Punjab

Faridkot

CC/15/164

Khushwinder Singh - Complainant(s)

Versus

Wave Beverages Pvt. Ltd. - Opp.Party(s)

Ranjit Singh

15 Jun 2016

ORDER

        DISTRICT  CONSUMER  DISPUTES  REDRESSAL  FORUM,  FARIDKOT

 

Complaint No. :        164

Date of Institution :   23.11.2015

Date of Decision :     15.06.2016

 

Khushwinder Singh aged about 30 years s/o Joginder Singh r/o Village Ramgarh (Bhagtuana), Tehsil Jaitu, District Faridkot.

   .....Complainant

Versus

1. Wave Beverages Pvt Ltd. 14-KM Stone, Amritsar-Jallandhar G.T.Road, VPO Nawan Kot, Near Jandiala Guru, District Amritsar, Punjab-143115.

2. Jain Brothers, Kotkapura Road, Jaitu, Tehsil Jaitu, District Faridkot through its Proprietor Vijay Kumar s/o Panna Lal.

3. Hindustan Coca Cola Beverages Private Limited, B-91, Mayapuri Industrial Area, Phase-I, New Delhi-110064.

                                       ....Opposite Parties(Ops)

   Complaint under Section 12 of the

   Consumer Protection Act, 1986.

   Quorum:     Sh. Ajit Aggarwal, President.

   Smt Parampal Kaur, Member,

   Sh P Singla, Member.

   Present:       Sh Ranjit Singh, Ld Counsel for complainant,

    Sh Ashok Monga, Ld Counsel for OP-1 & 2,

    Sh Kuldeep Singh Mittal, Ld Counsel for OP-3.

    

   (Ajit Aggarwal , President)

                                                Complainant has filed the present complaint under Section 12 of the Consumer Protection Act, 1986 against Ops seeking directions to Ops to pay Rs.3,00,000/- as compensation for mental agony and harassment etc and Rs 11,000/-as litigation expenses.

   2                                          Briefly stated, the case of the complainant is that complainant purchased a crate of soft drinks make Coca Cola of 200 ml each from OP-2 vide bill no.480 dt 30.10.2015 in the presence of Baldev Singh s/o Kehar Singh. It is contended that OP-2 issued bill to complainant after several requests made by him. It is further contended that one bottle with batch no. AsrR1BN306 of 3.06.2015 was infested with some foreign elements, which made the same unfit for human consumption. Complainant did not use the same and reported the matter to OP-2, who assured complainant that he would talk to OP-1. After about 10 days, complainant visited OP-2 and asked about his complaint, but OP-2 flatly refused to admit his guilt and asked complainant to not to come to his shop again. Thereafter, complainant requested OP-1 to look into the matter and also informed about the said act of OP-2, but OP-1 instead of hearing his complaint, told him that there is nothing wrong in cold drinks. All this act of OPs has caused unnecessary harassment and mental agony to complainant and it amounts to deficiency in service and trade mal practice on the part of OPs and due to this complainant has prayed for seeking direction to Ops to pay Rs. 3 lacs as compensation for mental agony and harassment etc and Rs.11,000/- as litigation expenses besides the main relief. Hence, the complaint.

   3                                          The Counsel for complainant was heard with regard to admission of the complaint and vide order dated 3.12.2015, complaint was admitted and notice was ordered to be issued to the opposite party.

   4                                       On receipt of the notice, OP-1 and 2 filed reply taking preliminary objections that complaint filed by complainant is not maintainable as it has been filed with ulterior motive to harass and cause financial loss to answering OPs. It is based on fraudulent facts as complainant did not purchase the said cold drink from OP-2. Complainant purchased the said cold drink from some Karyana Merchant and not from OP-2 and he approached OP-2, mis-stated the facts that he requires a bill regarding amount spent on drinks required for a common function and OP-2 issued the bill dt 30.10.2015 for courtesy sake. Moreover, complaint involves complicated questions of law and facts, which require voluminous evidence, which is not possible in this Forum having limited jurisdiction and time span. Complainant has also concealed the material facts from this Forum and said drink has not been analyzed from any laboratory to prove that it was not good for human consumption. It is further averred that there is not deficiency in service on the part of answering OPs. However, on merits, OP-1 and 2 has denied all the allegations levelled by complainant being wrong and incorrect and asserted that complainant never purchased any crate of soft drinks from OP-2 and he has played fraud upon OPs as he has concealed material facts from this Forum. No chemical examination of said soft drink is got done by complainant to prove that it was unfit for consumption. All the other allegations and allegation with regard to relief sought too were refuted and have been denied being wrong and incorrect and prayed for dismissed of complaint.

   5                                          On receipt of the notice, OP- 3 filed reply taking preliminary objections that complaint is not maintainable on the ground that complaint is false, frivolous and vague and is a process of abuse of law.  No cause of action arises against OP-3 and this Forum has no jurisdiction to hear and try the present complaint. It is averred that complainant is not the consumer of OP-3 as no authentic proof of purchase is produced by complainant. Complainant has produced only a cash memo, which does not bear his name, name of product bought and its batch number. Complainant has himself admitted that no bill was issued at the time of purchase and same was procured later on and thus, it can not be assumed that bottle containing foreign material was purchased by complainant from OP-2. There is no mention that bottle of coca cola was bought by complainant. It is further averred that bill relates to purchase of 300 ml whereas allegation relates to 200 ml bottle of coca cola. It is asserted that complaint is bad for mis-joinder of necessary parties. Answering OP is only bottler of Coca Cola India Pvt ltd and it is a subsidiary of The Coca Cola Company, Atlanta, United States of America. OP-3 manufactures and distributes Coca-Cola products such as Coca Cola, Sprite, Fanta, Diet Coke, Limca, Thums-up, Maaza etc in certain parts of India under the authority of Coca Cola Company, Atlanta, U.S.A. It does not manufacture and distribute th Coca-Cola products  in the area where the alleged bottle has been purchased i.e Jaitu Tehsil Jaitu District Faridkot. Allegations levelled by complainant are based on mere assumptions and presumptions and complainant has failed to follow the mandatory procedure prescribed under the Food Safety Act for testing of any food article alleged to be adulterated or containing foreign material and there is no authenticated report of expert and qualified person of central approved labs to support the allegations of the complainant and in the absence of any expert evidence, the claim of complainant cannot be allowed. There is no deficiency in service on the part of answering OP. However, on merits, it is reiterated that complaint filed by complainant is false, frivolous, vexatious and vague and is filed only to extract money from OPs. It is liable to be dismissed as complainant has no locus standi to file the present complaint. It is asserted that this Forum has no jurisdiction to hear and try the present complaint. It is further submitted that there is no deficiency in service on the part of answering OP. All other allegations and allegation with regard to relief sought were refuted with a prayer that complaint may be dismissed with costs against the answering OP.

   6                                                Parties were given proper opportunities to lead evidence to prove their respective pleadings. The complainant tendered in evidence his affidavit Ex.C-1 and documents Ex C-2 to 3 and then, closed the evidence.

   7                                               The OP-1 tendered in evidence his affidavit  of Sh Maninder Singh as Ex.OP-1/1 and closed the evidence. Ld Counsel for Op-3 tendered in evidence affidavit of Sh Rajinder Parsad as Ex OP-3/1 and then, closed the evidence on behalf of OP-3.

   8                                                 Ld Counsel for complainant vehementally argued that complainant purchased a crate of soft drinks make Coca Cola of 200 ml each from OP-2 vide bill no.480 dt 30.10.2015. It is further contended that one bottle was infested with some foreign elements, which made it unfit for consumption. Complainant did not use the same and reported the matter to OP-2, who assured complainant that he would talk to OP-1, but after about 10 days, when complainant visited OP-2 and asked about his complaint, OP-2 flatly refused to admit his guilt and told him to not to visit his shop again. Thereafter, complainant requested OP-1 to look into the matter and also informed about the said act of OP-2, but instead of hearing his complaint OP-1 told him that there is nothing wrong in cold drinks. All this act of OPs has caused unnecessary harassment and mental agony to complainant and it amounts to deficiency in service and trade mal practice on the part of OPs and complainant has prayed for accepting the present complaint alongwith compensation and litigation expenses.

   9                                        To controvert the allegations of complainant, ld counsel for OP-1 and 2 averred that complaint filed by complainant is not maintainable as complaint is been filed with ulterior motive to harass and cause  loss to them as it is based on false and wrong facts because complainant did not purchase the said cold drink from OP-2. Complainant purchased the said cold drink from some Karyana Merchant and he approached OP-2, mis-stated the facts that he requires a bill regarding amount spent on drinks required for a common function and then, OP-2 issued the bill dt 30.10.2015 for courtesy sake. It is further averred that complaint involves complicated questions of law and facts requiring voluminous evidence, which is not possible in this Forum having limited jurisdiction. Complainant has also concealed the material facts from this Forum and said drink has not been analyzed from any laboratory to prove that it was not good and was unfit for human consumption. It is further averred that there is no deficiency in service on the part of answering OPs. No chemical examination of said soft drink is got done by complainant to prove any fault on the part of OPs. All the other allegations and allegation with regard to relief sought too were refuted being wrong and incorrect and prayer for dismissal of complaint is made.

   10                                       Ld Counsel for OP- 3 argued that complaint is not maintainable being false, frivolous and vague and is a process of abuse of law.  No cause of action arises against OP-3 and this Forum has no jurisdiction to hear and try the present complaint. It is averred that complainant is not the consumer of OP-3 as he has not produced any authentic proof for its purchase. Complainant has produced only a cash memo, which does not bear his name, name of product bought and its batch number. Complainant has himself admitted that no bill was issued at the time of purchase and same was procured later on and thus, it can not be assumed that bottle containing foreign material was purchased by complainant from OP-2. There is no mention that bottle of coca cola was bought by complainant. It is further averred that bill relates to purchase of 300 ml whereas allegation relates to 200 ml bottle of coca cola. It is asserted that complaint is bad for mis-joinder of necessary parties. Answering OP is only bottler of Coca Cola India Pvt ltd and it is a subsidiary of The Coca Cola Company, Atlanta, United States of America. OP-3 manufactures and distributes Coca-Cola products such as Coca Cola, Sprite, Fanta, Diet Coke, Limca, Thums-up, Maaza etc in certain parts of India under the authority of Coca Cola Company, Atlanta, U.S.A. It does not manufacture and distribute th Coca-Cola products  in the area where the alleged bottle has been purchased i.e Jaitu Tehsil Jaitu District Faridkot. Allegations levelled by complainant are based on mere assumptions and presumptions and complainant has failed to follow the mandatory procedure prescribed under the Food Safety Act for testing of any food article alleged to be adulterated or containing foreign material and there is no authenticated report of expert and qualified person of central approved labs to support the allegations of the complainant and in the absence of any expert evidence, the claim of complainant cannot be allowed. There is no deficiency in service on the part of OP-3 and, it is reiterated that complaint filed by complainant is false, frivolous, vexatious and vague and is filed only to extract money from OPs. It is liable to be dismissed as complainant has no locus standi to file the present complaint. All other allegations and allegation with regard to relief sought were refuted with a prayer that complaint may be dismissed with costs against OP-3.

   11                                           We have heard the ld counsel for parties and have very carefully gone through the record and evidence produced by the parties on record.

   12                                       The case of the complainant is that on 30.10.2015, he purchased a crate of Coca Cola from OP-2, which is bottled and manufactured by OP-1. Out of these soft drinks, one bottle was infested with some foreign elements and was not fit for human consumption. He reported the matter to OPs, but they did not take any action. In reply, Ops submitted that the complainant did not purchase the alleged cold drink from OP-2. Said bottle of cold drink has not been analysed from any laboratory to prove the fact that whether it is fit for human consumption or not and in the absence of report of laboratory, the present complaint is liable to be dismissed. Op-3 argued that they have no concern with the business of OP-1 and 2 neither bottle in dispute is manufactured or bottled by them nor it was sold by them. They are licensed manufacturer and bottler of coca cola Company under the Coca Cola India Private Ltd and selling products of coca cola in some part of India but they did not sell their products in the area of Jaitu or Faridkot and alleged bottle is not manufactured by them. They have no concern with the business of OP-1. They are falsely impleaded in present litigation and complaint against them is liable to be dismissed.

   13                                            The plea of OP-1 and 2 is that the alleged bottle of cold drink is not sold by OP-2. In his support, complainant produced copy of the bill as Ex C-2 from which it is clear that alleged bottle of cold drink is sold by OP-2. Moreover, they have not denied the fact that alleged bottle of cold drink is manufactured and bottled by OP-1. 2^nd objection of OPs is that the alleged drink is not examined from any laboratory to ascertain whether it has some defect and is not fit for human consumption. It is well settled law that where the defect is visible with naked eye, in that case, no expert or laboratory examination is required and in the present case alongwith complaint, complainant has produced sealed bottle of cold drink in this Forum and from the examination of this bottle through naked eye, the foreign material is clearly visible in the bottle. The alleged bottled is sealed by this Forum and marked as Ex C-3.

   14                                      From the careful perusal of this bottle, it is clear that there is manufacturing defect in the cold drink and there is some foreign material in the drink and it is not fit for human consumption. From the above discussion, we come to the conclusion that cold drink manufactured by OP-1 and sold by OP-2 is not fit for human consumption and is a hazardous good and selling of these types of goods amounts to deficiency in service and trade mal practice on their part. However, OP-3 is also a licensed bottler under Coca Cola India Pvt Ltd like OP-1 and they are neither manufacturer or bottled the alleged bottle of cold drink nor they sell this bottle and therefore is not liable for the same. So, the present case is hereby allowed against OP-1 and 2 and is dismissed against OP-3. OP-1 and 2 are hereby directed to deposit a sum of Rs.60,000/-with this Forum out of which Rs15,000/-shall be paid to complainant as compensation for mental agony and harassment suffered by complainant and remaining amount is to be deposited in the Legal Aid Account of this Forum. OPs are further directed to stop manufacturing and selling of such types of hazardous products which are dangerous and unfit for human consumption. OP-1 and 2 are further directed to pay Rs.3000/-to complainant for litigation expenses. Compliance of this order be made within one month of receipt of the copy of the order, failing which complainant shall be entitled to proceed under Section 25 and 27 of the Consumer Protection Act. Copy of the order be supplied to parties free of cost as per law. File be consigned to the record room.

   Announced in open Forum:

   Dated: 15.06.2016

   Member                Member            President (Parampal Kaur)         (P Singla)             (Ajit Aggarwal)