BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, KOPPAL
DATED: 28-03-2011
PRESENT
Sri. K.V.Krishna Murthy, B.Sc., L.L.M. .. President
Sri. Shivareddy.B. Gowda, B.A., L.L.B. .. Member
Smt. Veda Joshi, B.A. .. Member
CONSUMER COMPLAINT NO. – 76/2010
Sri. Bhojaraj S/o: Raghu Rao,
Age: 42 Years, Occ: Coolie,
R/o: Huligi,
Tq:Dist: Koppal.
Complainant
(Sri. C.R.Talikoti, Advocate, Koppal)
VERSUS
1. Shri Shabbir Sab S/o: Kadarkhan,
Major, Occ: Business,
R/o: Shabbir Cool Drinks,
Huligi.
2. Sprite (Coco Cola Company),
Manufacturer,
Hindusthan Bevajasi Private Ltd.,
Sy.No.1936, 194, 195,
Hirebaganal, Post: Ginigera,
Tq:Dist: Koppal.
(R1 – absent, R2 by Smt. Soubhagyalaxmi, Advocate, Gangavathi)
Respondents
ORDER
Sri. K.V.Krishna Murthy: President
The above named complainant is seeking for compensation from the dealer and the manufacturer of a soft drink by name ‘Sprite’ alleging defect in the goods (food-drink) purchased by him as defined u/s 2(1)(f) of Act No.68 of 1986.
2. The facts leading to filing of this case as narrated in the complaint are as follows;
“The complainant is the permanent resident of Huligi village of Koppal Taluka and District and depending upon Agriculture. The complainant has acquainted with almost all the villagers of the Huligi village and he is an union Leader and he used to convene Labour meeting with experts with an intention to protect the rights of the Labours and they have discussed about the upliftment of the labours and the complainant was offering the lunch also. This being so, on the complainant has convened meeting to discuss with the experts and all the Labours also were invited. During that time my client had purchased one box Sprite Cool Drinks from respondent No.1 by paying value thereof. After discussion started, my client tendered Sprite Cool drinks to the persons who were presented in the meeting. When all were about to drink that cool drink, then one of the friend of complainant i.e., Pampapathi Rati told all the persons not drink by saying that, the complainant has convened the meeting to kill them. He also told that, in the cool drinks Gutkha pouch is there and with an intention to insult us, the complainant has convened the meeting. Immediately thereafter all the persons who came to meeting left drinking and went from the meeting place. Thereby the complainant was disgraced in the eye of villagers of Huligi. The respondent colluding with respondent No.2 company have mixed Dirty things with the Cool Drinks, negligently endangering to human life and supplied the bottles containing Gutkha pouches for sale. The respondent No.2 has produced the cool drinks containing Gutkha Pouches and without observing this, the respondent No.2 have supplied the said Sprite Cool Drink Bottles for sale to respondent No.1. Because of negligence and deficiency in service on the part of both of the respondents, the agricultural meeting convened by the complainant be cancelled and the food prepare by my client was wasted the there by the complainant has sustained loss of Rs.15,000/-. The complainant has also suffered insult and there by the complainant has been put to mental torture and he is not in a position to move in the village. Due to such deficiency din service on the part of the both the respondents, the complainant has suffered a loss of Rs.50,000/-. It is obligatory on the part of both of the respondents to test the articles and be sure that they are fit or not, for supply. But, the respondent No.2 has produced such material and supplied the same to the respondent No.1 for supply to the public and there by the respondent No.2 has shown negligence and without any care the respondent No.1 has supplied the same to the Public. By preparing such unusable materials which are dangerous to human life and there the respondent No.1 and 2 have committed not only negligence, but also deficiency in service, and thereby caused loss which cannot be compensated. Due to the deficiency in service on the part of the respondent No.1 and 2, the complainant has caused loss which cannot be compensated. Due to the deficiency in service on the part of the both respondents, the complainant has sustained a total loss of 75,000/- including mental shock, torture and agony. The complainant got issued legal notice through his counsel on 08-12-2009 which served upon the respondents. Even after service of notice also, the respondents neither replied for the same nor paid the compensation amount. This act of the respondents clearly shows that, the respondents have committed deficiency in service. Hence, having no other alternative, the complainant has approached this Hon’ble Forum with the present complaint.
3. The particulars of the claim for compensation are as hereunder;
i. Loss of Food - `. 15,000=00
ii. Costs of the materials used in the meeting - `. 25,000=00
iii. Mental shock, agony & being disgrace in - `. 50,000=00
the eye of society
iv. Charge of legal notice - `. 1,000=00
vi. Cost of the proceedings - `. 5,000=00
4. The dealer from whom a complainant claims to have purchased the above one bottle remained absent throughout the proceedings inspite of service of notice on him.
5. The claim is contested by the OP No.2 on all possible grounds; written version filed by the OP No.2 discloses details of the defence set-up.
6. Suffice to point-out certain aspects of the written arguments submitted on behalf of OP No.2 for the purpose of disposal of this case, which are as herein below;
The complainant is not a consumer and he has not purchased the disputed bottle for a consideration. The Complainant has not produced the purchase bill for having purchased the disputed bottle and consequently the Complainant is not a consumer. The Complainant has not purchased the product for consumption. Given the above, the Complainant is not a ‘Consumer’ under the purview of the Act and this Hon’ble Forum has no jurisdiction to try the above complaint.
The consumer is one who consumes. Consumer is the one who purchases goods for private use or consumption. In the Complaint, the Complainant had claimed that he had purchased the disputed bottle for distribution in the meeting, which clearly shows that the complainant is not the end consumer and he did not purchase the product for consumption and consequently he is not a consumer as defined under the Consumer Protection Act.
The Opposite party No.2 Company maintains and follows extremely high standard of quality and integrity in producing all the products. All the products are made with the utmost attention to quality as public confidence in quality and authenticity of the product is critical to the business. The beverages prepared and packaged by the Opposite party No.2 are prepared with utmost case and precaution in conformity with the laws of the land. The ingredients direct as well as indirect are subject to a series of analytical quality tests to ensure that they conform to the Opposite party No.2 Company standards. The answering opposite party maintains and follows Good Manufacturing Practices (GMP) to ensure hygienic and sanitary condition, so as to eliminate the likelihood of product spoilage because of presence of any extraneous matter. It is also pertinent to mention here that a fully quipped laboratory manned by a team of experienced and trained chemists to make sure that the standards are met at every stage of production till the beverages is manufactured and packaged into the bottle. The answering opposite party in the version at paragraph 6 and in the evidence affidavit had provided in brief the beverage manufacturing process, which will substantiate the fact that the Opposite party No.2 Company had given utmost importance to the Quality Assurance procedure, to ensure the sale of quality products to its customers.
The Opposite party No.2 follows the good manufacturing process and the said process (provided at Paragraph 6 of the version and in evidence affidavit) would establish that the entire process is automatic and computerized. The individual product goes through several cheeks and controls before leaving the plant. This is ostensibly done to ensure that what reaches the hands of the ultimate consumers is impeccable in quality. Hence under such functionally robust quality control system in operation the presence of gutkha packet inside the disputed bottle or any unwanted particulars in sprite cool drink as alleged by the Complainant is not possible. The answering opposite party in its version and evidence affidavit had specifically asserted that under such robust quality control system in operation the presence of unwanted substances or gutkha packet inside a genuine sprite bottle is not possible.
The answering opposite party company follows GMP (good manufacturing process) and all laws of the land in manufacturing the products to gain confidence of the public and it has no intention and shall not gain anything by producing adulterous products. It is pertinent to mention here that the answering opposite party had invested large amount of money in plants to produce extremely high standard of quality and integrity products. Further, all the products are made with the utmost attention to quality as public confidence in quality and authenticity of the product is critical to the business growth.
Genuineness of the products can be determined only after analysis of the sample taken from a bottle which is not opened and by randomly testing the remaining bottles of the same batch. It is pertinent to mention here that few miscreants in order to tarnish the reputation of the Company might mix unwanted substances in the bottle and will close the cap/lead of the bottle in such a fashion by using the hand pushing machines that it looks similar to one closed by the machines used in the process of manufacturing the beverages. Consequently, it is mot important to examine the bottle thoroughly for its contents, labels and capping. The Complainant had not provided the labeling details such as date of manufacture, batch No., etc., and hence raises a strong presumption that the product is a tempered one. It is well-known fact that under prescribed laws and regulations, it is mandatory for all products to bear details of price, manufacturer, batch number and product best before on the body of the product. All genuine products shall carry this details and it is essential that these details be provided so that the origins of the bottle may be determined. The fact that the Complainant had failed to provide this details establish a prima facie case, is sufficient to demonstrate that the complainant is not a genuine consumer and the disputed bottle is not a genuine products.
The complainant has not produced any prima facie documents to make a case against the answering opposite party. The complainant has not produced a valid bill for having purchased the product. The complainant is not genuine and the disputed bottle is not a genuine product. All the baseless allegations made against the answering opposite party are denied. The complainant apart from filing his evidence affidavit had not taken any step to establish a case. Consequently, no case has been made out against the answering opposite party and therefore the instant complaint is liable to be dismissed on this ground as well.
There is not an iota of proof/documentation on record to establish that the bottle had been bought by the Complainant or that if it is a genuine bottle. There is no proof of the fact that the bottle has not been tampered with by the Complainant or any other person, after the purchase and before the filing of this complaint. Also there is no evidence to show/establish any contamination. There are no evidences to prove the recklessness as alleged by the Complainant.
The complainant without any base had claimed compensation of Rs.75,000. There are no averments as to how the Complainant had suffered a loss for claiming such a huge compensation. The complainant has not produced any evidence to show that he had spent Rs.15,000/- & Rs.25,000/- for food and materials. The answering opposite party is not responsible for the supply of food and materials and has no relation, services or deficiency with respect to the food and materials at the meeting and consequently no liable to reimburse the same. The amount of Rs.50,000 is claimed without any base under the head mental shock, agony and disgrace without any proof and basis under facts or law. The Complainant’s claim for legal notice and proceeding charges is exorbitant and without any base for claiming such a huge compensation. It is a well settled law that proof of loss or injury is a sine qua non for the award of Compensation. In the present case, the Complainant has not suffered any such loss or damage at all, as by his own admission, the Complainant did not use or consume the said product. The compensation prayed is baseless and untenable and is liable to be rejected. In fact since the complaint being frivolous and vexatious, the answering opposite party is entitled for the compensation towards the cost of the litigation.
When the complainant alleges defect in the goods, the State Forum and National Commission is required to follow the procedure under section 13 (1) (c) of the Act, as laid down by the Hon’ble Supreme Court in M.R.F. Limited V Jagadish Lal (1999-LT-5-16).
7. Adverting to the last contention in the first instance, we find no reason to send the MO-1 bottle for product analysis from prepared laboratory as the plastic gutkha pouch can be very well seen from the naked eye and spoilage of the food drink inside can be assessed without expert evidence. Any way on the date of presentation of the complaint, the MO-1 bottle with its contents has been sealed and kept in the Forum; it is still in the same state.
8. In resolving the dispute under consideration before us, the decision of the Supreme Court in the case of P.A.Pouran V/s Mcdowell & Co? & Anr., [I (1992) CPJ 300 (NC)] would be of very much help, which we propose to cite without reducing the passage. The decision reads as follows;
“We see no merit at all in this Petition. The complaint of the Petitioner is that he purchased one bottle of “McDowell’s Soda” from the hotel of the Second Respondent on 3rd September, 1987 but found some foreign solid body floating inside the bottle. According to him, he carried the bottle away with him so that he could make a representation to the appropriate authorities in due course. However, it is only after a period of more than five months that he, for the first time, got his grievance published through the columns of a newspaper by name “Madhyam”. There is nothing to show that in the meantime, he had made any complaint or representation to the Municipal Authorities who are in/charge of the administration of the Prevention of Food Adulteration Act or to any other authority. Nor, was any step taken to get the bottle sealed and its contents analysed by any recognized laboratory. Long afterwards, he filed this Petition before this Commission on the 8th June 1988 claiming compensation of rupees twelve lakhs impleading also the first Respondent namely McDowell Co.Ltd., apparently on the basis that franchise had been granted by the said company permitting the manufacture of the soft drink in question in Kerala by M/s Janso Softdrinks (P) Ltd., Aloor. We are unable to find on what basis the Complainant has claimed this fantastic amount of the compensation of rupees twelve lakhs, even if his case regarding the existence of some foreign matter in the bottle of soda purchased by him is assumed to be true.
2. The Second Respondent has filed a detailed counter-affidavit totally denying the factum of any sale of soda water by his hotel to the Complainant. Even though the Complainant has produced a bill evidencing the sale of soda water for rupees two, the bill does not mention the name of the customer. Further, it is most significant that the charge of rupees two shown in the bill represents only the cost of the contents of the bottle and it does not include the cost of the bottle which amounts to three rupees. Hence, it is abundantly clear that the bill produced by the Complainant does not relate to the alleged purchase by him of the soda bottle with its contents from the Second Respondent’s hotel. We are, therefore, unable to believe the case put forward by the Complainant that he had purchased a bottle of soda water from the Second Respondent’s hotel and that it contained any foreign matter inside it. On the other hand, we are inclined to think that this is a totally mis-conceived approach to this National Commission for the purpose of ventilating some private grievance that the Petitioner may have against the Second Respondent. Such a gross abuse of process of this Commission deserves to be condemned in the strongest terms.
3. Ordinarily, we would have awarded heavy costs while dismissing such a frivolous complaint but this being the first case of its kind coming up before this Commission, we refrain from mulcting the complainant with costs and rest content with recording our severe displeasure at the office bearer of a consumer organization (who is also an advocate by profession) having approached this Commission with such baseless complaint which constitutes a clear abuse of the process lf law. The complaint it, accordingly, dismissed.”
9. In the case of hand, the complainant claims in the complaint that he purchased one sprite cool-drinks from OP No.1. He has not disclosed the price paid by him. He has not obtained bill for purchase of soft-drink. All the more, he has not mentioned the date & month on which he purchased the drink in question. The notice, Ex.A1 dated: 08-12-2009 is also silent on this aspect of the matter. Therefore the basic requirement has not been furnished, i.e., date, month & year, on which the product in question has been purchased by the complaint. However, in the affidavit evidence dated: 03-01-2011, there is a mention of the fact that the meeting was conveyed on 11-06-2009 during which time one box sprite cool drink was purchased but without mentioning the price. As already pointed-out, the defect in the product can be assessed through naked eye. That being so, there was no justification for issuing the notice Ex.A1 six months later. The complainant has not given in complaint or representation to authorities who are in charge of administration of Prevention of Food Adulteration or to any other authority. The complainant has not taken any step to get the bottle sealed or its contents analysed by any recognized laboratory. The complainant has not intimated the OP No.2 immediately. No bill evidencing the purchase of the Sprite drink has been produced. These facts & circumstances are sufficient for us to conclude that the episode is concocted for the purpose of filing this frivolous complaint making gross abuse of the process of Consumer Grievances Redressal Forum.
10. On examination of MO-1 bottle, we find it is most unlikely that the Gutkha pouch of the size which is inside the bottle could flow through the neck of the bottle. It appears, this has been forcibly inserted with some ulterior motive. Probably to make a wrongful gain by a person who is a labour leader. The possibility of the dealer colluding with this labour leader cannot be ruled-out because he was the right person to explain before the Forum the distributor from whom he purchased. Why cannot we presume the dealer himself dealing sale of spurious products? The complainant could have summoned the dealer to give evidence regarding transaction. No worker from Shabbir Cool Drinks, Huligi has been examined as witness to the incident. The claim is that the MO-1 bottle was served during a meeting of the labourers. None of them have been examined to support the self-interested testimony of the complainant. On the other hand, the affidavit evidence of Mr. Shaik Ali Pasha, Team Leader of M/s Hindustan Coca-Cola Beverages Private Ltd., is totally acceptable as he has given details of the bottling process in the factory unit. Therefore possibility of foreign material in the bottle, MO-1 must be due to external cause and not in factory premises. We notice that the Gutkha plastic pouch available inside the MO-1 bottle is of ‘Sagar’ make and it has been torn-out on its right upper part only and the piece so torn-out is also available in the drink inside MO-1 bottle. It must be an act of person who forcibly kept those two pieces of the same pouch inside the MO-1 bottle. The dealer if at all not involved in the sale of the spurious products should not have served MO-1 bottle containing Gutkha pouch.
11. Looking at any angle, we are unable to accept the case of the complainant that MO-1 bottle purchased on 11-06-2009 has been supplied by an authorized distributor of the OP No.1 and distributed from the factory premises in the state in which it exists at present. Resultantly, the complaint is dismissed imposing cost of `. 3,000/- (Rupees three thousand only) payable by the complainant to the OP No.2 in terms of Section 26 of the Consumer Protection Act – 1986 along with `. 2,000/- (Rupees two thousand only) towards cost of this litigation.
Complaint Dismissed.
Dictated to the Stenographer, typescript, edited, corrected and then pronounced in the Open Forum on 28-03-2011.
Member Member President