State Consumer Disputes Redressal Commission
The Fm.Pepsico India Holdings(P) Ltd., vs P.Sivamani on 25 February, 2022
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IN THE CIRCUIT BENCH OF THE TAMILNADU STATE CONSUMER DISPUTES
REDRESSAL COMMISSION, MADURAI.
PRESENT: THIRU.N. RAJASEKAR, PRESIDING JUDICIAL MEMBER
F.A.No.159/2012
(F.A.No.592/2011 on the file of State Consumer Disputes Redressal
Commission, Chennai)
(Against the order made in C.C.No.94/2010 dated 27.04.2011 on the file of
the District Forum, Tirunelveli)
FRIDAY, THE 25th DAY OF FEBRUARY 2022
The Factory Manager,
Pepsico India Holdings (P) Limited,
Wise Park, Indl.Development Area,
Kanjikode East Post,
Palakad, Kerala State. Appellant/2nd Opposite Party
-Vs-
1. P.Sivamani,
S/o Ponnaiah Asari,
22 A, Thaiakara Street,
Tirunelveli Town,
Tirunelveli District. 1st Respondent/1st Complainant
2. Tirunelveli District Consumer Protection
Association, Regd.No.64/91,
Through its Secretary D.A.Prabakar,
147, Sankar Colony, Palayamkottai,
Tirunelveli District. 2nd Respondent/2nd Complainant
3. P.M.Ibrahim Store,
Proprietor,
1, Koolakadi Street,
Tirunelveli Town. 3rd Respondent/1st Opposite Party
4. The Chief Executive Officer-Operation,
M/s.Pepsico India Holdings Private Limited,
3 B, DLF Corporate Park,
S-Block, Qutab Enclave, Phase-III,
Gurgaon - 122 011.
Haryanan State. 4th Respondent/3rd Opposite Party
Counsel for Appellant/Opposite Party-2 : Mr.M.Kandasamy, Advocate.
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Counsel for Respondents-1&2/Complainants-1&2 : Mr.D.A.Prabakar, Advocate.
Counsel for Respondents-3&4/Opp.Parties-1&3 : Given-up.
This appeal coming before me for final hearing on 30.12.2021 and on
perusing the material records, this Commission made the following:-
ORDER
THIRU.N. RAJASEKAR, PRESIDING JUDICIAL MEMBER.
1. This appeal has been filed by the appellant/2nd opposite party under section 15 read with section 17(1) (a) (ii) of the Consumer Protection Act, 1986 against the order of the learned District Forum, Tirunelveli made in C.C.No.94/2010, dated 27.04.2011, allowing the complaint.
2. For the sake of convenience and brevity, the parties are referred to here as they stood arrayed in the learned District Consumer Disputes Redresssal Forum, Tirunelveli.
3. The 2nd opposite party suffering by an order, directing the 1st and 2nd opposite parties to pay Rs.25,000/- jointly and severally to the 1st complainant as compensation for mental agony and loss caused to him and to pay Rs.3000/- towards cost to the complainant in the hands of the learned District Consumer Disputes Redressal Forum, Tirunelveli (hereinafter in short "District Forum") have preferred this appeal before this Commission.
4. The case of the complaint is as follows:- The 1st complainant is the member of the 2nd complainant which is a registered voluntary organization creating consumer awareness in Tirunelveli District. On 29-05-2010, the 1st complainant has purchased 1 Litre Aquafina mineral water bearing Batch No.B.076/19.3.2010/11.26, Expiry on nine months from the date of manufacture from 1st opposite party. The 3 said Aquafina mineral water was manufactured by the 2nd opposite party under the control and management of 3rd opposite party. The 1st complainant consumed half of the water and after half an hour he took ill and affected by diarrhea and he was taken to hospital namely Nabiza Hospital Tirunelveli town where some injunction was administered. The 1st complainant has spent Rs.100/- towards doctors consultation fee and Rs.80/- towards medicines. When questioned by the doctor what he had consumed during the past three hours, the 1st complainant recollected his memory and stated that he had consumed half liter Aquafina water alone. After returning to his house the 1st complainant took the aquafina water and verified the date of manufacture. He was shocked to see that in the remaining water in the bottle he found that some foreign substances floating in it which can be viewed with naked eye and apparently visible. Further he noticed that water was specially packed for Railways. He immediately conveyed the matter to the 2nd complainant and both of them went to the shop of the 1st opposite party and purchased another one litre aquafina mineral water bottle bearing Batch No.B.076/19.3.2010/11.27, wherein also some foreign substances were found floating inside the bottle. The complainants insisted receipt for the said purchase from the 1st opposite party to which he obliged. The 2nd complainant made a complaint on the same day itself to the Municipal Corporation Health Officer, Tirunelveli to take appropriate action against 1st opposite party. The 2nd opposite party is the manufacturer of the mineral water and the 1st opposite party is the retailer. They have been selling such brand of aquafina contaminated water which is an unfair trade practice. Hence the complainant has filed this complaint to direct the opposite parties not to sell the contaminated aquafina mineral water to the customers and to pay Rs.180/- towards medical 4 expenses and Rs.3,00,000/- as compensation towards damages to the 1st complainant and to pay the cost of the proceedings .
5. Written version filed by the 2nd opposite party as adopted by the 3rd opposite party are as follows: This complaint is not maintainable either in law or on facts and it has to be dismissed in limine. There is no post of Chief Executive Officer-Operations in the Pepsico India Holdings Private Limited and therefore the complaint against the 3rd opposite party is liable to be dismissed as "Non existing Party" The complainant has filed this complaint with an ulterior notice to enrich himself illegally. The complainants are not consumers as per the terms of the Consumer Protection Act and hence the complaint is liable to be dismissed. The 2nd complainant has no locustandi to be a party in this proceedings and as such the 2 nd complainant is liable to be deleted from the proceedings without going into the merits of the case. The opposite parties have not committed any deficiency of service and hence the complainant is not entitled for the relief as prayed for. There is no record to prove that the 1st complainant has any goods for consideration from the 2nd opposite party. It is not the case of the 1st complainant that the 2nd opposite party has sold any goods for consideration to him. It is impossible that such a bottle can be manufactured or marketed by the 2nd opposite party. Assuming without admitting even if such a bottle had left the premises of the 2nd opposite party even then it is difficult to believe that the bottle of aquafina was found to be containing foreign substances inside the bottle which would have gone unnoticed by so many people right from the state of filling when there is light and visual inspection for foreign matter before sealing and even after sealing, then at the time of loading in crate/cartons and then from there to delivery truck, during offloading at the 5 distribution location at the time of sale from distributor's location to the retail outlet and even from the retail outlet to the consumer. The entire story is fictitious and badly concocted for the sole purpose of misleading this Forum and making pecuniary gains. The Aquafina manufactured by the 2nd opposite party are manufactured in modern sophisticated plants, which use a very high standard of hygiene and cleanliness. The manufacturing process involves strict quality checks at various stage of manufacture, ruling out all possibility of any foreign matter in the bottled product as alleged by the complainant. The water is filtered through 1 micron absolute cartridge filter, after the filtration, water is ozonated. Once water is passed through Aquafina RO and ozonation, then water is immediately filled in the bottle without any storage. Aquafina is filled in PET bottles. The bottles are blown in closed and hygienic environment. The Aquafina bottles as a practice are not stored in advance, and it is blown only at the time of filling operation. The 2nd opposite party is the manufacturer of Packaged Drinking water and not a manufacturer of the mineral water as alleged by the complainant. The water packaged for railways is never available in the open market, and is served only by the Indian Railways and is specially packed to be sold at the railway platforms and the train. A bottle manufactured for Indian Railways specially cannot be sold at any retail outlet outside the Indian Railways premises. Assuming and without admitting that if such a bottle was ever found outside the railway premises such a bottle cannot be manufactured by the 2nd opposite party. The complainants have stated that they have purchased one another bottle of Aquafina from the 1st opposite party. However the bill shows the purchaser of two bottles, bringing out the clear fabrication and concoction of the present complaint. Further assuming without admitting that the complainant has 6 purchased such bottles manufactured by the 2nd opposite party and the same being manufactured specially for railways, the MRP of such bottle is not Rs.14/- as alleged and shown on the bill, but the selling price is only Rs.12/-. This fact clearly shows that the preparation of the bills/invoice was an after thought to make undue gains from the 2nd opposite party by illegal means. The 2ndopposite party has not committed deficiency of service and hence the complaint is liable to be dismissed. As per section 14 (1) (d) of the Act compensation may be awarded to the consumer if it is proved that any loss or injury has been suffered by the consumer due to the negligence of the opposite parties. In this case the complainant has failed to prove any negligence or deficiency on the part of the opposite parties, hence the complaint is liable to be dismissed
6. The Learned District Forum, after taking into account of the evidences adduced by both parties, had held that the opposite parties 1 and 2 have sold, manufactured at bottled contaminated water and the 1st complainant is entitled for the relief by allowing the complaint and directing the 1st and 2nd opposite parties to pay Rs.25,000/- jointly and severally to the 1st complainant as compensation for mental agony and loss caused to him and to pay Rs.3000/- towards cost of the proceedings.
7. Being aggrieved against the above order the 2nd opposite party challenging it by filing the appeal stating that it is the duty of the court to verify the authenticity of the documents while passing orders. The learned District Forum was miserably failed to appreciate the objections with regard to Ex.A1 receipts. The learned District Forum concluded that "when it could be seen by naked eye there is no need to send the water bottle to any laboratories for testing whether any foreign articles are 7 found or floating inside the bottle". By ignoring the procedure enumerated under Section 13, of Consumer Protection Act. The learned District Forum in one sweeping word erroneously concluded that "the second opposite party has not denied that M.O.1 and M.O.2 water bottles were not manufactured and packed in their plants"
as if the appellant admitted that it was manufactured by them.Therefore, the order passed by the District Forum is liable to be set aside. The 2nd complainant has no locus standi to be party to the present proceedings. The bottles have not sent to the Corporation Health Officer for proceeding further under Prevention of Food Adulteration Act to find out the truth. The complainant is not a consumer within the meaning of Section 2 (1) (d) of the Consumer Protection Act 1986. It is not proved that the appellant company is the manufacturer contents of the contaminated bottle and as such only the retailer is liable for damages, if any, and the appellant is nowhere connected with the sale or distribution of contaminated product. Therefore the appeal may be allowed and to set aside the District Forum order.
8. No additional evidences were adduced by both parties in this appeal before this Commission.
9. The appeal is filed by the appellant/2nd opposite party is alone. The counsel for the appellant/2nd opposite party made an endorsement on the memorandum of appeal as "given up" the appeal against 3rd respondent/1st opposite party and 4th respondent/3rdopposite party and proceeded only against 1st and 2nd respondents/1st and 2nd complainants.
10. Point for consideration is:
Whether the order passed by the Learned District Forum, Tirunelveli in C.C.No.94/2010 dated 27.04.2011 is sustainable under law or not? 8
11. Point The first complainant purchased one litre Aquafina mineral water on 29.05.2010 from the first opposite party store. After purchasing the water bottle he consumed half of the water after half an hour he took on ill and affected by diarrhea he was taken nearby hospital some injection was administered. The first complainant spend Rs.100/- towards consultation fee for the doctor Rs.80/- towards medicines. When he clarified with the doctor questioned what he had consumed during the past three hours. The first complainant re-collected his memory and stated consumption of half litre Aquafina water alone. After returning to his house he took the Aquafina water bottle and verified the date of manufacture. He was shocked to see that some foreign substance floating in the remaining water it can be viewed with naked eye. Further he noticed that water was specially packed for Railways. As a member he immediately informed the fact to the 2nd complainant and both complainants were went to the first opposite party shop and purchased another one litre Aquafina mineral water bottle wherein also some foreign substances floating inside the bottle they obtained the receipt for the purchasing by paying the amount. The complainant also made a complaint to the Municipal Corporation Health Officer, Tirunelveli to take appropriate action against the first opposite party. The complainant alleged in the complaint that the second opposite party is manufacturer of the mineral water and the first opposite party is the retailer and filed the consumer complaint.
12. After careful consideration of the evidences adduced by the complainants the learned District Forum passed the order in favour of the complainant before the District Forum. The appellant/2nd opposite party not ready to file their proof affidavit on their failure the evidences on their side was closed by the District Forum. After closer evidences on their side they have not ready to file any written arguments on 9 their side considering the failure on the part of the appellant/2nd opposite party the learned District Forum recorded no arguments on the side of second opposite party. The first opposite party remained absent. The learned District Forum passed the order on merits after careful consideration of the documents and material objects produced by the complainants.
13. The counsel for the appellant raised several contentions in the memorandum of appeal the first contention raised with regard to the receipts Ex.A1 the receipt was issued by the first opposite party who is retailer of the water bottles they remained ex-party at the time of marking the documents and material objects. This appellant/2nd opposite party has not raised any objection for marking the documents and material objects. The documents and material objects were marked on 13.12.2010, on the date of marking the District Forum noted the presence of dust particles in its notes paper was available. If really the appellant/2nd opposite party is having any objection they can take appropriate steps to send the material objects for lab test. Now, such steps was taken by them after marking of documents and material objects on the side of complainant. The learned District Forum adjourned the matter for filing proof affidavit on the side of 2nd and 3rd opposite parties. The second and third opposite parties have not filed any documents on their side and on their evidence was closed by the District Forum. The second and third opposite parties have not filed any written arguments before the District Forum the arguments on their side was also closed by the District Forum and passed the impugned order. The appellant/2nd opposite party was having the opportunity to raise any objection against any documents or material objects while they are marking before the District Forum, when they failed to raise such objection at the 10 time of marking they are estopped to raise such objection in the first appeal. Mere filing of written version is insufficient to discharge the burden on the side of opposite parties. The complainants proved their allegations by marking Ex.A1 receipt and water bottles M.O.1 & M.O.2 water bottles. Those evidences were proved the purchase of water bottles by the 1st complainant from the 1st opposite party since Ex.A1 bears a rubber stamp of 1st opposite party store.
14. It is well settled law that with the complainant has established their case the onus shifts to the opposite party to repute it and prove that there is no negligence but, no rebuttal evidence was adduced by the opposite parties. Therefore, the allegation raised in the complaint was proved by the complainants remained unchallenged. When any foreign particles are found floating inside the sealed and un-sealed bottles it does not require any test whether the dust particles is consumed to the consumer it can be seen and verified by naked eye it does not require any test by laboratories.
15. It was held by Supreme Court of India in the following citation - III (2002) CPJ 8 SC - in the case of - Dr.J.J.Merchant & Others -Vs-Shrinath Chaturvei III (2002) CPJ 8 SC - "The provisions of the Consumer Protection Act have to be construed in favour of the consumer to achieve purpose of enactment as it is a social benefit oriented legislation. The object and purpose of enacting the act is to render simply inexpensive and speedy remedy to the consumers with complaints against defective goods and deficient services and benevolent piece of legislation is intended to protect the large body of consumers from exploitation".
16. When any foreign particles or dust particles floating inside the unsealed water bottle when it could be seen by naked eye it does not require any further laboratory 11 test to verify the floating of foreign particles inside the bottles. It proves the liquid is contaminated which is unfit for human consumption, the 1st complainant bonafidely purchased the water bottle and consumed half of the water and affected with diarrhea taking some treatment. Those facts prove the sale of contaminated water by the 1st opposite party. Therefore, the findings of the District Forum is well within law the objections raised by the appellant is not maintainable.
17. The District Forum discussed the point of locus standi for filing the complaint by the 2nd complainant is discussed its para 6 and as per Section 2 (b) (ii) of Consumer Protection Act any voluntary Consumer Association Registered under the Companies Act 1956 or under any other law for time being inforce, can also be a complainant in any proceedings before the Consumer Forum. As per the averments in the complaint the 1st complainant is member of the 2nd complainant. Its registration was mentioned in Ex.A2. Therefore, the 2nd complainant is also having the locusstandi to be a party of the complaint. The objection raised by the appellant/2nd opposite party is not maintainable.
18. The next contention raised by the counsel for the appellant is the District Forum not followed the procedure enumerated under Section 31 (c) of Consumer Protection Act. The learned District Forum categorically discussed and held that referring the material objects for any laboratory tests does not arise since, the contamination of water could be seen by naked eye floating of dust particles would prove the contamination therefore, the above objection on this aspects raised by the appellant is not maintainable.
19. The next contention raised by the counsel for appellant is, the appellant/2nd opposite party is not the manufacturer of the water bottles. They are having the 12 opportunity to raise such objections before the District Forum at the earliest point of time they have not raised by filing any proof affidavit and evidences to support their case, they cannot raised the same in the first appeal. Further the appellant themselves admits in grounds of appeal para "g" the District Forum failed to see that the appellant specifically disputed the allegation that the said bottle was manufactured by them". In their written arguments stated in para "h" the appellant/2nd opposite party has been awarded all required certification to manufacturer packaged drinking water under the Prevention of Food Adulteration Act and manufacturers the said water under the ISI specification for packaged drinking water as laid down by Bureau of Indian Standards they have not denied the water bottles are not their products. In the absence of any evidence to support the case of the appellant/2ndopposite party the learned District Forum rightly concluded that the non denial of M.O.1 & M.O.2 water bottles by the 2nd opposite party and held that the appellant/2nd opposite party is liable to pay compensation to the complaints.
20. Another contention raised by the counsel for the appellant is the 1st complainant is not a consumer within the meaning of Section 2 (1) (d) of Consumer Protection Act 1986. Ex.A1 proves the purchase of water bottles by the 1st complainant therefore, the complainants comes within the purview of Section 2 (1)
(d) of the Consumer Protection Act 1986. Therefore the objection raised by the counsel for the appellant is not maintainable.
21. The counsel for the respondent would contend that the 1st respondent is the purchaser of the product and the 2nd respondent is the Registered Voluntary Consumer Organization. The case is for the defect in the goods and hence the 13 complaint filed by the 1st and 2nd respondents/1st and 2nd complainants against the manufacturer is maintainable. The Commission can take judicial notice that the petty shop selling the packaged drinking water are never in the practice giving the bill, if somebody demand for a bill they have to give with signature and rubber stamp seal of their shop's address, as such the bill issued by the petty shop owner is acceptable. The foreign substances floating inside a sealed bottle manufactured by the appellant was seen by naked eye of the President and Members of the District Forum and hence they came to conclusion that a specific lab test was not necessary. But, nothing prevented the appellant to send the bottle to lab test. He miserably failed because any lab would affirm that there was a foreign substances floating in the water.
22. Based on the discussion above it is held there is no illegality, irregularity or jurisdictional error in the order passed by the District Forum and the same is ordered to be upheld and answered accordingly for the point for consideration.
23. In the result, the appeal is dismissed by confirming the order of the learned District Forum, Tirunelveli made in C.C.No.94/2010, dated 27.04.2011. In addition the appellant/2nd opposite party is directed to pay additional cost of Rs.2000/- to the respondents/complainants in this appeal.
Dictated to the Steno-typist transcribed and typed by her corrected and pronounced by me on this the 25th day of February 2022.
Sd/-xxxxxxxxxx N. RAJASEKAR, PRESIDING JUDICIAL MEMBER.
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