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2. The brief facts of the case of the complainant are that Surjit Pal complainant filed the complaint against the OPs on the averments that the complainant purchased three bottles of Lehar Slice 250 ml from OP No.1 (Ashwani Kumar Prop. Kiryana Store) for a price of Rs.36/- i.e. Rs.12/- per bottle with MFD 260210 with a batch No.LIBN25E printed on the bottles. The complainant consumed two bottles of said cold drinks and the stomach of the complainant was upset after consuming the same. Then, the complainant consulted his family practitioner and came to know that the said problem was caused due to the consumption of the said soft drink, being a contaminated one and unfit for human consumption. He immediately inspected the third bottle, which was sealed and found so many small black foreign particles including a big black foreign particle in its contents. He sent a complaint through email to the OP on their email address and requesting them to maintain the quality of the product, so that the product remains consumable and a video of said soft drink was also forwarded to the opposite parties. The OPs replied that his complaint was being forwarded to the sales and quality team in Punjab and someone would be in touch with him to check the product and resolve the issue, but no one ever contacted the complainant in this regard, which clearly showed the negligence of the OP No.3&4. It was further pleaded in the complaint that he requested the OP No.1 to issue the bill, but it was refused. Hence, the complainant filed the complaint seeking direction to the OPs to pay the sum of Rs.1,00,000/- as damages/compensation on account of illegal sale and unfair trade practice of Lehar Slice Soft Drink 250 ml, being contaminated which contained foreign particles, being unfit for human consumption, as the same has caused mental tension and physical health problem to the complainant and complainant further prayed for directing the OPs to withdraw the stock of the product, mentioned above from the market.

5. We have heard learned counsel for the appellant in this appeal as none appeared on behalf of the respondent No.1 at the time of arguments of the appeal, Respondent No.2&3 are ex-parte and we have gone though the record of the case as well.

6. As per affidavit of Surjit Pal complainant Ex.C-1, he deposed that on 25.03.2010, he purchased three bottles of the Lehar Slice Soft Drink from the OP No.1 for a price of Rs.36/- per bottle with MFD 260210 with a batch No.LIBN25E printed on the bottles. He further deposed that he consumed the above mentioned two soft drink within a span of one hour and his stomach was disturbed after consuming the above said cold drink. He immediately inspected the third bottle, which was still lying with him and found so many black foreign particles of a considerable size in the third bottle's contents. On 26.03.2010, he sent a complaint through e-mail Ex.C-3 to the OPs on their e-mail address and he received a response from OP by e-mail on 26.3.2010 itself, wherein the OP acknowledged the receipt of the complaint Ex.C-4 stating therein that the complaint was being forwarded to Sales and Quality Team, Punjab and someone would be in touch with the complainant to check the product and to resolve the issue. However, no one ever contacted the complainant in this regard. As per the affidavit of Sh.Ashwani Kumar, Prop. Of Farid Kiryana Store, OP No.1 it is deposed that the complainant purchased the product Lehar Slice from OP No.2, vide its invoice No.1869 dated 25.03.2010 and sold the same to the complainant in the same sealed conditions. The main objection taken by the OP is that the complainant is not consumer under the meaning of the Consumer Protection Act,1986. This objection of the OP is not sustainable because OP No.1 has admitted in his written reply that he had sold the Lehar Slice product to the complainant for consideration. So, the complainant is a consumer of the OPs. As per the allegations made in the complaint by the complainant, he consumed two bottles of soft drink and his stomach was upset after consuming the said cold drink, but this version of the complainant is not correct because no material in the form of prescription slip or treatment of any Doctor has been placed on the record in this respect. No affidavit of the treating doctor or lab test is placed on the record to prove it. The second point raised by the OP is that the said bottle in dispute was not sent to any lab for analysis and hence, in the absence of any test report, it is not appropriate to reach the conclusion that the said bottle was unfit for human consumption. The OPs have taken the plea that some duplicate bottles of same brand were sold in the market as well. There is nothing on the record that the Slice Bottle, which was produced before the District Forum was original bottle or not. Without lab report, it cannot be said Lehar Slice bottle was intact or not. We have duly considered this submission of OPs as raised in the grounds of appeal but we find no substance in it being an after thought argument. From perusal of written reply of OP No.3&4, we find that it is not pleaded by them that such type of fake branded soft drink bottles are easily available in the market. No argument can be entertained, which is not arising from the pleaded case of the parties. The District Forum has also recorded this observations that foreign articles were visible in the bottle even to the naked eye. In the presence of this observation of District Forum, we find that the case of the complainant cannot be rejected for want of lab test. Greater weightage has to be given to the observation of the District Forum, which is an independent body created by law to adjudicate these matters. We rely upon the observation of the District Forum to this effect that the foreign particles were visible in the bottle even to the naked eye, which indicates that it was a contaminated food drink. Such type of food drinks should not be sold to the public, which could be hazardous to their health. The District Forum made the liability of OP No.1 to 3 jointly and severally, whereas, we find it to be a case of entire liability of the manufacturer i.e. OP No.3. Consequently, we find no illegality in the order of the District Forum calling for any interference therein except slight modification therein that the entire liability to pay the amount of compensation and cost of bottle shall be of manufacturer OP No.3 alone.