State Consumer Disputes Redressal Commission
Dr. Sameer Bhardwaj vs 1. Aradhana Soft Drinks Company on 24 February, 2010
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
UNION TERRITORY,
CHANDIGARH.
Appeal case No.94/2009
Date of institution:18.2.2009
Date of decision :24.2.2010
Dr. Sameer Bhardwaj s/o late
Sh. S.K. Bhardwaj, House No.303, GH-39, Sector 20, Panchkula.
.Appellant
V
E R S U S
1.
Aradhana Soft Drinks Company, Village Ali
Asgarpur, P.O. Ganjbar, Panipat, Haryana, Pin 132103, through its
Manager/Managing Director.
2.
Aradhana Soft
Drinks & Breweries Limited, SCO No.172-173, 1st Floor, Sector 9, Chandigarh
through its Area Manager/ Managing Director
3.
M/s Krishna
Trading Co. DSS/SCO 192, Sector 21, Panchkula, Haryana through Mr. Mukesh its
Prop.
.Respondents
Appeal U/s 15 of Consumer Protection
Act,1986 against
order dated 16.1.2009 passed by Consumer Disputes
Redressal Forum-I,
U.T.Chandigarh.
Argued by: Sh.Nitin Gupta, advocate
for the appellant.
Sh.Anand
Dabas,advocate for respondents No.1 & 2
None for respondent No.3.
BEFORE : Honble
Mr.Justice Pritam Pal, President
Maj.Gen.S.P.Kapoor (Retd.),Member
JUDGMENT
24.2.2010 Justice Pritam Pal, President
1. This appeal by complainant for enhancement of compensation is directed against the order dated 16.1.2009 passed by District Consumer Forum-I, U.T.Chandigarh whereby his complaint bearing No.1225 of 2008 was allowed in the following terms ;
We are, therefore, of the opinion that the present complaint must succeed. The same is accordingly allowed. The OPs are directed to pay to the complainant, jointly & severally, a sum of Rs.2000/- as compensation, within 30 days from the date of receipt of copy of this order, failing which they would be liable to pay the same alongwith penal interest at the rate of 9% per annum since the date of filing present complaint i.e. 17.10.2008 till realization.
2. The parties hereinafter shall be referred to as per their ranking before the District Consumer Forum.
3.. The facts culminating to the commencement of this appeal may be recapitulated thus ;
The complainant who is a doctor by profession/Registered Medical Practitioner in the last week of June 2008 had purchased a soft drink bottle of Mirinda Lemon flavour, two litres and a bottle of Slice Mango flavour, 250 ml., both manufactured and bottled by OP-1, from OP-3 for Rs.48/-. As a normal practice no cash receipt/bill was obtained by the consumer from the seller. It was alleged that before making use of the bottles at his residence, he detected some debris floating inside the sealed bottles and in order to ascertain whether it was some dead biological organism or a non-living matter the bottles were required to be sent to the appropriate laboratory for confirming/determining the nature of the material contained inside the bottles and its impact on human health. He intimated the fact of presence of foreign body/turbidity/ dead insect to the OP-3 who asked him to approach OP-2, the local office of OP No.1 which manages all business affairs of the manufacturing company in the region. The complainant many times visited the office of the OPs personally but they put off the matter and all his requests fell on deaf ears. According to the complainant, by selling contaminated eatables/soft drinks the opposite parties were playing havoc with the health and longevity of life of the people for which they needed to be punished severally so that they dare not to repeat the same in future. Hence, alleging deficiency in service and unfair trade practice on the part of OPs, complainant filed complaint before the District Forum praying that OPs be burdened with exemplary damages and he be awarded compensation and costs to the tune of Rs.one lac.
4. Pursuant to issuance of notice of the complaint, Mr. Dinesh Kumar Jangra, Advocate appeared before the District Consumer Forum on behalf of the OPs 1 & 2 but subsequently neither anyone appeared on their behalf ,nor, filed reply and evidence. Hence, OPs 1 & 2 were proceeded against ex-parte. However, OP NO.3 appeared before the District Forum and filed reply admitting the factum of purchase of the two bottles of the soft drink in question. The facts with regard to the presence of foreign body/turbidity/ dead animal in the bottles have also been admitted. It was, however, pleaded that it was not the manufacturer of the soft drinks in question and as such was not liable to pay anything. It was pleaded that there was no deficiency in service or unfair trade practice on its part and a prayer was made for dismissal of the complaint.
5. The learned District Consumer Forum after going through evidence and hearing the counsel for complainant allowed the complaint as indicated in the opening part of this judgment. Still dissatisfied, complainant has come up in this appeal.
6. We have heard learned counsel for the appellant/complainant as well as counsel for respondents/OPs No.1 & 2 and gone through the file carefully. The only point of arguments raised on behalf of appellant/complainant is that compensation of Rs.2000/- awarded by the District Consumer Forum is on the lower side. He then relied upon ; National Consumer Protection Research Centre (Regd) & Anr. Vs Pepsi Foods India through M/s Dhillon Cool Drinks & Beverages Ltd. 2007 (1)CPC 528, and submitted that in a similar case the H.P. State Consumer Commission, Shimla had allowed compensation of Rs.one lac. On the other hand, the learned counsel for OPs No.1&2 relied upon; Rajinder Singh Rangpuri Vs Amritsar Beverages Pvt. Ltd. & Anr III(2002)CPJ 156, and contended that in that case a half burnt piece of bidi was found in the bottle but Chandigarh State Consumer Commission had granted nothing.
7. We have given our thoughtful consideration to the above submissions made on behalf of the parties and have also gone through the material. Admittedly the complainant who himself is a doctor and had purchased two soft drink bottles- one of Mirinda Lemon flavour and other of slice mango flavour. In one bottle dead insect (housefly) was found lying whereas in the other bottle some foreign object was detected. Further it is also apparent that both bottles were duly sealed and intact and the learned members of the District Forum also gave their observation that the aforesaid materials lying in the soft drink bottles were visible to the naked eye. Thus, in this case question of sending the bottles to the laboratory to determine the injurious kind of foreign objects was not required. Moreover, OPs NO.1 & 2 who are manufacturers and bottlers of soft drinks in question inspite of ample opportunity having been given to them, failed to file any reply and adduce evidence to rebut the contents of the complaint. Not only that, it is also evident that the counsel for OPs No.1 & 2 had once appeared before the District Forum on 2.12.2008 but thereafter they did not even bother to contest the complaint before the District Forum . It is also pertinent to mention here that during the course of arguments before us the learned counsel for OPs No.1 & 2 fairly admitted that the appeal filed against the impugned order by OPs has already been dismissed.
8. In this view of the matter, we have no hesitation to hold that OPs NO.1 & 2 were rightly held liable for rendering deficient service and for indulging in unfair trade practice. However, OP NO.3 Krishna Trading Co. from whom bottles were purchased is not liable in any manner as he is proved to have sold bottles manufactured and bottled by OPs NO.1 & 2 with intact seals.
9. Now adverting to the point of quantum of compensation awardable to the complainant, in this regard we have gone through the above cited rulings relied upon by the parties and find that there was an ample material on the file in National Consumer Protection Research Centre (Regd) & Anr. Vs Pepsi Foods India through M/s Dhillon Cool Drinks & Beverages Ltd.(Supra) to ascertain loss and injury to the complainant whereas in the instant case there is no such evidence to hold that the consumer while consuming the soft drinks could die. So far as ruling relied upon by the OP is concerned, in that case there was no dead insect found in the bottle, rather it was just a piece of half-burnt bidi, so facts of the case in hand are quite at variance from the above cited ruling. However, in the instant case the complainant is a doctor and he is pursuing the case since,2008 that too not in his own interest but in the interest of society. He had also engaged counsel before the District Forum as well as before this Commission and for that he must have incurred sufficient amount as lawyers fee.
10. Thus, taking an overall view of the facts and circumstances of the case, we feel that OPs NO.1 & 2 who are liable for manufacturing and bottling the soft drinks should be burdened with exemplary and punitive compensation so that in future they ensure that what they claimed is also practiced by them and no bottle of cold drink containing foreign material etc. of any sort is sent by them in market for sale. Thus, we feel that a total compensation of Rs.50,000/- would meet the ends of justice. Out of the said amount of compensation, 50% i.e. Rs.25,000/- shall go to the complainant and remaining 50% shall be deposited with the Secretary, State Legal Services Authority, U.T.Chandigarh, within 30 days from the date copy of order is received, failing which OPs NO.1 & 2 shall be liable to pay the same with interest @ 9% p.a. from the date of filing this appeal i.e. 18.2.2009 till actual realization.
11. In the result, the appeal is accepted with costs of Rs.5000/- in the aforesaid terms.
Certified copies of this order be communicated to the parties as well as to the Secretary, State Legal Services Authority, U.T.Chandigarh , free of charge. The file be consigned to records.
Sd/-
Announced ( Justice Pritam Pal)(Retd.) 24th Feb.,2009 President Sd/-
(Maj.Gen.S.P.Kapoor )(Retd.) Member *Js