State Consumer Disputes Redressal Commission
Varun Beverages Limited vs Gopal Chaturvedi on 23 April, 2008
STATE CONSUMER DISPUTES REDRESSAL COMMISSION UTTARAKHAND
DEHRA DUN
FIRST APPEAL NO. 188 / 2006
General Manager, Marinda
Varun Beverages Limited, Dotana Chatta
District Mathura, Uttar Pradesh through its
Authorised Signatory Sh. Arun Kumar Mishra
......Appellant / Opposite Party No. 1
Versus
1. Sh. Gopal Chaturvedi
S/o Sh. Madan Gopal Chaturvedi
R/o House No. 189, Gali No. 5
Subhash Nagar, Jwalapur, Hardwar
.....Respondent No. 1 / Complainant
2. Sh. Manish Dewan
Proprietor, M/s Dewan Sahib
Opposite Premnagar Ashram, Jwalapur Road
Hardwar
.....Respondent / Opposite Party No. 2
Sh. S.M. Joshi, Learned Counsel for the Appellant
Sh. Sunil Sharma, Learned Counsel for Respondent No. 1
Sh. Sanjay Yadav, Learned Counsel for Respondent No. 2
Coram: Hon'ble Justice Irshad Hussain, President
C.C. Pant, Member
Dated: 23/04/2008
ORDER
(Per: C.C. Pant, Member):
This appeal is directed against the order dated 29.07.2006 passed by the District Consumer Forum, Hardwar, allowing the consumer complaint No. 222 of 2003 and directing the opposite parties (appellant and respondent No. 2 in this appeal), to pay a compensation of Rs. 20,000/- to the complainant and to deposit a sum of Rs. 1,80,000/- in Consumer Welfare Fund.2
2. The facts of the case, as stated in the complaint, are that the complainant, who is an Advocate by profession, on 25.08.2003, purchased four bottles of Marinda in cash and deposited Rs. 30/- with the seller - opposite party No. 2 by way of security for the return of the empty bottles. The complainant had invited two of his advocate friends at his house. After consuming three bottles of the said soft drink, they felt dizziness. When the condition further deteriorated, they got treatment in the hospital. The complainant has alleged that due to the contaminated contents in the bottles, he suffered not only the financial loss, but it also maligned his social reputation among his friends in the sense that he offered such a drink. He did not open the fourth bottle and sent it to the Public Analyst, whose report also confirmed that the contents of the bottles were contaminated. Thereafter, the consumer complaint was filed by the complainant before the District Consumer Forum, Hardwar, which was allowed per impugned order as stated above. Aggrieved by the said order, General Manager, Marinda has filed this appeal.
3. We have heard the learned counsel for the parties and perused the material placed on record in the light of the legal aspects of the case.
4. There are some contradictory statements made by the complainant - respondent No. 1 and respondent No. 2 - the seller of the soft drink. While the complainant has averred that the fourth bottle of the soft drink was retained unopened as he noticed some foreign material floating in the liquid, the respondent No. 2 says that the complainant had returned all the four empty bottles to him and the security amount was refunded to the complainant. However, it has been admitted by the seller - respondent No. 2 that the complainant had purchased four bottles of Marinda. Now it is to be seen whether 3 all the bottles were returned or these were retained by the complainant. The complainant says that he had obtained a receipt from the seller in respect of the cost of the bottles and the security deposit. This averment has been made by the complainant in his affidavit (Paper Nos. 76 to 80). This fact has also not been controverted by the seller. Generally, cash memo / bill or receipt is not issued in respect of such petty purchases, but such a receipt can be issued if the glass bottles are taken to home. In such cases, the receipt is either taken back or a note with regard to refund of the security amount is made on the receipt. In the case of the complainant, the seller had neither taken back the receipt, nor he had put a note with regard to the refund of the security amount. These facts lead us to believe that the complainant had retained the fourth unopened bottle. It is immaterial as to when the bottle was sent to the Public Analyst and when the report was received. On the basis of the facts as stated above, we have reasons to believe that the same unopened bottle had undergone laboratory test and it was confirmed that it contained contaminated liquid, which was injurious to health.
5. The next question to be answered is whether the seller - M/s Dewan Sahib and the manufacturer - appellant, both are liable for selling such drinks or any one of them is liable. The appellant has convinced us, by submitting copies of the various FIR's and newspaper cuttings that the soft drinks of reputed brands are being manufactured illegally and clandestinely by unscrupulous people and firms under the trademarks Pepsi, Miranda, 7up etc. Therefore, it cannot be ruled out that the bottles in question were from such lots. The appellant has submitted that the fake manufacturers are bottling soft drinks of inferior quality by falsifying and infringing the said trademarks and also by falsifying and infringing the design of the bottles.
46. On the appreciation of all these facts, we reach to the conclusion that the seller - M/s Dewan Sahib had sold soft drink of inferior quality to the complainant and the complainant had suffered mental, physical and social loss. The seller has failed to prove that the said bottles were purchased from the authorised dealer of the appellant. Merely by submitting few cash memos of M/s Laxmi Agency, the authorised dealer of the appellant, it cannot be proved that the bottles in question were also sold by M/s Laxmi Agency to the respondent No. 2. Moreover, the name of the respondent No. 2 is not mentioned in the said cash memos.
7. The objection filed by the respondent No. 2 that Sh. Manish Dewan is not the proprietor of the firm and, therefore, he cannot be held liable to pay the compensation, is also not sustainable. When the firm is a proprietorship concern, it is the proprietor, who is liable to pay the compensation. Complainant had remained admitted for three days in a hospital for his treatment. Therefore, the compensation of Rs. 20,000/- awarded is just and proper.
8. For the reasons aforesaid, we are of the view that the case against the appellant is not well proved and, therefore, it cannot be held liable to pay the compensation. However, the direction given by the District Consumer Forum for deposit of a sum of Rs. 1,80,000/- in Consumer Welfare Fund is not justifiable under the provisions of the Consumer Protection Act, 1986 and the said direction is liable to be quashed.
9. Appeal is allowed. Order dated 29.07.2006 of the District Forum in so far as against the appellant is hereby set aside. The appellant is absolved of its liability to pay the compensation. The 5 compensation shall be paid by the respondent No. 2. The direction of the District Forum for depositing a sum of Rs. 1,80,000/- in Consumer Welfare Fund is also set aside. No order as to cost.
(C.C. PANT) (JUSTICE IRSHAD HUSSAIN) Kawal