BEFORE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SHIMLA, H.P.
Consumer Complaint No: 265/2005
Date of presentation: 27.07.2005
Date of decision: 31.07.2009
Shri S.R Khimta S/On of Sh. M.R Khimta
Resident of Aseam Niaws Kuftadhar
(AGPO-3) Shimla.
… Complainant.
Versus
1. Pepsi Company India Limited Village Chamo PO Bhawanigarh Distt. Sangrur Punjab through its General Manager.
2. Jai Drinks Pvt. Ltd. Jawaharlal Nehru Marg Jaipur through its Manager.
3. Prabhat Daily Needs, Kuftadhar ( AGPO-3) Shimla through its proprietor .
…Opposite Parties
For the complainant: Mr. Arvind, Advocate, vice
Mr. Vivek Sherait, Advocate.
For the Opposite Party No.2: Mr. Peeyush Verma, Advocate.
For the Opposite Party No.1 &3: Exparte.
O R D E R:
Sureshwar Thakur (District Judge) President:- This complaint has been filed by the complainant, by invoking the provisions of Section 12 of the Consumer Protection Act, 1986, against the OPs-Board. The complainant avers that on 16.07.2005, he purchased three bottles of soft drink named and styled and labeled as “Mountain Dew” from the OP No.3, out of which two bottles were consumed by him and when the third bottle was being opened for consumption, it transpires that their was a dead fly in the said bottle, hence, rendering the said bottle of soft drink unfit for human consumption. Hence, it is averred that there is apparent deficiency in service on the part of the OPs and accordingly relief to the extent as detailed in the relief clause be awarded in favour of the complainant.
2. The OP No.3, in its written version, to the complaint, besides raising preliminary objections, vis-à-vis maintainability of the complaint, jurisdiction to try and decide the present complaint by this Forum, and status of the complainant as a consumer, had contended on merits, that the pepsi products bottled by it, are put for sale in Central Delhi and parts of South Delhi only and they are not selling the said soft drink at Shimla, which is beyond the area of operation of OP No.1, hence the allegations are false and fabricated in the found hope of making easy money . Hence, it is denied, that, there was any deficiency in service on their part or that they have indulged in an unfair trade practice. The OPs No.1 & 3 did not put in appearance before this Forum and as such the complaint was ordered to be heard exparte against them.
3. Thereafter, the parties adduced evidence, by way of affidavits, and, documents in support of their respective, contentions.
4. We have heard the learned counsel for the parties at length and have also thoroughly scanned the entire record of the case.
5. The complainant before us, is, having a grievance that the product styled as ‘Mountain Dew’ soft drink purchased by him from the Op No.3, manufactured by OP No.1 and bottled by OP No.2, had a foreign material in it rendering it unfit, for, human consumption.
6. The complainant avers that he purchased the said bottle of soft drink labeled as ‘Mountain Dew’ on 16.07.2005 from OP No.3, which fact has not come to be contested by the OP No.3, in as much, as, despite service, it, neither appeared before this Forum either personally or through authorized agent, nor filed reply, hence, was proceeded against exparte. Consequently, for lack of its rebutting the contents of the averments in the complaint detailing the fact of purchase of said soft drink from, it, the inference which ensues, is, that the complainant while averring so, is, truthful. Having drawn the above inference, now adverting to the contention as raised in the reply of Op No.3, the bottler of the product manufactured by OP No.1, that in the purported soft drink having arrived, at, Shimla, which is not within its Zone of operation, hence, their, is, falsity in the averment of the complainant of his having purchased the soft drink labeled as “Mountain Dew” from the OP no.3, at Shimla. The said contention comes to be rendered untruthful given the inference arrived, at, above, of, the complainant having purchased the said bottle from the OP No.3. Consequently, the OP No.2, cannot contend that for lack of Shimla being not a place where the bottle, purportedly unfit for human consumption while purportedly not falling within its Zone of operation, it, could, not, hence, be purchased, at, Shimla, especially, when OP No.3 who could have lent credence to the said plea has allowed the averment qua him uncontested. Therefore, its liability cannot be exculpated.
7. The soft drink labeled as ‘Mountain Dew’ was purchased by the complainant from the OP No.3, on 16.07.2005, without delay, it, was produced before this Forum on 01.08.2005 and it was sent for analysis to the Public Analyst, Kandaghat whose report details, the, fact that a dead fly was found in it, hence, rendered the bottle unfit, for, human consumption. The report, is, not contested, hence, when the report, also, does not reveal the fact that the bottle was, not, in a sealed condition, hence leaving open scope, for, the introduction of a dead fly in it, at, a stage subsequent to its purchase and consumption by the complainant, the, report of the expert attains conclusiveness and is to be accepted.
7. Resultantly, the complaint is allowed and the OPs No.1 & 2, being the manufacturer and bottler, are jointly and severally directed to pay damages to the complainant, which in the fact and circumstances of the case and having regard to the fact that the soft drink was having a dead fly, rendering it, unfit for human consumption, was sold to the complainant, by the OP No.3, is, quantified at Rs.5,000/-, besides litigation cost of Rs.1,000/-. The amount of damages and cost of litigation so ordered above, shall be paid to the complainant by the OPs, within a period of forty five days, after the date of receipt of copy of this order. The learned counsel for the parties undertook to collect the certified copy of this order from the office, free of cost, as per rules. The file after due completion, be consigned to record room.
Announced on this, the 31st day of July, 2009.
(Sureshwar Thakur)
President.
NMehta) (Karuna Machhan) (Charanjit Singh)
Member Member.