State Consumer Disputes Redressal Commission
The General Manager, vs R.Madhu Goud District Medak. And ... on 9 July, 2013
BEFORE THE A BEFORE THE A.P.STATE CONSUMER DISPUTES REDRESSAL COMMISSION: AT HYDERABAD. F.A.No.514/2013 against C.C.No.32/2012 District Forum, Medak at Sangareddy Between The General Manager, Pepsi Company Limited Pothireddipally village, NH Way No.9, Mandal Sangareddy, District Medak. Appellant/ O.P.2 And 1. R.Madhu Goud S/o.late R.Mallesham Goud Aged 30 years, Occ:Business, R/o.H.No.3-2-84, Nethajinagar, Sangareddy Town and Mandal District Medak. Respondent/ Complainant 2. Classic Cool Drinks Shop No.6-19 Near Govt. Hospital, Main Road, Sangareddy Town ad Mandal District Medak. Respondent/ Opp.party No.1 Counsel for the Appellant : M/s Niranjan Associates Counsel for the Respondents: Admission Stage. QUORUM: SMT.M.SHREESHA, HONBLE Incharge President AND SRI S.BHUJANGA RAO, HONBLE MEMBER.
TUESDAY, THE NINTH DAY OF JUlY TWO THOUSAND THIRTEEN Order (Per Smt.M.Shreesha, Honble Incharge President) *** Aggrieved by the order of C.C.No.32/2013 on the file of District Forum, Medak at Sangareddy, OP2 preferred this appeal.
The brief facts as set out in the complaint are that the complainant on 21-6-2012 purchased six Mirinda cool drink bottles with batch No.LB193, dated 05-5-2012 at Rs.10/- each from opposite party No.1 and found an empty sachet of RMD Manichanda Gutkha packet at the bottom of 200 ml cool drink bottle and the complainant approached O.P.1, he did not take up any responsibility but shifted the responsibility to OP 2, who is the manufacturer of this soft drink. The complainant got issued a legal notice to both O.Ps. on 28-6-2012 but did not receive proper response. Hence he approached the Forum seeking directions to the O.Ps. to refund the cost of the bottle with interest, compensation and costs.
O.P.1 was set exparte.
O.P.2 submitted that there is no deficiency in service and that all the soft drinks are manufactured in sophisticated plants and if there indeed was a gutkha packet it would not have gone unnoticed, as it would be visible in inspection during offloading at the distribution location or at the time of sale or even from the retail outlet. O.P.2 in its written version submitted that the manufacturing of Mirinda Carbonated Beverage is done in the following stages:
a) Water Treatment:
The water used for manufacture of beverages at Mamandur plant is treated by the state of art Reverse Osmosis method. This ensures that the water conforms to the stringent specifications of Total Hardness. Alkalinity and Total Dissolved Solids (T.D.S.) There is an extensive pre-treatment of water even before the Reverse Osmosis stage. This involves chlorinating of water, its filtration through a Sand Bed and treatment through an Activated Carbon Filter. Even after the Reverse Osmosis purification, the water is polished through micron water polishers and further passed through the Ultra Voilet lights. This extensive treatment of water ensures its higher quality in line with Pepsi Co. Standards.
b) Syrup Prepartion:
Pepsi Co. maintains stringent quality and technical specifications of sugar used for manufacturing its beverages. To ensure a high quality of sugar, hot treatment of sugar is done wherein it is dis-solved in treated water and heated to about 81 degree C. Fine Activated Carbon is added to eliminate unwanted colour and odour. The mixture is kept at this temperature for some time before it is passed through a multi-plate Filter press to obtain a pure, high quality sugar solution, which is directly transferred to the Simple Syrup Tank after cooling to below 25 degree C. C. Washing of Bottles:
The bottles from the market are inspected in Pre-Inspection station, where rusted neck bottle, other brand bottles, more dirty bottles, chip neck bottles and bottles containing a foreign matters are removed. Post and pre-inspection bottles are getting washed in a fully automatic, multiple stage Bottle Washer. In this equipment, the bottles are washed by soaking successively in water, low caustic (temp 55 to 60 degree C) High Caustic (Temp. 75 to 80 degrees C) and again with water. The bottle are soaked in all stages in a fully Inverted condition and thereafter rinsed in each stage with jets spraying water at a high pressure.
d) Inspection of Empty Bottles:
The cleaned bottles move out from the Bottle Washer in conveyors to the Inspection Station where these are inspected for any damage, scratches, chit necks etc. so that these may be segregated from the usable stock of bottles.
e) Inverter:
The filled bottles are inverted 90 Degree to sterile the head space in the bottle.
f) Printing:
Thereafter, the bottles are printed with batch code and date/time of production using a inkjet coder for product trace ability.
g) Quality Control Checks:
The finished product is being checked at our quality control laboratory to conform the product quality in different stages of operations from raw material checks, water quality checks, syrup quality checks, washed bottle checks and finally finished products checks. After ensuring each and every stages of checking and confirming the product quality, the finished product is allowed to manufacture.
h) Inspection:
The filled bottles are finally inspected for any abnormality in volume of liquid filled in the bottles and any bottles with high or low fill contents are removed.
i) Palatezing and storing: The finished products are kept in the pallets and stored in the warehouse. The finished products sent to market through distributors by using trucks/canter/lorry.
O.P.2 further submits that the complainant has failed to prove his case and that they are concerned about maintaining good will and reputation in the International market and contend that there is no deficiency in service on their behalf and seek dismissal of the complaint with exemplary costs.
The District Forum based on Exs.A1 to A5 and Ex.MO.1 i.e soft drink bottle allowed the complaint directing OP1 to pay Rs.5000/- towards compensation and Rs.10/- towards cost of the bottle and directing OP 2 to pay Rs.15000/- to the complainant with interest at 9% on the aforementioned amounts together with costs of Rs.1000/- to be paid by both the parties.
Aggrieved by the said order, OP 2 preferred this appeal and it is pertinent to note that OP1 did not prefer any appeal.
The learned counsel for the appellant/O.P.2 submitted that the complainant is not a consumer and that the complainant has consciously noticed that there was foreign matter in the soft drink bottle and that was not consumed by the consumer and therefore no loss or damaged was caused to him. The learned counsel further contended that it is impossible for such a bottle to be manufactured or marketed as even a visual inspection would show that there is a foreign matter in the bottle either before sealing or after sealing or even during offloading at the distribution location. There is a strong possibility with the foreign matter may be spurious drink. The Maharashtra Police raided filling stations/godowns selling spurious soft drinks and that the Forum without considering this aspect of sale of spurious drinks has awarded the amounts.
First we address ourselves to the aspect whether the complainant herein is a consumer. Admittedly the complainant purchased a soft drink bottle with an intention to consume the contents and falls within Section 2(1)(d) of the Consumer Protection Act. We rely on the decision reported in Donoghue (Pauper) v. Stevenson (1932) House of Lords - 26 May 1932 in which it was held that sale of such contaminated soft drinks amounts to deficiency and therefore the contention of the opposite parties that the complainant is not a consumer is unsustainable. Ex.A1 is dated 21-6-2012 and is the original cash memo. Ex.A2 is the copy of the legal notice dated 28-6-2012. Ex.A3 is dated 04-7-2012 given by the appellant/OP 2 herein. Exs.A4 and A5 are the postal receipts which evidence that the notices have been received by Ops. Ops filed Exs.B1 and B2 which are copies of FIR and the Raid reports.
Merely because raids are conducted and spurious bottles are confiscated by the Police, it does not give any blanket protection to the appellant herein and also does not establish that the said bottle is also spurious without any conducting of tests. We observe from the record that though it filed its written version, it did not choose to adhere to Section 13(1)(c) of the Act, which stipulates that the said bottle may be sent to an appropriate laboratory to testing. We observe from the record that no IA has been filed or any such steps taken by the OP while the complainant has established a prima facie case and the District Forum has observed that there is a sachet of gutkha in the sealed bottle. Hence the burden of proof shifts to the appellant/opposite party to establish that either the soft drink was not manufactured by them, or if it was spurious to establish by way of a test report. But appellant/OP2 did not take any such steps contemplated under Section 13(1)(C) of Consumer Protection Act. It is also the case of the appellant/OP that the complainant did not consume the contents and therefore the question of granting compensation does not arise. The PRINCIPLES LAID DOWN IN DONOGHUE v. STEVENSON are as follows:
1. Negligence is a distinct tort. The decision settled that negligence as a tort or civil wrong, stood by itself and that it could be actionable in any circumstances in which one person suffered personal injury or physical property damage as a direct, close and foreseeable result of the act or omission of another. Litigants do not have to rely on special relationships to prove their cases nor is negligence a dependent component of other torts.
2. A contract is not necessary. Ironically, while at the time of Donoghue, plaintiffs sought to hang their hats on any contract they could, today often the opposite is the case, such as plaintiffs suing in tort for damages in order to avoid restrictions imposed upon them by contracts they have entered into.
3. Manufacturers liability. The actual decision in Donoghue v. Stevenson, or the ratio decidendi, related to the imposition of liability on manufacturers under certain narrow (by todays standards)conditions.
In the words of Lord Atkin:... a manufacturer of products, which he sells in such a form as to show that he intends them to reach the ultimate consumer in the form in which they left him with no reasonable possibility of intermediate examination, and with the knowledge that the absence of reasonable care in the preparation or putting up of the products will result in an injury to the consumers life or property, owes a duty to the consumer to take that reasonable care Keeping in view the aforementioned decision we are of the considered opinion that there is deficiency in service and therefore we see no reason to interfere with the order of the District Forum.
In the result this appeal fails and is accordingly dismissed. There shall be no order as to costs. Time for compliance four weeks.
Sd/-INCHARGE PRESIDENT.
Sd/-MEMBER.
JM Dt.09-7-2013.