State Consumer Disputes Redressal Commission
Sh. Vinay Kumar Sharma. vs Medi-Care Health Care. & Ors. on 11 December, 2015
H.P. STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
SHIMLA.
First Appeal No: 206/2015.
Date of Presentation: 29.10.2015
Date of Decision: 11.12.2015.
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Pepsi Co. India Holdings Pvt. Ltd.,
A-2, UPSIDC Industrial Area, Jainpur,
District Kanpur, Dehat 209 311, U.P. (Manufacturer),
Registered Office at 3B, DLF Corporate Park,
S-Block, Qutab Enclave, Phase-III, Gurgaon, Haryana,
Through its Authorised Signatory.
... Appellant.
Versus
1. Dr. Vinod Gupta, Son of Late Shri Sawan Ram,
C/o Gopal Hospital, Trilokpur Road,
Village Kheri, Tehsil Nahan, H.P.
2. Shri Ashok Bansal, Son of late Shri D.L. Bansal,
C/O Bansal Traders/Confectioners,
Trilokpur Road, Village Kheri, Tehsil Nahan, H.P.
(Retailer).
3. M/s. Hari Ram & Sons.,
Naya Bazar, Nahan, H.P. (Supplier).
... Respondents
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Coram
Hon'ble Mr. Justice Surjit Singh, President.
Hon'ble Mrs. Prem Chauhan, Member.
Hon'ble Mr. Vijay Pal Khachi, Member.
Whether approved for reporting?1
For the Appellant: Mr.Janesh Gupta, Advocate.
For Respondent No.1: Mr. Nitin Gupta, Advocate.
For Respondent No.2: Mr. Vivek Jain, Advocate.
For Respondent No.3: Ex-parte.
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1
Whether reporters of the local papers may be allowed to see the order?
Pepsi Co. India Holdings Pvt. Ltd. Versus Dr.Vinod Gupta & Ors.
(F.A. No.206/2015)
O R D E R:
Justice Surjit Singh, President (Oral) Present appeal is directed against the order dated 14.08.2015, of learned District Consumer Disputes Redressal Forum, Nahan, whereby a complaint, under Section 12 of the Consumer Protection Act, 1986, filed by respondent No.1, Dr. Vinod Gupta, against the appellant and respondents No.2 and 3, has been allowed and a direction given to the appellant and respondents No. 2 and 3 to pay (jointly and severally) a sum of `20,000/-, as compensation and `2,000/-, as litigation expenses, for selling Pepsi cold drink, which was allegedly adulterated, as some floating material/particles were spotted therein.
2. Respondent No.1, Dr. Vinod Gupta, filed a complaint, under Section 12 of the Consumer Protection Act, 1986, alleging that on 16.04.2010, against cash memo No.136, he purchased four bottles of 300 ml. capacity of Pepsi from respondent No.2, Shri Ashok Bansal, a 2 Pepsi Co. India Holdings Pvt. Ltd. Versus Dr.Vinod Gupta & Ors.
(F.A. No.206/2015) shopkeeper in Village Kheri, Tehsil Nahan, District Sirmour, H.P. On a close look at the contents of bottle, respondent No.1 noticed that in one of the bottles there was a 'Gutka Pouch'. He reported the matter to respondent No.2 immediately and showed him the floating pouch in that bottle. Respondent No.2 allegedly informed respondent No.1 that he had received the supply from M/s. Hari Ram & Sons, Nahan, respondent No.3 herein, who was the authorized distributor of Pepsi. The bottler of Pepsi-Cola is the present appellant, who was impleaded as opposite party No.2 in the complaint. On these allegations, respondent No.1 filed a complaint, seeking a direction to the appellant and respondents No.2 and 3, to pay `2.00lacs, as compensation for deficiency in service & unfair trade practice, which resulted in his harassment and caused shock to him. 3. Appellant and respondents No.2 and 3 did not put in appearance before the learned District Forum. They were proceeded ex-parte. Respondent No.1 was called upon to produce 3 Pepsi Co. India Holdings Pvt. Ltd. Versus Dr.Vinod Gupta & Ors.
(F.A. No.206/2015) ex-parte evidence. He submitted his affidavit and also some material downloaded from www.indg.in/healt/disease/tobacco, comprising of three sheets, which are mark Annexure C-2, on the record of learned District Forum, besides some photographs. Learned District Forum, on the basis of the affidavit of respondent no.1 and downloaded material, copy Annexure C-2, has allowed the complaint and directed the appellant and respondents No.2 and 3 to pay compensation of `20,000/- and litigation expenses of `2,000/-. Appellant is aggrieved by the order and has, therefore, preferred this appeal.
4. We have heard learned counsel for the parties and gone through the record.
5. Admittedly, the bottle allegedly containing the Gutka Pouch, was not produced before the learned District Forum, though in the compliant, it was stated that it would be produced as and when directed by the learned District Forum. Bottle was never shown to the learned District Forum. Also, no request was 4 Pepsi Co. India Holdings Pvt. Ltd. Versus Dr.Vinod Gupta & Ors.
(F.A. No.206/2015) made to the learned District to get the contents of the bottle analyzed from any laboratory. Further, no evidence was adduced that the contents of bottle had not been tempered with. Evidence negating the chances of tempering with the bottle, could have also been collected by sending the bottle to an authorized laboratory. No explanation, whatsoever, was put-forward by the complainant for not getting the bottle examined and its contents analyzed from any authorized laboratory.
6. Today, one bottle said to contain pouch is being shown to us during the course of hearing of the matter. Bottle was purchased more than five years back. We have carefully seen at the bottle. Date of manufacture of the contents is recorded as 3rd March, 2010 and contents are written to be consumable within six months. Crown of the bottle is rusted on the top. We do not have any evidence to conclude that bottle is in the same state and condition, in which it was purchased by respondent No.1, from respondent 5 Pepsi Co. India Holdings Pvt. Ltd. Versus Dr.Vinod Gupta & Ors.
(F.A. No.206/2015) No.2. Also, there is no material on record of the learned District Forum showing that respondent No.3, is the authorized distributor of the appellant. Respondent No.2, from whom the bottle was purchased, chose not to appear before the learned District Forum and plead as to what was the source of the bottle, which he sold to respondent No.1. Respondent No.3 also did not appear before the learned District Forum to claim that he was the authorized distributor of the appellant and he had not tempered with the contents of the bottle and had supplied it to respondent No.2, in the same state and condition, in which, he received it from the appellant. Similarly, respondent No.2 also did not claim that bottle had not been tempered with by him and that he sold it to respondent No.1, in the same state and condition, in which it was allegedly received from respondent No.3, M/s. Hari Ram & Sons.
7. In view of the above stated position, we allow the appeal filed by Pepsi Co. India 6 Pepsi Co. India Holdings Pvt. Ltd. Versus Dr.Vinod Gupta & Ors.
(F.A. No.206/2015) Holdings Pvt. Ltd., the alleged manufacturer of the contents of bottle and set aside the order of learned District Forum to the extent it directs it (the appellant) to pay compensation and litigation expenses and makes it liable with respondents No.2 and 3, jointly and severally.
8. A copy of this order be sent to each of the parties, free of cost, as per Rules.
(Justice Surjit Singh) President (Prem Chauhan) Member (Vijay Pal Khachi) Member December 11, 2015 *DKM* 7