainant had purchased 24 glass bottles of soft drinks (Pepsi) containing 200 ml. each  bearing batch No.BN935E26H15 with date of manufacturing as 26.08.2015 for a sum of Rs.202/- from OP No.2 manufactured by OP No.1. On 23.10.2015 just after consuming said cold drink the complainant started vomiting and felt pain in the stomach, therefore, he was admitted in hospital. It has been further averred that thereafter the complainant checked the empty bottles and the remaining bottles which were not opened and came to know that the soft drinks were not consumable as there was some poisonous/unwanted contents in the same and it can be easily seen with naked eyes. It has been further averred that had the complainant consumed the poisonous contents in more quantity then he could have lost his eye sight as well as hearing power and even his life also would have been in danger. It all happened due to negligence of the Ops, therefore, the complainant got served legal notices upon them to pay compensation to the tune of Rs.2,00,000/- alognwith costs of bottles besides cost of litigation expenses but in vain.  Hence, this complaint. In evidence, the complainant has tendered his affidavit Ex.CW/A, documents Ex.C1 to Ex.C13 and Annexure  1 to Annexure 4.

2.                On notice OP No.1 appeared and contested the complaint of the complainant by filing separate replies taking several preliminary objections such as maintainability, suppression of material facts, complainant does not fall within the ambit of consumer and cause of action etc. It has also been submitted that the bottles have not been tested from any laboratory, therefore, there is nothing on the case file to show that the bottles were having impurities. The process of manufacturing of bottles is full proof and there is no scope of entering of any foreign particle in the bottles, therefore, question of alleged impurities or containing foreign material in the same does not arise at all because soft drinks are manufactured in modern sophisticated plants having high standard of hygiene and cleanliness.  It has also been submitted that there is no specific evidence to prove that the bottles in issue were manufactured by OP No.1.  It has been further submitted that the present complaint has been filed just to extract money as there is nothing on the file to show that the complainant suffered illness on account of consuming the contents of the bottles.  There is no deficiency in service on the part of OP No.1.

3.                          OP No.2 in its reply has taken many preliminary objections and submitted that the complainant has no cause of action to file the present complaint; that the present complaint is not maintainable; that he does not fall within the ambit of consumer; that the complainant has not approached to this Forum with clean hands; that the complainant has no locus standi to file the present complaint; that this Forum has no jurisdiction to try and decide the present complaint. It has been further submitted that there is neither any allegation nor any material on record to point out that the complainant purchased any goods for consideration from the answering respondent. It has also been averred by the OP No.2 that it is not engaged in selling the cold drinks to the consumers directly and therefore until and unless it is not conclusive proved that the impugned soft drinks were manufactured by OP No.1 and marketed by Op No.2 there is no liability upon the Ops. The OP NO.2 has also submitted that either the impugned bottles are duplicate product or it has been tampered by someone deliberately and with ulterior motive by putting the alien object inside it. It has been further submitted that OP No.2 is distributor of OP No.1 and the bottles of soft drinks are sold in sealed and packed condition in which the bottles are received from  OP No.1 and as such the OP No.2 is not liable to compensate the complainant. It has been further submitted that some spurious product in the same brand names of slice soft drink are being sold in the market from Hisar, Delhi and other districts, therefore, the Op No.2 cannot be held liable for the same. No notice was ever served upon the Op No.2; therefore, question of reply to the notice does not arise at all.  Other pleas made in the complaint have been controverted and prayer for dismissal of the complaint has been made.  In evidence the OPs have tendered affidavit of Sh.Puran Chand as Ex.RW1/A and documents Annexure R1 to Annexure R3.  In affidavit Annexure RW1/A it has been affirmed by the deponent Puran Chan, proprietor of the firm M/s S.K.Enterprises that the complainant never purchased alleged bottles from our firm because the firm o fthe deponent is registered firm and deals with Pukka Bills (computerized bill). The deponent firm issues a legal receipt i.e. Pukka bills through computerized bills to every person who purchases the pepsi brand bottles from our firm. Ex.R1 is copy of the complaint in CC No.356 of 2015 titled as Sameer Vs. Varun Beverages and others pending in this Court. In the said complaint Mr.Rohit has been shown as complainant, however the same has been signed by Sameer. Ex.R-2 is copy of computerized bill being issued by the OP No.2. Ex.R3 is cutting of a newspaper wherein news of manufacturing of duplicate cold drinks has been published.

 4.               Heard. The counsel for the complainant reiterated the averments made in the complaint and prayed for its acceptance whereas the counsels for OPs reiterated the averments made in the reply and prayed for dismissal of the complaint.

5.                Learned counsel for the complainant has argued that the soft drinks purchased by the complainant from OP No.2 manufactured by Op No.1 were having some contraband/unwanted content (poison) in the same because after consuming it he was hospitalized with complaint of vomiting and stomach pain. Learned counsel for the complainant in support of his pleadings and arguments drew the attention of this Forum towards duly sworn affidavit of complainant Ex.CW1/A and documents Ex.C1 (bill/invoice), Ex.C2 (Copy of legal notice), Ex.C3 & Ex.C4 (postal receipts), Ex.C5 to Ex.C7, Ex.C10, Ex.C11, Ex.C12, Ex.C13 (copies of treatment summary), Ex.C8 & Ex.C9 (copies of pathological reports) Annexure 1 to Annexure 4 (Copies of bill of medicines purchased by complainant). 

6.                Per contra, learned counsels for the OPs have argued that the present complaint has been filed just to harass and defame the brand name as well as to extract money from them. Learned counsel for the OP No.1 argued that the bill Ex.C1 does not bear signatures/stamp of the seller/dealer   and even same does not bear the batch number with manufacturing date.  It was for the complainant to produce the case property/bottles of soft drinks before this Forum along with the complaint on the day of presentation but it was not done so, therefore, there is every possibility of tempering of the seal of the bottles. It was further argued that the complainant might have fallen ill but it was not due to the reason of soft drinks allegedly consumed by the complainant after purchasing the same from the OP No.2. Learned counsel for OP No.1 further argued that the groups of people have filed frivolous complaints against Op No.1 with malafide intention because another complaint titled as Rohit Vs. Varun Beverages Limited & Anr. is also pending before this Forum and both the  cases are having identical facts and proves that the present complaint and other complaint have been filed by colliding with each other just to extract money from OP No.1.

7.                          Arguments advanced by counsels for the parties  have been duly considered, evidence led by the parties and documents on the record of the file have also been perused. We have also seen the impugned bottles of cold drinks alleged to be contaminated.  A contaminated substance/ foreign object is clearly visible in the bottles from the naked eyes. Therefore, it is well established that contents in the impugned glass bottles of cold drinks are contaminated, spurious or sub-standard. Therefore, the contents of the bottles were not needed to be sent to the laboratory for chemical examination. The samples of the impugned bottles were sent to the laboratory mainly to examine as to whether the seals of the bottles are tampered or not. However, despite due efforts the examination report of laboratory could not be obtained. Thereafter, keeping in view the statement made by the complainant on 22.02.2017 the case was proceeded further. Now, the main issue to be decided by this Forum is as to whether the impugned contaminated bottles were sold by OP No.2 and manufactured by OP No.1 or not. To prove its contention that the impugned/contaminated bottles were purchased from OP No.2 the complainant has tendered in evidence the invoice/bill Ex.C-1. However, a perusal of Ex.C-1 reveals that it is not signed by the seller. Neither any quantity of bottles alleged to have been sold have been shown nor the batch number of the bottles have been mentioned. Only an amount of Rs.202/- has been shown. We are of the considered opinion that Ex.C-1 is not cogent, authentic and sufficient piece of evidence to prove that bottles in dispute were sold by the OP No.2. On the other hand, the OP No.2 has specifically submitted that it is distributor of OP No.1 and does not sell the cold drinks   directly to the consumers. The OP No.2 vide affidavit Ex.RW-1/A has affirmed that OP No.2 is a registered firm and as such it deals with Pukka bills. The OP No.2 issue receipt/Pukka bill through computerized bills to every person, therefore, the complainant never purchased the alleged bottles from OP No.2. No evidence has been produced by the complainant to connect the OP No.1 with the manufacturing of bottles in dispute. Onus is upon the complainant to prove that the spurious/contaminated bottles of cold drinks involved in the present case were manufactured by the OP No.1 it is a thing of common knowledge that the products of brand companies are sold through a large network of distributors and dealers. These products are in high demand and on a number of occasions the products are found to be spurious which may not be the act of manufacturing company.

8.                          In view of the discussion as made above we are of the opinion that the complainant has failed to prove any deficiency on the part of Ops and as such the present complaint is hereby dismissed leaving the parties to bear their own costs. Copy of this order be supplied to both the parties free of cost. File be consigned after due compliance.

Announced in open Forum.

Dated:27.03.2017

                                                                   (Raghbir Singh)

                                                                       President,

(Ansuya Bishnoi)                                Distt.Consumer Disputes

      Member,                                                 Redressal Forum, Fatehabad.