BEFORE THE MANDYA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MANDYA PRESENT: 1. SIDDEGOWDA, B.Sc., LLB., President, 2. M.N.MANOHARA, B.A., LLB., Member, 3. A.P.MAHADEVAMMA, B.Sc., LLB., Member, ORDER Complaint No.MDF/C.C.No.83/2008 Order dated this the 27th day of November 2008 COMPLAINANT/S Sri.G.Chandrakumar S/o Late Yeshwanthappa, C/o Doreswamy, Ramamandira Street, 1st Cross, Hosahally, Mandya. (By Sri.Yogananda., Advocate) -Vs- OPPOSITE PARTY/S 1. Vinayaka Wine Stores, Mysore Road, Malavally Town, Mandya District. (EXPARTE) 2. Mysore Breweries Ltd., A Unit of SKDL Breweries, Jalahally Camp Road, Bangalore 560 022. 3. Mysore Breweries Ltd., Regional Office-I, Maha Kali Road, Andheri (East), Mumbai 400 093. (DELETED) (By Sri.T.S.Sathyananda., Advocate for O.P.2) Date of complaint 18.08.2008 Date of service of notice to Opposite parties 05.09.2008 Date of order 27.11.2008 Total Period 2 Months & 22 Days Result The complaint is allowed, directing the 1st Opposite party to pay compensation of Rs.5,000/- to the complainant with cost of Rs.500/- and 2nd Opposite party is directed to seize manufacture of hazardous goods and not to offer hazardous goods for sale and to pay Rs.10,000/- as punitive damages and that amount should be deposited towards the Consumer Legal Aid Account. Sri.Siddegowda, President 1. This complaint is filed against the Opposite parties seeking compensation of Rs.90,000/- for having supplied impure beer bottle and further to pay Rs.10,000/- for mental agony, inconvenience with costs. 2. The case of the complainant is that the complainant on 17.05.2008 at 7.30 p.m. purchased 330 ML Gold Cup Whisky and one Knock Out Beer bearing batch No.121-100 from 1st Opposite party Dealer at Malavally Taluk and paid cost of Rs.38/- and Rs.37/- respectively and obtained the receipt. In order to consume the knock out beer he took out the bottle and to his shock and surprise he noticed a Pan Parag Packet inside the bottle. He was consuming alcohol to have good health. On the label pasted over the Knock out bottle, it is mentioned perfectly harmonises alcoholic strength with a rich full bodied flavor. After noticing the pan parag packet in the knock out bottle, the complainant got hesitation to consume alcohol and the complainant is mentally disturbed and also having apprehension that the consumption of knock out may have bad effect over his health condition. The 2nd Opposite party having vast sales of its liquor who is the manufacturer of the knock out beer has not at all kept proper supervision before filling the beer bottles. This exhibits deficiency of service on the part of the 2nd Opposite party. Therefore, the present complaint is filed. 3. The 2nd Opposite party has filed version stating that the averments made in para-2 of the complaint are not within the knowledge of Opposite party and as such the complainant is put to strict proof. The allegations made in para 3 are not within the knowledge of 2nd Opposite party. The averment that the floating of pan parag packet in the knock out bottle amounts to unfair trade practice is absolutely false. Denying the allegations of made in para-5 about the deficiency of service, it is pleaded that 2nd Opposite party takes all care and caution before filling the bottles with beer. The 2nd Opposite party has not committed any deficiency in service and therefore the complaint is liable to be dismissed with costs. 4. During trail, the Complainant has filed affidavit and produced the cash bill Ex.C.1 and the Knock Out Beer bottle MO.1. On behalf of the Opposite party two witnesses have filed affidavit and examined and have produced MO.2 & 3 sample bottles. 5. We have heard the counsel for the complainant and 2nd Opposite party has filed written arguments. 6. We have perused the records. 7. Now the points that arise for our considerations are:- 1) Whether the M.O.1 beer bottle was purchased by the complainant and it contains the Pan Parag Packet? 2) Whether the 2nd Opposite party had committed deficiency in service in not taking care and not kept proper supervision before filling the beer bottle M.O.1? 3) Whether the complainant is entitled to compensation against the Opposite parties? 4) What order? 8. Our findings and reasons are as here under:- 9. The complainant case that he has purchased the Knock out Beer bottle manufactured by 2nd Opposite party is called upon for strict proof by the 2nd Opposite party. The complainant has produced Ex.C.1 the cash bill issued by 1st Opposite party who is the dealer of wines at Malavalli. It proves that the complainant has purchased Knock out beer bottle one by paying Rs.37/-. The complainant has produced M.O.1 Knock out beer bottle and it is sealed. Two witnesses examined by the 2nd Opposite party deposed that the bottle is of the 2nd Opposite party Company and their evidence is the contents Ex.C.1 are not the contents manufactured by 2nd Opposite party and further deposed that the colour of beer in M.O.1 bottle is different to the colour of beer in the bottles M.O.2 & 3 produced by the 2nd Opposite party, due to the passing of air inside the bottle. It is the further evidence of RW.1 that in the factory the bottles will be washed thoroughly before filling and then bottles will be filled through machineries and after duly examining the contents of the bottles in the presence of expert officials it will be certified by the Excise Authorities and then only after putting due seal, the bottles will be released to the dealer for sale and hence there is no chances of pan parag packet entering the bottles. According to the RW.2 evidence, there are various means to open the crown to insert foreign material without disturbing the contents and crown. The label can always be pulled out from another bottle and paste the same. The 2nd Opposite party has not examined to any independent witness to prove that there are means to open the crown of the knock out bottle without damaging the crown and other used crown could be used to close the contents of the bottle. The Opposite parties have cited a decision reported in 2008 CTJ 1216 in the case of Bhawana Kumar Vs- Varun Webres Ltd. In that case, it was alleged that a Pepsi bottle was containing lizard and the State Commission found that the some of the edges of the bottle cap were raised and some were pressed and the bottles which had been produced by the Quality Control Expert did not have that kind of edges in the bottle cap. It was seen with the assistance of magnifying glass and creping gauge and it was found that the edges of the bottle cap were tampered with. In the present case, it is not the case that the crown of the bottle is tampered with and putting pan parag packet the same damaged crown has been fixed to the M.O.1 bottle. If we closely observe the crown cap of the M.O.1 bottle there is no sings of tampering of the edges of the cap or in the center of the cap. The crown cap found in the bottle M.O.1 is similar to the sample bottles M.O.2 & 3 caps, and we cannot find any variation and particularly the edges of the crown cap of M.O.1 bottle is not at all damaged or tampered in any manner. Even, it cannot be said the colour of M.O.1 bottle content is different to the colour of the bottles M.O.2 & 3 produced by the 2nd Opposite party. Even, the Opposite parties did not got tested the M.O.1 bottle to prove the contents of M.O.1 bottle are not of the quality prepared by them and further the crown cap of the M.O.1 bottle is tampered one to establish that the complainant has tampered the bottle by putting the empty packet of pan parag. 10. Even though, it is pleaded that the company will take care and the used beer bottles of that company will be washed thoroughly in the presence of the Experts and then the bottles will be filled with beer with the machinery in the presence of the staff and then will be crowned by machine, but on some occasions, we have seen so many complaints in the Media and T.V. Newspapers about the foreign material found in the liquor bottles, cool drinks etc. When 2nd Opposite party has failed to prove that the contents of beer in M.O.1 bottle is not of the quality beer manufactured by it and the crown cap of the bottle is tampered one by got examining through an expert, then we have to hold that the complainant has proved that 2nd Opposite party has supplied the M.O.1 bottle containing pan parag packet inside the bottle M.O.1 and therefore the complainant has proved the deficiency in service by 2nd Opposite party. 11. Even though, the complainant has not consumed the beer found in M.O.1 without opening, but the presence of packet of pan parag is visible to naked eye and no consumer will consume liquor, which contains foreign material which definitely affects the health of the consumer. Naturally, the complainant who used to consume the liquor will feel danger to use the knock out beer manufactured by 2nd Opposite party Company and some mental agony will be caused. The sale of M.O.1 bottle to the complainant by 1st Opposite party Dealer is not at all disproved. It cannot be accepted that the complainant is such a person, having machinery to manufacture beer and filling the bottle of 2nd Opposite party Company and he has personal vengeance against the 2nd Opposite party Company to tarnish the image of the company. It is pertinent to note that it is not at all pleaded by the 2nd Opposite party that the complainant or the dealer have tampered with the bottle of the 2nd Opposite party Company by filling the sub-standard beer and pan parag packet to lower the reputation earned by the 2nd Opposite party Company. Specific defence is not at all taken by the 2nd Opposite party. 12. Under these circumstances, it is established that M.O.1 Knock out beer bottle is manufactured by 2nd Opposite party and it is containing pan parag packet which is hazardous to the health of the consumer and it has caused mental agony to the complainant and 1st Opposite party in spite of visible of the pan parag packet in the M.O.1 bottle to the naked eye, has sold to the complainant and therefore, 1st & 2nd Opposite parties have committed deficiency in service and the complainant is entitled to compensation at the hands of 1st Opposite party for having sold adulterated beer bottle and 2nd Opposite party should be ordered to pay punitive damages for having offered the hazardous goods for sale. 13. In the result, we proceed to pass the following order; ORDER The complaint is allowed, directing the 1st Opposite party to pay compensation of Rs.5,000/- to the complainant with cost of Rs.500/- and 2nd Opposite party is directed to seize manufacture of hazardous goods and not to offer hazardous goods for sale and to pay Rs.10,000/- as punitive damages and that amount should be deposited towards the Consumer Legal Aid Account. (Dictated to the Stenographer, transcribed, corrected and then pronounced in the open Forum this the 27th day of November 2008). (PRESIDENT) (MEMBER) (MEMBER)
