C.C.Case No.122/2009

Smt. Sarita Yadav,

At:Manglabag,Majhi Sahi,

PO:Buxibazxar,PS:Mangalabag,

Dist:Cuttack. … Complainant.

Vrs.

1. Manager,

Hindustan Coca-Cola Beverages Pvt. Ltd.,

Plot No.60,Khurda Industrial Estate,

Khurda.



2. Consumer Respondent Coordinator,

Hindustan Coca-Cola Beverages Pvt. Ltd.,

Khurda.



3. VERSHA VERIETY STORE,

Near Raninat Durga Mandap.

Ranihat,Cuattack-1. …Opposite Parties.



JUDGMENT DT.15.12.09


Sri Manoranjan Hazra,President

Alleging deficiency in service as well as unfair trade practice against the Opposite Parties., the present complaint is filed.

1. The brief facts of the case of the complainant are that on 1.12.08 at about1 P.M. the complainant purchased two nos. of MAZZA bottles from Opposite Party No.3 along with other articles. After such purchase, the minor son of the complainant consumed the contents of one bottle out of the said two bottles at the spot when the other was brought to the house by the complainant. Each of the bottles had the batch no. as 2206-199708 and the date of packing was mentioned as 10.7.08. The bottles which the complainant brought to the house, found one dead big bee like substance floating inside the bottle. The minor son of the complainant after consuming the contents of the one of the two bottles suffered from heavy stomach pain for which the complainant had to take him to the Doctor for treatment for which the complainant sustained mental agony, heavy monetary loss etc. While the matter stood thus on 8.12.08, the complainant sent a legal notice Annex-2 to the Opposite Parties., protesting against manufacturing and selling of such in spurious soft drinks. After receipt of the said legal notice, the Opposite Parties.1 & 2 vide letter dt.11.12.08 replied by making false averments that those two bottles were not manufactured by them. On the other hand those have been manufactured by some unscrupulous persons. As no action was taken by the Opposite Parties 1 & 2 as against the legal notice, the complainant filed this complaint with a prayer to direct the Opposite Parties to pay a compensation of Rs.50,000/- for the mental agony and monetary loss including litigation expenses.

2. The Opposite Parties. 1 & 2 filed their joint version alleging interalia that the complaint as filed is not maintainable because the complainant is not a consumer as defined U/S.2(1)(d) of the Consumer Protection Act as the cash memo under Annex-1 is not valid one. Further according to them the two soft drink bottles of MAZZA never manufactured by them on the other hand they manufacture soft drinks as MAAZA. Even if the complainant purchased such soft drinks, is nothing but the spurious one. Though admitted regarding receipt of the legal notice under Aannex-2, due reply has been given vide reply dt.11.12.08. Lastly as no soft drink as MAZZA is manufactured and sold to the retailers through its distributor, no deficiency in service have been committed by them, as such prayed for dismissal of the complaint.

3. Though Opposite Party No.3 entered appearance, has filed no version.

4. In view of the pleadings of the parties, the questions for consideration are

(a) Whether the complainant is a consumer as defined U/S.2(1)(d) of the Consumer Protection Act?

(b) Whether the two bottles of MAZZA alleged to have been purchased by the complainant on 1.12.08 out of which one was found to have contents of spurious materials was manufactured by Opposite Parties. 1 & 2 and was supplied to Opposite Party No.3 through its distributor.

(c) Whether the complainant is entitled for the reliefs as prayed for?

5. Before going to answer the questions as framed, it will not be out of place to mention here that out of the two bottles which the complainant had purchased and kept one in his house, was produced before this Forum and was sent for chemical examination on the prayer of the complainant and testing report have been received.

6. As regards the first question for consideration, it is the case of the Opposite Parties. 1 & 2 that the complainant is not a consumer because the alleged two soft drinks namely MAZZA alleged to have been purchased under Annex-1 is not a genuine one, on the other hand is manufactured for the purpose of this case, as such there is no valid passing of consideration amount. We are unable to accept such contention of the learned counsel for the Opposite Parties. 1 & 2 because from the very appearance of Annex-1, there is nothing to disbelieve that it is not a valid receipt granted by Opposite Party No.3 so also no contrary evidence have been produced on behalf of Opposite Parties. 1 & 2 to establish that Annex-1 is not valid & manufactured one. Therefore the complainant having purchased two bottles of soft drinks from Opposite Party No.3 under Annex-1 on payment of Rs.20/-, we hold that the complainant is a consumer as defined U/S.2(1)(d) of the Consumer Protection Act.

7. As regards the second question for consideration, no doubt it is the stand taken by the Opposite Parties. 1 & 2 that the soft drinks namely MAZZA which have been purchased by the complainant under Annex-1 is never manufactured by them on the other hand they use to manufacture MAAZA. It is also the stand taken by Opposite Parties.1 & 2 that as they did not manufacture soft drinks namely MAZZA does not distribute the same to the retailers through their distributors to sale them in the public. It is the stand by the complainant in its complaint petition that the bottles purchased by the complainant from Opposite Party No.3 were supplied to Opposite Party No.1 by one Deepak Drinks, the authorized distributor of Opposite Parties. 1 & 2. In support of such plea, the complainant has not produced any documentary evidence. So also did not make the Deepak Drinks as a party in the present complaint for just decision of the case. That being so even if complainant purchased two bottles of MAZZA from Opposite Party No.3, Opposite Parties. 1 & 2 can not said to have committed deficiency in service or unfair trade practice.

8. As regards the third question for consideration, from the very beginning the stand taken by the Opposite Parties. 1 & 2 is that they never manufactured the soft drinks namely MAZZA, they used to manufacture the soft drinks namely MAAZA. Manufacturing of soft drinks namely MAAZA by Opposite Party No.1 have not been disputed by the complainant in any manner nor it has been proved that the soft drinks namely MAZZA are manufactured by Opposite Party No.1. Therefore having not challenged by the complainant regarding the manufacturing of soft drinks namely MAAZA by the Opposite Parties. 1 & 2, the complainant having purchased the soft drinks namely MAZZA as under Annex-1, it can be safely said that the Opposite Parties. 1 & 2 are not in any way liable even if the complainant has suffered any mental agony etc. That being so we hold that the complainant is not entitled for the relief’s as prayed for.

In view of the discussions and conclusions arrived at by us, we hold that the complaint petition is devoid of any merits, as such stands dismissed.



Judgment pronounced in the open Forum on this the 15th day of December,2009 under the seal and signature of this Forum.