National Consumer Disputes Redressal
M/S. Dhillon Cold Drinks & Beverages ... vs N.C.P.R.C.& Ors. on 13 May, 2015
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI APPEAL NO. 481 OF 2007 (Against the Order dated 11/01/2007 in Complaint No. 26/2002 of the State Commission Himachal Pradesh) 1. M/S. DHILLON COLD DRINKS & BEVERAGES LTD. HOUSE NO.302, SECTOR-9, CHANDIGARH - ...........Appellant(s) Versus 1. N.C.P.R.C.& ORS. SMT. USHA KUMARI, PRESIDENT NORTH BANK ESTATE, SHIMLA- 171 001 2. ABHISHEK BAROWALIA - ...........Respondent(s)
BEFORE: HON'BLE MR. JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER
For the Appellant : Mr. Mukand Gupta, Advocate For the Respondent : For Respondent No. 1 & 2 : Dr. J.N. Barowalia & Mr. Abhishek
Barowalia & Mr. B.S. Sharma,
Advocates
For Respondent No. 3 & 4 : Ex-Parte
For Respondent No. 5 : Mr. Rajeev K. Virmani, Sr. Advocate
With Ms. Rashmi Virmani, Mr. Ashish Kothari, Mr. Jyoti Prakash Sahu, Advocates Dated : 13 May 2015 ORDER PER JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER
1. These appeals arise out of single order of State Commission Himachal Pradesh hence decided by common order.
2. These appeals have been filed by appellants against order dt. 11.01.2007 passed by State Commission in complaint no. 26/2002 National Consumer Protection Research Centre & Ors. Vs. Pepsi Foods India & Ors., by which opposite party no. 1 and 4 were directed to pay Rs. 1,00,000/- as compensation to complainant no. 2 along with 6 % per annum interest and were further directed to pay Rs. 5,000/- as cost. Complaint against opposite party nos. 2 and 3 was dismissed.
3. Brief facts of the case are that complainant no. 1 / respondent no. 1 is consumer association and complainant no. 2 / respondent no. 2 is consumer who purchased bottle of 'MARINDA' Cold Drinks from opposite party no. 2 Cheap Chicken Corner who purchased it from opposite party no. 3 NCS Enterprises. It was further submitted that before opening the bottle, complainant observed foreign matters in the cold drink bottle which amounts to adulteration and unfair trade practice. Alleging deficiency on the part of opposite parties, complainant filed complaint before State Commission with directions including direction to pay Rs. 7,00,000/- as compensation. Opposite Party no. 1 Dhillon Cold Drink contested the complaint and submitted that M/s Pepsi Food India and M/s Dhillon Cold Drinks are two different identities and have been wrongly arrayed as one opposite party and complaint is not maintainable. It was further submitted that M/s Dhillon Cold Drinks is one of the bottling concern of Pepsi Food India. It was further submitted that Pepsi Food India supplies concentrate to Dhillon Cold drink & beverages Ltd. and are bottled in most sophisticated modern and automated plants which ensures high standard of hygiene and cleanliness which rules out entry of any foreign material and prayed for disposal of complaint. Opposite party no. 2 and 3 did not contest the complaint. Opposite party no. 4 Pepsi Food India was impleaded later on, who resisted the complaint and submitted that complaint was barred by limitation as he was impleaded after lapse of two years. It was further submitted that opposite party no. 4 is neither manufacturer nor trader within the meaning of Consumer Protection Act and prayed for dismisssal of complaint. Ld. State Commission after hearing both the parties, allowed the complaint against opposite party no. 1 and 4 as referred earlier, against which these appeals have been filed along with application for condonation of delay in first appeal no. 418/2007.
4. None appeared for respondents N.C.S. Enterprises and Cheap Chicken Corners in both the appeals and they were proceeded as Ex parte.
5. Heard Ld. Counsel for the parties and perused record.
6. Ld. Counsel for the appellant Pepsi Food Pvt. Ltd. submitted that inspite of no iota of evidence on record to prove that appellant was a manufacturer of product 'MARINDA' and complaint barred by limitation, Ld. State Commission committed an error in allowing complaint. Ld. Counsel for M/s Dhillon Cold Drinks submitted that Ld. State Commission committed an error in allowing the complaint against him as he was not opposite party before the State Commission and further committed error in allowing the complaint on the basis of Laboratory report of product which was not sold by him hence, order passed by Ld. State Commission be set aside. On the other hand, Ld. Counsel for complainants submitted that order passed by Ld. State Commission is in accordance with the Law hence appeals be dismissed.
7. As far delay in filing first appeal no. 481/2007 is concerned, appellant has filed application for condonation of delay in which it has been stated that copy of impugned order dated 11.01.2007 was received by appellant on 25.07.2007 and appeal was filed on 22.08.2007 within the period of 30 days hence, there is no delay. This fact has not been contravened by Counsel for complainant and if copy of impugned order was received by appellant on 25.07.2007, appeal filed on 22.08.2007 is well within limitation and even if there is any delay, delay stands condoned.
8. As far merits of the case are concerned, perusal of original complaint reveals that opposite party no. 1 has been shown as Pepsi Foods India through M/s Dhillon Kool Drinks & Beverages Ltd. and later on Pepsi Food India was impleaded as opposite party no. 4. Thus, it becomes clear that Pepsi Food India was treated as opposite party no. 1, which has again been impleaded as opposite party no. 4. I do not find M/s Dhillon Kool Drinks as opposite party in the complaint. If it is treated that opposite party no. 1 was M/s Dhillon Kool Drinks and Pepsi Food India was not opposite party no. 1 but was later on impleaded as opposite party no. 4 then certainly complaint against opposite party no. 4 i.e. Pepsi Food India was time barred because bottle of MARINDA was purchased on 19.08.2002 and Pepsi Food India was impleaded as opposite party no. 4 after two years of the cause of action. Ld. State Commission observed that opposite party no. 1 and 4 were treated as one entity by the complainants and so complaint was not time barred against Pepsi Food India and if Pepsi Food India is to be treated as opposite party no. 1 as well as opposite party no. 4 then certainly complaint against Pepsi Food India is not time barred but in that circumstances complaint stands not filed against M/s Dhillon Cold Drinks Ltd.
9. Counsel for Pepsi Food India submitted that production MARINDA was not manufactured by them. It was further submitted that Pepsi Food India is neither manufacturer not distributor nor seller of soft drinks at all but it manufactures only concentrates which is sold to different Bottlers who manufacture bottle and distribute them which is sold directly to consumers. Ld. Counsel for Pepsi Food India further submitted that as per Rule 32 of Prevention of Food Adulteration Rules name and complete address of manufacturer or name and complete address of packing or bottling unit as the case may be is to be shown on the bottle. He further submitted that as per Food Products Order 1955, every bottle used for packing any food products is required to be sealed and licence number and such identification mark of manufacturer will be displayed on the top and neck of the bottle. There is no iota of evidence on record to substantiate that bottle purchased by the complainant was bearing any identification mark or licence number etc. depicting that it was manufactured or bottled by Pepsi Food India.
10. Ld. State Commission in Para 10 of impugned judgment observed that as Pepsi Food India was providing concentrate of the cold drinks in question there was relationship of principal and agent between Pepsi Food India and Dhillon Kool Drinks. Merely by supplying one of the ingredient of cold drink, supplier, does not become principal or agent of the person to whom that ingredient is supplied. Ld. Counsel for the complainant could not place any law on the point by which it can be presumed that relationship of principal and agent between Pepsi Food India and Dhillon Cold Drink was established. There cannot be any relationship of principal and agent merely by supplying one of the ingredient of product. For eg., if automobile Company who manufactures particular brand by assembling different components of the car purchased from different persons, different persons supplying the parts cannot be held responsible for any manufacturing defect in the vehicle. There cannot be any relationship of principal and agent between the manufacturer of car and supplier of one of the part of the car. However, if supplier of concentrate is responsible, supplier of sugar, water and other thing necessary for preparation of cold beverage will also be held responsible and they have not been impleaded as opposite party in the complaint and in such circumstances complaint is not maintainable against Pepsi Food India. It cannot be ruled out that dead insects were not supplied by supplier or sugar water etc.
11. As far foreign matter in the cold drink bottle is concerned, counsel for the complainant submitted that as per public analyst composite testing laboratories report, there were nine dead insects in the 'MIRINDA' cold drink. As per the complaint, complainant purchased cold drink bottle of 'MARINDA' whereas public analyst report analysed cold drink bottle of 'MIRINDA' which apparently does not tally with the bottle purchased by the complainant. Not only this, this report does not contain any batch number, date, description of manufacturer of aforesaid cold drink bottle and also does not contain any report that seals were intact on the bottles and in such circumstances, this report looses its significance. Admittedly, bottle was purchased on 19.08.2002 and application for sending bottle for analysis to public analyst was made by complainant on 07.05.2004 i.e. almost after more than 20 months. Admittedly, every cold drink bottle has limited life and if it is sent for analysis after more than 20 months public analyst report loose its significance.
12. Ld. Counsel for the complainant has drawn my attention towards the application in which it was mentioned that cold drink bottle was produced in the court earlier but in the same sentence it has been mentioned that it is being brought today which means bottle was not produced alongwith complaint before State Commission and was produced only through application dated 07.05.2004 and in such circumstances analyst report looses its significance after expiry of period of use of cold drinks.
13. In such circumstances, complaint was liable to be dismissed as neither M/s Dhillon Cold Drinks was impleaded as opposite party in the complaint nor public analyst report had any evidentiary value and State Commission committed error in allowing complaint.
Consequently both the appeals filed by appellants are allowed and order dated 11.01.2007 passed by State Commission in complaint no. 26/2002 National Consumer Protection Research Centre & Ors vs. Pepsi Food India & Ors is set aside and complaint stands dismissed.
Parties to bear their cost.
......................J K.S. CHAUDHARI PRESIDING MEMBER