State Consumer Disputes Redressal Commission
Hindustan Coco-Cola Marketing Co. Pvt. ... vs Mr.Vijay Dhirajlal Parikh on 15 December, 2011
BEFORE THE HON'BLE STATE CONSUMER DISPUTES REDRESSAL
BEFORE THE HON'BLE STATE CONSUMER DISPUTES
REDRESSAL
COMMISSION, MAHARASHTRA,
MUMBAI
First Appeal No. A/08/976
(Arisen out of Order Dated 12/06/2008 in Case
No. CC/06/353 of District Mumbai(Suburban))
1. HINDUSTAN
COCO-COLA MARKETING CO. PVT. LTD.
OFF. AT 13, ABUL FAZAL ROAD,BENGALI
MARKET,NEW DELHI-110001
...........Appellant(s)
Versus
1. MR.VIJAY DHIRAJLAL
PARIKH
4,LAXMI NIWAS CO-OP
HOS.SOC., FLAT NO.4, PLOT NO.203/4, SHIVAJI PARK, ROAD NO.5, MUMBAI -
400 016.
2. M/S.BALKRISHNA
GENERAL STORES
BHAT LANE, POINSAR, KANDIVALI (w), MUMBAI 400 087.
...........Respondent(s)
BEFORE:
Hon'ble Mr. S.R.
Khanzode PRESIDING MEMBER
Hon'ble Mr. Dhanraj Khamatkar Member Hon'ble Mr. Narendra Kawde MEMBER PRESENT:
Fredun Dritre a/w Sr.Cousnsel, Ianhan Dubash a/w, H. Rahman,Advocate, Proxy for D.H.LAW ASSOCIATES, Advocate for for the Appellant Dr. M. S. Kmath, A.R., Advocate for the Respondent 1 ORAL ORDER (Per Shri S.R.Khanzode, Honble Presiding Judicial Member) (1) This appeal takes an exception to an order dated 12/06/2008 passed by Addl.District Consumer Disputes Redressal Forum, Mumbai Suburban District (the forum in short) in Consumer Complaint No.253/06, Shri Vijay Dhirajilal Parekh Vs. 1. Hindustan Coca-Cola Marketing Co. Pvt.Ltd. & anr.
(2) It is a case of defect in product, namely, bottle of Fanta claimed to have been manufactured by the appellant, Hindustan Coca-cola Marking Company Pvt.Ltd. (the appellant, in short). The respondent/original complainant, Vijay D. Parekh (hereinafter referred as to complainant) purchased said bottle on 30/12/2005 from the respondent No.2/original opponent No.2, M/s.Balkrishna General Stores, Kandivali (W), Mumbai 400 087 (the shopkeeper, in short). As submitted at Bar, soon after purchasing of the bottle, the complainant found that there was a foreign material, namely, Gutakha Pouch found floating in the bottle. He immediately brought it to the notice of the shopkeeper from whom he had purchased the bottle. According to the complainant, the shopkeeper offered to replace the bottle but realizing that the manufacturing company of the cold-drink often failed to take necessary precaution, he declined such offer of replacement and then filed the consumer complaint and as further alleged, not for his personal gain but in larger interest of the society and also, therefore, submitted that on proving the deficiency, the compensation awarded may be given to the charitable organization.
(3) Upholding the case of the complainant, the Forum directed the appellant to pay compensation of `5,000/- to the complainant and further directed to deposit `1 lac in the Government Consumer Welfare Fund and costs of `1,000/- were also awarded. Original opponent No.2 i.e. shopkeeper from whom the bottle was purchased was exonerated since no relief is raised against him. Aggrieved by the said order, the original opponent No.1 i.e. the appellant has preferred this appeal.
(4) Heard at length both the sides present before us.
(5) The appellant submitted that since notice was not served on its registered office at New Delhi, whose the address is mentioned in the appeal memo, the ex-parte proceedings against it were illegal and as such the impugned order get vitiated due to such vice. However, in the course of argument, it is submitted that on the given address their manager is available. Under the circumstances, we find such submission is devoid of any substance.
(6) Other contention raised is that the complainant and opponent No.2, shop-keeper are gloving hands with each other to prosecute this complaint and therefore, it should not be entertained. For this, our attention is invited to the fact that the complainant is residing at Shivaji Park, Mumbai-16, but all the while, the bottle is purchased from extreme northern suburban i.e.Kandivali (West) of Mumbai which is quite away from where the complainant resides. However, there being no other corroborating evidence, we find the fact submitted before us, supra, alone is not sufficient to accept the submission.
(7) Another contention raised (by the appellant) on behalf of the appellant is about possibility of tampering of seal of the sample of Fanta 200 ml bottle sent for testing and it is also submitted that in the past, there were instances to make false complaints against the manufacturer company. Therefore, the material before us, need to be scrutinized, more carefully.
(8) Section 13(1)(c) of Consumer Protection Act, 1986 (Act for brevity) reads as under :-
Where the complaint alleges a defect in the goods which cannot be determined without proper analysis or test of the goods, the District Forum shall obtain a sample of the goods from the complainant, seal it and authenticate it in the manner prescribed and refer the sample so sealed to the appropriate laboratory alongwith a direction that such laboratory make an analysis or test, whichever may be necessary, with a view to finding out whether such goods suffer from any defect alleged in the complaint or from any other defect and to report its finding thereon to the District Forum within a period of forty five days of the receipt of the reference or within such extended period as may be granted by the District Forum;
(Underlining provided).
As per the material placed on record, such sample bottle was obtained on 23/04/2007 as per the pursis filed by the complainant on record to that effect. Roznama of said date, copy of which is on record, does not show that said sample was sealed and authenticated in the manner prescribed before sending/forwarding the same to the testing laboratory, namely, Municipal Corporation Health Laboratory at Mumbai. The forwarding letter of the forum is dated 25/06/2007 and it was received by the laboratory on 04/07/2007 as per the acknowledgement recorded thereon.
Said forwarding letter also does not speak about the sealing, authentication etc. The report mentioned the sender as Grahak Takrar Nivaran Manch, Mumbai Upnagar District, New Administrative Bldg., 3rd floor, Bandra (E), Mumbai. It further mentions description on the cap Mfg.by Hindustan Cocacola Beverges Pvt.Ltd., 284-P, Kudus, Tal.Wada, Dist. Thane.
Obviously, therefore, the material on record/evidence led fails to establish that the statutory requirement of putting proper seal on the sample and its authentication are observed and, the evidence further failed to establish nexus between the bottle purchased by the complainant and the bottle/sample examined at the laboratory. Thus, the contention of the appellant/original opponent No.1 that doubts regarding possibility of tampering and genuineness of the sample examined are the factors which cannot be ruled out and need to be accepted.
(9) It is submitted on behalf of the respondent/original complainant that the testing at the laboratory itself is unwarranted and not required since Gutkha pouch found in the bottle could be seen even by naked eyes.
May be true, but since the possibility of tampering of seal cannot be ruled out, it cannot be said that the manufacturer of the cold drink was negligent in not observing hygienic and safety concerns and thereby allowed the Gutkha pouch to be left inside the bottle during the manufacturing process.
(10) As could be revealed from the statement of the complainant appearing in the forwarding letter as well as in a letter to the laboratory and further from the report of the laboratory, supra; the name of the manufacturer of the Fanta bottle in question which appeared on the cap of said bottle, reads as Mfg.by Hindustan Cocacola Beverges Pvt.Ltd., 284-P, Kudus, Tal.Wad, Dist. Thane. Thus, the name of the manufacturer as shown on the bottle itself shows that the appellant is not a manufacturer of the cold drink bottle, Fanta. In his complaint, the complainant made following statement :-
The Company is responsible for such defects in its manufacturing plants. Also after repeated complaints in the past, the company still manufacturers such products without following stringent international procedures, thereby taking us (Indian) for a ride.
The appellant (opponent No.1) submitted that it is a company in marketing business and categorically denied that it is a manufacturer of Fanta 200 ml bottle in question. Therefore, in absence of any material placed on record, the complainant failed to establish that it is the appellant who manufactured the bottle in question.
(11) The phrases defect and "trader", respectively described in Sec.2(1) (f) and
(q) of the Consumer Protection Act, 1986 reads as under :-
(f)defect"
means any fault, imperfection or shortcoming in the quality, quantity, potency, purity or standard which is required to be maintained by or under any law fro the time being in force or [under any contract, express or implied, or] as is claimed by the trader in any manner whatsoever in relation to any goods"
(q)"trader" in relation to any goods means a person who sells or distributes any goods for sale and includes the manufacturer thereof, and where wuch goods are sold or distributed in package form, includes the packer thereof;"
(Underlining provided) (12) Therefore, any defect in goods, as in the instance case, related to the manufacture of the good, namely, Fanta 200 ml cold drink bottle confined to the trader who is manufacturer of said bottle.
Therefore, since, admittedly, the manufacturer of the bottle in question is Coca-cola Beverages Ltd. which is distinct and different company vis--vis juristic person than the appellant company; consumer complaint against the appellant is misconceived.
(13) Further the statement made on behalf of the opponent No.2, shop keeper from whom the complainant purchased Fanta 200 ml bottle, reads as under :-
1. I say that I am the owner of Balakrishna General Stores at Kandivali (W), Mumbai. I say that as part of my business, I sell cold drinks to the public at large.
The said cold drinks are purchased from various distributors who supply the material to my doorstep.
2. I say that I purchase Fanta cold drink from Mahalaxmi Enterprises, having their office at D-53, Anant Nagar, S.V.Road, Malad West, Mumbai 64. I further say that I had purchased about 1 crate of Fanta drink from the said distributor on 25/12/2005. One of the bottles from these was sold to Mr. Vijay Parekh after chilling on 30/12/2005. Mr.Parekh immediately pointed out that the Fanta Bottle contained a packet of GOA GUTKHA floating in it.
(Underlining provided) (14) These particular statements are not contradicted by the complainant itself. Thus, distributor in respect of bottle in question is Mahalaxmi Enterprises situated at Malad (West), Mumbai 4090 064 and not the appellant company. Therefore, even by no stretch of imagination, appellant company even could be trader within the meaning of Sec. 2(1)(q) of the Act.
Appellant company is also not manufacturer as stated earlier. For this reason also, consumer complaint as against the appellant is misconceived. These aspects are overlooked by the forum and, thus, arrived at an erroneous conclusion.
(15) For the reasons stated above, we find ourselves unable to support the impugned order. We hold accordingly and pass the following order.
ORDER Appeal is allowed. Impugned order dated 12/06/2008 is quashed and set aside.
In the result, the Consumer Complaint No.253/2006 stands dismissed.
In the given circumstances, no order as to costs.
Pronounced on 15h December, 2011.
[Hon'ble Mr. S.R. Khanzode] PRESIDING MEMBER [Hon'ble Mr. Dhanraj Khamatkar] Member [Hon'ble Mr. Narendra Kawde] MEMBER pgg