State Consumer Disputes Redressal Commission
Aradhana Soft Drinks Company vs Surjit Pal on 9 April, 2015
First Additional Bench
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB,
DAKSHIN MARG, SECTOR 37-A, CHANDIGARH.
First Appeal No.572 of 2011
Date of institution: 30.03.2011.
Date of Decision: 09.04.2015.
1. Aradhana Soft Drinks Company Village Ali Asgarpur,
P.O.Ganjbar Panipat (Haryana)- 132 103.
2. Pepsi Foods Pvt. Ltd., 3-B, DLF, Corporate Park, S-
Block, Qutuab Enclave, Phase-III, Gurgaon -122002
(Haryana).
.....Appellants/OP No.3&4.
Versus
1. Surjit Pal son of Sh.Hans Raj, resident of Street No.14,
Dogar Basti, Faridkot.
.....Respondent/Complainant.
2. Ashwani Kumar Prop. Farid Karyana Store, Near Mai
Godri Sahib, Kotkapura Road, Faridkot.
3. Farid Enterprises, Distributor Pepsico India Holding Pvt.
Ltd. (Cold Drinks) Opp. Police Station Sadar, Kotkapura
Road, Faridkot.
.....Proforma Respondents/O.P.No.1&2.
First Appeal against order dated
30.11.2010 of District Consumer
Disputes Redressal Forum,
Faridkot.
Before:-
Shri J.S.Klar, Presiding Judicial Member
Shri Vinod Kumar Gupta, Member.
First Appeal No.572 of 2011 2Present:-
For the appellants : Sh.Manvinder Rathee, Advocate For respondent No.1: None For respondent No.2&3: Ex-parte VINOD KUMAR GUPTA, MEMBER This appeal has been preferred by the appellants (the opposite party No.3&4 in the complaint) against the respondents of this appeal, respondent No.1 Surjit Pal (the complainant in the complaint) and respondent No.2&3 of this appeal (OP No.1&2 in the complaint) under Section 15 of the Consumer Protection, 1986 (hereinafter referred to as the 'Act') against order dated 30.11.2010 of District Consumer Disputes Redressal Forum, Faridkot (hereinafter called the 'District Forum') in Consumer Complaint No.128 of 2010, partly accepting the complaint of the complainant and directing OPs No.1 to 3 to pay the cost of the bottle and Rs.4000/- as compensation for mental harassment to the complainant jointly and severally, within the period of one month from the date of receipt of the copy of the order, failing which OPs No.1,2&3 shall be liable to pay interest @ 9% p.a. from the date of order till its realization.
2. The brief facts of the case of the complainant are that Surjit Pal complainant filed the complaint against the OPs on the averments that the complainant purchased three bottles of Lehar Slice 250 ml from OP No.1 (Ashwani Kumar Prop. First Appeal No.572 of 2011 3 Kiryana Store) for a price of Rs.36/- i.e. Rs.12/- per bottle with MFD 260210 with a batch No.LIBN25E printed on the bottles. The complainant consumed two bottles of said cold drinks and the stomach of the complainant was upset after consuming the same. Then, the complainant consulted his family practitioner and came to know that the said problem was caused due to the consumption of the said soft drink, being a contaminated one and unfit for human consumption. He immediately inspected the third bottle, which was sealed and found so many small black foreign particles including a big black foreign particle in its contents. He sent a complaint through email to the OP on their email address and requesting them to maintain the quality of the product, so that the product remains consumable and a video of said soft drink was also forwarded to the opposite parties. The OPs replied that his complaint was being forwarded to the sales and quality team in Punjab and someone would be in touch with him to check the product and resolve the issue, but no one ever contacted the complainant in this regard, which clearly showed the negligence of the OP No.3&4. It was further pleaded in the complaint that he requested the OP No.1 to issue the bill, but it was refused. Hence, the complainant filed the complaint seeking direction to the OPs to pay the sum of Rs.1,00,000/- as damages/compensation on account of illegal sale and First Appeal No.572 of 2011 4 unfair trade practice of Lehar Slice Soft Drink 250 ml, being contaminated which contained foreign particles, being unfit for human consumption, as the same has caused mental tension and physical health problem to the complainant and complainant further prayed for directing the OPs to withdraw the stock of the product, mentioned above from the market.
3. The complaint was contested by OPs by filing their separate written replies before the District Forum. OP No.1 filed the written reply and it was admitted that the complainant purchased the Lehar Slice soft drink from OP No.1 and OP No.1 purchased the product from OP No.2 (Farid Enterprises, Distributor) in a sealed condition, vide bill dated 25.3.2010 and sold the same to the complainant in the same sealed condition. It was further submitted that OP No.1 was a very small retailer and did not maintain any account book or bill book. Any deficiency in service or unfair trade practice on its part was totally denied therein. OP No.1 prayed for dismissal of the complaint.
4. OP No.2 filed its separate written reply before the District Forum. Preliminary objections were taken by it that the complaint is bad for the misjoinder of parties. On merits, it was replied by it that the OP No.2 had no concern with the consumption of the said two bottles, moreso, they have no concern with this matter whatsoever. Sealed bottles have First Appeal No.572 of 2011 5 been received by the OP and they were further used to sell them in intact condition. Any deficiency in service or unfair trade practice on its part was totally denied by OP No.2 and it prayed for dismissal of the complaint.
5. OPs No.3&4 filed the separate written submission raising preliminary objection that the complaint was filed by the complainant inconnivance with the OP No.1, who is the real brother of the complainant. No such product was ever purchased from the OP No.1. It was further pleaded that the complainant had not lodged any complaint with the local administration or with the Sales Tax Department regarding the refusal of bill by the OP No.1. On merits, it was replied interalia that many e-mails of the complainant must have been sent to create evidence only. It was denied, if any foreign matter or substance was there in the contents of alleged bottle. It was alleged that there was no deficiency in service and unfair trade practice on the part of the opposite parties No.3&4. OPs No.3&4 prayed for dismissal of the complaint.
6. The complainant tendered in evidence his affidavit Ex.C-1, bottle of Slice Ex.C-2, Email Ex.C-3, response received from OP No.4 Ex.C-4 and closed the evidence. The OP No.2 tendered in evidence the affidavit of Gurcharan Singh Ex.R-1 and closed their evidence. OP No.3&4 tendered in evidence affidavit of Vinod Kaushal Ex.R-2, affidavit of First Appeal No.572 of 2011 6 V.R.Shankar Ex.R-3 and closed their evidence. On conclusion of evidence and arguments, the District Forum Faridkot, partly allowed the complaint of the complainant, as referred to above. Dissatisfied with the impugned order of District Forum, Faridkot, the instant appeal has been preferred against the same by the OPs No.3&4, now appellants.
5. We have heard learned counsel for the appellant in this appeal as none appeared on behalf of the respondent No.1 at the time of arguments of the appeal, Respondent No.2&3 are ex-parte and we have gone though the record of the case as well.
6. As per affidavit of Surjit Pal complainant Ex.C-1, he deposed that on 25.03.2010, he purchased three bottles of the Lehar Slice Soft Drink from the OP No.1 for a price of Rs.36/- per bottle with MFD 260210 with a batch No.LIBN25E printed on the bottles. He further deposed that he consumed the above mentioned two soft drink within a span of one hour and his stomach was disturbed after consuming the above said cold drink. He immediately inspected the third bottle, which was still lying with him and found so many black foreign particles of a considerable size in the third bottle's contents. On 26.03.2010, he sent a complaint through e-mail Ex.C-3 to the OPs on their e-mail address and he received a response from OP by e-mail on 26.3.2010 itself, wherein the OP First Appeal No.572 of 2011 7 acknowledged the receipt of the complaint Ex.C-4 stating therein that the complaint was being forwarded to Sales and Quality Team, Punjab and someone would be in touch with the complainant to check the product and to resolve the issue. However, no one ever contacted the complainant in this regard. As per the affidavit of Sh.Ashwani Kumar, Prop. Of Farid Kiryana Store, OP No.1 it is deposed that the complainant purchased the product Lehar Slice from OP No.2, vide its invoice No.1869 dated 25.03.2010 and sold the same to the complainant in the same sealed conditions. The main objection taken by the OP is that the complainant is not consumer under the meaning of the Consumer Protection Act,1986. This objection of the OP is not sustainable because OP No.1 has admitted in his written reply that he had sold the Lehar Slice product to the complainant for consideration. So, the complainant is a consumer of the OPs. As per the allegations made in the complaint by the complainant, he consumed two bottles of soft drink and his stomach was upset after consuming the said cold drink, but this version of the complainant is not correct because no material in the form of prescription slip or treatment of any Doctor has been placed on the record in this respect. No affidavit of the treating doctor or lab test is placed on the record to prove it. The second point raised by the OP is that the said bottle in dispute was not First Appeal No.572 of 2011 8 sent to any lab for analysis and hence, in the absence of any test report, it is not appropriate to reach the conclusion that the said bottle was unfit for human consumption. The OPs have taken the plea that some duplicate bottles of same brand were sold in the market as well. There is nothing on the record that the Slice Bottle, which was produced before the District Forum was original bottle or not. Without lab report, it cannot be said Lehar Slice bottle was intact or not. We have duly considered this submission of OPs as raised in the grounds of appeal but we find no substance in it being an after thought argument. From perusal of written reply of OP No.3&4, we find that it is not pleaded by them that such type of fake branded soft drink bottles are easily available in the market. No argument can be entertained, which is not arising from the pleaded case of the parties. The District Forum has also recorded this observations that foreign articles were visible in the bottle even to the naked eye. In the presence of this observation of District Forum, we find that the case of the complainant cannot be rejected for want of lab test. Greater weightage has to be given to the observation of the District Forum, which is an independent body created by law to adjudicate these matters. We rely upon the observation of the District Forum to this effect that the foreign particles were visible in the bottle even to the naked eye, which indicates that it was a contaminated First Appeal No.572 of 2011 9 food drink. Such type of food drinks should not be sold to the public, which could be hazardous to their health. The District Forum made the liability of OP No.1 to 3 jointly and severally, whereas, we find it to be a case of entire liability of the manufacturer i.e. OP No.3. Consequently, we find no illegality in the order of the District Forum calling for any interference therein except slight modification therein that the entire liability to pay the amount of compensation and cost of bottle shall be of manufacturer OP No.3 alone.
7. Sequel to the above discussion, the appeal filed by the appellants is hereby dismissed by affirming the order of the District Forum under challenge in this appeal fixing the entire liability to pay the amount of bottle and the amount of compensation by the manufacturer OP No.3 whereas, OP No.1&2 are discharged from the liability.
8. The appellants had deposited an amount of Rs. 2,018/- with this Commission at the time of filing of the appeal. This amount with interest, if any, be remitted by the registry to the respondent No.1/complainant by way of a cross cheque/demand draft after the expiry of 45 days and the remaining amount shall be paid by the OP No.3 to the respondent No.1/complainant by way of a cross cheque/demand draft within 30 days from the date of receipt of the copy of the order.
First Appeal No.572 of 2011 10
9. The arguments in this appeal were heard on 31.03.2015 and the order was reserved. Now the order be communicated to the parties. The appeal could not be decided within the statutory period due to heavy pendency of court cases.
(J.S.Klar)
Presiding Judicial Member
April 9, 2015 (Vinod Kumar Gupta)
Lb/- Member