State Consumer Disputes Redressal Commission
M/S. Cocacola Company, South India ... vs P.Nirmal Kumar, S/O S.Paramasivam, And ... on 31 January, 2022
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IN THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI
BEFORE : Hon'ble Thiru Justice R. SUBBIAH PRESIDENT
Tmt. Dr. S.M.LATHA MAHESWARI MEMBER
COMMON ORDER IN F.A.NO.200/2018 AND FA.NO.201/2018 (Against order in CC.NO.13/2014 on the file of the DCDRC, Erode) DATED THIS THE 31st DAY OF JANUARY 2022 FA.NO.200/2018 M/s. Coca-Cola Company South India Bottling Company Pvt., Ltd., Rep. by its Managing Director B 163-B 170, INDL Growth Center Sipcot-National Highways-7 M/s. Shyam Gangaikondan Village Counsel for Tirunelveli District - 637352 Appellant / 2nd opposite party Vs.
1. P. Nirmalkumar S/o. S. Paramasivam 16/208, Nallachellipalayam Anjur Post, Kodumudi Way Served called absent Erode - 638 151 1st Respondent/ Complainant
2. M/s. Hindustan Coca-Cola Beverages Pvt. Ltd., Rep. by its Managing Director M/s. Leela & Co., 13, Abul Fazal Road, Bengali market Counsel for New Delhi - 110 001 2nd Respondent / 1st Opposite party
3. M/s. KAS Agency Rep. by its Proprietor Sub Dealer 33, Ganapathipalayam Deemed to be served Ganapathipalayam Nall Road Eode District, Tamil Nadu
4. M/s. Maruthu Bakery & Sweets Stall Rep. by its Proprietor 7D, Savadipalayam Pudhur Served called absent Erode District 3&4 Respondents/ 3 & 4 Opposite parties 2 FA.NO.201/2018 M/s. Hindustan Coca-Cola Beverages Pvt. Ltd., Rep. by its Managing Director M/s. Leela & Co., 13, Abul Fazal Road, Bengali market Counsel for New Delhi - 110 001 Appellant / 1st Opposite party Vs.
1. P. Nirmalkumar S/o. S. Paramasivam 16/208, Nallachellipalayam' Anjur Post, Kodumudi Way Served called absent Erode - 638 151 1st Respondent/ Complainant
2. M/s. Coca-Cola Company South India Bottling Company Pvt., Ltd., Rep. by its Managing Director B 163-B 170, INDL Growth Center Sipcot-National Highways-7 M/s. B. Shyam Gangaikondan Village Counsel for Tirunelveli District - 637352 2nd Respondent / 2nd Opposite party
3. M/s. KAS Agency Rep. by its Proprietor Sub Dealer 33, Ganapathipalayam Ganapathipalayam Nall Road Eode District, Tamil Nadu
4. M/s. Maruthu Bakery & Sweets Stall Rep. by its Proprietor 7D, Savadipalayam Pudhur Served called absent Erode District 3&4 Respondents/ 3 & 4 Opposite parties The 1st Respondent/ complainant had filed a complaint before the District Commission against the opposite parties praying for certain direction. The District Forum allowed the complaint. Against the said order, these appeals have been preferred by the 1st opposite party in FA.No.201/2018 and by the 2nd opposite party in FA.No.200/2018 praying to set aside the order of the District Commission dt.29.6.2018 in CC.No.13/2014.
These appeals coming before us for hearing finally today, upon hearing the arguments of both parties, perusing the documents, lower court records, and the order passed by the District Commission, this commission made the following common order: 3
JUSTICE R. SUBBIAH, PRESIDENT
1. These appeals have been filed by the 1st and 2nd opposite parties separately viz.FA.No.201/2018 and FA.No.200/2018 respectively, against the order in CC.No.13/2014 dt.29.6.2018 praying to set aside the order impugned.
2. Since both the appeals are arising out of the same order, these appeals are disposed of by way of common order.
3. For the sake of convenience, the parties shall be referred as arrayed in the original complaint filed before the District Commission in CC.No.13/2014.
4. The brief facts which are necessary to decide the issues involved in the appeal are as follows:
The 1st and 2nd opposite parties are the manufacturing company, selling their product through the 3rd opposite party/ sub dealer, and the 4th opposite party is the retail shop keeper. On 17.5.2013 the complainant had purchased Coco-Cola product viz. "Sprite" from the retail shop keeper viz the 4th opposite party/ Maruthu Bakery and Sweet Stall. The complainant was shocked to see the beverage bottle that contains "Gutka Packet", which is a product of Narcotic Substance. The complainant had lost his faith in the opposite party company product. If the complainant had drunk the soft drink that contains the packet of Narcotic substance, his health would have been spoiled. Therefore, there is negligence on the part of the opposite parties. Hence he filed a complaint against the opposite parties, claiming a sum of Rs.18,00,000/- towards compensation alongwith cost.
5. The said complaint was resisted by the 1st opposite party by filing counter, denying the allegations made in the complaint, stating that sprite bottle is a glass bottle, and the cover of 4 the bottle is of metal. The present complaint has been filed only on the instigation of 3rd and 4th Respondents, who are the sub-dealer and retail seller. The complainant by opening the cap of the bottle had inserted the gutkha packet and then closed the bottle, and filed this complaint by raising allegations. Therefore the complaint is liable to be dismissed.
6. The 2nd opposite party has filed their version stating that the material object filed alongwith the complaint as per the list of document is the fanta bottle, whereas the complainant narrates it as sprite bottle, thus the complaint has to be dismissed at the threshold.
This opposite party believe that the complainant had tampered the seal of the material object and inserted the alleged foreign object inside the bottle and refitted the seal so as to give a look of intact seal and then filed the material object before this forum to get unjust enrichment. Furthermore it is a common knowledge that no person would purchase a cash bill for purchase of cool drinks, chocolates etc., But the production of such bill is the clear indication of collusion between the complainant and the 3rd and 4th Respondent on the one hand and other. The detailed reply for the legal notice was sent to the counsel for the complainant. M/s. South India Bottling Company Pvt. Ltd., maintains and follow extremely high standard of quality and integrity in producing all its products. All the products are made with utmost attention to quality, as public confidence in quality and authenticity of the product is critical to business. Further the beverages prepared and packaged are with utmost care and precaution in conformity with the laws of the land. Thus they sought for dismissal of the complaint.
7. The 3rd and 4th opposite parties also have filed their separate versions denying the allegations made by the complainant.
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8. Before the District Commission, the complainant had produced the sprite bottle, and the same was on application sent to Food Safety and Drug Administration Department, and a report dt.2.5.2016 was received stating that "Sprite -Non alcoholic Carbonated Beverage - RTS, ........ and found to contain "Foreign matter - (Plastic shanty Gutkha packet- 0.279gm) and "Brown colour dust particles -0.0`0gm). All these makes the sample "Unwholesome" and hence it is "Unsafe Food" .
Based on the said report, the District Commission had allowed the complaint directing the opposite parties 1 to 4 to pay a sum of Rs.40000/- towards compensation alongwith cost of Rs.10000/-. Aggrieved over the order impugned, these appeals have been preferred by the opposite parties 1 and 2 separately.
9. It is the submission of the learned counsel for the appellants before this commission that the complainant by colluding with the 3rd and 4th Respondents, for unlawful enrichment, by tampering the cap of the bottle had inserted the Gutkha packet, and resealed the cap. But the District Commission failed to consider those defence.
The appellants would further contend that the address of the 4th opposite party was mentioned as Ganapathipalayam Nall Road, whereas in the complaint it was mentioned as Savadipalayam Pudhur. This factual aspect would show that the fraud was committed by the complainant with the connivance of the 3rd and 4th opposite parties. Thus they sought for setting aside the order passed by the District Commission.
In support of their contentions the appellants have drawn our attention to a citation reported in 2015 SCC online NCDRC 3782 in Hindustan Coca-Cola Beverages Pvt. Ltd., Vs. S.Subbiyyan & Ors, wherein it was held that "Considering that a full size blade could have entered the bottle without its being purposely plotted by someone, we have no hesitation in 6 holding that somebody had actually tampered with cork of the bottle in order to insert the rusted blade inside".
10. Per contra, the learned counsel for the complainant made submission, in support of the order of the District Commission.
11. The 1st Respondent/ complainant though served, remained absent. We have heard the learned counsels appearing for the appellants, perused the materials available on record, and the order impugned.
12. The main submission of the learned counsel for the appellant is that there is collusion between the complainant and the 3 & 4 opposite parties. In support of their contentions, they brought our attention to the invoice of 4th opposite party, and demonstrated that in the causetitle of the complainant the address was given as Savaripalayam, whereas in the invoice it was printed as Ganapathipalayam. Therefore, there is a doubt as to whether the complainant had really purchased the bottle from the 4th opposite party or not? This would show the clear collusion between the parties in order to get unlawful enrichment.
13. In our considered opinion the submission of the learned counsel for the appellants cannot be accepted, because no such specific plea was taken by the appellants before the District Commission. Had a specific plea been taken in the version the complainant would have got an opportunity for answering the same. Therefore, it is only an afterthought in order to escape from the liability. Furthermore, when the MO was subjected to food analysis, and a report had been obtained stating as "Unsafe Food", absolutely the manufacturer have no 7 defence, unless they prove contra by producing substantial evidence. But here no such rebuttal evidence had been produced by the appellants/ opposite parties 1 and 2 to disprove the allegation made by the complainant. Instead they are blaming the opposite parties 3 and 4 that they have colluded with the complainant. Therefore, looking at any angle, there is no infirmity in the order of the District Commission, which warrants our interference. Accordingly the appeals are liable to be dismissed.
14. In the result, both the appeals are dismissed, confirming the order of the District Commission in CC.No.13/2014 dt.29.6.2018. There is no order as to cost in these appeals.
S.M. LATHAMAHESWARI R. SUBBIAH
MEMBER PRESIDENT
INDEX : YES / NO
Rsh/d/RSJ/ ORDERS