BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM
DHARMAPURI AT KRISHNAGIRI
PRESENT: THIRU.S.ARUMUGAM,B.A.,B.L., PRESIDENT
TMT.K.KASTHURI,B.A.,B.L., MEMBER-I
THIRU.M.VISWABHARATHI, M.A.,B.L., MEMBER-II
C.C.NO.53/2010
DATED THIS THE THURSDAY 31st DAY MARCH OF 2011
C.Mohan Raj,
1/503, M.G.R. Nagar,
30 feet Road, Poojai Amman Koil street,
Hosur,
Krishnagiri District. …Complainant
-Vs-
1.The Sales Man,
Shop No. 3038,
TASMAC Shop,
Near ICICI Bank ATM,
Mookandapalli,
Hosur.
2.The General Manager,
Southern Agrifurance Industries (P) Ltd.,
IMFS Unit, Ellichanthiram Road,
Valudhareddy,
Villupuram – 605602. …Opposite Parties
This complaint coming on 22/03/2011 for hearing before us, Mr.S.Ramkumar, Advocate appearing for the complainant, Mr. M.Thanikachalam, Advocate appearing for Opposite party No: 1 and Mr. K.L.Samarasam, Advocate appearing for the Opposite party No: 2, having heard the arguments, having perused the documents and having stood till this date for consideration this Forum pass the following:
ORDER
The Complainant seeks the refund of Rs.69/-, compensation of Rs.1,00,000/-, direction to deposit Rs.2,00,000/- in the Consumer Legal Aid Fund and the cost of Rs.5000/-.
2. The allegations in the complaint are briefly as follows: On 06/06/2009 the complainant purchased seven bottles John Exshaw Brandy for Rs.483/-, each at a cost of Rs.69/- from the Opposite party No: 1. The purchase was made to celebrate the birth day of one of his friends. The complainant found a foreign object in one of the bottles which caused vomiting sensation since the complainant already drunk some quantity in another bottle. The presence of foreign object shocked the complainant for which the complainant took treatment. On 09/06/2009 the complainant sent legal notice to the Opposite party Nos: 1 and 2. On 29/06/2009 the Opposite party No: 1 sent a reply and advised the complainant to approached the Opposite party No: 2 to get the relief. The Opposite party No: 2 by letter dated: 08/07/2009 sought the particulars of batch no, excise label no, date of manufacture and the photo of liquior bottle and the same was sent to the Opposite party No: 2. On 14/05/2010 again the complainant sent further particulars to the Opposite party No: 2. By letter dated: 25/05/2010 the Opposite party No: 2 demanded the cash receipt issued by the Opposite party No: 1. The Opposite party No: 2 failed to approach the problem in a proper manner. The act of the Opposite party No: 2 caused mental agony to the complainant. The Opposite parties committed deficiency in service. Hence the complainant prays for the direction to the Opposite party No: 1 to refund Rs.69/- the cost of one bottle John Exshaw Brandy, direction to the Opposite party No: 2 to pay a sum of Rs.1,00,000/- towards compensation for the loss and the mental agony suffered by the complainant in addition to deposit a sum of Rs.2,00,000/- to the Consumer Legal Aid Fund and the cost of Rs.5000/-.
3. The averments in the written version filed by the Opposite party No: 1 are briefly as follows: It is true that on 06/06/2009 the complainant purchased seven bottles John Exshaw Brandy for Rs.483/-, each at a cost of Rs.69/- from the Opposite party No: 1. All the bottles were sold as per the instructions given by the Government. On behalf of the Government the Opposite party No: 1 was working and his duty was to sell the TASMAC items. Before selling the bottles, the Opposite party No: 1 used to see whether the bottle contains any foreign objects. On 06/06/2009 by 7.30 P.M when the above sale was made there was electricity failure and the Opposite party No: 1 could not find the foreign object inside the bottle. As per the agreement between the higher authority of the Opposite party No: 1 and the Opposite party No: 2 only quality products will be supplied to the Opposite party No: 1. Hence under the impression that there may not be any foreign object inside the bottle and also due to pressure by the complainant the said item was sold to the complainant. If any object is found inside the bottle, the deficiency in service will be on the part of the Opposite party No: 2. The Opposite party No: 1 is not liable to pay any compensation to the complainant. There is no proof for taking any treatment as stated in the complaint. On receipt of notice the Opposite party No: 1 sent suitable reply. There is no deficiency in service on the part of the Opposite party No: 1. Hence, the Opposite party No: 1 prays of the dismissal of the complaint with cost.
4. The averments in the written version filed by the Opposite party No: 2 are briefly as follows: The complainant might have purchased seven bottles of Brandy from the Opposite party No: 1. But, the defective product produced by the complainant is not the product purchased from Opposite party No: 1. Further the said product was not manufactured by the Opposite party No: 2. The excise label no is not mentioned in the bill produced by the complainant. The defective product produced is less in quantity than that of the original product of the Opposite party No: 2 which will be exactly 180 ml. Further the colour of the product manufactured by the Opposite party No: 2 was dark brown, but the defective product is pale yellow in colour. It is false to state that the Opposite party No: 1 gave a letter to the effect that only because of power failure the Opposite party No: 1 supplied the defective product to the complainant. It is true that the Opposite party No: 2 by letter dated: 08/07/2009 asked correct batch no, excise label no, date of manufacture and the photo of liquor bottle. Since the complainant sent only the photo of the bottle in which details like batch no was not legible the Opposite party No: 2. again asked for the details to ascertain the real fact. The Opposite party No: 2 manufactures the high quality liquor using high quality machineries under the supervision of one Excise Supervisory Officer and two Deputy Tahsidars assisted by few other officials. The approvals such as spirit approval, blend approval, bottling approval etc., were done by the Excise Supervisory Officer and his subordinates. There was no possibility of defect in the product. The liquor in the company of the Opposite party No: 2 was manufactured by using new bottles and automatic machines. The filling of liquor is also done through the automatic liquor filling machine. The quantity will be the same in all bottles irrespective of no of bottles. There was no possibility of antibodies being found in the product manufactured by the Opposite party No: 2. The product produced by the complainant is a duplicate product manufactured by somebody else and the complainant matched the said product with the bill of the Opposite party No: 1 without excise label no. Batch no 53 consisting 4800 cases were despatched only after getting the analysit report from the forensic science department, Excise Division, Chennai. The Opposite party No: 2 have not received even a single complaint in relation to the product of this batch. The defective product was not manufactured by the Opposite party No: 2. Hence the Opposite party No: 2 prays for the dismissal of the complaint with cost.
5. In Proof of the allegations made in the complaint, the complainant filed proof affidavit and marked Ex.A1, the copy of the cash bill dated: 06/06/2009 issued by the Opposite party No: 1 ,Ex.A2, the copy of the letter dated: 09/06/2009 given by the complainant to the Consumer Association, Ex. A3, the copy of the notice dated: 15/06/2009 issued by the South India Consumer Protection Council to the Opposite party Nos: 1 & 2 , Ex.A4, the copy of the letter dated: 29/06/2009 given by the Opposite party No: 1 to the South India Consumer Protection Council ,Ex. A5, the copy of the letter dated: 08/07/2009 from the Opposite party No: 2 to the South India Consumer Protection Council, Ex.A6, the copy of the letter dated: Nil from the South India Consumer Protection Council to the Opposite party No: 2, Ex.A7, the copy of the letter dated: 12/04/2009 from the Opposite party No: 2 to the South India Consumer Protection Council , Ex.A8, the copy of the letter dated: 14/05/2009 from the South India Consumer Protection Council to the Opposite party No: 2, Ex.A9, the copy of the letter dated: 25/05/2010 from the Opposite party No: 2 to the South India Consumer Protection Council and MO1 John Exshaw Brandy bottle. In proof of the averments made in the written version, the Opposite party Nos: 1 & 2 filed proof affidavit separately and marked Ex. B1, the copy of the picture of Filter Press used by the Opposite party No: 2 Ex. B2 , the copy of the description typical Construction and specification of the filter machine, Ex. B3, the copy of the sketch of the Automatic Washing machine used to clean the bottles, Ex. B4, the copy of the News paper cutting showing seizure of rectified sprit, Ex. B5, the copy of the analyst report issued by the forensic science department, Chennai, Ex. B6, the copy of the particulars of the supply made by the Opposite part No: 2 to the Opposite party No: 1 and Ex.B7, the copy of the stock transfer invoice.
6. The points that arise for consideration in this complaint are:
1. Whether the allegation of deficiency in service is proved?
2. To what relief the complainant is entitled?
Point No : 1
7. The learned counsel for the complainant would contend that on 06/06/2009 the complainant purchased seven bottles of John Exshaw Brandy for Rs.483/-, each at a cost of Rs.69/-, from the Opposite party No: 1 for which the Opposite party No: 1 issued Ex.A1, the cash bill. Later when the above said product was about to be used, the complainant found some foreign object in one of the bottles. The complainant reported the said incident to the South India Consumer Protection Council by Ex.A2 dated: 09/06/2009. Thereafter the South India Consumer Protection Council sent the letter Ex.A3 dated: 15/06/2009 to the Opposite parties seeking explanation for which the Opposite party No: 1 sent the reply Ex.A4 dated: 29/06/2009 asking the complainant to approach the manufacturer since the Opposite party No: 1 was not responsible for the foreign object found in the product. The Opposite party No: 2 sent letters Ex.A5, Ex.A7 and Ex.A9 seeking particulars, which were sent by the complainant as per Ex.A6 & Ex.A8. The product is marked as a MO1. The Opposite party No: 1 also filed Exs.B6 & B7 to show that the product was manufactured and supplied by the Opposite party No: 2. Hence according to the learned counsel, the Opposite party No: 2 committed deficiency in service. The complainant claimed only the cost of one bottle of John Exshaw brandy from the Opposite party No: 1 and the Opposite party No: 1 agreed to pay the cost of the one bottle of John Exshaw brandy for which endorsement also made in the complaint. Further the Opposite party No: 1 filed Ex.B6 & Ex.B7. On the contra, the learned counsel for the Opposite party No: 2 would contend that the Opposite party No: 2 manufactures the high quality liquor using high quality machineries under the supervision of Excise Supervisory Officer and Deputy Tahsildars assisted by few other officials. The sprit approvals, blend approval, bottling approval were done by the Excise Supervisory Officer and his subordinates. Further high quality filter machine, automatic tunnel type machine, automatic liquor filling machine, automatic capping machine, automatic labeling machine and high power – light hood were used for manufacturing and packing of the product. Further the machineries were daily cleaned using bio-chemical agents. There was no possibility of mixing any foreign object in the product. The defective product produced by the complainant is a duplicate product manufactured by somebody else. Ex.B5 analyst report also obtained for the manufacture of brandy. As per Ex.B4, the News paper report, the duplicate rectified sprit worth Rs.2.5 Lakhs were seized. Hence according to the learned counsel, there is no deficiency in service on the part of the Opposite party No: 2.
8. MO1 is the defective product which according to the complainant was purchased from opposite party No: 1. The Opposite party No: 1 admits that he sold MO1 to the complainant by giving letter Ex.A4. The case of the Opposite party No: 1 in his written version is also that MO1 was sold by him. He is willing to refund the cost of MO1. For purchase of MO1 the Opposite party No: 1 also issued the cash bill Ex.A1. The Opposite party No: 2 in para 9 of the written version has stated that batch no: 53 consisting 4800 cases were despatched by them. The Opposite party No: 1 also filed Exs. B6 & B7 to show that the brandy bottles in respect of the said batch no were received by them. The genuineness of Ex.B6 & B7 cannot be doubted. Further a perusal of MO1 shows that it is a John Exshaw brandy in a sealed bottle which contains batch no, date of manufacture etc.,. In view of the above, in the absence of any acceptable material on the part of the Opposite party No: 2 that MO1 was not manufactured and supplied by them, based on Ex. B1 to B5 it cannot be said that MO1 is a duplicate product and not manufactured by the Opposite party No: 2. The presence of a foreign object in MO1 the sealed bottle containing John Exshaw brandy, is visible to the naked eye. The allegation of the complainant against the Opposite party No: 2 is the presence of the foreign object and not against the quality of the product. Hence no proof is required to find out whether the foreign object is found in MO1. The product itself speaks that it contains foreign object. It is a case of ab initio loquitur. Hence we are of the view that the allegation of deficiency in service as against the Opposite party No: 2 is proved and we answer this point accordingly.
Point No: 2
9. No material available to show that because of the presence of foreign object in MO1, loss or injury has been suffered by a large number of consumers who are not identifiable conveniently. Hence direction cannot be given to the Opposite party No: 2 to deposit any sum to the credit of the Consumer Legal Aid Fund. The complainant says that he purchased seven bottles of John Exshaw brandy to celebrate the birthday of one of his friends. When he was about to open MO1 he found a foreign object inside the bottle. Since the complainant already drunk some portion from another bottle, once he found some foreign object in MO1, he felt vomiting sensation. Further inspite of notice, the Opposite party No: 2 only called for particulars thrice and not solved the problem. Hence according to the complainant the act of the Opposite party No: 2 caused mental agony to him. In view of the above and also in view of the finding given on Point No:1 the complainant is entitled to get the refund of Rs.69/- towards the cost of MO1 in addition to the compensation for the mental agony suffered by him due to the deficiency in service rendered by the Opposite party No: 2, which we assess at Rs.10,000/-, and to the cost of Rs.5000/- as relief and we answer this point accordingly.
10. In the result (1) the Opposite party No: 1 is directed to refund Rs.69/- the cost of MO1 to the complainant, (2) the Opposite party No:2 is directed to pay a sum of Rs.10,000/-, the compensation for the mental agony suffered by the complainant in addition to the cost of Rs.5000/-. The said directions have to be complied within two months from the date of receipt of copy of this order by the Opposite party Nos: 1 & 2.The failure to do so will entail the Opposite Party Nos: 1 & 2 to pay the said amounts along with interest at 6% p. a thereafter till the date of payment and accordingly this complaint is allowed with cost.
Dictated by the President to Assistant Programmer who directly typed the same and corrected and pronounced this the Thursday the 31st day of March 2011.
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Tmt.K.Kasthuri Thiru. M.Viswabharathi Thiru.S.Arumugam
MEMBER-I MEMBER-II PRESIDENT
List of Documents filed by the Complainant:
Ex.A1, the copy of the cash bill dated: 06/06/2009 issued by the Opposite party
No: 1
Ex.A2, the copy of the letter dated: 09/06/2009 given by the complainant to
the Consumer Association
Ex.A3, the copy of the notice dated: 15/06/2009 issued by the South India
Consumer Protection Council to the Opposite party Nos: 1 & 2
Ex.A4, the copy of the letter dated: 29/06/2009 given by the Opposite party
No: 1 to the South India Consumer Protection Council
Ex.A5, the copy of the letter dated: 08/07/2009 from the Opposite party No: 2
to the South India Consumer Protection Council,
Ex.A6, the copy of the letter dated: Nil from the South India Consumer
Protection Council to the Opposite party No: 2,
Ex.A7, the copy of the letter dated: 12/04/2009 from the Opposite party No: 2
to the South India Consumer Protection Council,
Ex.A8, the copy of the letter dated: 14/05/2009 from the South India Consumer
Protection Council to the Opposite party No: 2,
Ex.A9, the copy of the letter dated: 25/05/2010 from the Opposite party No: 2
to the South India Consumer Protection Council and Ex.MO1 John
Exshaw Brandy bottle
List of Documents filed by the Opposite party Nos: 1 & 2 :
Ex.B1, the copy of the picture of Filter Press used b the Opposite party No: 2
Ex.B2, the copy of the description typical Construction and specification of the
filter machine,
Ex.B3, the copy of the sketch of the Automatic Washing machine used to clean
the bottles,
Ex.B4, the copy of the News paper cutting showing seizure of rectified sprit,
Ex.B5, the copy of the analyst report issued by the forensic science department,
Chennai,
Ex.B6, the copy of the particulars of the supply made by the Opposite part No: 2
to the Opposite party No: 1
Ex.B7, the copy of the stock transfer invoice.
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Tmt.K.Kasthuri Thiru. M.Viswabharathi Thiru.S.Arumugam
MEMBER-I MEMBER-II PRESIDENT
Tags: TASMAC