State Consumer Disputes Redressal Commission
Ashok Kumar Sahu vs Pepsi Foods on 8 December, 2015
Daily Order M. P. STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PLOT NO.76, ARERA HILLS, BHOPAL FIRST APPEAL NO. 2001 OF 2007 (Arising out of order dated 10.08.2007 passed in C.C.No. 902/2006 by District Forum, Bhopal) ASHOK KUMAR SAHU, S/O SHRI RAMCHAND SAHU, R/O SHIV NAGAR COLONY, BEHIND INDIAN OIL DEPOT, VIDISHA ROAD, BHOPAL (M.P.) ... APPELLANT. Versus 1. PEPSI FOODS PVT.LTD. 3-B, DLF CORPORATE PARK, S-BLOCK, QUTUB ENCLAVE, PHASE-III, GURGAON, HARYANA- 122 002. 2. M/S PARAS KIRANA STORES, DEALER COLD DRINKS, BHANPUR CHOURAHA, BHOPAL THROUGH PROPRIETOR. 3. S.M.V.BEWARAGES, OFFICE COMPLEX, GAUTAM NAGAR, BHOPAL THROUGH MANAGER (MARKETING) ...RESPONDENTS. FIRST APPEAL NO. 2132 OF 2007 (Arising out of order dated 10.08.2007 passed in C.C.No. 902/2006 by District Forum, Bhopal) 1. S.M.V.BEWARAGES, OFFICE COMPLEX, GAUTAM NAGAR, BHOPAL THROUGH MANAGER (MARKETING) 2. M/S PARAS KIRANA STORES, DEALER COLD DRINKS, BHANPUR CHOURAHA, BHOPAL THROUGH PROPRIETOR. ... APPELLANTS. Versus 1. PEPSI FOODS PVT.LTD. 3-B, DLF CORPORATE PARK, S-BLOCK, QUTUB ENCLAVE, PHASE-III, GURGAON, HARYANA- 122 002. 2. ASHOK KUMAR SAHU, S/O SHRI RAMCHAND SAHU, R/O SHIV NAGAR COLONY, BEHIND INDIAN OIL DEPOT, VIDISHA ROAD, BHOPAL (M.P.) ...RESPONDENTS. -2- FIRST APPEAL NO. 2420 OF 2007 (Arising out of order dated 10.08.2007 passed in C.C.No. 902/2006 by District Forum, Bhopal) PEPSI FOODS PVT.LTD. 3-B, DLF CORPORATE PARK, S-BLOCK, QUTUB ENCLAVE, PHASE-III, GURGAON, HARYANA- 122 002. ... APPELLANT. Versus 1. ASHOK KUMAR SAHU, S/O SHRI RAMCHAND SAHU, R/O SHIV NAGAR COLONY, BEHIND INDIAN OIL DEPOT, VIDISHA ROAD, BHOPAL (M.P.) 2. M/S PARAS KIRANA STORES, DEALER COLD DRINKS, BHANPUR CHOURAHA, BHOPAL THROUGH PROPRIETOR. 3. S.M.V.BEWARAGES, OFFICE COMPLEX, GAUTAM NAGAR, BHOPAL THROUGH MANAGER (MARKETING) ...RESPONDENTS. BEFORE : HON'BLE SHRI JUSTICE RAKESH SAKSENA : PRESIDENT HON'BLE SMT. NEERJA SINGH : MEMBER HON'BLE SHRI SUBHASH JAIN : MEMBER COUNSEL FOR PARTIES : Shri Mayur Chalisgaonkar, learned counsel for the complainant Ashok Kumar Sahu. Shri Deepesh Joshi, learned counsel for the opposite party no.1 Pepsi Foods Pvt. Ltd. Shri Ashish Bargale, learned counsel for the opposite party no. 2 and 3 M/S Paras Kirana Stores and S.M.V.Bewarages. O R D E R
(Passed on 08.12.2015) The following order of the Commission was delivered by Shri Subhash Jain, Member:
All the above three appeals filed against the order dated 10.08.2007 passed by the District Consumer Disputes Redressal Forum, -3- Bhopal in C.C.No.902/2006. Appeal no.2001/07 has been filed by the complainant seeking enhancement of compensation while Appeal no. 2132/07 has been filed by opposite party no. 3 and 2 i.e. S. M. Bewarages and M/S Paras Kirana Stores and Appeal no. 2420/07 filed by opposite party no.1 Pepsi Foods Pvt.Ltd. Since all the three appeals arise out of the same order, they are hereby decided by this one common order.
2. The facts of the case as per complainant in brief are that the complainant on 25.07.2006 purchased a crate of Pepsi of 200ml from opposite party no.2, M/S Paras Kirana Stores (hereinafter referred to as opposite party no.2) who is the authorized seller of opposite party no.1, M/S Pepsi Foods Pvt. Ltd. (hereinafter referred to as opposite party no.1) for Rs.148/-. As per complainant out of three bottles two bottles were consumed by him and his family members and in the third sealed bottle he found a bamboo leaf or a root of tree, thus the opposite party no.2 committed deficiency in service in selling spurious bottle of Pepsi. He also alleged that he had to take treatment and suffered mental pain. He therefore filed a complaint before the District Forum, Bhopal claiming amount of crate along with compensation, medical expenses and cost.
3. The opposite party no.1 resisted the complaint stating that the complainant has neither purchased any goods from the answering opposite party nor has hired any services for consideration or otherwise from the answering opposite party. It has also been submitted that the answering opposite party does not manufacture, distribute or sell beverages with the territorial jurisdiction of the Forum, therefore the complaint is barred by territorial jurisdiction against him and thus the opposite party no.1 cannot be -4- held liable for any deficiency in service. The complainant has filed a totally frivolous and vexatious complaint with malafide intention and therefore the complaint be dismissed with cost against opposite party no.1.
4. The opposite party no.2 resisting the complaint in his reply submitted that the complainant is engaged in business under the name and style " Maa Karma Vaishnav Bhojnalaya" and is selling Pepsi to his own customers, thus he is not a consumer. It was further submitted that the complainant purchased one crate of Pepsi on 25.07.2006 and two crates of Pepsi on 26.07.2006 vide bill no.100 and again on 08.10.2006 he purchased two crates of Pepsi vide bill no. 1499, thus it is clear that the crates were purchase for sale of Pepsi 200ml as one crate contains 24 bottles of 200ml. It was also contended that the complainant has filed a false complaint and the complainant has retained empty bottles/crates which were the property of opposite party no.3.
5. The opposite party no.3 resisted the complaint contending that the complainant is not a consumer as defined under Section 2(1)(d) of the Consumer Protection Act, 1986. There is no relationship established between the complainant and the opposite party no.3 to give rise to a consumer dispute. The complainant has not availed any service or purchased any goods from the opposite party no.3. It was also contended that the complainant has not paid any consideration for any services or purchase of product to opposite party no.3. It was also contended that the complaint has been filed by the complainant in collusion with opposite party no.2 being his agent for re-sale of Pepsi products for commercial purpose, -5- misusing the process of law to claim illegal compensation against the opposite party no.1 and 3.
6. The District Forum after hearing counsel for parties and after considering evidentiary material on record found that the complainant and his family member fell ill after consuming the Pepsi bottle purchased by him and in support of his contention he has filed medical prescriptions and papers which were not controverted by the opposite parties, therefore having found that the complainant must have suffered mental pain. It was also held that it was the duty of the opposite parties to see that there is no extraneous material inside the bottle which they are selling in the market. Thus the District Forum allowed the complaint directing the opposite parties to pay jointly or severally Rs.148/- cost of crate of Pepsi, Rs.5000/- as compensation and Rs.1000/- as costs of the proceedings. Hence the present appeals.
7. We have heard learned counsel for parties and perused the record.
8. Learned counsel for complainant argued that though the District Forum has allowed the complaint holding that the complainant fell ill due to consumption of spurious bottle of Pepsi manufactured and sold by opposite parties. The District Forum has erred in not allowing the total claim and compensation as sought in the complaint. Learned counsel for opposite party no.1 has argued that no conclusive proof of alleged purchase of the bottles of Pepsi was produced, the bottles were not analyzed to establish their genuineness, the subject bottle was not consumed, and no pathological or diagnostic test reports of complainant were filed. No bills of purchase of -6- medicines were produced. It was also argued that the opposite party no.1 does not manufacture and sell soft drink beverages within the jurisdiction of Bhopal as also there was no nexus between the alleged consumption and the alleged ailment of the complainant. Learned counsel for opposite party no.2 and 3 argued that the concerned bottle was not analyzed and that they no batch number and and pack number was mentioned on the bottle. It was also submitted that it is a dispute between the distributor and retailer. It was also argued that in the analysis report it was mentioned that the bottle was not genuine.
9. After hearing learned counsel for the appellant and on going through the record we find that it is not disputed that the complainant purchased a crate of 200ml bottles of Pepsi from opposite party no.2 and in one of the bottle extraneous material like bamboo strip or root of tree was found. The complainant has filed medical prescriptions and papers which shows that he fallen ill after consuming one of the bottle of Pepsi and these papers were not controverted by the opposite parties. It is true that the disputed bottle was not analyzed before the District Forum. However, this Commission sent the disputed bottle and one another bottle to State Food Laboratory, Food & Drugs Administration, Idgah Hills, Bhopal M.P. from where two reports dated 25.02.2010 were received, out of which in respect of another bottle it was opined that "The sample was found confirmed as per standards/provisions laid down under the Prevention of Food Adulteration Rules, 1955 in respect of the tests performed" In the said report batch number, packing date was given whereas in the report of the disputed bottle it has been shown that batch number and date on which it was packed was -7- not given and in respect to disputed bottle it was opined that "The sample was found adulterated and misbranded".
10. In view of the above facts and report it is confirmed that the disputed bottle was adulterated and misbranded. Though the bottles purported to be manufactured and packed by opposite party no.3. SMV Beverages but in the case of disputed bottle it is clear from the reports that the same was found adulterated and misbranded. It has been mentioned by the opposite party no.1 Pepsi Foods Private Limited that in the said area at the relevant point of time Pepsi was serviced by M/S SMV Beverages Private Limited, who are the bottlers of Pepsi Cola products manufactured by them at their plant and supplied into the market. It has been submitted by the opposite party no.1 and 3 again and again that the bottles used in bottling the soft drink beverages undergo multistage cleaning process at the bottling plant where each bottle is washed, disinfected and visually checked prior to being filled in with beverages and there is no chance of contamination at all. However, in the present case the foreign material could be seen in the questioned sealed bottle with the naked eye, and the report also confirmed that the said bottle was adulterated and misbranded. In these circumstances, especially in view of the said report that the said bottle was adulterated and misbranded we find that it was not manufactured and sealed by opposite party no.3. The disputed bottle must necessarily have been put in circulation, and contaminated at the stage of supply by retailer i.e. opposite party no.2. Since the complainant purchased the bottle from the opposite party no.2 M/S Paras Kirana Stores, in our opinion, he alone is responsible for the same. It is not his case that the bottles purchased by him were branded and up to the mark and there was no contamination at all. If the disputed bottle or other bottles were spurious, he must not have taken delivery of the same. We also find that the complainant had fallen ill due to consumption of spurious bottle of Pepsi. He has -8- filed medical prescriptions, papers and bills for purchase of medicines along with his affidavit which have not been controverted by the opposite parties. However, the complainant failed to prove that he suffered much. There is nothing to establish gastrointestinal disease also. In such circumstances, the District Forum has rightly allowed the complaint directing the opposite party no.2 to pay compensation to the complainant. Though, we are in full agreement with the finding and order of the District Forum so far as order for compensation and cost is concerned but we find that the opposite party no.2 M/S Paras Kirana Stores alone is responsible to pay compensation. There appeared no evidence to establish deficiency on the part of the opposite party no.1 M/S Pepsi Foods Pvt.Ltd and opposite party no.3 M/S S.M.V. Bewarages, therefore, they deserve to be and are hereby exonerated.
11. In view of the above discussion we deem it appropriate to modify the impugned order of the District Forum and direct the opposite party no.2 M/S Paras Kirana Stores alone to pay cost price of crate, compensation and cost as awarded by the District Forum to the complainant. The order of the District Forum is modified accordingly.
12. Since the complainant has been adequately compensated by the District Forum, we find no ground to enhance the compensation amount. The appeals are disposed of accordingly. Parties shall bear their own cost. This order be retained in Appeal no.2001/2007 and copies be placed in Appeal Nos. 2132/2007 and 2420/2007.