State Consumer Disputes Redressal Commission
Aradhana Soft Drinks Company Village ... vs Swapanbir Singh Son Of Sh. Manjeet ... on 19 March, 2012
F.A. No. 261 of 2012 1
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB,
PLOT NO. 1037, SECTOR 37-A DAKSHAN MARG, CHANDIGARH
First Appeal No. 261 of 2012
Date of institution : 05.03.2012
Date of decision : 19.03.2012
1. Aradhana Soft Drinks Company village Ali Asgarpur, P.O. Ganjbar Panipat
(Haryana)-132103.
2. Pepsi Company India Ltd., 3-B, DLF, Corporate Park, S-Block, Qutuab enclave,
Phase-III, Gurgaon-122002 (Haryana)
Appellants
Versus
1. Swapanbir Singh son of Sh. Manjeet Singh, resident of Guru Teg Bahadur
Nagar, Malwal Road, Ferozepur City.
2. Bhasin Hotel & Restaurent, Court Road, Ferozepur Cantt, through its Authorized
signatory.
...Respondents
First Appeal against the order dated 14.11.2011 of
the District Consumer Disputes Redressal Forum,
Ferozepur.
Before:-
Sh. Jagroop Singh Mahal, Presiding Judicial Member.
Sh. Vinod Kumar Gupta, Member Present:-
For the appellant : Sh. Manvender Rathee, Advocate JAGROOP SINGH MAHAL, PRESIDING JUDICIAL MEMBER:-
This is O.Ps appeal under section 15 of the Consumer Protection Act (hereinafter referred to as the Act) against the order dated 14.11.2011 passed by the learned District Consumer Disputes Redressal Forum, Ferozepur (hereinafter referred to as the District Forum) vide which the complaint was allowed and O.Ps No. 1&2/appellants were directed to pay Rs. 20,000/- as compensation on account of gross negligence and for selling a product unfit for human consumption out of which Rs. 5000/- is to be paid to the complainant as compensation for mental pain and harassment as well as litigation expenses and remaining amount of Rs. 15,000/- was ordered to be deposited in the Consumer Legal Aid Fund Account.
2. The case of the complainant is that on 3.5.2011 at about 5 p.m. he along with his friend Amnish Sharma went to Bhasin Hotel and Restaurant of O.P. No. 3 and ordered cold drink make Lehar Slice, Cheese Tikka and one bottle of Mineral water for which O.Ps issued a bill No. 3194 dated 3.5.2011 for Rs. 160/- to the complainant. O.P No. 3 had charged Rs. 20 for soft drink as against the printed price of Rs. 12/-. They F.A. No. 261 of 2012 2 noticed two big size dead insects and stone particles in the bottle of soft drink which was manufactured by the opposite party No. 1 and 2. The complainant immediately had shown the same to O.P. No. 3 but he did not give any satisfactory reply nor replaced the defective bottle nor was the amount thereof refunded. According to him the contents of the bottle was injurious to health and could cause him serious disease. He filed the present complaint alleging that O.P. No. 3 was guilty of intentionally and deliberately selling above said bottle of soft drink for an excessive amount of Rs. 20/-. They sold the defective bottle manufactured by the opposite party No. 1 and 2 without caring for its side effect on the health of the consumer and therefore adopted corrupt practices. The complainant therefore, prayed for a compensation of Rs. 50,000/- and Rs. 8800/- as litigation expenses.
3. The appellants/O.P. No. 1&2 opposed the complaint alleging that it is false, frivolous and vexatious that the complainant was not their consumer because he has not purchased any such consumable article from them and that there is collusion between the complainant and O.P. No. 3 who have concocted this story to extract money from them. Their contention is that they are reputed company and their products are most hygienic and the question of there being an insect in the bottle did not arise. It was suspected that the said bottle may have been filled up with duplicate soft drink, that the same was not got tested from the laboratory and in its absence it cannot be said to be injurious to health. According to them the bottle of soft drink was sold to O.P. No. 3 which is a commercial transaction regarding which the complaint before the Consumer Fora is not maintainable. They prayed for dismissal of the complaint.
4. O.P. No. 3 did not appear to contest the complaint and was therefore proceeded against ex-parte.
5. After hearing arguments of the learned counsel for the parties and perusing the record, the learned District Forum allowed the complaint as mentioned above vide impugned order dated 14.11.2011. The O.Ps have challenged the same through this appeal.
6. The appeal was filed by the appellants with a delay of 37 days regarding which an application for condonation of delay was filed. It was alleged that the order was passed by the learned District Forum, Ferozepur on 14.11.2011, the certified copy was F.A. No. 261 of 2012 3 prepared on 28.12.2011 and was delivered to their counsel on 3.1.2012. It was forwarded by him to the appellants at Gurgaon on 6.1.2011 but the documents were inadvertently lying with other departments of the appellant and as soon as it came to the notice of the concerned department the same were sent to the lawyer and in this manner there occurred the delay of 37 days in filing the appeal. This application was also opposed by the learned counsel for the respondent.
7. We have heard the arguments of the learned counsel for the appellant and have perused the record to decide whether the appeal should be admitted for regular hearing or not. We are of the opinion that it is not a fit case which should be admitted for regular hearing.
8. There is delay of 37 days in filing the appeal and reasons given by the appellant is that the documents were inadvertently lying with other departments of the appellants and as soon as it came to the notice of the concerned department, the same were sent to the lawyer. The complainant filed the affidavit of Vinod Kaushal, authorized signatory of the appellant but besides mentioning that the grounds mentioned in the appeal may be read as part and parcel of this application, no such fact was mentioned as to why the delay occurred. We have gone through the grounds mentioned in the appeal, in those grounds also no reason for delay in filing the appeal is given. In this manner, even if the grounds mentioned in the appeal are read as part and parcel of this application, there is no evidence to condone the delay in filing the appeal.
9. The appellant has not produced any evidence to suggest as to in which department the documents had been inadvertently lying, when the same came to the notice of the concerned department and on which date the same were sent to the lawyer. Everything mentioned in the application for condonation of delay is kept vague. The application, therefore, does not give any justification for allowing the same.
10. Even if the reasons given by the appellant for delay is accepted to be correct, it does not give any justification to condon the delay. In fact, keeping the documents in the department to which the same did not belong is gross negligence on the part of the appellant showing that they were least concerned about filing of the appeal in time. The reason on the face of it shows that it is not a fit case in which the delay should be condoned.
F.A. No. 261 of 2012 4
11. In view of the above discussion we are of the opinion that the appeal has been filed with a delay of 37 days, there is no justification to condon the delay and the application for condonation of delay is accordingly dismissed. Since the appeal is barred by time, the appeal is liable to be dismissed.
12. On merits, the contention of the appellant is that the complainant has not purchased the bottle of soft drink from the appellants and therefore he does not become their consumer and has no right to file the present complaint. It is also argued by the learned counsel for the appellant that even if the bottle of cold drink was sold by the appellants to O.P. No. 3 Bhasin Hotel and Restaurant they are doing a commercial business and the said sale of the bottle would be outside the preview of the Act because the sale by the appellants to O.P. No. 3 was for a commercial purpose. This argument carries no weight. It is the case of the complainant, which has not been controverted by O.P. No. 3, that he had purchased the bottle of cold drink from the said hotel. He has even produced the receipt/the bill issued by O.P. No. 3. There is no evidence to the contrary to prove that the complainant had not come to the said hotel and not purchased the cold drink. In fact what is to be seen is whether the complainant has purchased the bottle of soft drink for a commercial purpose, answer to which is in the negative. It is proved beyond doubt that the complainant had purchased the soft drink bottle for his own consumption in the premises of O.P. No. 3. It is immaterial whether that bottle was purchased by O.P. No. 3 from its manufacturer to run his commercial business. Needless to mention that the appellants are manufacturing the bottles or consumable articles for sale to the public through its agents and other outlets. While selling the bottle to the complainant, the O.P. No. 3 was acting as an agent of the appellant. It was not disputed that the O.P. manufactured/sell their products to the hotel and hotels further sell it to the consumers. However when a defective bottle of soft drink is sold to a consumer neither the hotel selling it nor the manufacturer is protected from the provisions of the Act on the ground of it being a commercial transaction.
14. Learned counsel for the appellant has argued that admittedly the bottle of soft drink was not consumed by the complainant or his friend and therefore, there was no damage or pain and therefore question of granting any compensation did not rise. He has mentioned the cases of "Amit Swamy Vs. Coca Cola India Limited:II (2007) CPJ F.A. No. 261 of 2012 5 256 (NC)" and "Dhillon Kool Drinks Beverages Limited Vs. Sunderpal Dhankar and Others: III (2006) CPJ 229" in support of his contention. Those cases were decided in view of the peculiar circumstances prevailing at that time. However when a bottle of soft drink is sold to consumer which contains house fly or similar other foreign objects, it gives a shock to the purchaser as to what type of soft drink they had been consuming or was about to consume. Selling such like articles is definitely a deficiency in service on the part of the opposite parties. Needless to mention that it is the duty of the opposite parties to bring such drinks in the market for consumption of the public which are not injurious to health or contaminated. In the present case the bottle of soft drink was definitely injurious to health and against public policy. Learned District Forum got the bottle tested from the Analyst, Punjab Chandigarh who submitted its report dated 24.8.2011 showing that it contained one dead housefly, it was adultrated and unfit for human consumption. Even bare perusal of the soft drink bottle per se proves their negligence and deficiency in service and the O.Ps cannot deny their liability on the ground that it was not consumed by the complainant.
15. In case of Marinda Varun Beverages Ltd Vs. Arun Kumar Bhaduria 2009 CTJ 447 (CP) some foreign material was seen in the bottle of cold drink, the cold drink was however not consumed and the complaint was filed. The learned District Forum allowed the complaint with compensation of Rs. 20,000/- to the complainant and ordered the manufacturer to deposit Rs. 1,80,000/- in the Consumer Welfare Fund. The appeal filed by the manufacturer was however allowed by the State Consumer Disputes Redressal Commission, Uttrakhand. In case Moon Beverages Ltd Vs. Vinod Kumar Gupta and others, 2010 CTJ 1089 (CP) four bottles of maaza drinks were purchased in one of which two dead flies were noticed. The drink was not consumed and rather a complaint was filed. Learned District Forum directed the distributor to pay Rs. 50,000/- as compensation to the complainant and the manufacturer were directed to deposit Rs. 1 lac in the State Consumer Welfare Funds. The appeal filed by the manufacturer was dismissed. In case Rajpal Vs. Kandhari Beverages Pvt Ltd and others 2011 CTJ 108 (CP) a bottle of cold drink purchased by the complainant was found to contain some foreign particular. It was got tested from the laboratory and was reported to be not fit for human consumption. The District Forum allowed the complaint and granted F.A. No. 261 of 2012 6 compensation of Rs. 10,000/- against the whole sale supplier with litigation costs of Rs. 2000/-. An appeal was filed by the appellant for enhancement of compensation which was enhanced to Rs. 20,000/- together with 9% interest and litigation costs of Rs. 3000/-.
17. There is another case which went up to Hon'ble National Commission. The complainant in that case had purchased the bottle of Mirinda manufactured by the appellant in which also a dead fly was noticed. The complainant filed a complaint which was allowed by the District Forum and a compensation of Rs. 2000/- was granted. The complainant filed the appeal for enhancement of compensation which was allowed by the State Commission, U.T. Chandigarh reported as "Sameer Bhardwaj (Dr) Vs. Aradhana Soft Drinks Company and Others II 2010 (CPJ) 47". The compensation was enhanced to Rs. 50,000/- out of which Rs. 25,000/- were to be paid to the complainant and remaining 50% to be deposited with the Secretary Legal Service Authority, U.T. Chandigarh. The appellants field revision petition before the Hon'ble National Commission. The revision petition No. 2109 of 2010 was decided by the Hon'ble National Commission on 8.7.2010. The order passed by the State Commission was upheld holding that it was not necessary even to send the bottle of Mirinda for laboratory test because the same had been produced in a sealed condition before the District Forum. The contention of the appellant that the compensation should not be allowed in a case where the adultrated or unhygienic cold drink has not been consumed therefore cannot be accepted.
18. It is also argued by the learned counsel by the appellant that the bottle of soft drink was spurious manufactured by some fake company therefore they should not be penalized for that. He has argued that there are so many companies operating in the market to prepare spurious products of brand names and sell them in the market and earn huge profits. This contention was not accepted by the Learned District Forum. We are also not inclined to accept the same because there is no material on file produced by the appellant to suggest if they ever made any complaint to any authority alleging and identifying any such spurious product or the manufacturer thereof. Mere alleging anything without proof thereof cannot be enough to accept this version. Moreover in the case of Dr. Sameer Bhardwaj Vs. Aradhana Soft Drinks Company and others F.A. No. 261 of 2012 7 (supra) the bottle of Mirinda Slice was also manufactured by the appellants. It was also found to be unhygienic and their contention now that they are a big company having high regard for hygiene and health standards is a hollow proclamation.
19. Instead of thanking their stars that the Leaned District Forum was very soft towards them and has imposed a fine of only Rs. 20,000/- though there had been instances as referred to above that the manufacturer was penalized to the extent of Rs. 1,00,000 or Rs. 50,000/- the appellant has filed this frivolous appeal. There is no merit in the appeal. The impugned order is perfectly legal, valid and cannot be interfered with in favour of the appellant. We therefore find no reason to admit this appeal for regular hearing. The appeal is dismissed in liminie.
(JAGROOP SINGH MAHAL)
PRESIDING JUDICIAL MEMBER
March 19, 2012. (VINOD KUMAR GUPTA)
Rupinder MEMBER