State Consumer Disputes Redressal Commission
M/S Pepsico India Holding Pvt. Ltd. vs Parshotam K. Garg And Another. on 6 April, 2016
First Additional Bench
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, DAKSHIN MARG, SECTOR 37-A, CHANDIGARH.
First Appeal No.150 of 2013
Date of institution : 12.02.2013
Date of decision : 06.04.2016
M/s. Pepsico India Holding Pvt. Ltd., village Ali Asgarpur, P.O.
Ganjbar, District Panipat(Haryana)-132103.
.......Appellant/Opposite Party No.1
Versus
1. Parshotam K.Garg, Advocate resident of House No.67 Ward
No.13, Khanauri Mandi, Tehsil Moonak, District Sangrur.
.........Respondent No.1/complainant
2. Sunny Ahuja, Prop. Sunny Confectionary and Juice Bar, Opp.
Punjab University, Patiala.
........Respondent No.2/Opposite Party No.2
First Appeal against order dated
05.10.2012 passed by the District
Consumer Disputes Redressal
Forum, Sangrur.
Quorum:-
Mr. J. S. Klar, Presiding Judicial Member
Mr. Vinod Kumar Gupta, Member Mr. Harcharan Singh Guram, Member Present:-
For the appellant : None For respondent No.1 : Sh.Sunny K. Singla, Advocate For respondent No.2 : None HARCHARAN SINGH GURAM, MEMBER:-
This appeal has been preferred by the appellant(Opposite Party No.1 in the complaint), challenging order dated 05.10.2012 F.A.No.150 of 2013 2 passed by the District Consumer Disputes Redressal Forum Sangrur, (in short 'District Forum'), in consumer complaint No.224 dated 24.05.2012, vide which, the complaint filed by the complainant was allowed and OPs No.1&2 were directed to pay to the complainant a consolidated amount of compensation of Rs.50,000/-. It was further ordered that out of Rs.50,000/- an amount of Rs.30,000/- would go in the Consumer Welfare Fund and rest of the amount i.e. Rs.20,000/- would be paid to the complainant.
2. Brief facts of the case are that the complainant had purchased 12 bottles of Slice cold drink of 250ml. from the shop of OP No.2 on 04.04.2012 for an amount of Rs.144/- (Rs.12/-, per bottle). On 05.04.2012, he was surprised to find that in three bottles of slice cold drink some waste material was seen floating in the cold drink bottle. In one bottle, a wrapper of Alphen candy was seen floating and in another two bottles some waste material was noticed. Details of the bottles as observed by him were as under:-
a) Slice (TM)250ml. manufactured on 19.02.2012, batch no.BN 1913.
b) Slice (TM)250ml. manufactured on 27.02.2012, batch no.BN 27B.
c) The batch number of 3rd bottle was not readable.
It was pleaded that family members of the complainant used other bottles on 05.04.2012 and when they were opened, finding that these bottles contained dust particles and were not fit to be consumable ones. He checked out the three bottles and found that OP No.1 was the manufacturer of the said bottles and the defect of selling of packing these bottles was on the part of OP No.1. He suffered some F.A.No.150 of 2013 3 health problems due to contaminated drink and his family members could get bad effects and sought compensation of Rs.2,00,000/- on account of negligence and deficiency in service as OPs tried to play with the lives of his family members. It was pleaded that, it was the prime duties of OPs to insured that before selling the products these should be properly checked. But in the instant case, OPs did not sell the above mentioned products being of good quality and he had purchased the said products in good faith from OP No.2. He further submitted that act and practice on the part of OPs in selling defective products in the market amounts to deficiency in service and filed complaint in the District Forum and prayed for issuance of directions to OPs as under:-
i. to pay compensation to the tune of Rs.2,00,000/- on account of mental tension and agony caused by the OPs; ii. to pay Rs.11,000/- as litigation cost and prayed for acceptance of his complaint.
3. Upon notice, nobody appeared on behalf of OP No.2 and was proceeded against ex-parte, vide District Forum order dated 12.07.2012. On receipt of notice OP No.1 was represented by Sh.J.S.Sahni, Advocate, who filed memo of appearance on behalf of OP No.1. Vide order of District Forum dated 27.08.2012; the defence of OP No.1 was struck off as no written reply was filed by OP No.1, even after 45 days from the date of first appearance on 12.07.2012. On 05.10.2012, complainant tendered in evidence, three bottles of Slice cold drink. District Forum vide, its order dated 05.10.2012, observing that in one Slice cold drink; bottle a wrapper was seen floating. In the second bottle, the colour had changed. In the third F.A.No.150 of 2013 4 bottle some foreign particles were seen floating. It was also observed by the District Forum that seals of three bottles appeared to be intact. However, application was moved by the complainant to send these three bottles for testing in a laboratory. This request was turned down by the District Forum with the observations that, there was no requirement of sending these bottles for testing in laboratory for ascertaining the foreign particles in the bottles. "We find that foreign particles are otherwise visible with naked eye. In that event there was no need to send the bottles to the laboratory. Accordingly, the application is dismissed. Dated 05.10.2015".
4. District Forum allowed the complainant to lead his evidence in support of his averments as OP No.2 was proceeded ex- parte and the evidence of OP No.1 was struck off by the District Forum, vide its order dated 27.08.2012.
5. Complainant tendered in evidence his affidavit Ex.C-1, bill dated 04.04.2012 Ex.C-2, legal notice dated 05.05.2012 Ex.C-3, copy of receipts Ex.C-4 & Ex.C-5 and closed the evidence.
6. District Forum perused the evidence placed on file and heard the arguments of the complainant in person and allowed the complaint of the complainant, vide its aforesaid order.
7. Aggrieved with the impugned order, OP No.1 has filed the present appeal on the ground that District Forum, Sangrur was not having territorial jurisdiction to decide the complaint as neither any cause of action nor part of cause of action had accrued within territorial jurisdiction of the District Forum Sangrur. Notice was sent to respondents for 09.04.2013 on 18.02.2013 and the order of District Forum was stayed.
F.A.No.150 of 2013 5
8. From perusal of file, we observe that counsel for the appellant appeared only once; he was represented by proxy Advocate. However, the matter was posted to be decided in the Lok Adalat, fixed for 12.12.2015. When the matter was taken up in the Lok Adalat on 12.12.2015 party suffered statement that no mutual settlement could be arrived and matter was posted for 31.03.2016 for final arguments. On 31.03.2016, none appeared on behalf of the appellant and only counsel for the respondent No.1 appeared.
9. During the course of arguments, counsel for the respondent No.1 argued that the defence evidence of OP No.1-the present appellant was struck off in the District Forum, vide District Forum order dated 27.08.2012. No appeal was filed by the present appellant against the said order and OP No.2 was proceeded against ex-parte by the District Forum. Since, there is no evidence on behalf of the appellant, filed in the District Forum only the evidence of the complainant/respondent would be read to decide the appeal.
10. In order to decide the controversy in hand, we have perused the record of District Forum which was called at the stage of admission. From perusal of record, we find that the Slice bottles were purchased by the complainant from OP No.2-Sunny Ahuja, Prop. Sunny Confectionary and Juice Bar, Opp. Punjab University. On 04.04.2012 the complainant has filed his complainant in District Forum Sangrur, we find that no cause of action had accrued to the complainant in the jurisdiction of District Forum Sangrur.
11. Accordingly, we allow the appeal of the appellant and set aside the order of the District Forum. However, the case is remanded back to be decided by the competent District Forum Patiala, strictly F.A.No.150 of 2013 6 as per the existing evidence on the file of the District Forum Sangrur, and no fresh evidence can be allowed by the District Forum Patiala. The parties are directed to appear before the District Forum Patiala on 03.06.2016.
12. Appellant had deposited an amount of Rs.25,000/- with this Commission at the time of filing the appeal. This amount alongwith interest, if any, accrued thereon, be remitted by the registry to the appellant by way of crossed cheque/demand draft after the expiry of 60 days from the date of this order.
13. Arguments in this appeal were heard on 31.03.2016 and the order was reserved. Now, the order be communicated to the parties as per rules, and the registry is directed to send the case file to District Forum Patiala, as to enable the said Forum to hear the parties.
14. The appeal could not be decided within the statutory period due to heavy pendency of court cases.
(J.S. Klar) Presiding Judicial Member (Vinod Kumar Gupta) Member (Harcharan Singh Guram) Member April 06, 2016 RK 2