State Consumer Disputes Redressal Commission
Hindustan Coca Cola Beverages Pvt. ... vs S.Subbiyyan, No.2/473-F, ... on 9 May, 2011
BEFORE THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI BEFORE THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI Present Hon'ble Thiru Justice M. THANIKACHALAM PRESIDENT Thiru.J.Jayaram, M.A., M.L., JUDICIAL MEMBERF.A.295/2008
[Against order in OP.No.230/2006 on the file of the DCDRF, Coimbatore] DATED THIS THE 9th DAY OF MAY 2011 Hindustan Coca Cola Beverages Pvt. Ltd., | Plot No.18, | Appellant / 3rd Opposite Party Bidad Industrial Area, | Bangalore 562 109. | Vs.
1. S.Subbiyyan, | 1st Respondent / Complainant No.2/473-F, Bettathapuram, Karamadai, | Coimbatore 641 104. HoH |
2. Kandasamy, | 2nd Respondent/1st Opposite Party JKT Stores, | Coimbatore Main Road, Karamadai, | Coimbatore 641 104. | |
3. Sri Vinayaga Agencies, | 3rd Respondent/2nd Opposite Party 80, Kamaraj Road, Karamadai, | Coimbatore 641 104. | The first respondent as complainant filed a complaint before the District Forum against the opposite parties praying for the direction to the opposite parties to pay Rs.3 lakhs towards the mental agony due to the deficiency in service and imperfection in the quality of the drink, to replace the defective Fanta with new Fant of similar description without any defect or to return the price of the Fanta which is paid by the complainant including the bottle price and to pay the cost. The District Forum allowed the complaint, against the said order, this appeal is preferred praying to set aside the order of the District Forum dt.29.02.2008 in C.C.230/2006.
This appeal coming before us for hearing finally on 26.04.2011, upon hearing the arguments of the either counsels and perused the documents, Written Argument of appellant filed, as well as the order of the District Forum, this Commission made the following order:
Counsel for the Appellant /3rd Opposite Party : M/s.Sathish Parasaran, Advocate.
Counsel for the 1st respondent/complainant :
M/s.V.Anandamoorthy, Advocate.
For the 2nd & 3rd Respondents/1st & 2nd OPs : Served Absent.
M. THANIKACHALAM J, PRESIDENT
1. The third opposite party is the appellant.
2. On 20.12.2005, the complainant purchased a Mini Fanta Cool Drink from the first opposite party-retailer, manufactured by the third opposite party, marketed through the second opposite party-dealer, by paying a sum of Rs.6/-. At the time of attempted to open the soft drink, the complainant noticed, a full old rusted blade, inside the bottle and on seeing the same, he did not open the seal of the bottle, exposing the defect, to the first opposite party. Because of the contaminated soft drink sold by the first opposite party, the complainant insisted to issue a bill, which he refused.
The opposite parties, marketing this kind of contaminated soft drink, which contained blade, creating hazardous to human life, they have committed unfair trade practice, and deficiency in service. The second opposite party negotiating with the complainant, insisted to surrender the bottle, which he refused. For the deficiency committed by the opposite parties, in selling this kind of contaminated Fanta, legal notice was issued, claiming compensation of Rs.3 lakhs, for which, there was no reply, though notices were served, thereby showing further carelessness, confirming marketing this kind of soft drink. Thus alleging deficiency, a consumer complaint was filed, claiming a sum of Rs.3 lakhs, in addition to, seeking a direction for replacement, the return of the value with other reliefs.
3. The first and second opposite parties remained exparte.
4. The third opposite party in their counter, questioning the status of the complainant as a consumer, since he did not consumed the contents of the bottle, opposed the complaint, further contending that they were never put on notice of any such event at any time, though even as per the averments in the complaint, the second opposite party was ready to replace the bottle, not accepted by him, that it is highly improbable any bottle contaminated or any external parts found inside, because of the hygienic process followed by this opposite party while manufacturing the soft drinks, that even on rare occasion, if such particles are found, then it is always open to the purchaser, to seek the replacement, but the complainant did not do so, when the replacement was offered by the second opposite party, that the complainant has not produced the bottle alleged to have been purchased by him, that there is no cause for the complainant to claim a tall claim of Rs.3 lakhs as compensation, when there is no cause of action, against the opposite parties, thereby praying for the dismissal of the complaint.
5. The District Forum based upon the averments in the complaint as well as in the counter, supported by Proof Affidavits, as well the non-reply for the notice issued by the complainant, including the absence of specific denial of the averments, by the third opposite party, derived conclusions that the third opposite party had produced a sub-standard soft drink, allowing the foreign body namely Blade to be inside, sold the same through the first opposite party that should be construed as deficiency in service. On that basis, though a claim was made for Rs.3 lakhs, a direction was issued to pay a sum of Rs.25,000/- as compensation, with default interest, as per the order dated 29.02.2008, which is under challenge.
6. The Fanta bottle with contents, the subject matter of the consumer dispute, is marked as Ex.A6. Originally, as seen from the complaint, without producing the bottle, the case was filed and therefore, the District Forum has returned the complaint, stating that the bottle should be submitted along with complaint, which was complied with, as per the endorsement dated 30.11.2006. Based upon the compliance, as per the note put up dated 13.12.2006, by Head Clerk, the case was taken on file, thereby showing that the Fanta Bottle, which is said to be defective or unfit for consumption with foreign particle, was available with the District Forum from 30.11.2006. Therefore, the objection of the third opposite party that the complainant has not produced the bottle alleged to have been purchased by him must be incorrect. Further, it is the case of the third opposite party that This opposite party was never put on of any such event at any time, thereby pleading ignorance about the defective soft drink, prior to the filing of the case, which also proved to be incorrect. As seen from the records, a legal notice was issued under Ex.A2 to all the opposite parties, including the third opposite party, which was received by them, as seen from Ex.A5. Similarly, other opposite parties also have received the notice. Therefore, the contention of the third opposite party, as if, the matter was not brought to their notice is an unadulterated lie.
7. The complainant has specifically pleaded in the complaint that the third opposite party is the manufacturer of the Fanta Soft Drink [Ex.A6], which was marketed through the second opposite party, sold by the first opposite party-retailer, since the first and second opposite parties remained exparte, there is nothing wrong in taking that they have admitted the case of the complainant, though, no receipt has been issued by the first opposite party. In the Counter also, except evasive denial, asking the complainant to prove the allegations strictly, it is not the case of the third opposite party, that they have not produced this Fanta Soft Drink that is Ex.A6 available in the Court or it is not their product, whereas, it should be spurious, manufactured by somebody, to offend the goodwill of the third opposite party or something like that.
On the other hand, we would say, they justified this kind of error also, and the relevant averments in the counter reads Even on a rare occasion if such particles are found, then it is always open to the purchaser to seek the replacement but the complainant did not do so when the replacement has been offered by the second opposite party, thereby admitting this kind of occasion will happen in their process also and that is why, they have not challenged the product, specifically, stating that neither the bottle nor its contents [Ex.A6] are not their product. So, the burden of proof initially lies upon the complainant to prove that he had purchased a Fanta Bottle produced by the third opposite party is lessened or we can say, the complainant has discharged by producing this bottle, which does contain the name Fanta, product of Coca Cola Company giving other particulars such as quantity, contents etc., We have examined the bottle minutely, and there appears to be manufacturing date, faded probably including the Lot Number and the Cap also intact. By examining Ex.A6, we are unable to say that the complainant should have tampered the seal or in other words, he should have put in, the foreign particles in the bottle viz., blade. It is also not the case of the complainant and to our best reading of the counter that the bottle was tampered. Prima facie, the bottle was proved to be the product of the third opposite party, then it is for the third opposite party to prove, though the bottle was manufactured for their use, it was tampered or the empty bearing their name was used by somebody to have unenrichment, on false allegations or something like that.
8. A mere look of this bottle discloses a full blade inside and it is not known, how the blade gone inside the bottle when the seal is intact.
By turning the bottle up and down also, we are unable to say, that the blade should have been inserted, since there is no possibility also without opening the seal. The opposite parties had any doubt about the contents and they were certain, this soft drink was not manufactured by them, marketed by them, irrespective of burden of proof, they should have taken the bottle for laboratory test, along with an admitted soft drink, which they failed. On the other hand, in a way, as seen from Para 4 of the Written Version, they justified the selling, as well as find fault, with the complainant, he refused to receive the substitute bottle or replacement bottle when offered and they find fault once again when the complainant has not consumed the contents, there is no question of the complainant, coming within the meaning of the consumer, in which defence, we are unable to find any logic.
9. As ruled by the Karnataka State Consumer Disputes Redressal Commission as well as by this Commission, when the bottle manufactured by the opposite partys company is admitted, or not challenged and when the foreign particles is visible even for naked eye, there was no need on the part of the complainant to invoke Section 13(c) of the Consumer Protection Act and therefore, we are constrained to hold that by marketing this kind of soft drink [Ex.A6], all the opposite parties committed unfair trade practice, deficiency in service also, having collected sale consideration, selling defective goods, unconsumable drink, which should have caused mental agony, preceded by deficiency in service, which was correctly assessed by the District Forum, ordering compensation of Rs.25,000/- with costs, in which finding, we are unable to differ, in view of the availability of the blade, in the sealed Fanta Bottle namely Ex.A6.
10. The learned counsel for the appellant invited our attention to a decision of this Commission in F.A.382/2006, dated 16.12.2009, wherein, this Commission has held that the complainant failed to prove that the manufacturer had violated the standard prescribed under the Act, considering the fact, in that case, which is not applicable to the present case, because of the fact, Ex.A6 does contain, not challenged, a blade, thereby making it unconsumable. For the above said reasons, the appeal is devoid of merits, liable to be dismissed.
11. In the result, the appeal is dismissed, confirming the order passed by the District Consumer Disputes Redressal Forum, Coimbatore, in C.C.230/2006, dated 29.02.2008. No order as to cost in this appeal.
J. JAYARAM M.THANIKACHALAM JUDICIAL MEMBER PRESIDENT INDEX : YES / NO