State Consumer Disputes Redressal Commission
Hindustan Coca-Cola Beverages vs Kalpesh S. Patel on 18 August, 2021
Details DD MM YY
Date of disposal 18 08 2021
Date of filing 17 07 2013
Duration 01 01 08
BEFORE THE CONSUMER DISPUTES REDRESSAL COMMISSION
GUJARAT STATE, AHMEDABAD.
COURT NO: 04
Appeal No. 1786 of 2013
Hindustan Coca-Cola Beverages Pvt Ltd,
Having office at village Goblej,
Dist. Kheda, Gujarat - 387440. ... Appellant
V/s.
1. Kalpesh Somabhai Patel,
B/G/2, Shyam Paradise Flat, Science City,
Nr. AUDA Water Tank, Sola, Ahmedabad -61
2. Satyam Pan Parlor,
21, Stayam Complex,
Science City road, Sola, Ahmedabad. ...Respondents.
BEFORE: Dr. J.G. Mecwan, Presiding Member.
APPEARANCE: Mr. A.O. Chudgar, L.A. for the appellant.
Smt. Nisha Parikh, L.A. for the respondents.
Order by Dr. J.G. Mecwan, Presiding Member.
JUDGMENT
1. Being aggrieved by and dissatisfied with the judgment and order rendered by the learned District Consumer Disputes Redressal Commission, Ahmedabad (Rural) on 10.06.2013 in Complaint No. 95 of 2012, the original opponent has filed the present appeal under Section 15 of the Consumer Protection Act, 1986 before this Commission. For the sake of the convenience, parties are hereinafter referred to by their original nomenclature. Page 1 of 13
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2. The facts given rise to the present appeal in a nutshell are as under: It is the case of the complainant that on dated 23.06.2011 the complainant visited Satyam Pan Parlor situated at Sola, Ahmedabad with his friends and ordered three 200ml soft drinks "Mazza" bottles and when it was served, out of three bottles they found some dust in one bottle. Thereafter in the presence of the owner of pan parlor, complainant has taken the bill and other necessary documents of that bottle which was packed as BN- 7SSCJ on dated 30.05.2011. It is further the case of the complainant that after taking the photos of the said bottle form various angles and raised their grievance against opponent by way of application dated 27.06.2011, dated 16.07.2011, dated 10.09.2011 and legal notice dated 06.03.2012. It is further the case of the complainant that when no any reply received from the opponent, complainant has constrained to file Consumer Compliant before the learned District Commission Ahmedabad (Rural).
3. Being dissatisfied with the deficiency in service by the opponents complainant has filed Consumer Complaint before the learned District Commission Ahmedabad (Rural) and prayed for monetary compensation from the respondents amounting Rs. 10,00,000/- and necessary costs for mental stress and expenditure of the complaint.
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4. After hearing learned advocates for both the parties and after considering the documents and evidences, the learned District Commission partly allowed the complaint of the complainant.
5. Being aggrieved by the impugned order of the learned District Commission, Ahmedabad (Rural) the original opponent has filed the present appeal against the original complainant before this Commission on the ground stated in the appeal memo.
6. Heard learned Advocate Mr. A.O. Chudgar for the appellant and ld. Advocate Smt. Nisha Parikh for the respondents at length. Perused the record of the case, order of the learned District Commission and judgments produced by the ld. Advocate for the appellant.
7. First of all learned Advocate for the appellant Mr. A.O. Chudgar has argued out that the learned District Commission has erred in observing that the batch number mentioned in compliant and Public Health Laboratory are different. In compliant batch no. is BN 755-CJ, whereas the Batch number mentioned in the Public Health Laboratory is BN 755-C and therefore it cannot be presumed that the bottle sent for laboratory testing is the same bottle which was purchased by the complainant which the complainant alleged to be as defective. Learned Advocate Mr. Chudgar further argued out that the Public Health Laboratory has submitted the report as per the specification of FSSA - 2006 i.e Food Safety and Standard Act, 2006; so its regulation Food Safety and Standard (Laboratory and Page 3 of 13 R.I. DESAI A/13/1786 Sample Analysis) Regulation, 2011 is clearly applicable to the test conducted by Laboratory and therefore as per the regulation number 2.3.1 the Laboratory is required to take the minimum quantity of sample for testing. It is further submitted by ld. Advocate Mr. Chudgar that being the Fruit Juice the minimum sampling for testing as per this Regulation is 01 liter which is provided in Table at item no. 27 - Fruit Juice/Fruit Drink/Fruit Squash. Further the laboratory has tested the sample of 200ml only as per the Panchnama conducted by the office of the learned District Commission but learned District Commission has erred in observing the report of the Public Health Laboratory.
8. Learned Advocate Mr. Chudgar further argued out that the learned District Commission had not appreciated the contention of the appellant mentioned in the Written argument that as par admitted facts of the complainant; in the complaint the disputed bottle was purchased on 23.06.2011 and from that date the disputed bottle was in custody of the complainant till the complainant send the disputed bottle to the Laboratory for testing and thus, the disputed bottle was in the custody of the complainant for almost more than One Year and also being the food article, it is not stated anywhere that in which temperature the bottle was maintained/ preserve and in which condition it was placed? It is further argued by the learned Advocate Mr. Chudgar that as per the contention of the Page 4 of 13 R.I. DESAI A/13/1786 complainant, the disputed bottle is manufactured on 30.05.2011 and every food products have its "best before date" i.e. the period within which the efficiency, taste/colour and the nature of product is best fitted to consume or analyzed for any food test. It is submitted by ld. Advocate Mr. Chudgar that here the bottle have lost its efficiency/power to consume or analyzed for any test after expiry of such long period and therefore, any report undertaken after crossing the "best before date" will not consider to be the valid and true analyzed report.
9. It is further submitted by ld. Advocate Mr. Chudgar that the learned District Commission has failed to considered that the opponent has failed to produce any documentary proof or evidence establishing payment of consideration towards purchase of alleged bottle. It is further alleged by learned Advocate Mr. Chudgar that it is apparently clear that there is absence of consideration and therefore the opponent cannot be said to be consumer under the Act and the complaint is liable to be dismissed on this ground only. It is further submitted by ld. Advocate Mr. Chudgar that learned District Commission has erred in holding that the soft drink was of sub- standard as stated in the laboratory report and the laboratory has not opined that the soft drink was not as per the standard.
10. It is further argued out by learned Advocate Mr. Chudgar that learned District Commission has not properly appreciated the Page 5 of 13 R.I. DESAI A/13/1786 principles laid down by the Hon'ble State Commission Gujarat in Appeal Nos.752/2005, 1401/2008 and in complaint No.7/2006, wherein it has been specifically held that, unless the soft drink is consumed, and unless the complainant suffered any loss, the question of damages and compensation do not arise at all. It is further submitted by learned Advocate Mr. Chudgar that learned District Commission has also erred in directing the opponents to deposit Rs.30,000/- with the State Consumer Welfare Fund, Gujarat by way of penalty although there is no deficiency and negligence on the part of the appellant. It is further argued out by ld. Advocate Mr. Chudgar that learned District Commission has no power to fine the service provider or manufacturer for alleged inaction on its part and this power can be exercised by the learned District Commission only when there is a damages caused to the consumer after utilizing the product manufactured by the company as laid down by this Hon'ble State Commission in similarly situated cases.
11. Learned Advocate Mr. Chudgar concluded that the order passed by the learned District Commission is not just and proper and therefore it should be quashed and set aside by allowing this appeal. In support of his arguments ld. Advocate Mr. Chudgar has submitted following judgments:
(I) IV (2018) CPJ 22 (NC)
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(II) Civil Appeal Nos. 8072-807 of 2009 (SC)
In the above submitted judgments Hon'ble Apex Court has observed as under:
IV (2018) CPJ 22 (NC):- State Commission not justified in ordering the punitive damages of Rs. 50,00,000/- against the opposite party/appellant Bank.
Civil Appeal nos. 8072-8073 of 2009:- The National Commission has gone much beyond its jurisdiction in awarding the relief which was neither sought in the complaint nor before the State Commission and therefore the order of the National Commission cannot be sustained.
12. Upon service of the notice learned Advocate Smt. Nisha Parikh appeared on behalf of the respondents and vehemently argued out that the appellant company is totally careless at the time of packing of bottles and even did not taken care of their consumer and given the reply of their notice and application which itself shows negligence on the part of the appellant Company. It is further contended by the learned Advocate Smt. Parikh that the opponent has sent the said bottle for the laboratory analyses through the learned District Commission and the report itself shows that there is a black particle in the bottle which will effect on the health of the opponent if he would drunk the said soft drink.
13. Learned Advocate Smt. Parikh further submitted that opponent is being vigilant and prudent and health conscious person and Page 7 of 13 R.I. DESAI A/13/1786 therefore he did not consume the said soft drink however if he had consume the defective soft drink, the complainant could have invited lots of problem and it would become injurious to health and therefore it cannot be said that the complaint is not a consumer and opponent Company cannot escape from his responsibility as a trader and manufacture. Learned Advocate Smt. Parikh further argued out that as an when the opponent had seen black particle in the sealed bottle, he avoided to consume the said drink as he was very much health conscious person. However as a reputed Company, it is the duty of the appellant to provide quality material to the consumer and the appellant is failed to perform his part of duty. Learned Advocate Smt. Parikh has relied upon following judgments of Hon'ble Apex Court in the written arguments :
(I) I (2007) CPJ 333 (NC) : It is the duty of the company to serve hygienic and healthy food to the consumer.
(II) III (2010) CPJ 223 (NC): Product in question was sub-
standard and not fit for human consumption and directed to pay compensation and also directed to deposit Rs. 20,000/- before the District Forum Legal Aid Account as punitive damages.
(III) III (2010) CPJ 325 (NC): One of the bottles is Slice Mango flavor which there appears a housefly lying in it and therefore if the opponent would have consumed the said soft drink; it will be definitely harm to the opponent.
14. Learned Advocate Smt. Nisha Parikh for the respondents concluded that the order passed by the learned District Commission is just Page 8 of 13 R.I. DESAI A/13/1786 and proper and it does not require any interference by this Commission and therefore the present appeal should be dismissed.
15. In the present case learned District Commission has directed to the opponent for depositing Rs. 30,000/- to State Consumer Welfare Fund Gujarat by way of penalty although no compensation was awarded to the complainant.
16. I have carefully gone through the record of this case. The main issue which is required to be decided in the present matter is that the order of the learned District Commission to deposit Rs. 30,000/- in State Consumer Welfare Fund Gujarat by way of penalty is proper or not?
17. It is an averment of the appellant that though the complainant has not suffered any loss or damages and also it was not demanded by the complainant anywhere in his complaint but learned District Commission has directed to deposit Rs. 30,000/- in State Consumer Welfare Fund Gujarat. I have also gone through the compliant which is produced in this matter at page no. 30 where complainant prays that:-
(A) This compliant may be allowed in the interest of justice, (B) Direct the opponent company to pay Rs. 10,00,000/- towards the amount as a compensation by the compliant on account of deficiency in service of the opponent, in the interest of justice, (C) Direct the opponent company to pay the cost of this compliant, (D) Award the cost of this litigation, Page 9 of 13 R.I. DESAI A/13/1786 (E) Grant such other and further reliefs as may be deemed fit and proper by this hon'ble Forum, in the interest of justice.
18. In the Consumer Protection Act, 1986 under Section 14, the finding of the learned District Commission is given which reads as follows:
"14. Finding of the District Forum.--
(1) If, after the proceeding conducted under section 13, the District Forum is satisfied that the goods complained against suffer from any of the defects specified in the complaint or that any of the allegations contained in the complaint about the services are proved, it shall issue an order to the opposite party directing him to 1[do] one or more of the following things, namely:--
(a) To remove the defect pointed out by the appropriate laboratory from the goods in question;
(b) To replace the goods with new goods of similar description which shall be free from any defect;
(c) To return to the complainant the price, or, as the case may be, the charges paid by the complainant;
(d) To pay such amount as may be awarded by it as compensation to the consumer for any loss or injury suffered by the consumer due to the negligence of the opposite party: 56 [Provided that the District Forum shall have the power to grant punitive damages in such circumstances as it deems fit;] 57 [(e) To 58 [remove the defects in goods] or deficiencies in the services in question;
(f) To discontinue the unfair trade practice or the restrictive trade practice or not to repeat them;
(g) Not to offer the hazardous goods for sale;
(h) To withdraw the hazardous goods from being offered for sale;
56 [(ha) to cease manufacture of hazardous goods and to desist from offering services which are hazardous in nature; (hb) to pay such sum as may be determined by it, if it is of the opinion that loss or injury has been suffered by a large number of consumers who are not identifiable conveniently:
Provided that the minimum amount of sum so payable shall not be less than five per cent. of the value of such defective goods sold or services provided, as the case may be, to such consumers: Provided further that the amount so obtained Page 10 of 13 R.I. DESAI A/13/1786 shall be credited in favour of such person and utilized in such manner as may be prescribed;
(hc) to issue corrective advertisement to neutralize the effect of misleading advertisement at the cost of the opposite party responsible for issuing such misleading advertisement;]
(i) to provide for adequate costs to parties.]"
19. For the granting of punitive damages Hon'ble Supreme Court in Civil Appeal no. 8072-8073 of 2009 - General Motors Pvt. Ltd. Vs. Ashok Ramniklal Tolat and Anr. has observed as under:-
"We have already set out the relief sought in the complaint. Neither there is any averment in the complaint about the suffering of punitive damages by the other consumers nor the Appellant was aware that any such claim is to be met by it. Normally, punitive damages are awarded against a conscious wrong doing unrelated to the actual loss suffered. Such a claim has to be specially pleaded. The Respondent complainant was satisfied with the order of the District Forum and did not approach the State Commission. He only approached the National Commission after the State Commission set aside the relief granted by the District Forum. The National Commission in exercise of revisional jurisdiction was only concerned about the correctness or otherwise of the order of the State Commission setting aside the relief given by the District Forum and to pass such order as the State Commission ought to have passed. However, the National Commission has gone much beyond its jurisdiction in awarding the relief which was neither sought in the complaint nor before the State Commission. We are thus, of the view that to this extent the order of the National Commission cannot be sustained. We make it clear that we have not gone into the merits of the direction but the aspect that in absence of such a claim being before the National Commission and the Appellant having no notice of such a claim, the said order is contrary to principles of fair procedure and Page 11 of 13 R.I. DESAI A/13/1786 natural justice. We also make it clear that this order will not stand in the way of any aggrieved party raising a claim before an appropriate forum in accordance with law."
20. Looking to the above principle laid down by the Hon'ble Supreme Court, I am of the view that in the instant case when complainant has not suffered any loss or damages and furthermore he has not sought in his compliant before the learned District Commission then learned District Commission was not justified in ordering the punitive damages of Rs. 30,000/- against opponent and therefore in the opinion of this Commission the order of the learned District Commission is required to be modified to some extent and hence the following final order is passed.
ORDER
1. The present appeal is partly allowed.
2. The order of the learned District Commission, Ahmedabad (Rural) in C.C. no. 95/2012 dated 10.06.2013 at Serial No. 02 is hereby modified that the opponent Company is jointly and severely ordered to pay Rs. 1,000/- towards mental torture and Rs. 1,000/- towards the cost of complaint to the respondent-original complainant.
3. No order as to cost.
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4. Opponent Company shall comply with this order within 60 days from the date of this order.
5. Appellant is directed to apply to the Account Department of the State Commission with all details of Appeal No. 1786/13, and C.M.A. No. 764/13, Xerox copy of the receipt to withdraw the amount deposited in the State Commission. The office is hereby ordered to pay deposited amount with accrued interest on proper verification to the appellant by Account payee cheque and the cheque be handed over to the learned advocate for the appellant after obtaining receipt.
6. Registry is hereby instructed to send a copy of this order in PDF format by E-mail to learned District Commission Ahmedabad (Rural) for necessary action.
7. Office is directed to forward a free of cost certified copy of this judgment and order to the respective parties. Pronounced in the open Court today on 18th August, 2021.
[Dr. J.G. Mecwan] Presiding Member.
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