Consumer Complaint No: 241/2006

Date of presentation: 10.08.2006

Date of decision: 25.11.2009

Shri Umesh Thakur. S/o Late Sh. Narain Singh Thakur,

R/o Badheri, via Totu Air Port Road, Shimla,

District Shimla, H.P.

… Complainant.

Versus

1. Punjland Beverages Pvt. Ltd. Vill. Deep Nagar, Tehsil Payal, District Ludhiana, Punjab (Manufacturer). Through Manager.

2. Sh. Pankaj Dutta, O/o Shiva Agency, Dutta Cottage, (8- FAY Lodge) near Lakhanpal Sweet Shop, Bus Stand Shimla-1 ( Distributor).


3. Sh. Madan Thakur, C/o Madan Daily Needs, R/o Badheri via Totu Air Port Road, Shimla, H.P.
…Opposite Parties

For the complainant: Mr. Ratish Sharma, Advocate vice

Mr. Imran Khan, Advocate.

For the Opposite Party No. 1: Mr. Navlesh Verma, Advocate vice

Mr. Vinod Thakur, Advocate.

For the Opposite Party No. 2: Mr. Shashi Bhushan, Advocate.

For the Opposite Party No. 3: Mr. Ashish Kumar, Advocate vice

Mr. Prakash Thakur, Advocate.

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. The complainant avers that, on, 12.07.2006, he purchased two bottles of wine named and styled and labeled as “Bagpiper Soda” from the OP No.3, for his own consumption. It is averred that, after consuming one bottle of soda, the complainant fell ill, and when, he scrutinized the second bottle, he was surprised to see that some dead insects were inside the sealed bottle of Soda and due to use of that contaminated bottle, the complainant has to go for treatment in a private clinic and had to spent huge expenses on medical treatment. The complainant further proceeded to aver that thereafter legal notice was also served upon the OPs, but of no avail. 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.1, in its written version, to the complaint, contended that the purported bottle did not pertain to it. Nor the OP No.3, brought the matter to its knowledge. The OP No.2, in its separate reply, has also denied the purchase of two bottles of Soda and further contended that, the complainant has manipulated a false story, in order to extract money. The OP No.3, in its reply has contended that the complainant has made an inquiry from him, who was told that the bottle was purchased from OP No.2, by him. It is further contended he has been unnecessarily dragged into litigation, as the fault if any, is, that of OP No.2. Hence, it is denied, that, there was any deficiency in service on their part or that they have indulged in an unfair trade practice.

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 ‘Bagpiper Club Soda’ purchased by him from the OP No.3, manufactured by OP No.1, had a foreign article, inasmuch, as, it was having one dead insect, hence, rendering it unfit, for, human consumption.

6. The complainant avers that, he, purchased the aforesaid bottle of Soda from the OP No.3, on 12.07.2006, which fact has been contested by the OP No.3, inasmuch, as, the complainant has not placed on record the bill of purchase of aforesaid bottle of Soda, hence, is, not in a position to prove its purchase. Hence, though, OP No.2 tacitly admits, that, M/s Shiva Agencies sold the product to OP No. 3, yet, contends, that, he is not the owner of M/s Shiva Agency, however, when, no proof qua the said contention has been adduced by the apposite evidence comprised in the certificate of Registration of the aforesaid firm, disclosing its owner, we, discountenance his contention, and, hence, proceed to hold, that, with the tacit admission of the product having sold by OP No. 2, to OP No.3, retailer, of OP No.2 who admit its purchase by the complainant, it, germinates the inference, of, the product having been purchased by the complainant from OP No. 3, the, retailer of M/s Shiva Agencies owned by OP No.2. Even though OP No. 1 denies that, it, has, no, Distributor in H.P the said denial has remained in the realm of pleading and is combated by the reply of OP No.2, the, owner of M/s Shiva Agencies. Hence it is held that, OP No.1 is the manufacturer of the product purchased by the complainant.

7. The bottle of Soda, so purchased by the complainant from the OP No.3, on, 12.07.2006, was produced before this Forum on 28.03.2007, as is evident from the perusal of zimni order rendered by this Forum on, 28.03.2007, and it was sent for analysis to the Public Analyst, Kandaghat whose report dated 28.05.2007, details, the, fact that the product of Bagpiper Club Soda, is, not fit for human consumption due to the presence of one dead insect. Even, if, some delay has occurred from the date of its purchase, till, its production and transmission to CTL Kandaghat for its report, yet, the fact, as, detailed in the report of CTL Kandaghat which has remained in un-controverted, of, it being in a sealed condition, hence, deterring the introduction of a foreign substance in it, ousts, the, possible inference arising from delay, of the, dead insect have been introduced in it subsequent to its purchase. Besides, for want of its having been controverted, it attains conclusiveness and, is, to be accorded sanctity. Therefore, it is, to be construed, that, the OP No.3, by selling a defective product, which was not fit for human consumption, manufactured by the OP No.1, has not only committed deficiency in service, but, has also indulged in an unfair trade practice.

8. The complainant, has, claimed a sum of 17.00 lakhs, from the OPs, on account of selling defective product, but, has not been able to prove that, he, is entitled to claim such an exorbitant amount of compensation from the OPs, on account of selling the defective product to him. Hence, we are not inclined to award such an excessive and exaggerated amount of compensation in favour of the OPs. Since, the product, so manufactured by the OP No.1, has been proved to be unfit for human consumption, due to presence of one dead insect, hence, the OP No.1, being the manufacturer, cannot exculpate, its liability to pay damages to the complainant.

9. Resultantly, the complaint is allowed and the OPs No.1, is, directed to pay damages to the complainant, which in the fact and circumstances of the case and having regard to the fact that the bottle of Soda was having one dead insect, hence, 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.2000/-. The amount of damages and cost of litigation, so ordered above, shall be defrayed to the complainant by the OP No.1, within a period of forty five days, after the date of receipt of copy of this order.

10. 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.