State Consumer Disputes Redressal Commission
General Manager, Marinda vs Arun Kumar Bhaduria, Advocate on 15 September, 2008
STATE CONSUMER DISPUTES REDRESSAL COMMISSION UTTARAKHAND
DEHRA DUN
FIRST APPEAL NO. 203 / 2006
General Manager, Marinda
Varun Beverages Limited
Dotana Chatta, District Mathura, Uttar Pradesh
through its Authorised Signatory Sh. Arun Kumar Mishra
......Appellant / Opposite Party No. 1
Versus
1. Sh. Arun Kumar Bhaduria, Advocate
R/o Village Ferupur, P.O. Dhanpura
District Haridwar
.....Respondent No. 1 / Complainant
2. Sh. Sunil Kashyap
Proprietor M/s Kashyap Mishthan Bhandar
Ferupur, P.O. Dhanpura
District Haridwar
.....Respondent / Opposite Party No. 2
Sh. S.M. Joshi, Learned Counsel for the Appellant
None for Respondents
Coram: Hon'ble Justice Irshad Hussain, President
C.C. Pant, Member
Dated: 15/09/2008
ORDER
(Per: C.C. Pant, Member):
This appeal is directed against the order dated 29.07.2006 passed by the District Consumer Forum, Haridwar, allowing the consumer complaint No. 342 / 2002 and directing the opposite parties (appellant and respondent No. 2 in this appeal), to pay a compensation of Rs. 20,000/- to the complainant and to deposit a sum of Rs. 1,80,000/- in Consumer Welfare Fund.
2. The facts of the case, as stated in the complaint, are that the complainant, who is an Advocate by profession, on 11.06.2002, 2 purchased a 300 ml. bottle of Marinda from opposite party No. 2 after paying the consideration amount of the same. The complainant saw some foreign material in the bottle and paid a sum of Rs. 10/- to the seller and obtained the receipt of purchase of the bottle. In the bottle, there was lot of foreign material and the complainant felt that if he would have consumed the liquid lying in the bottle, he could have died. Alleging unfair trade practice and deficiency in service, consumer complaint was filed by the complainant before the District Consumer Forum, Haridwar, which was allowed per impugned order as stated above. Aggrieved by the said order, General Manager, Marinda has filed this appeal.
3. None appeared on behalf of the respondents. We have heard the learned counsel for the appellant and perused the material placed on record in the light of the legal aspects of the case.
4. Generally, cash memo / bill or receipt is not issued in respect of such petty purchases, but such a receipt can be issued if the glass bottles are taken to home. In such cases, the receipt is either taken back or a note with regard to refund of the security amount is endorsed on the receipt. In the case of the complainant, the seller had neither taken back the receipt, nor he had put a note with regard to the refund of the security amount. It is immaterial as to when the bottle was sent to the Public Analyst and when the report was received. On the basis of the facts as stated above, we have reasons to believe that the same unopened bottle had undergone laboratory test and it was confirmed that it contained contaminated liquid, which was injurious to health.
5. The next question to be answered is whether the seller - M/s Kashyap Mishthan Bhandar and the manufacturer - appellant, both are 3 liable for selling such drinks or any one of them is liable. The appellant has convinced us, by submitting copies of the various FIR's and newspaper cuttings that the soft drinks of reputed brands are being manufactured illegally and clandestinely by unscrupulous people and firms under the trademarks Pepsi, Miranda, 7up etc. Therefore, it cannot be ruled out that the bottles in question were from such lots. The appellant has submitted that the fake manufacturers are bottling soft drinks of inferior quality by falsifying and infringing the said trademarks and also by falsifying and infringing the design of the bottles.
6. On the appreciation of all these facts, we come to the conclusion that the seller - M/s Kashyap Mishthan Bhandar sold soft drink of inferior quality to the complainant and the complainant had suffered mental and physical pain and suffering as well as financial loss. The seller has failed to prove that the said bottles were purchased from the authorised dealer of the appellant.
7. The objection filed by the respondent No. 2 that Sh. Sunil Kashyap is not the proprietor of the firm and, therefore, he cannot be held liable to pay the compensation, is also not sustainable. When the firm is a proprietorship concern, it is the proprietor, who is liable to pay the compensation. Complainant had remained admitted for three days in a hospital for his treatment. Therefore, the compensation of Rs. 20,000/- awarded is just and proper.
8. For the reasons aforesaid, we are of the view that the case against the appellant is not well proved and, therefore, it cannot be held liable to pay the compensation. However, the direction given by the District Consumer Forum for deposit of a sum of Rs. 1,80,000/- in Consumer Welfare Fund is not justifiable under the provisions of the 4 Consumer Protection Act, 1986 and the said direction is liable to be quashed.
9. Appeal is allowed. Order dated 29.07.2006 of the District Forum in so far as against the appellant is hereby set aside. The appellant is absolved of its liability to pay the compensation. The compensation shall be paid by the respondent No. 2. The direction of the District Forum for depositing a sum of Rs. 1,80,000/- in Consumer Welfare Fund is also set aside. No order as to cost.
(C.C. PANT) (JUSTICE IRSHAD HUSSAIN) Kawal