State Consumer Disputes Redressal Commission
Pernod Richard India(P) Ltd. & Anr. vs Vipul Babuta & Ors. on 21 December, 2015
2nd Additional Bench
PUNJAB STATE CONSUMER DISPUTES REDRESSAL
COMMISSION,
DAKSHIN MARG, SECTOR 37-A, CHANDIGARH
First Appeal No. 1013 of 2013
Date of institution: 23.09.2013
Date of decision : 21.12.2015
1. M/s Pernod Ricard India Pvt. Ltd., Building No. 8 A, 4th Floor,
DLF Cyber City, DLF Phase II, Gurgaon-122002, Haryana.
2. M/s Pernod Ricard India Pvt. Ltd., 25th Milestone, NH-22,
Village Gholu Majra, Derabassi, District S.A.S. Nagar (Mohali),
Punjab.
.....Appellant
Versus
1. Vipul Babuta, S/o Late Sh. Harish Chander Babuta R/o House
No. 83/2 B, Street No. 2, Raman Enclave, Near Rishi Nagar
Telephone Exchange, Ludhiana.
2. Civil Surgeon, Ludhiana, Office of Civil Surgeon, Near Old
Courts, Ludhiana, Punjab.
3. Gaurav Malhotra & Co. Hambran Road, Titu Drinking Place,
Ludhiana, Punjab.
....Respondents
Appeals against the order dated 23.07.2013
passed by the District Consumer Disputes
Redressal Forum, Ludhiana.
Present:-
For the appellant Mrs. Alka Sareen, Advocate
For respondent No. 1 Sh. Vipul Babuta, in person
For respondent No. 2 None
For respondent No. 3 Ex-parte
First Appeal No. 951 of 2013
Date of institution: 03.09.2013
Date of decision : 21.12.2015
Vipul Babuta, S/o Late Sh. Harish Chander Babuta R/o House No.
83/2 B, Street No. 2, Raman Enclave, Near Rishi Nagar Telephone
Exchange, Ludhiana.
.......Appellant.
Versus
1. M/s Pernod Ricard India Pvt. Ltd., Building No. 8 A, 4th Floor,
DLF Cyber City, DLF Phase II, Gurgaon-122002, Haryana.
FA No. 1013 of 2013 2
2. M/s Pernod Ricard India Pvt. Ltd., 25th Milestone, NH-22,
Village Gholu Majra, Derabassi, District S.A.S. Nagar
(Mohali), Punjab
3. Civil Surgeon Ludhiana, Office of Civil Surgeon near old
courts, Ludhiana, Punjab.
4. Gaurav Malhotra & Co. Hambran Road Adjoining Titu
Drinking Place, Ludhiana, Punjab.
....Respondents
Present:-
For the appellant Sh. Vipul Babuta, in person
For respondents No. 1&2 Mrs. Alka Sareen, Advocate
For respondent No. 3 None
For respondent No. 4 Dismissed vide order dated
06.10.2015 for non compliance
Before:-
Sh. Gurcharan Singh Saran, Presiding Judicial Member
Sh. Jasbir Singh Gill, Member Mrs. Surinder Pal Kaur, Member GURCHARAN SINGH SARAN (PRESIDING JUDICIAL MEMBER) Order This order will dispose of both the appeals arising from the order dated 23.07.2013 passed in C.C. No. 990 of 11.12.2012 passed by the learned District Consumer Disputes Redressal Forum, Ludhiana (in short the 'District Forum') vide which the complaint filed by the complainant was allowed against OPs No. 1, 2 & 4 to refund the price of the bottle i.e. Rs. 375/- and to pay Rs. 5000/- as compensation and Rs. 2000/- as litigation expenses.
2. Complaint was filed by the complainant against OPs on the averments that on 23.09.2012, he purchased a new bottle of blenders pride whisky 375 ml from OP No. 4 who was an authorized vendor of OPs No. 1 & 2. When he opened the box pack of the bottle to check it out, he saw a mosquito and other adulterated particles in the bottle FA No. 1013 of 2013 3 and accordingly, he asked OP No. 4 to issue the bill of the bottle so that necessary action could be taken against OP No. 4 but he refused to issue the bill, even he tried to get back the possession of the bottle forcibly. Then complainant called police control room at number 100 from his cell phone and told them about the incident following which police had reached at the spot and asked OP No. 4 to provide the bill to the complainant but OP No. 4 clearly refused to do so following which he had lodged the complaint in writing to police station Haibowal on the basis of which DDR No. 23 dated 24.09.2012 was recorded. On the basis of that report, District Attorney (Legal) Ludhiana gave opinion that the complainant could approach local health authority and could submit the complaint under Food Safety and Standards Act 2006. Then he forwarded the written complaint to Civil Surgeon, Ludhiana but District Health Officer gave the opinion to file the consumer complaint. OPs were guilty of unfair trade practice as well as deficient in their service. Accordingly, complaint was filed before the District Forum with directions to OPs to return money paid by the complainant for purchasing of the bottle i.e. Rs. 375/-. Respondents No. 1, 2 & 4 be directed to pay Rs. 10,00,000/- compensation for the risk of his life and Rs. 1, 00,000/- for mental and physical harassment and Rs. 50,000/- as litigation expenses.
3. The complaint was contested only by OPs No. 1 & 2 whereas OPs No. 3 & 4 were ex-parte before the District Forum. In their written reply OPs No. 1 & 2 took preliminary objections that the complaint was wholly false, frivolous and vexatious having been filed to compel OPs to succumb to wholly illegal, unlawful and fanciful FA No. 1013 of 2013 4 demands of the complainant. The complainant had filed this complaint after indulging in malicious and speculative litigation. The complainant had not produced with his complaint the alleged bottle in question alleged to have been procured by him alleged to be contaminated. He had also failed to produce the proof of purchase thereof, therefore, he was not the consumer of OPs. On receipt of reply to the legal notice, the complainant never allowed to inspect the bottle to find out the truth. The bottling of various alcoholic beverages by OPs are carried out in sophisticated and modern plants, which use a very high standard of hygiene and cleanliness. The state of the art bottling plants of OPs were set up under strict international guidelines and were air cooled with air curtains blocking the exit and entry points of the plant to rule out the possibility of any matter being present in the bottle. The bottles are pressure washed by automated machines with de-mineralised water to remove dirt/foreign particles if any. All the bottling lines had multi-stage visual inspection panels. That bottle was not manufactured by these OPs . It was very easy for anyone to mix spurious bottles of alcoholic beverages with genuine bottles. The possibilities of tempering with the bottle cannot be ruled out, the claim of Rs. 10,00,000/- claimed by the complainant alongwith other claims was entirely frivolous and concocted, the complainant had not referred any evidence documentary or otherwise to prove the negligence on the part of these OPs and that the complaint was without any cause of action. On merits, the averments taken in the preliminary objections were reiterated. The complainant had not produced any proof regarding purchase of the bottle manufactured by these OPs. Otherwise spurious bottles could be mixed with and FA No. 1013 of 2013 5 possibility of tempering of the bottle can be ruled out. OP No. 4 was not the approved agent of OPs No. 1 & 2. The claim was highly excessive. There was no deficiency in service or unfair trade practice on the part of these OPs. The complaint was without merit and it be dismissed.
4. Before the District Forum, parties adduced evidence in support of their contentions. Complainant tendered into evidence his affidavit Ex. CA-1, complaint dated 24.09.2012 against liquor seller Ex. C-1, DDR dated 24.09.2012 Ex. C-2, newspaper cutting Ex. C-3, legal opinion Ex. C-4, complaint dated 15.12.2012 addressed to Civil Surgeon Ex. C-5, newspaper cutting Ex. C-6, copy of memo of parties Ex. C-7 and closed the evidence. On the other hand OPs tendered into evidence affidavit of Sachin Sudeer Manager Legal Ex. R-A and closed the evidence.
5. After going through the allegations as alleged in the complaint, written reply filed by OPs, evidence and documents on the record, the learned District Forum allowed the complaint in terms stated above.
6. Aggrieved with the order, both the parties have filed these appeals. F.A. No. 1013 of 2013 has been filed by OPs No. 1 and 2 to set-aside the order passed against them whereas F.A. No. 951 of 2013 has been filed by the complainant for enhancement of the compensation.
F.A. No. 1013 of 2013
7. In this appeal, appellants/OPs No. 1 & 2 have challenged the order of the District Forum on the grounds that the District Forum has failed to appreciate that the bottle in question was a spurious one as the same was never sent for test to any government laboratory. The FA No. 1013 of 2013 6 complainant had failed to produce the bottle with his complaint and also failed to furnish the proof of purchase of the bottle. Therefore, he does not come within the definition of 'consumer'. The complainant had not consumed the contents of the bottle, therefore, he had not suffered any loss or injury, therefore, no basis for claim of fantastic amount of Rs. 10,00,000/-. The matter was referred for the expert opinion. The report of food analyst is totally non speaking. The findings recorded by the District Forum are based on conjectures and surmises. Accordingly order under appeal is liable to be set- aside.
8. First point is whether the complainant is a consumer because he was unable to produce the bill regarding purchase of the bottle of whisky from OP No. 4. Accordingly plea was taken by OPs No. 1 & 2 that the complainant was not their consumer. However, in case we go through the allegations in the complaint, it has been specifically mentioned in the complaint that he had called for the bill from OP No. 4 but he declined to issue the bill. Then he called PCR at number 100, the police had come and even on their intervention, the bill was not issued and DDR was recorded. The complaint against liquor vendor to police station, Haibowal Ex. C-1 in which details have been mentioned and accordingly Ex. C-2 DDR was recorded. The legal opinion was given by District Attorney Legal, Ludhiana in which it was observed that no offence of cognizable nature is made out and that the complainant should approach the Local Health Authority under Food Safety ad Standards Act, 2006. Accordingly, he had addressed the complaint Ex. C-5 to Civil Surgeon Ludhiana but they also did not take any action. Accordingly, consumer complaint was filed. FA No. 1013 of 2013 7 Therefore, there is sufficient evidence on the record to prove that the complainant had purchased one bottle of whisky Blenders Pride from OP No. 4 but he did not issue the bill despite demands. Then there is report of Food Analyst, Punjab Chandigarh under opinion has been given as under:-
OPINION : From examination of the sample herein referred to and the result obtained by analysis, I am of the opinion that the contents of the sample are of whisky. Moreover, contents contain one dead insect. Hence, unsafe for human consumption.
However, in the description, batch number and manufacturing date has been mentioned. The plea has been taken by OPs that OP No. 4 is not approved agent and bottle can be spurious one. In case, batch number and manufacturing date are mentioned, then they should bring the evidence to contradict that report. On behalf of OPs No. 1 & 2, there is affidavit of Sachin Sudeer, Manager Legal of OPs No. 1 & 2 and in his affidavit he has stated what has been stated in the written reply. In the affidavit, there is no rebuttal to the report of Food Analyst that batch number 89 and manufacturing date Feb-12 was not there on the bottle. Therefore, in case, evidence brought on the record by the complainant was not rebutted, then inference can be taken that the bottle was manufactured by OPs No. 1 & 2. Therefore, in case, the complainant purchased the bottle manufactured by OPs No. 1 & 2, then relationship of consumer and service provider was there between the parties. OPs No. 1 & 2 in support of their contention has referred the judgment of Hon'ble National Commission reported in I (1992) CPJ 300 (NC) P.A. Pouran Vs. Mcdowell & Co. FA No. 1013 of 2013 8
& Anr. In that case the consumer had not produced the bill regarding soda water bottle, without any bill it cannot be said that the said bottle was purchased by the complainant from the respondent. She has referred another judgment of State Commission, Haryana in appeal No. 61 of 2008 decided on 09.06.2011 that in the absence of the bill, the complainant cannot be considered as consumer of OPs. Against these judgments, there is a judgment of Hon'ble National Commission reported in III (2014) CPJ 338 titled as Procter and Gamble Home Products Ltd Vs. Taranjit Kaur and others in which it has been observed by the Hon'ble National Commission that mere non issue of bill is not sufficient to deny the liability of OPs. However, it is a factual findings and the point can be settled on the basis of factual findings. We have to asses the evidence of the case, whether that is sufficient to prove that the complainant purchased bottle of whisky from OP No. 4 manufactured by OPs No. 1 & 2. On the date of purchase he had demanded the bill from OP No. 4. He refused it. He gave the call to the police. Police came there and even with the intervention of the police, receipt was not given. Then he moved the written application to the police giving all the details regarding purchase of the bottle and that mosquito found in the bottle and denial of the receipt by OP No. 4. On the basis of that application DDR No. 23 dated 24.09.2012 (Ex. C-2) was recorded, therefore, this evidence is sufficient to prove that the complainant purchased bottle of 375 ml blenders pride whisky from OP No. 4 and OP No. 4 did not issue the bill despite demand. Then in the report of food analyst batch number is mentioned which has not been denied by OPs by producing any record that the bottle of this batch number was not FA No. 1013 of 2013 9 manufactured by them. In the presence of the evidence, we are of the opinion that there was relationship of consumer and seller between the parties.
9. It has been argued by the counsel for OPs No. 1 & 2 that the District Forum has failed to return the findings whether bottle of whisky which was allegedly purchased from OP No. 4 was a spurious bottle, as the bottle was never produced at the time of complaint and possibility of tempering with the bottle at the hands of the complainant to lodge an inflated claim or that the report of the food analyst is exaggerated one as it is not supported by any affidavit. There is order dated 20.12.2012 which was passed by the District Forum at the time of admitting the complaint and issuing the notice to OPs. Alongwith complaint an application was filed by the complainant for sending the bottle of blender pride whisky 375 ml for testing the same from the appropriate authority for its analysis. It was ordered to pack and seal the bottle and it was sent to Government Analysis laboratory Chandigarh, therefore, contention of counsel for OPs No. 1 & 2 that the complainant had failed to produce the bottle alongwith complaint is falsified from the order dated 20.12.2012 passed by the District Forum. Then the order of Food Analyst is on the record which speaks that the seals affixed on the container of the sample were found intact on arrival and tallied with the specimen impression of the seal separately sent by District Forum. Apart from presence of mosquito other standards were matching with the standards fixed by OPs, therefore, in case seals were intact on the bottle sent to laboratory then there is no possibility of tempering with the bottle at the hand of the complainant. So far as affidavit of food analyst FA No. 1013 of 2013 10 Punjab Chandigarh is concerned, these reports are per-se admissible. Moreover pleadings before the Consumer Fora are summary in nature, therefore, this type of report can be considered. In case OPs feel something wrong in report, they had a right to call for the food analyst for the purpose of cross examination alongwith record but no such application was moved by OPs before the District Forum for cross examination of food analyst. Therefore, the plea taken by OPs that the report of food analyst is totally misplaced as no affidavit of food analyst was filed on the record is not acceptable.
10. As referred above, when the bottle was sent to food analyst for test, batch number and date of manufacturing was given on the bottle in the description has not been rebutted by OPs by leading any evidence, and in case seals on the bottle were intact at the time of sending the same to the government laboratory, then its tampering with or it was spurious liquor cannot be accepted. Whatever were the contents these were analysed in the laboratory, therefore, we did not agree with the plea raised by counsel for OPs that the bottle was spurious one or that it was tampered with.
11. Another plea has been taken by counsel for OPs that no loss was suffered by the complainant as he did not consume liquor. It is not the question of consumption. In case, he would have consumed it and as per report of government analyst, it was unfit for human consumption, then there were chances of any big loss. In case, it was not consumed by the complainant that does not exonerate OPs for manufacturing of liquor unfit for human consumption which proves unfair trade practice on their part for not checking the quality of the liquor before sending it to market. No doubt that the complainant had FA No. 1013 of 2013 11 demanded a sum of Rs. 10 lac but the District Forum awarded just a sum of Rs. 5000/-, therefore, in case the liquor was not consumed by the consumer, then less amount of compensation has been awarded to the complainant. No other point was argued by the counsel for appellant. The findings so recorded by the District Forum are the correct findings and we affirm the same.
12. In view of the above discussion, we do not see any merit in the appeal and the same is hereby dismissed.
13. The appellants had deposited an amount of Rs. 7375/- with this Commission at the time of filing the appeal. The amount of Rs. 7375/- with interest accrued thereon, if any, be remitted by the registry to respondent/complainant by way of a crossed cheque/demand draft after the expiry of 45 days of sending the certified copy of the order to the parties, subject to stay, if any, by the higher Fora/Court. FA No. 951 of 2013
14. This appeal has been filed by the complainant that the claim awarded by the District Forum is too inadequate. He has referred to the case of Hyderabad Consumer Redressal Forum in which aginst United Breweries compensation of Rs. 50,000/- was allowed and District Consumer Forum, Delhi against coca cola, a sum of Rs. 1,20,000/- was allowed. However full citations of these judgments have not been referred in the grounds of appeal. During the course of arguments, counsel for the appellant had not produced the copies of the said judgments, therefore, without giving proper reference of judgments or producing copy of the same before us, these judgments cannot be referred to or relied upon. Otherwise compensation is FA No. 1013 of 2013 12 determined which is in consonance with loss. In this case the complainant had spent just a sum of Rs. 375/- against that he has been allowed compensation of Rs. 5000/-. It is cardinal principal of law that the compensation is allowed to the complainant. Keeping in view the injuries received by the parties and compensation cannot be allowed to enrich the complainant.
15. Keeping in view of the injury received by the complainant on account of purchase of one bottle of whisky having mosquito, the compensation of Rs. 5000/- seems to be adequate. Therefore, we do not see any reason for enhancement of compensation.
16. In view of above, we do not see any merit in the appeal and the same is hereby dismissed.
17. The arguments in these appeals were heard on 10.12.2015 and the order was reserved. Now the order be communicated to the parties as per rules.
(GURCHARAN SINGH SARAN) PRESIDING JUDICIAL MEMBER (JASBIR SINGH GILL) MEMBER (SURINDER PAL KAUR) MEMBER December 21, 2015.
Rupinder FA No. 1013 of 2013 13