State Consumer Disputes Redressal Commission
Hindustan Coca Cola Beverage Pvt. Ltd. vs Manveer Singh Negi & Others on 3 December, 2013
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, UTTARAKHAND, DEHRADUN
FIRST APPEAL NO. 335 / 2010
Hindustan Coca Cola Beverage Pvt. Ltd.
Having one of its plant at Kotwali Road, Nazibabad
Through its authorized signatory
Shri Atul Kumar Jain S/o Late Sh. S.P. Jain
......Appellant / Opposite Party No. 3
Versus
1. Sh. Manveer Singh Negi S/o Late Sh. S.S. Negi
R/o Turner Road, Clement Town, Dehradun
......Respondent No.1 / Complainant
2. Sh. Vivek Kumar, M/s Vivek Communications
Gupta Store, Subhash Nagar, Dehradun
......Respondent No. 2 / Opposite Party No. 1
3. M/s Maha Lakshmi Sales
Hindustan Coca Cola Beverages Pvt. Ltd.
Wing No. 6, Prem Nagar, Dehradun
......Respondent No. 3 / Opposite Party No. 2
Mr. T.S. Bindra, Learned Counsel for the Appellant
Ms. Anupma Gautam, Learned Counsel for the Respondent No. 1
None for Respondent Nos. 2 & 3
Coram: Hon'ble Mr. Justice B.C. Kandpal, President
Mr. C.C. Pant, Member
Dated: 03/12/2013
ORDER
(Per: Mr. C.C. Pant, Member):
This appeal is directed against the judgment and order dated 27.09.2010 passed by the District Forum, Dehradun in consumer complaint No. 87 of 2009, whereby the District Forum has allowed the consumer complaint and directed the opposite party No. 1 to pay to the complainant a sum of Rs. 8/- towards cost of bottle and Rs. 5,000/- on account of deficiency in service. The District Forum has also directed the opposite party Nos. 2 and 3 to pay to the complainant a sum of Rs. 10,000/- and 2 Rs. 25,000/- respectively. The District Forum has further directed that out of the total award amount of Rs. 40,008/-, Rs. 30,000/- shall be deposited in Consumer Welfare Fund of the District Forum.
2. The facts of the case, in brief, are that the complainant Sh. Manveer Singh Negi had purchased four bottles of cold drinks of 200ml (including a bottle of Fanta cold drink, in which date and time of manufacture and batch No. were printed as 16.02.2009, 21:20hrs and 194 respectively) along with one packet of Kurkure, one packet of Chips and one bottle of Maaza cold drink from Sh. Vivek Kumar of M/s Vivek Communications, Gupta Store, Subhash Nagar, Dehradun - opposite party No. 1 on 05.03.2009 at about 11:00a.m. and made a payment of Rs. 97/- for all the above items. The complainant has alleged that when he was about to open the 200ml bottle of Fanta cold drink, he noticed a number of insects inside the bottle and also saw one dead ant. When the complainant informed the opposite party No. 1 regarding the presence of insects and dead ant in the bottle and showed him the bottle, the opposite party No. 1 expressed his inability to compensate the complainant and said that he had received the said bottle from M/s Maha Lakshmi Sales, Hindustan Coca Cola Beverages Pvt. Ltd., Wing No. 6, Prem Nagar, Dehradun - opposite party No. 2 on 04.03.2009 and handed over the receipt to the complainant. The manufacturer of these cold drink bottles was M/s Hindustan Coca Cola Beverages Pvt. Ltd., Ghaziabad, U.P. - opposite party No. 3. The complainant sent notice dated 05.03.2009 through registered post to the opposite parties, but did not receive any reply from them. Upon this, the complainant filed a consumer complaint before the District Forum, Dehradun. The District Forum, after an appreciation of the facts of the case, allowed the consumer complaint in the above manner. Aggrieved by the said order, the opposite party No. 3 - Hindustan Coca Cola Beverages Pvt. Ltd. has filed this appeal.
3. We have heard the learned counsel for the appellant-opposite party No. 3 and respondent No. 1-complainant. None appeared on behalf of the 3 respondent Nos. 2 & 3 - opposite party Nos. 1 & 2. We have also perused the material placed on record.
4. The learned counsel for the appellant argued that a collusion between the respondent No. 1 and respondent Nos. 2 & 3 is apparent on the face of record. He submitted that the said bottle was purchased on 05.03.2009 and on the same date, the respondent No. 1 issued notices to the opposite parties. Further, a copy of the cash/credit memo dated 04.03.2009 issued by M/s Maha Lakshmi Sales-respondent No. 3 is being produced by the respondent No. 1. The learned counsel also pointed out that the cash/credit memo is in the name of "Present Gifts" and not in the name of the respondent No. 2. The learned counsel also submitted that the said bottle was inspected by Sh. Atul Kumar Jain, Team Leader (H.R.) of the appellant and he found that the seal of the bottle was tampered and the same was re-crowned and the material inside was spurious. Sh. Atul Kumar Jain, Team Leader (H.R.) had filed his affidavit before the District Forum in this regard. The learned counsel further argued that the District Forum did not follow the relevant provision provided under Section 13(1)(c) of the Consumer Protection Act, 1986 and the impugned order is contrary to the provisions. The learned counsel submitted that the bottles of the appellant are bottled in a state of art bottling plant and there is no chance of any insect material or contamination. It was obligatory on the part of the District Forum to ascertain through expert opinion or laboratory test, as to whether the content of the bottle was actually manufactured/prepared by the appellant, as alleged by the complainant. Therefore, the District Forum has failed to consider the factual as well as the legal aspect of the case. The learned counsel also referred the following decisions in support of his contention:-
a) The decision of the Hon'ble National Commission in the case of Amit Swami vs. Coca Cola India Ltd. & Ors.; II (2007) CPJ 256 (NC) 4
b) This Commission's judgment dated 08.04.2013 in First Appeal No. 171 of 2010, Hindustan Coca Cola Beverages Pvt. Ltd. vs. Lokesh Kumar & Anr.
c) 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.
d) 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.
e) The decision of the Hon'ble National Commission in the case of Bhawana Kumar vs. Varun Webres Ltd. & Anr.; IV (2008) CPJ 163 (NC)
f) 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)
g) Haryana State Commission's decision in the case of Satish Kumar vs. Rajesh Kumar & Ors.; II (2011) CPJ 195.
h) 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)
i) U.P. State Commission's decision in the case of Aquaous Victuals Ltd. vs. Rajesh Kumar Bajpai; I (2004) CPJ 138
5. We went through all the above cited judgments. In the case of "Amit Swami vs. Coca Cola India Ltd. & Ors.", the National Commission has held that the Consumer Fora cannot pass any order for levy of penalty being credited in Consumer Welfare Fund.
6. In the case of "Hindustan Coca Cola Beverages Pvt. Ltd. vs. Lokesh Kumar & Anr.", this Commission had absolved the appellant-Hindustan Coca Cola Beverages Pvt. Ltd. from any liability to pay the compensation and penalty.
57. 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 cannot 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.
8. 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.
9. 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 6 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.
10. 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.
11. 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 the District Forum and the State Commission are vitiated by the facts that they are not based upon any evidence.
12. The learned counsel for the respondent No. 1 reiterated the facts of the case and argued in support of the impugned order.
713. We considered the submissions raised by the learned counsel for the appellant and respondent No. 1. It is not in dispute that the respondent No. 1 had purchased the Fanta cold drink bottle, which is the subject matter of dispute, from the respondent No. 2 and it is also not in dispute that the said bottle contained insects and one dead ant. The District Forum itself made an inspection of the said bottle and found that the allegation made by the respondent No. 1 that the respondent No. 2 had sold him the said bottle with spurious content, was true. However, the District Forum has failed to appreciate, as to whether the said bottle was sold to the respondent No. 2 by respondent No. 3 and as to whether the seal/crown of the bottle was tampered or not. As a matter of fact, it was not possible for the District Forum to ascertain, whether the seal / crown of the bottle was tampered or not and, therefore, to ascertain this fact, the District Forum should have followed the procedure as laid down under Section 13(1)(c) of the Consumer Protection Act, 1986. Further, the respondent No. 3 has issued the cash / credit memo No. 51926 dated 04.03.2009 in the name of "Present Gifts" (Paper No. 25), while the respondent No. 2 runs the shop in the name and style of "Vivek Communications". Therefore, it is also doubtful, whether the respondent No. 2 had purchased the said bottle from respondent No. 3 or not. The appellant has alleged that the bottle, on an inspection by its Team Leader, was found re-crowned. In such a case, it was necessary to ascertain through a laboratory test whether the seal/crown of the bottle was tampered or not. Therefore, in absence of conclusive evidences, the appellant and respondent No. 3 cannot be held liable for selling spurious cold drink bottle. It was also the retailer's responsibility to check the bottle before selling it to the consumer. Therefore, in this case, the respondent No. 2 is solely liable for selling spurious cold drink bottle. With these observations, we are of the view that the appellant and respondent No. 3 should be absolved from the liability to pay the compensation to the respondent No. 1, as directed by the District Forum. Further there is no justification to deposit a sum of Rs. 30,000/- in District Consumer Welfare Fund and this part of the impugned order is liable to be 8 set aside. However, the directions given by the District Forum to respondent No. 2/opposite party No. 1 are just and we also endorse it. The impugned order needs modification accordingly.
14. For the aforesaid reasons, the appeal is partly allowed. The impugned order dated 27.09.2010 passed by the District Forum, Dehradun is modified by absolving the appellant-opposite party No. 3 and respondent No. 3-opposite party No. 2 from the payment of compensation to the respondent No. 1, as directed by the District Forum. The order in respect of depositing a sum of Rs. 30,000/- in the District Consumer Welfare Fund is also set aside. The order passed by the District Forum against the respondent No. 2 is confirmed. No order as to costs.
(C.C. PANT) (JUSTICE B.C. KANDPAL)