State Consumer Disputes Redressal Commission
Managing Director/Area Manager (Coca ... vs Sanjeev Kumar on 3 December, 2013
FIRST ADDITIONAL BENCH
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB
SECTOR 37-A, DAKSHIN MARG, CHANDIGARH.
First Appeal No.732 of 2010.
Date of Institution: 04.05.2010.
Date of Decision: 03.12.2013.
Managing Director/Area Manager (Coca Cola & Company) Amritsar,
Crow Caps Private Limited, Unit-II, Factory 14, KM Stone, Amritsar-
Jalandhar, G.T. Road, VPO Nawan Kot, near Jandiala Guru, District
Amritsar, Punjab.
.....Appellant.
Versus
1. Sanjeev Kumar S/o Sh. Hans Raj, R/o village Lal Bai, Tehsil
Gidderbaha, District Muktsar.
....Respondent.
2. Parveen Cold Drinks, near Jain Mandir, Gidderbaha, Tehsil
Gidderbaha, District Muktsar, through its Sole Proprietor/Partner.
...Performa Respondent.
First Appeal against the order dated
15.02.2010 passed by the District
Consumer Disputes Redressal Forum,
Muktsar.
Before:-
Shri Inderjit Kaushik, Presiding Judicial Member.
Shri Vinod Kumar Gupta, Member.
...................................
Present:- Sh. Nakul Sharma, Advocate, counsel for the appellant.
Respondents Exparte.
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INDERJIT KAUSHIK, PRESIDING JUDICIAL MEMBER:-
Managing Director/Area Manager (Coca Cola & Company) Amritsar, appellant/opposite party no.1 (In short "the appellant") has First Appeal No.732 of 2010 2 filed this appeal against the order dated 15.02.2010 passed by the learned District Consumer Disputes Redressal Forum, Muktsar (in short "the District Forum").
2. Facts in brief are that Sh. Sanjeev Kumar, respondent no.1/complainant (hereinafter called as "respondent no.1") filed a complaint under section 12 of the Consumer Protection Act, 1986 (in short, "the Act") against the appellant and respondent no.2/opposite party no.2 (hereinafter called "respondent no.2"), on the grounds that the appellant is the manufacturer of Coca Cola as well as other various products and respondent no.2 is the retailer for selling the products of the appellant. The products of the appellant are very famous for their use and through advertisement on the Television, in newspaper and in general public, they claim that this is the best product of the company of the appellant and is manufactured under hygienic conditions and is beneficial for health.
3. Respondent no.1 purchased one bottle of Maaza of 250 ml for his use on 04.09.2008 by paying price to respondent no.2, but when respondent no.1, before opening the said bottle, examined the same, he found some black material in the said bottle of Maaza which might be some insect or other hazardous thing, harmful to the health of the person, who consumes the said Maaza bottle. Had there been any negligence on the part of respondent no.1 before drinking the said bottle or before opening the said bottle, it would have caused serious impact on his health. Respondent no.1is in possession of the bottle and the appellant is playing fraud with the public and its act and conduct proves a great deficiency in service. A legal notice was served before filling the complaint on 30.09.2008, but no heed was paid. First Appeal No.732 of 2010 3
4. It was prayed that the appellant and respondent no.2 may be directed to pay compensation to the tune of Rs.80,000/- for selling spurious cold drink and to pay Rs.10,000/- as compensation for harassment and mental agony and Rs.5500/- as litigation expenses.
5. In the written version filed on behalf of the appellant and respondent no.2, preliminary objections were raised that the complaint is totally false and frivolous and the story has been concocted and the complaint has been filed to harass the appellant and respondent no.2 because of the reason that respondent no.1 was having very good relations with respondent no.2, but later on he became annoyed and stopped dealing with respondent no.2 due to some misunderstanding regarding the money. Respondent no.1 demanded the refrigerator from respondent no.2 as provided by the appellant, but the same could not be given as it was for dealers only. There is no proof of paying any money and obtaining the bill in respect of the bottle purchased and there is no relation of consumer as defined under the Act and the complaint deserves to be dismissed. Respondent no.1 has not come to the Forum with clean hands and has suppressed the material facts.
6. On merits, it was admitted that the appellant is manufacturer of the Coca Cola and respondent no.2 is its dealer. Respondent no.1 himself admitted that the products of the appellant are very famous and is made under the hygienic conditions and is beneficial for health. It is pertinent to mention that 350 ml. of Maaza bottle is not being manufactured by the appellant. The contents were not consumed nor the health of respondent no.1 was affected. In the notice, respondent no.1 has stated that he purchased 24 Maaza bottles on 04.09.2008 from respondent no.2 and now he is stating that he purchased one bottle of Maaza on 04.09.2008. The complaint is based First Appeal No.732 of 2010 4 on assumptions and presumptions. All other allegations were denied and it was prayed that the complaint may be dismissed with costs.
7. Parties led evidence in support of their respective contentions by way of affidavits and documents.
8. After going through the documents and material placed on file and after hearing the learned counsel for the parties, the learned District Forum observed that respondent is consumer of the appellant and respondent no.2 because in a routine and practical manner, in cold drink business, no bill is issued to the retail customer, nor is asked for. In Para-4, it was pleaded that there was some black material in the bottle and the same was confirmed by the public analyst in its report. Respondent no.2 sold defective goods and the appellant has manufactured the same. The appellant has distributed the same lot and batch among a number of consumers, but they are not identifiable and the appellant was directed to deposit Rs.80,000/- in the Consumer Welfare Fund and Rs.10,000/- was awarded as compensation for harassment and Rs.5500/- as litigation expenses.
9. Aggrieved by the impugned order dated 15.02.2010, the appellant has come up in appeal.
10. We have gone through the pleadings of the parties, perused the record of the learned District Forum and have heard the arguments advanced by the learned counsel for the appellant.
11. The respondents have not contested the appeal and were proceeded against exparte.
12. The appeal was filed on the grounds that the District Forum failed to consider that there is no proof of paying any money by respondent no.1 to the appellant. No bill was produced. In the notice, purchasing of 24 bottles is mentioned, whereas in the complaint, it was First Appeal No.732 of 2010 5 only one bottle and 23 bottles were not produced. The District Forum did not consider the fact that when the sample reached at the Public Analyst, Punjab, it has already expired. The date of purchase is 04.09.2008. The notice is dated 30.09.2008 and the complaint was filed on 28.01.2009. The sample reached the Public Analyst after a long span of time. The goods were never delivered to respondent no.1 by respondent no.2. The findings of the District Forum are based on assumptions and the order under appeal is not sustainable and the same may be set aside by allowing the appeal.
13. We have considered the version of the appellant as given in the appeal and have minutely scrutinized the entire record.
14. Respondent no.1 in support of his version has placed on file his affidavit Ex.C-1, copy of notice Ex.C-2, postal receipts Ex.C-3 and Ex.C-4, photographs Ex.C-5 and Ex.C-6 and Public Analyst Report Ex.C-7. Respondent no.1 has not placed on file the bill vide which the said Maaza bottle was purchased. In the notice Ex.C-2, it is stated that on 04.09.2008, respondent no.1 purchased 24 Maaza bottles from respondent no.2, whereas in the complaint it is mentioned that he purchased one Maaza bottle from respondent no.2. As per report of Public Analyst Ex.C-7, the said Maaza bottle of 250 ml. was manufactured on 26.04.2008 and the 'Best Before' is six months from the manufacture. The said Maaza bottle was received by the Public Analyst, Punjab, Chandigarh on 04.03.2009, when its Shelf Life had already expired. The said bottle was ordered to be sent for analysis on 29.01.2009 and as stated above, it reached the Public Analyst, Punjab, Chandigarh on 04.03.2009. The Shelf Life of the said bottle has already expired before it was sent to the Public Analyst and, as such, the contents had become unfit for human consumption. The Public Analyst First Appeal No.732 of 2010 6 also in the report mentioned that the 'Best Before' was six months, as such, neither the Public Analyst report nor the photographs are sufficient to prove that the contents were adulterated at the time of manufacture. The photographs Ex.C-5 and Ex.C-6 again do not connect the said bottle with respondent no.2 and from where it was purchased, is not known.
15. As discussed in detail above, even if it is presumed that the said Maaza bottle was manufactured by the appellant, even then the appellant cannot be held liable because the Shelf Life of this Maaza bottle had already expired much before the filing of the complaint as well as sending it to the Public Analyst. There is no evidence to prove that the said Maaza bottle was purchased by respondent no.1 from respondent no.2. Neither there is any bill nor any supporting evidence to prove that the said bottle was purchased from respondent no.2. Except the bald statement of respondent no.1 through affidavit Ex.C-1, there is no other evidence or affidavit of any person in whose presence, the said bottle was purchased from respondent no.2.
16. The order passed by the District Forum is based on conjectures and surmises and with a vindictive attitude as well as on the assumptions that the large number of consumers consumed the cold drink, but there are not identifiable and the appellant was directed to deposit Rs.80,000/- in the Consumer Welfare Fund and the compensation of Rs.10,000/- was awarded to respondent no.1 along with litigation expenses of Rs.5500/-. The District Forum has not appreciated the evidence in right earnest and has not passed the impugned order on the basis of the evidence and material placed on file and the same is not sustainable.
First Appeal No.732 of 2010 7
17. As a result of above discussion, the appeal filed by the appellant is accepted and the impugned order under appeal dated 15.02.2010 passed by the District Forum is set aside. Consequently, the complaint filed by respondent no.1/complainant is dismissed. Parties are left to bear their own costs.
18. The appellant had deposited an amount of Rs.25,000/- with this Commission at the time of filing of the appeal and another sum of Rs.22,750/- vide receipt dated 23.09.2010 in compliance of the order dated July 27, 2010 passed by this Commission. Both these amounts with interest accrued thereon, if any, be remitted by the registry to the appellant by way of a crossed cheque/demand draft after the expiry of 45 days.
19. The arguments in this appeal were heard on 26.11.2013 and the order was reserved. Now the order be communicated to the parties.
20. The appeal could not be decided within the stipulated timeframe due to heavy pendency of court cases.
(Inderjit Kaushik) Presiding Judicial Member (Vinod Kumar Gupta) Member December 03, 2013.
(Gurmeet S)