State Consumer Disputes Redressal Commission
Skol Breweries Ltd. & Anr. vs Poonam Kumar Sood & Anr. on 28 February, 2014
FIRST ADDITIONAL BENCH
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB
SECTOR 37-A, DAKSHIN MARG, CHANDIGARH.
First Appeal No.353 of 2010.
Date of Institution: 08.03.2010.
Date of Decision: 28.02.2014.
1. SKOL Breweries Ltd., Central Distillery Breweries, Meerut
Central, U.P.
2. SKOL Breweries Ltd., R.K. Machine Tools, near Cheema Chowk,
Ludhiana.
.....Appellants.
Versus
1. Poonam Kumar Sood, 230/B-1, Guru Nanak Pura, Civil Lines,
Ludhiana.
2. Tej Paul, L-2, Ghumar Mandi No.2, Ludhiana.
...Respondents.
First Appeal against the order dated
08.12.2009 passed by the District
Consumer Disputes Redressal Forum,
Ludhiana.
Before:-
Shri Inderjit Kaushik, Presiding Judicial Member.
Shri Jasbir Singh Gill, Member.
...................................
Present:- None for the appellants.
Sh. Inderdeep Singh, Advocate for Sh. Ramender Chauhan, Advocate, counsel for respondent No.1. None for respondent No.2.
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INDERJIT KAUSHIK, PRESIDING JUDICIAL MEMBER:-
SKO Breweries Ltd., Central Distillery Breweries, Meerut Central, U.P. and another, appellants/OPs No.1 & 2 (In short "the First Appeal No.353 of 2010 2 appellants") have filed this appeal against the order dated 08.12.2009 passed by the learned District Consumer Disputes Redressal Forum, Ludhiana (in short "the District Forum").
2. Facts in brief are that Sh. Poonam Kumar Sood, respondent no.1/complainant (hereinafter called as "respondent no.1") filed a complaint under section 12 of the Consumer Protection Act, 1986 (in short, "the Act") against the appellants and respondent no.2/OP-3 (hereafter called "respondent no.2"), pleading that he purchased one bottle of Beer 'HAYWARDS 5000' from respondent no.2 against price of Rs.65/- on 10.10.2008 and on demand, the official of respondent no.2 isued a handwritten payment receipt to respondent no.1, disclosing Batch No.64 dated 27.08.2008 as well as that the same is manufactured by appellant no.1.
3. On reaching home, when respondent no.1 placed the packed and sealed bottle of Beer for the purpose of opening the same for drinking, he found some alien particles floating in the bottle. Later on, respondent no.1 discovered that it was a cockroach. Respondent no.1 rushed to respondent no.2, who immediately contacted appellant no.2 and officials of appellant no.2 visited the shop of respondent no.2 and assured to pay compensation for harassment. The officials of appellant no.2 asked respondent no.1 to hand over the bottle for sending it to appellant no.1, but without receipt and respondent no.1 refused to hand over the same.
4. The appellants are responsible for selling such a Beer bottle without examining its contents and failed to keep the area free from dust and foreign particles, otherwise, such cockroach which is visible through naked eye, cannot escape the eyes of staff when the bottles were being filled with Beer.
First Appeal No.353 of 2010 3
5. Respondent no.1 noticed floating cockroach before opening the Beer bottle or consuming, or else respondent no.1 should have suffered. The appellants and respondent no.2 are deficient in service and are selling spurious goods by adopting unfair trade practice, for promotion of sale and they are liable to pay compensation.
6. It was prayed that Rs.50,000/- may be awarded as compensation.
7. In the written version filed on behalf of the appellants, preliminary objections were taken that respondent no.1 is not entitled to any claim and the complaint is not maintainable. Appellant no.1 is a part of multi-national company which is the second largest brewery in the world, having state of the art plants located at various cities in India. All the products are made with the latest technology and in most hygienic conditions and with the use of best quality of raw material. The appellants are selling millions of bottles throughout the year and adhered to principle of zero defects. Appellant no.1 has the quality control department. Each and every product manufactured undergoes a thorough, effective and stringent quality control system. The impugned product needs to be analyzed by an independent Lab. as per Section 13 of the Act. Respondent no.1 did not consume the contents of the bottle and no consumer dispute has arisen.
8. On merits, similar pleas as taken in preliminary objections were repeated and denying allegations of the complaint, it was prayed that the complaint may be dismissed with costs.
9. Respondent no.2 did not contest the complaint before the District Forum and was proceeded against exparte.
10. Contesting parties led evidence in support of their respective contentions by way of affidavits and documents. First Appeal No.353 of 2010 4
11. After going through the documents and material placed on file and after hearing the learned counsel for the parties, the learned District Forum observed that presence of insect in the bottle belies the version of the appellant that they have latest plants, having hygienic conditions and their product goes through the quality control checks at very stage. Had respondent no.1 consumed such contaminated Beer, anything could happen. Respondent no.1 is consumer. The claim of respondent no.1 is supported by the affidavit and receipt of purchase Ex.C-1 which proves that he purchased the Beer bottle for Rs.65/- from respondent no.2. The bottle is packed and sealed, bearing wrapper containing name of the manufacturer. The complaint was allowed and the appellants were directed to pay Rs.30,000/- as compensation, out of which Rs.20,000/- was ordered to paid to the Indian Red Cross Fund, Ludhiana Branch, for spending the same on health of poor persons and Rs.3,000/- was awarded as litigation expenses against the appellants.
12. Aggrieved by the impugned order dated 08.12.2009, the appellants have come up in appeal.
13. We have gone through the pleadings of the parties, perused the record of the learned District Forum and have heard the arguments advanced by the learned counsel for respondent no.1.
14. Neither the counsel for the appellants, nor of respondent no.2, nor anybody else on their behalf appeared at the time of arguments.
15. The appeal was filed on the grounds that the District Forum committed error in law in relying upon the alleged Public Analyst Report. The bare perusal of the Public Analyst Report establishes that without even consuming the contents of the bottle, it is opined that the First Appeal No.353 of 2010 5 sample of Beer was unfit for human consumption. The bottle was externally examined. The Public Analyst Report ought to have given the findings as to whether the presence of insect affected injury. Mere presence of insect is not injurious. The Public Analyst Report cannot be believed. The District Forum did not afford the opportunity to the appellants to rebut the report of the Public Analyst. There is huge difference between the size of cockroach and insect. Assuming that there was a foreign particle, it can take place due to leakage when the cap of the bottle was opened and after consuming, part of the bottle is closed or when the Beer has been left in the freezer for a longer period. The appellants cannot be held liable. Under the Prevention of Food Adulteration Act, a right is given to get the sample analyzed from the Central Food Laboratory, but the appellants have been deprived of a valuable right to rebut the Public Analyst Report. Respondent no.1 was not a consumer and the District Forum wrongly awarded the huge compensation. The products are subjected to stringent quality control system and the same are checked time and again and there is remote possibility of having any foreign particles. The complaint was not maintainable. The order passed by the District Forum is not sustainable and the same is liable to be set aside.
16. On behalf of respondent no.1, it was argued that the bottle of Beer was purchased on 10.10.2008 and foreign particle was found. The bottle was sent to the Public Analyst, who gave the report that the contents are unfit for human consumption. The District Forum has sent the said bottle to the Public Analyst on the application of respondent no.1 and the insect was found and the contents were not fit for human consumption. Respondent no.2 sold the same through appellant no.2. First Appeal No.353 of 2010 6 The order under appeal is detailed and speaking and the appeal merits dismissal.
17. We have considered the respective version/submissions of the parties and have carefully monitored the entire record.
18. Respondent no.1 purchased the Beer bottle vide receipt Ex.C-1 which has not been rebutted in any manner. Ex.C-2 is the photograph of the Beer Bottle and the insect is visible with naked eye. Alongwith the complaint, respondent no.1 filed an application U/s 13 of the Act and the said bottle was sent to Public Analyst of Punjab by the District Forum vide Letter No.1202 dated 03.03.2009 and the same was analyzed by the Chemical Laboratory and the report was sent to the District Forum and as per Public Analyst opinion, the sample of Beer was unfit for human consumption on the basis of the findings. The said bottle and its contents were physically as well as chemically examined and all the contents thereof were mentioned in the report. The plea that only external examination was done and the contents were not examined, is not tenable because the said bottle was examined physically as well as chemically and all the ingredients were specified and the ultimate result was that the said Beer was found unfit for human consumption. The appellants have not been able to rebut the said report. The plea that under the Prevention of Food Adulteration Act, second sample can be sent to Central Food Laboratory, is not tenable because there is no provision under the Act, to send the second sample to the Central Food Laboratory, as such, the provisions in the other Acts cannot be incorporated in the Consumer Protection Act and the appellants have to accept the report of the Public Analyst. No objections, as to how the report of Analyst is wrong, were filed and mere pleadings that the report is not correct, cannot be accepted. First Appeal No.353 of 2010 7
19. It is proved that the said Beer was manufactured by appellant no.1 and was sent to appellant no.2 at Ludhiana and further, the same product was sold by respondent no.2 to respondent no.1. Respondent no.1 has purchased the same from respondent no.2 which is supplied to respondent no.2 by the appellants and, as such, respondent no.1 is consumer.
20. In view of above discussion, the order passed by the District Forum is detailed and speaking and does not require interference, except that the compensation of Rs.20,000/- to be paid to Indian Red Cross Fund, Ludhiana Branch, is not justifiable. The entire compensation was required to be paid to respondent no.1, as he has taken the pains and helped in saving the other consumers.
21. Accordingly, the appeal filed by the appellants, being without any merit, is dismissed and the impugned order under appeal dated 08.12.2009 passed by the District Forum is modified to the extent that the appellants shall pay the entire amount of compensation of Rs.30,000/-to respondent no.1/complainant alongwith costs as ordered by the District Forum. With this modification, the appeal stands disposed of.
22. The appellants had deposited an amount of Rs.33,000/- with this Commission at the time of filing of the appeal. This amount with interest accrued thereon, if any, be remitted by the registry to respondent no.1/complainant by way of a crossed cheque/demand draft after the expiry of 45 days under intimation to the learned District Forum and to the appellants.
23. The arguments in this appeal were heard on 20.02.2014 and the order was reserved. Now the order be communicated to the parties.
First Appeal No.353 of 2010 8
24. The appeal could not be decided within the stipulated timeframe due to heavy pendency of court cases.
(Inderjit Kaushik) Presiding Judicial Member (Jasbir Singh Gill) Member February 28, 2014.
(Gurmeet S)