State Consumer Disputes Redressal Commission
The General Manager,Pepsi Cola India ... vs Sharad Bhimrao Debhade, on 28 February, 2014
1 F.A.No. :777/2007
Date of filing:08.08.2007
Date of order:28.02.2014
MAHARASHTRA STATE CONSUMER DISPUTES REDRESSAL
COMMISSION, MUMBAI, CIRCUIT BENCH AT AURANGABAD.
FIRST APPEAL NO.: 777 OF 2007
IN COMPLAINT CASE NO. : 265 OF 2005
DISTRICT FORUM : AURANGABAD.
The General Manager,
Pepsi Cola India Pvt.Ltd.,
M.I.D.C., Roha(Dhatak),
Taluka Roha, Dist.Raigad. ...APPELLANT
VERSUS
1. Sharad Bhimrao Debhade,
R/o HUDCO, N-12, D-1,
Swami Vivekanand Nagar,
New Aurangabad.
2. The Proprietor,
Jagruit Enterprises, Opp.Dhoot Hospital,
Jalna Road, Aurangabad.
3. The Proprietor,
Prathmesh Snacks & Foods,
Opposite Dhoot Hospital,
Aurangabad. ...RESPONDENTS.
Coram : Mr.S.M.Shembole, Hon`ble Presiding Judicial
Member.
Mrs.Uma S.Bora, Hon`ble Member.
Present : Adv.Shri.S.G.Chapalgaonkar for appellant, Adv.Shri.N.D.Sevekar for respondent No.1, Adv.Shri.Sunil Thite for respondent No.2.
O R A L JUDGMENT ( Delivered on 28th February 2014 ) Per Mr.S.M.Shembole, Hon`ble Presiding Judicial Member.
1. Challenge in this appeal is the judgment and order dated 30.06.2007 passed by District Consumer Forum Aurangabad allowing 2 F.A.No. :777/2007 complaint case No.265/05 against the appellant/opponent No.1 Pepsi Cola India Pvt.Ltd. directing it to pay punity damages of Rs.5000/- to respondent No.1/original complainant Sharad Dabhade, without passing any order against respondent/opponent No.2 & 3.
(For the sake of brevity appellant is hereinafter referred as opponent No.1 and respondent No.1 as complainant. Whereas respondent No.2 & 3 as opponent No.2 & 3)
2. The brief facts giving rise to this appeal are that:-
Opponent No.1 Pepsi Cola India Pvt.Ltd. is manufacturing company of cold-drinks known as Pepsi. Opponent No.2 is a dealer of opponent No.1 and opponent No.3 is proprietor of Prathmesh Snacks and Food hotel. Complainant Sharad Dabhade who is the founder President of National Human Development Society requires to offer cold- drinks to the visitors including his friends, non-official and official person. On 6.4.2004, complainant purchased two bottles of Pepsi from opponent No.3 Hotel Prathmesh Snacks and Food on payment of Rs.20/- . Opponent No.3 issued the payment voucher. When those were bottles brought to the office of complainant he found one bottle leaking and another bottle containing broken pouch of Goa gutkha. Therefore on the next day i.e. on 7.4.2004 complainant sent notice to the opponents claiming compensation of Rs.5 lakhs. Opponent No.3 by reply to the complainant's notice denied the allegations made by the complainant and submitted that when the complainant purchased Pepsi bottles from the hotel, no bottle was leaking. But both the bottles were properly sealed. It is also denied that one of the bottles was containing the broken pouch of Goa gutkha. It is submitted that both the bottles were shown to the complainant before handing over him. Therefore notice is false and frivolous. However, opponent No.1 & 2 have not replied the 3 F.A.No. :777/2007 notice. Therefore alleging deficiency in service on the part of opponents complainant filed consumer complaint claiming compensation of Rs.5,00,000/- with interest @ 15% p.a.
3. Appellant/Opponent No.1 by its written version resisted the complaint on the following among other grounds:-
It is denied that complainant is its consumer. However, it is not disputed that complainant purchased two bottles from opponent No.3. It did not dispute that it is manufacturing company of Pepsi product. However, it is denied that bottles which were purchased by complainant from opponent No.3 Prathmesh Hotel is containing its product. It is submitted that it takes every care and precaution while sealing the bottles and no bottle having leakage is sold. It has denied all other averments made by the complainant and submitted to dismiss the complaint.
4. Opponent No.3 also resisted the complaint and submitted that while purchasing the Pepsi bottles complainant had seen and verified seal of those bottles and no bottle was having leakage. No foreign material was also in any bottle. But it does not know when a bottle started leaking and how any foreign material was found in another bottle after purchasing those bottles by the complainant. It is submitted that opponent No.3 is not responsible for having leakage of any bottle or also any foreign material in bottle. It is submitted to dismiss the complaint.
5. No written version appears to have been filed by opponent No.2.
6. On hearing both sides and considering evidence on record, District Consumer Forum held that appellant/opponent No.1 manufacturing company has committed deficiency in service providing a leakage bottle 4 F.A.No. :777/2007 and one bottle having foreign material. In keeping with this finding District Consumer Forum allowed complaint against opponent No.1 directing it to pay punity damages of Rs.5000/-.
7. Feeling aggrieved by that judgment and order opponent No.1 has preferred this appeal.
8. We heard learned counsel for the complainant and opponent No.1 & 2 and also perused the written notes of arguments submitted by them. We also perused the copy of impugned judgment and order, copies of complaint, written version, purchase voucher and copies of notices. We have also perused the record & proceedings of consumer complaint No.265/2005 which is called from District Consumer Forum , Aurangabad.
9. The undisputed facts are that appellant/opponent No.1 is manufacturing company of Pepsi product. Opponent No.2 is a dealer of opponent No.1. On 6.4.2004 complainant purchased two Pepsi bottles from opponent No.3 Hotel Prathmesh for Rs.20/- and opponent No.3 issued purchase bill. The crux in this matter is whether at the time of purchasing two bottles by the complainant from opponent No.3 one was having leakage and other was having foreign material or not?
10. It is submitted by Shri.S.G.Chapalgaonkar learned counsel for the appellant/opponent No.1 that except the bare contention of complainant, there is no evidence to show that bottles are containing the Pepsi product manufactured by opponent No.1. According to him it is not known as to, from where opponent No.3 had purchased those bottles and whether those bottles were having company seal or not? But District Consumer Forum without considering this fact straightway jumped to wrong conclusion that those bottles were having intact seal and those bottles 5 F.A.No. :777/2007 are containing product of opponent No.1 etc. On perusal of record we find much force in the submission of Shri.Chapalgaonkar learned counsel for opponent No.1. Because, nowhere it is disclosed by either party as to from where opponent No.3 had purchased those bottles. Therefore in the absence of any specific pleading and evidence it is difficult to hold that opponent No.3 had purchased those bottles from any authorized dealer of opponent No.1. Therefore even if it is presumed that one of the bottles was having leakage and another was containing foreign material, it cannot be inferred that it was due to negligence on the part of opponent No.1 manufacturing company. It may be due to negligence on the part of dealer or sub-dealer of manufacturing company. Even opponent No.3 is not sub-dealer of the opponent No.1. Therefore on any count opponent No.1 cannot be held liable, even if it is proved that one of the bottles was having leakage and another was having foreign material i.e. broken pouch of Goa gutkha.
11. Apart from the above facts there is no cogent and reliable evidence on record to show that at the time of purchasing those bottles by the complainant from the hotel of opponent No.3 one of the bottles was having leakage and another was having foreign material. According to complainant he himself purchased those bottles from the hotel of opponent No.3 and on returned to his office he found a bottle having leakage and another bottle containing foreign material. But he has not explained as to how he purchased those bottles without verifying its seal etc. If one of the bottles was having leakage, it should have noticed immediately while carrying bottles from opponent No.3 hotel to the office of complainant. If really complainant would have noticed such leakage from the bottles, he would have returned to the opponent No.3 hotel and could have shown the bottles to the proprietor of opponent No.3 hotel. Not only this but even if complainant could not have noticed such fact till returning to his office and if he would have noticed such facts after 6 F.A.No. :777/2007 returning to his office, he should have immediately returned to the opponent No.3 hotel and should have shown such bottles to the proprietor of opponent No.3 hotel. But record does not reflect that he took such action immediately after noticing such facts. Record merely reflects that on the very next day he issued notice to the opponents. No explanation is given by the complainant as to why he did not go to opponent No.3 hotel immediately after noticing such facts. Therefore the complainant's contention that he noticed leakage to one bottle and also foreign material in another bottle immediately after returning to his office, cannot be relied on. Even there is no evidence to show that before issuance of notice complainant shown those bottles to any other person. When the bottles were bought by complainant for offering Pepsi cold- drink to visitors, some visitors must be present at his office and if such defect was noticed, he would have shown those bottles to the visitors who were present in the office. But no such probable evidence is brought on record. Therefore possibility of tampering those bottles by any other person in the office, cannot be denied. Even it is not the contention of complainant that no other person was present in his office when the bottles were brought.
12. Apart from above facts it is vehemently argued by Shri.Chapalgaonkar learned counsel for the appellant/opponent No.1 that if such foreign material would have noticed in the Pepsi bottles complainant should have taken immediate steps for referring those bottles to the chemical analyzer through competent authority. But he did nothing till filing of complaint on 27.7.2005. However, pending the complaint on the request of complainant those bottles were sent to chemical analyzer, Dy.Director of Health Services who informed that such analysis cannot be done etc. Thus there is no conclusive evidence on record to show that one of the Pepsi bottles was having foreign material. But District Consumer Forum observed that when it is visible 7 F.A.No. :777/2007 by necked eye that one of the bottles is having leakage and another having broken pouch of Goa gutkha, other evidence is not required. If it is so then there could be no reason for District Consumer Forum to send those bottles to Dy.Director, Health Services allowing complainant's application. Therefore such erroneous finding cannot be sustained.
13. Even otherwise foreign material in a bottle is visible with necked eyes as stated above and as pointed above is no evidence to show that some foreign material was in the bottle at the time of purchasing the same by complainant from opponent No.3 hotel. Even otherwise there is no evidence to show that some bottles were purchased by opponent No.3 from any authorized dealer of opponent. Therefore on any count opponent No.1 manufacturing company cannot be held liable. Therefore finding of District Consumer Forum holding opponent No.1 liable is being unfounded and erroneous, cannot be sustained.
14. In the result, appellant succeeds and appeal deserves to be allowed. Hence the following order.
O R D E R
1. Appeal is allowed.
2. The impugned judgment and order is set aside.
3. Complaint stands dismissed.
4. No order as to cost.
5. Copies of the order be sent to both the parties.
Sd/- Sd/-
Uma S.Bora S.M.Shembole,
Member Presiding Judicial Member
Mane