State Consumer Disputes Redressal Commission
Hindustan Coca Cola Beverage Pvt. Ltd. vs Lokesh Kumar & Another on 8 April, 2013
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, UTTARAKHAND, DEHRADUN
FIRST APPEAL NO. 171 / 2010
Hindustan Coca Cola Beverage Pvt. Ltd.
Having its plant at 5th KM. Mile Stone
Mussorie Gulawati Road, P.O. Dasna, Tehsil
Hapur, District Ghaziabad, Uttar Pradesh
Through its authorized signatory
Shri Atul Kumar Jain, Team Leader, H.R.
......Appellant / Opposite Party No. 1
Versus
1. Shri Lokesh Kumar
S/o Shri Raghunath
R/o Lane No. 1, Vidhya Vihar Colony
Bhairav Mandir Road, Kankhal, Haridwar
......Respondent No.1 / Complainant
2. Shri Anil Chauhan
Proprietor Chauhan Pustak Bhandar
Shyampur, District Haridwar
......Respondent No. 2 / Opposite Party No. 2
Mr. T.S. Bindra, Learned Counsel for the Appellant
None for Respondent Nos. 1 & 2
Coram: Hon'ble Mr. Justice B.C. Kandpal, President
Mr. C.C. Pant, Member
Mrs. Kusumlata Sharma, Member
Dated: 08/04/2013
ORDER
(Per: Mr. C.C. Pant, Member):
This appeal, under Section 15 of the Consumer Protection Act, 1986, has been preferred by M/s Hindustan Coca Cola Beverages Pvt. Ltd., opposite party No. 1 before the District Forum, Haridwar, against the judgment and order dated 13.05.2010 passed by the District Forum, 2 Haridwar, in consumer complaint No. 332 of 2008, whereby the District Forum has allowed the consumer complaint and has directed the opposite party No. 1 - appellant to pay a sum of Rs. 5,000/- to the complainant within a month from the date of the order and also to deposit a sum of Rs. 45,000/- with the District Forum towards penalty.
2. The facts of the case, in brief, are that the complainant Sh. Lokesh Kumar had purchased a bottle of cold drink named "Fanta", which is manufactured by the opposite party No. 1 - appellant, from opposite party No. 2 - Sh. Anil Chauhan, Proprietor, M/s Chauhan Pustak Bhandar, Shyampur, District Haridwar. The complainant has alleged that when he was about to open the bottle, he found that there was a shaving blade in the bottle. The complainant was shocked to see the blade in the cold drink's bottle, as it could have caused fatal injury to him in case he had consumed the cold drink. The complainant went to the seller, i.e., opposite party No. 2 - respondent No. 2, but the seller simply shrugged off the responsibility, stating that the cold drink is manufactured by the opposite party No. 1 - appellant. Upon this, the complainant issued notices to the opposite party Nos. 1 & 2, but to no avail. This led the complainant to file a consumer complaint before the District Forum, Haridwar. The District Forum, after an appreciation of the facts of the case, allowed the consumer complaint vide its judgment and order dated 13.05.2010 in the above terms. Aggrieved by the said order, the opposite party No. 1 - Hindustan Coca Cola Beverages Pvt. Ltd. has filed this appeal.
3. The opposite party No. 1 - appellant and opposite party No. 2 - respondent No. 2 filed written statements before the District Forum. The appellant pleaded that the respondent No. 1 had himself moved an application under Section 13 (1)(c) of the Consumer Protection Act, 1986 and had offered to deposit the bottle of the cold drink in question for sending it to the appropriate laboratory to make an analysis or test, but he 3 did not deposit the bottle for analysis and test. The opposite party No. 2 - respondent No. 2 pleaded that he is not liable for the quality of the cold drink, as the same is manufactured by the opposite party No. 1. However, the District Forum, vide its impugned judgment and order held that the opposite party No. 1 is liable for manufacturing the cold drink and bottling and sealing the same and, hence, directed it to pay the compensation and penalty, as stated above.
4. Notices were issued to the respondent Nos. 1 & 2. The acknowledgment due cards of respondent Nos. 1 & 2 have been received back, but none appeared on their behalf on 23.05.2012 and 03.09.2012 respectively. This Commission, vide its order dated 03.09.2012, made it clear that if the respondents remain absent on the next date fixed, the matter shall be proceeded accordingly. On 19.03.2013, the learned counsel for the appellant appeared, but none appeared on behalf of respondent Nos. 1 & 2. We heard the learned counsel for the appellant and perused the material placed on record.
5. Learned counsel for the appellant submitted that the products of the appellant - Hindustan Coca Cola Beverages Pvt. Ltd. are high in quality, which is widely acknowledged by its consumers. The products meet all the prescribed standards and parameters. The entire process of manufacturing, bottling and sealing the beverages at the bottling plant of the appellant is automatic and computerized and the products go through several checks and controls before leaving the plant. Therefore, it was necessary to send the bottle to the appropriate laboratory for analysis and test and to ascertain as to whether the seal was intact or not and as to whether the content of the bottle was "Fanta" or it was something else. Learned counsel for the appellant submitted that inspite of the complainant's own offer to deposit the bottle in question for analysis and test, he did not deposit it. Therefore, the appellant has no liability to pay any amount to the respondent No. 1 by 4 way of compensation or otherwise. The learned counsel also referred to the following decisions in support of his contention:-
a) The decision of the Hon'ble National Commission in the case of The Managing Director M/s Hamdard Wakf Laboratories (India) & Ors. vs. Vijay Kumar & Anr.; II (1994) CPJ 19 (NC)
b) The decision of the Hon'ble National Commission in the case of Bhawana Kumar vs. Varun Webres Ltd. & Anr.; IV (2008) CPJ 163 (NC)
c) U.P. State Commission's decision in the case of Aquaous Victuals Ltd. vs. Rajesh Kumar Bajpai; I (2004) CPJ 138
d) Haryana State Commission's decision in the case of Satish Kumar vs. Rajesh Kumar & Ors.; II (2011) CPJ 195.
e) This Commission's judgment dated 06.12.2008 in First Appeal No. 07 of 2007, Hindustan Coca Cola Beverages Pvt. Ltd. vs. Sudhir Vashishtha & Anr.
f) This Commission's judgment dated 06.12.2008 in First Appeal No. 63 of 2007, Hindustan Coca Cola Beverages Pvt. Ltd. vs. Avinash Kumar & Ors.
g) This Commission's judgment in the case of Marinda Varun Beverages Ltd. vs. Arun Kumar Bhaduria & Anr.; 2009 (3) CPR 85=2009 CTJ 447 (CP)
6. We went through all the above cited judgments. The facts and circumstances of the case "The Managing Director M/s Hamdard Wakf Laboratories (India) & Ors. vs. Vijay Kumar & Anr " (supra) are somewhat different from the facts of the instant case. In "M/s Hamdard Wakf Laboratories (India)'s case, the complainant has alleged that some lizard like thing was floating in the Roohafza bottle. When the bottle was produced before the District Forum, no such foreign material was visible. Therefore, the Hon'ble National Commission observed that the findings of 5 the District Forum and the State Commission are vitiated by the facts that they are not based upon any evidence.
7. In "Bhawana Kumar vs. Varun Webres Ltd. & Anr." case (supra), the Hon'ble National Commission upheld the decision of the District Forum and the State Commission, whereby the Fora below had dismissed the consumer complaint. In the said case, the State Commission had itself checked the seal of the bottle and had found that it was tampered with. The complainant was also asked if he wanted to send the sample to some other laboratory, but he refused to do so. In revision petition the Hon'ble National Commission rejected the plea taken by the complainant's father that the State Commission could not undertake the exercise of testing the bottle as was allegedly done by the State Commission and had acted beyond its jurisdiction. The Hon'ble National Commission has observed in this case that Section 165 of the Evidence Act authorizes any Court, Commission or Authority to make inquiry from any person for arriving at a just conclusion.
8. The facts of the case "Aquaous Victuals Ltd. vs. Rajesh Kumar Bajpai" are quite different from the instant case and it cannot help the appellant. In "Satish Kumar vs. Rajesh Kumar & Ors." case, the District Forum had sent the sample of cold drink named "Pepsi" to the office of the Public Analyst for analysis and test. The Public Analyst had reported that the crown cork of the Pepsi bottle was loose and dented and the bottle was broken at the top of the mouth. Quantity of sample was also found less than 300 ml. The sample had a lot of suspended matter / sediments. Thus, on the basis of this report, the consumer complaint was dismissed by the District Forum and the State Commission upheld the decision. However, this Commission has also passed some judgments involving similar disputes, three of them have been cited by the learned counsel for the appellant.
69. In "Hindustan Coca Cola Beverages Pvt. Ltd. vs. Sudhir Vashishtha & Anr.", an insect was found in the sealed bottle of the cold drink. This Commission observed that it could not be ascertained whether the contents of the said bottle were actually manufactured by the appellant and came to the conclusion that the appellant can not be held liable for selling contaminated cold drink. Instead of the appellant, the seller/retailer was held liable to pay compensation. The facts of this case appear to be quite similar to the facts of the instant case.
10. In "Hindustan Coca Cola Beverages Pvt. Ltd. vs. Avinash Kumar & Ors." case and also in the case of "Marinda Varun Beverages Ltd. vs. Arun Kumar Bhaduria & Anr." the complainant found some filth or foreign material in the bottle of the cold drink. The facts of the said cases are bit different from the facts of the instant case, because in these cases, the samples of the cold drink were tested by the Public Analyst who had confirmed that the cold drink was contaminated. But this Commission observed that the complainant, wholesaler and the retailer had failed to prove that the bottles in question were supplied by the appellant. On the basis of this observation, this Commission absolved the appellant of the liability to pay the compensation and instead directed the wholesaler and retailer to pay the compensation.
11. In the instant case, there was no need to send the sample to the Public Analyst because the shaving blade was quite visible in the bottle. However, it can not be ruled out that some unscrupulous person had refilled the bottle with a drink of inferior quality. The retailer - respondent No. 2 had admitted that he had sold that bottle of cold drink to the complainant - respondent No. 1 and, therefore, it is his responsibility not to sell such products, which are apparently hazardous to public health. Before selling the goods, the seller / retailer should also check whether the goods have any apparent defect or not. From the perusal of the record, it appears 7 that the respondent No. 1 - complainant had approached the respondent No. 2 - opposite party No. 2 and had shown him the said bottle, which contained a shaving blade. So it was the duty of the respondent No. 2 to take back the bottle and either to give the respondent No. 1 another bottle or to refund its cost and also to lodge a complaint against the manufacturer
- appellant. It is due to the respondent No. 2 that the respondent No. 1 was forced to file a consumer complaint before the District Forum. The respondent No. 2 has also contested the case before the District Forum, but he failed to prove that the said bottle was supplied by the appellant and that the seal / crown cork of the bottle was intact and the content is same, which is manufactured by the appellant. The District Forum has failed to consider this aspect of the case and has wrongly held that the appellant is liable for selling contaminated cold drink. The finding of the District Forum is not based on any evidence and, therefore, the impugned order, in so far as it is against the appellant, is not sustainable. This Commission, as discussed above, has held in similar cases that the appellant can not be held liable for selling contaminated cold drink in absence of conclusive evidences against it.
12. For the reasons aforesaid, this appeal is allowed. The impugned judgment and order dated 13.05.2010 passed by the District Forum, Haridwar, in consumer complaint No. 332 of 2008, in so far as against the appellant, is hereby set aside and the appellant is absolved of its liability to pay the compensation and penalty awarded by the District Forum. Instead, the respondent No. 2 is held liable to pay Rs. 5,000/-, the awarded amount, to the complainant within a period of 30 days from the date of this order. However, the direction to deposit Rs. 45,000/- with the District Forum is also set aside. No order as to cost.
(MRS. KUSUMLATA SHARMA) (C.C. PANT) (JUSTICE B.C. KANDPAL)