ORDER
In brief the complainant has agitated the following facts:-
That the complainant has purchased four 300 ml each cold drink bottles make Pepsi packed and sealed and two packets of Namkeen at the cost of Rs.60/- from opposite party No.3 (Mukesh Tea Stall). After purchasing, the complainant brought the product at his house and he found that out of four bottles of cold drink-make Pepsi purchased by him after paying consideration one of the bottles was containing foreign material inside it (pouch of Gutka) and that foreign material could be seen with naked eyes.
The allegations of the complainant are that the opposite party No.3 has sold the adulterated bottle having foreign material in it and if any person or member of the family would have consumed it then it would have resulted in major accident or even would have caused death of the member. Further the allegations of the complainant, it is alleged that the Pepsi bottle was having batch No.B-12 BO79 dated 13.04.2009 and that bottle is still in possession in sealed condition with the complainant.
The complainant issued legal notice dated 5th May, 2009 to the opposite parties which even did not bother to reply, not to talk of providing sufficient services, compensation or replace the bottle of cold drink in question.
When all the efforts of the complainant to compromise with the opposite parties turned futile, he was left no other option but to knock the door of the present Forum and he has filed the present complaint in hand before this Forum and prayed to this Forum to direct the opposite parties to pay compensation to the tune of Rs.1lac (1,00,000), further he has demanded Rs.20,000/- as compensation for mental agony and harassment and he has also prayed for any other relief which this Forum may deems fit and proper.
On registration of the complaint, the notices were issued to the opposite parties. The opposite party No.2&3 were proceeded exparte on 27.07.2009 and opposite party No.1 appeared through his Ld.counsel and filed a detailed reply of the complaint in hand.
The Ld. counsel for the opposite party No.1 has at the very outset of his reply in the preliminary objections has raised objections that the complainant has filed the present complaint with ulterior motives to extract money from the opposite party No.1, complaint is not maintainable, complainant has not come out with clean hands before this Forum and further he has taken the plea that opposite party No.1 has modern, sophisticated and most hygienic plants of international quality, where aerated soft drinks and beverages are manufactured and bottled under the license of Pepsi co. Inc., USA and Pepsi Foods Ltd., India. In preliminary objections, he has further pleaded that the present complaint is false and frivolous and has been filed without any cause against the opposite party No.1 and may be dismissed. He has further raised preliminary objections that alleged Pepsi bottle has not been sent for proper testing so as to verify whether the alleged product is manufactured, bottled and sealed by the opposite party No.1. In preliminary objections, it is further stated that the products under the marks Miranda, are so popular that many unscrupulous people and firms have illegally and clandestinely started manufacturing and bottling soft drink of inferior quality by falsifying and infringing the said trade mark like Miranda, Pepsi, Dew etc. and also by falsifying and infringing the designs of the bottles of Pepsi Company. The Ld. Counsel has further taken the preliminary objection that the present complaint is an abuse and misuse of the process of law. In parawise reply, the opposite party No.1 has refuted all the allegations of the complainant and denied them in toto and he has prayed for dismissal of the complaint and in para No.1 of the reply filed by opposite party No.1, he has taken the plea that complainant has not suffered any mental agony and harassment. Further in para No.4, he has denied that he has received any legal notice dated 5.5.2009 and in the end, he has prayed to this Forum for dismissal of the complaint and grant cost and legal expenses in favour of opposite party no.1. But strange enough in para No.3 of preliminary objections, the opposite party No.1 has admitted the Batch Number and date of manufacturing printed on the neck of the bottle in question.
To substantiate his case both the parties have adduced their evidence. The complainant in order to prove his case has produced his affidavit in which the complainant has reasserted the allegations levelled in the complaint. In addition, to it the complainant has also placed on record the legal notices issued to the opposite parties dated 5th May, 2009. The postal receipts to this effect are also placed on file. In addition to it, the complainant has also placed on file a Cash Memo pertaining to purchase of four bottles of cold drink make Pepsi and two packets of Namkeen for which he has paid Rs.60/-. This bill also pertains to one of the bottles in question which contains foreign material and as alleged to have been adulterated.
Similarly, the opposite party No.1 to substantiate his case, has filed an affidavit of legal executive of the company namely Shri Gaurav Chahal. In his affidavit, he has reasserted the facts which have been stated by opposite party No.1 and have denied all the allegations levelled against the opposite party No.1 by the complainant. In addition to it, the opposite party No.1 has also placed on record ‘Annexure A’ placed on page no.43 of Forum’s file which bears the names and FIR numbers lodged during the period 2002 to 2007 against different persons with respect to the offence of falsification of trademarks like Pepsi, Miranda,7up etc. and further he has placed on record the different FIRs lodged in various Police Stations of the other States and in addition to it, he has also placed on record the photocopy of the newspaper cuttings in which he has tried to prove that spurious soft drink of different trademarks like Pepsi & Coca cola etc. are illegally manufactured by those persons who have no manufacturing license.
After adducing evidence, both the parties have also filed their written arguments as well as raised oral arguments to substantiate their case. The complainant while raising the arguments have forcefully argued that opposite party No.3 have supplied to him a contaminated bottle of cold drink which was containing a Gutka/pouch. The Ld.counsel also brought the cold drink of Pepsi make in question before the Forum and it was in a same condition with cover sealed, date and batch number marked when it was taken on record and the foreign material i.e. the Pouch/Gutka could be seen with naked eyes when the bottle was produced before this Forum. Though, earlier when the case was filed before the Hon’ble District Forum,Gurgaon at that time the bottle was produced and an order dated 14.09.2009 has been passed by the then Hon’ble Forum at Gurgaon that there is no need of sending the bottle in question for analysis as the pouch/Gutka is visible with naked eyes in the bottle in question. The ld. counsel for the complainant further argued that the foreign material can be seen with naked eyes and there is no need of any expert to find out whether there is any foreign material in the bottle in question. In addition to it, he has also placed on record the copy of Cash Memo Receipt signed by opposite party no.3 ( the shopkeeper from whom he purchased the bottles in question) by paying the cost of it and opposite party No.3 has not come before this Forum to rebutt the allegations levelled against him. The Ld. counsel has further argued that there is only one proprietor of cold/soft drink make Pepsi in District Mewat and he is opposite party no.2 and he has also not come before this Forum to rebutt the allegations levelled against him. Ld. Counsel for the complainant argued that he has been supplied the cold drink of trademark Pepsi which contains foreign material and is adulterated and if it would have been consumed by the complainant or his family members, it would have resulted in Major accident or some mis- happening of unseen and unimagined nature. He has further argued that due to negligent and insufficient act of the opposite parties, the complainant has suffered a lot of mental agony, pain and harassment and he is entitled for compensation and litigation expenses as he has suffered a lot due to the negligent act of the opposite parties. In addition to it, the complainant has also raised his arguments that as soon as he found the Gutka in the Pepsi bottle in question, the complainant approached the opposite party No.3 but he refused to replace the said Pepsi bottle as the same has not been replaced by him and complainant was simply told that it has been delivered by opposite party No.2 to him and it has been manufactured by opposite party No.1. Further he has prayed for compensation, litigation expenses and sufferings due to negligent act of the opposite parties. On the contrary opposite party No.1 has also filed his written arguments and in addition to it, he has denied all the allegations levelled against him in toto. In arguments, Ld. counsel of opposite party No.1 has argued that batch number of the bottle which has been shown on the bottles neck does not belong to him but in reply in para no.3 of preliminary objection, it has been already admitted. He has further argued that complainant is not a Consumer’ as defined in the Consumer Protection Act. He has further argued that complainant has filed the present complaint just to extract the from the opposite party no.1 which is abuse of process of law and further he has stated that the said bottle manufactured by the opposite party no.1 has not been proved by the complainant. The Ld. counsel further argued that no damage was caused to complainant and thus he is not entitled to any compensation. In addition to it, he has further argued that lot of precautions have been taken by opposite party No.1 before manufacturing and bottling of cold drink in question and their techniques are modern, sophisticated and hygienic and cannot commit such a negligent act. He has further argued that a number of companies are indulging in manufacturing spurious cold drinks at various places in the various States and the bottle in question does not belong to their company and it must have been manufactured by those local companies regarding those he has placed on record the photocopies of newspaper cuttings and FIR. Further he has argued that the complainant has filed the complaint against the opposite party No.1 with an ulterior motive and intention just to extract money from him and opposite party no.1 is not liable for any kind of negligent act for providing any kind of services to the complainant. Hence, the complaint against opposite party No.1 is not maintainable and same may please be dismissed. It is observed by the Forum the FIR filed and placed on record is not related to the period in question and place.
After hearing the arguments of both the counsels for the parties and going through the facts on file and the evidence adduced by both the parties and after evaluating the evidence, this Forum came to the conclusion that the complainant has purchased the cold drink bottle make Pepsi having batch No.B 12-B 079 dated 13.4.2009 which is also printed on the neck of bottle in question which has been produced before this Forum. With naked eyes it can be seen that there is foreign material in the bottle in the form of Gutka so it is proved beyond doubt that the bottle is contaminated one and is having foreign material in it and further the complainant has purchased it from the opposite party No.3 i.e. M/s Mukesh Proprietor, Mukesh Tea Stall as the receipt regarding selling it to the complainant has been produced before this Forum which bears the signatures of Mukesh Proprietor-opposite party no.3 shows that he is the owner of the shop from where the bottle was purchased by the complainant. This Forum further have come to the conclusion that complainant has proved that opposite party no.2 is the only sole proprietor of the cold drink of make Pepsi in District Mewat which he is running the proprietorship in the name and style of Proprietor of Tahir Agencies, Mewat. The soft drink bottle make Pepsi which was produced in same condition cover on bottle sealed with a foreign material in it in the form of Gutka/pouch and which can be visible and was seen by the Ld. counsels of both the parties and also by this Forum with naked eyes which goes to establish that the bottle in question was contaminated and having foreign material in it. The solitary objection which was raised by opposite party no.1 that bottle in question does not have the companies (opposite party no.1) batch number and the batch number of the bottle in question is not matching with the batch number of the opposite party no.1, non- manufacturing of the bottle in question has not been proved by opposite party no.1 by placing on record any such document which shows that the batch mark in question on the neck of bottle proves that cold drink bottle does not belongs to opposite party No.1. The record placed on file pertaining to FIRs and cuttings of newspaper shows that there are many complaints in this regard, regarding the manufacturing of illegal bottles but there is no FIR or newspaper cutting pertaining to the Mewat District in documents produced by the opposite party no.1 as ‘Annexure 1’ or against opposite party No. 1 & 3. This Forum is of the view that the bottle in question make Pepsi has been manufactured by opposite party no.1 and further opposite party no.2 & 3 have not come before this Forum to rebutt the charges levelled against them. Simply taking the solitary plea by opposite party no.1 that this bottle in question does not belong to him or to his company as has not been manufactured by opposite party no.1 is not sufficient and does not absolve him from the liability of negligency and further the sufficient services which the opposite parties have failed to provide to the complainant when he approached the opposite party no.3 to replace the bottle in question or provide him another bottle, he failed to do so and neither he helped in replacing the bottle in question nor informed the opposite party no.1&2 regarding the contaminated bottle having foreign material.
The citations cited by opposite party no.1 are as under:
- Darshan Singh Ahuja Vs. Hamdard (Wakf) Laboratories & another: III (2005) CPL 312: in which he has tried to prove that complainant is not a consumer of opposite party No.1 is not maintainable as the facts of this case are different from the facts in the complaint in hand.
- 2002 Judicial Reports Consumer 382: Pepsi Cola India Marketing Co. Vs. Ashok Kumar Gupta (SC Lucknow): this citation is not applicable to the present complaint as in the present complaint the bottle in question is manufactured by opposite party no.1 i.e. Varun Beverages Ltd. and bottle in question is not manufactured by any spurious company.
Resultantly this Forum has no hesitation to accept and allow the complaint in hand of the complainant and directs:-
- The opposite parties to pay compensation to the tune of Rs.30,000/-( thirty thousand) as all the opposite parties are found to be contributory negligent, each party has to pay Rs.10,000/- to the complainant.
- The opposite parties are also liable to pay Rs.6000/-(six thousand) as compensation of mental agony and harassment which is to be paid equally by all the opposite parties to the complainant.
- The opposite parties are further liable to pay litigation expenses to the tune of Rs.2100/- (twenty one hundred) to pay equally by all the opposite parties to the complainant.
The bottle in question after perusal by this Forum and Ld. counsels of both the parties has been returned to the complainant after hearing of the arguments.
The above said directions are to be complied within 45 days from the receipt of this order otherwise the opposite parties will be further burdened to the tune of Rs.30,000/- to be paid equally by each opposite party to the complainant.
Copy of this order be given to the parties free of costs. File be consigned to record room after doing needful. This order of the Forum is running into 9 pages in total and each and every page of this order has been signed.
Announced in open Court.
04.03.2015
(Rajbir Singh Dhariwal) (Jagbir Singh)
(Member) President,
District Consumer Disputes
Redressal Forum,Mewat at Nuh
