DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, NAYAGARH .
C.C. Case No. 13 of 2009
30th November , 2009 .
BEFORE :
Sri P. K. Pattanaik , President ,
AND
Smt. Binodini Devi , Member .
Name of the Parties .
Ashok Kumar Das, aged about 42 years
S/o Ugrasen Das ,Pursusottam Prasad,
P.S : Fategarh Dist. Nayagarh
At present Advacate, Dist. Bar Association, Nayagarh
Sastri Nagar, PO/PS/Dist. Nayagarh.
—————— Complainant . -Vrs-
1. Proprietor-cum-Managing Director
Trupti Drinks, Jagatpur, Cuttack.
2. Trinath Jena, aged about 53 years
S/0 Late Pandari Jena ,
Laxmiprasad, P.O. :- Barapalli.
Dist:- Nayagarh
3. Distributor Papsi cold drinks
M/s Mishra Trading, Nayagarh.
——————- Opp. Parties .
Counsel for the complainant : - Sri A.. K. Das ( Self )
Counsel for the O.Ps : - Sri B.K.Pradhan ( Advocate ) & associates
Date of appearance of O.Ps : - 14-09-2009
Date of hearing : - 05-11-2009
Date of Judgment : - 30-11-2009
J U D G M E N T
P. K. Pattanaik , President :-
Deficiency in service is the chief allegation of the complainant against the O.Ps.
The complainant has alleged in his complaint u/s 12 of
C.P.Act that on 08.07.08 he had the occasion to purchase soft drinks of the brand “ 7-Up ” from the retailer, the O.P No.2. The complainant, while about to consume the said container of the “ 7-Up ” bottle and before opening the cork noticed one “ Nippo pencil battery ” inside the bottle, got shocked and immediately brought it to the notice of retailer, the O.P. No.2 . O.P.No.2 expressed his helplessness regarding to the episode and disclosed that it was the manufacturer, the O.P. No.1 who might have been responsible for the some of the distributing agent the O.P.No.3 who has supplied the “ 7-Up ” bottles to him to be sold to the consumers/customers. According to the complainant he detected the Nippo battery and found carbon particles drained from the same were mixed in the entire contents of 300 ml.
The complainant and his other two friends were panic stricken they threw the drinks out of two bottles and bore terrible mental agony. However the complainant paid the cost of the drinks and extra cost for the bottle which contained the “Nippo battery ” and took the bottle with him. He then sent a registered notice to O.P.No.1 to adequately compensate him ,since he got no reply.
The complainant has filed the instant dispute with a prayer to pass order for sending the defective “ 7-Up ” bottle for laboratory test, to cease and ban the existing products of the O.P.No.1 to pass order for compensation of Rs.50,000/- to pass order for Rs.5,000/- for litigation cost and others for which the complainant is entitled.
The complaint petition is supported by affidavit, and evidence supported for affidavit. He has also filed replication and the two documents which are marked as Annexure-1 and Annexure-2 The 7-Up soft drink bottle contains the pencil battery is marked as M.O.-I . The said bottle has been produced to this Forum by the complainant.
Annexure-1 is the pleader notice sent by the complainant.
Annexure-2 is the A.D.(acknowledgment) M.O-I is the defective “ 7-Up ” bottle with seal having 300ml. Content and the pencil battery.
On the other hand the O.Ps have entered in to appearance and filed their respective written versions.
The O.P.No.1 in his written versions has challenged the maintainability of the dispute and denies the allegations in the complainant and above all challenged the authority of the petitioner of section 2 (1) (d) (1) of C. P. Act.
The O.P No.2 is the retailer who has sold the alleged “ 7-Up ” bottle to the complainant has admitted the sale of “ 7-Up ” bottle containing the “ Nippo ” battery and disowned his own liability.
The O.P.No.3 is the distributor of “ 7-Up ” bottles with its company seal and admits distribution to the retailers . He further has averred that if adulteration is noticed , the O.P No.1 would be liable not he.
O.Ps have filed their written versions supported by affidavit but they have not filed any documents.
In the light of above pleadings of the parties the following issues need be adjudicated for a definite decision of the case.
F I N D I N G S
1. Whether the complainant is a consumer ?
2. Whether the case is maintainable ?
3. Whether there is any deficiency on the part of the O.Ps in providing service to the complainant ?
I S S U E NO. 1 & 2
The definition of Issue No.1 is defined as under -
Section (2) (1) (d) (ii) of the C.P ACT defines “Consumer” as under :-
“Consumer means any person who ( hires or avails of ) any services
for a consideration which has been paid or promised or partly paid
and partly promised, or under any system of differed payment and
includes any beneficiary of such services other than the person who
( hires or avails of ) the services for consideration paid or promised ,
or partly paid and partly promised , or under any system or differed
payment, when such services are availed of with the approval of the
first mentioned person ( but does not includes a person who avails of
such services for any commercial purpose ) ”.
The O.P.No1 has filed his written versions separately. He has admitted the contents of the complaint and further he has elaborated his version that he severed 4 nos of “ 7-up ” cold drink (300 ml) bottle packs after receipt ;the cost from the complainant. This very admission of the O.P.No.2 has already admitted that he has sold the disputed article to the complainant and has received the cost of the same . Normally the small betel shops did not give receipt to the customers. The O.P No.1 or O.P No.3 have never disowned that the O.P.No.2 was not a retailer of “ 7-up ” soft drink. Hence we have no hesitation to conclude that the complainant is a bonafide consumer as defined u/s 2(1)(d) of C. P. Act.
From the above discussion it is clear that the case is maintainable.
I S S U E NO. 3
Section (2) (1) (g) of the C.P ACT defines “Deficiency” as under :-
“Deficiency means any fault,imperfection,shortcoming or inadequacy
in the quality,nature and manner of performance which is required to be
maintained by or under any law for the time being in force or has been
undertaken to be performed by a person in pursuance of contract or
otherwise in relation to any service ”.
In the process of selling and parching transaction of “ 7-Up ”
soft drinks the dispute occurred when the “Nippo pencil battery” was detected inside the sealed bottle. The O.P.No.2 is the first witness and his written version has strengthened the case of the complainant. The O.P.No.1 is the manufacturer of the said soft drink and under his controlling process, it has been bottled and sealed in his workshop.
Both the P.W. 1 and P.W.3 have urged in their respective written version that the sealed bottle which has been produced before the Forum should be sent a registered Govt. Laboratory for chemical test. The complainant produced the sealed bottle with the contents there in for the perusal of the concerned authority in this Forum. The disputed bottle is now placed before us and the parties have well perused it. A Nippo battery in pencil size is clearly visible to the naked eye. The fluids and some black particles have come out of the bottom itself and mixed with the soft drinks contents of the bottle and this can be visualised in ordinary vision. Though the O.P No.1 has urged for a chemical analysis of the bottle and its contents in a registered Govt. Laboratory at the cost of the complainant, it is not necessary in view of the visual ground. The soft ;drink contents are meant for human consumption and inclusion of a “Nippo pencil battery in dry cell form definitely affects its genuineness . A dry cell battery is manufactured with chemical ingredients such as carbon, acids etc which are not only obnoxious but hazer bus to human health and body. Hence it can safely be
concluded as a spouious product u/s 2(1) 00 of the C.P.Act. O.P.No.1 is the manufacturer of the 7-up soft drink bottle. O.P.No.2 is the retailer and O.P.No.3 is the distributer. O.P.No.1 has not taken proper care while bottling the soft drink. The O.P.No.3 should have looked into the contents of the bottle before selling it to the retailer. The retailer should have checked the bottle before selling it to the consumer. But the O.Ps have not done so .
In the light of the aforesaid findings, we are of the opinion that the O.Ps are jointly and severally guilty of deficiency in service.
Hence it is ordered
O R D E R
The complainant’s case is partly allowed on contest against the O.Ps . The O.Ps are directed to pay Rs.2,000/- as compensation and Rs.500/- as litigation expenses to the complainant. The O.ps are directed to carryout this order within two months from the date of the order.
Sri P. K. Pattanaik
President .
Smt. Binodini Devi
Member