Complaint No. 837/1.12.2009

Date of order: 8. 12.2009
Poonam Kumar Sood alias P.K. Sood son of Sh. Joginder Lal, resident of 230/B-1, Guru Nanak Pura, Civil Lines, Ludhiana.

(Complainant)
Vs.
1. SKUL Breweries Ltd. Unit Central Distillery Breweries, merrut Central U.P. through authorised signatory.

2. SKUL Breweries ltd. C/o R.K. Machine Tools, near Cheema Chowk, Ludhiana through authorised signatory.

3. Tej Paul L-2, Ghumar Mandi No.2, Ludhiana.
(Opposite parties)
COMPLAINT UNDER SECTION 12 OF THE CONSUMER PROTECTION ACT, 1986.

Quorum:

Sh. T.N. Vaidya, President.

Sh. Rajesh Kumar,Member.

Smt. Priti Malhotra, Member.
Present:

Sh. M.S. Sethi Advocate for the complainant.

Sh. Jaswinder Singh Advocate for OP No.1 & 2

OpNo.3 is ex-parte.

O R D E R

T.N. VAIDYA, PRESIDENT:

1. By filing this complaint under section 12 of the Consumer Protection Act, 1986, complainant has sought compensation of Rs. 50,000/- along with litigation cost of Rs.3,500/- from the opposite parties for selling contaminated beer bottle.

2. His case is that on 10.10.2008 purchased one beer bottle ‘HAYWARDS 5000’ containing batch number 64 dated 27.8.2008, from opposite party no.3. Bottle was filled, packed and sealed by opposite party no.1 being its distiller. Receipt of payment was obtained from opposite party no.3. When complainant took packed and sealed beer bottle for consumption to his home and before opening it, saw some foreign solid element floating in the bottle. Lateron, on examination found it to be a cockroach. Matter was immediately reported to opposite party no.3 who contacted opposite party no.2 and then officials of opposite party no.2 came to the shop of opposite party no.3 who showed them contaminated beer bottle. He insisted the complainant to handover bottle in order to send it to opposite party, but without any proper receipt, so, he refused to handover the bottle. Therefore, claimed that opposite parties were negligent in distilling and bottling of beer bottle, which had a floating cockroach in it. They were consequently negligent in selling a drink hazardous to life and safety.

3. Opposite parties no.1 & 2 in joint reply averred that complaint is based on false, frivolous and baseless allegations, so, complaint not maintainable. They claimed themselves to be a multinational company having second largest brewery in the world having state of art plants situated at various locations in India. All products are made with latest technology and in most hygienic conditions with the use of high quality of raw materials. They are processing and selling millions of bottles throughout the world with zero defects. They have also quality control system and whichever product manufactured by them undergoes through stringent quality control. Unless products meet prescribed quality standard, it is not cleared by the quality control system. Complainant has levelled false allegations of defective product. Such product needs to be analyzed by an independent lab. The product was never consumed by the complainant. They denied purchase of their product by the complainant or that the product was contaminated. No harassment was suffered by the complainant. Hence, complaint deserves dismissal.

4. Opposite party no.3 did not contest the complaint and proceeded ex-parte.

5. In order to prove his case, complainant tendered evidence by way of affidavit and documents. Opposite parties failed to adduce any evidence despite taking four adjournments. Hence, their evidence was closed by order.

6. Before we refer material on the record would like to high light at the outset that the complainant had purchased sealed beer bottle. On his application, the same was sent for analysis to Public Analyst, Govt. Examiner for Foods, Chandigarh. Report of the Public Analyst dated 16.2.2009 was received. Beer bottle was concluded unfit for human consumption, as it was having insect resembling a fly in the bottle. Pertinent to note that the beer bottle was analysed in the Lab. which was sealed bottle labeled with HAYWARDS 5000 Super Strong beer. Ex.C.2 is photo of that bottle. Bare look of the photograph reflects some insect inside the bottle.

7. Narration of the complainant by way of his affidavit Ex.CA.1 goes to show that had purchased HAYWARDS 5000 beer bottle for own consumption for Rs.65/- on 10.10.2008 and had obtained handwritten payment receipt from opposite party no.3. Ex.C.1 is copy of the receipt vide which bottle was purchased by the complainant from opposite party no.3. The bottle was distilled, filled and packed by manufacturer-OP No.1. Though, we have no evidence that opposite party no.1 through opposite party no.2 or otherwise sold this beer bottle to the complainant. But we have to take that bottle was filled, marketed by manufacturer –OP No.1 as it was sealed beer bottle, bearing wrapper containing name of the manufacturer. It is not in dispute that opposite party no.1 is manufacturer or distiller of HAYWARDS 5000 beer bottle. So, it is taken guaranteed and proved that bottle in question which was purchased by the complainant from opposite party no.3, was manufactured by opposite party no.1. Opposite party no.3 sold it to the complainant in that very condition, in which had received from the manufacturer or its agent.

8. Opposite party no.1 & 2 though have filed along with the written statement, affidavit of Sh. S.M. Paramod its authorised signatory in support of their defence. But not withstanding such defence, it is established to the hilt that beer in the bottle was filled by opposite party no.1, who is manufacturer of this sealed beer bottle. On analysis of the bottle, insect in the shape of fly was found in that sealed beer bottle. Aforesaid facts leave us with no doubt that contaminated and unhygienic bottle with foreign material in the shape of an insect was marketed for sale by opposite party no.1 for consumption by a consumer. Fortunately, complainant detected insect inside the bottle, before he opened it. Presence of the insect in this bottle belies version of the opposite party that they have very latest plant having hygienic conditions and their products goes through quality control checks at every stage. Had it been so, foreign element like insect would not have entered in the product of the opposite party. Such presence of insect in the beverages speaks high of safety standard of the Company. Had complainant consumed such contaminated beer, we do not know what could have happened to him. Resultantly, by selling a contaminated beer bottle having foreign element like insect, opposite party would be liable for selling defective bottle effecting quality and purity of the same.

9. According to ld. counsel for the opposite party, complainant is not a consumer, as he never consumed contents of the bottle, so, relief prayed can not be granted. In support drew our attention to a case reported as “Amit Swami vs. Coca Cola India ltd. & Ors. II (2007) CPJ 256 (NC). In that case Sh. Amit Swami complainant had purchased three Coca Cola bottles and before consumption of bottle was found having fungus. On such allegations, filed complaint for compensation of Rs. two crores before the hon’ble National Commission. It was in that situation observed by the Hon’ble National Commission that Coca Cola bottles having fungus were no consumed and that they can not pass order for penalty of Rs. three crores to be credited in Consumer Welfare Fund. Complainant was left with liberty to file a complaint on the same cause of action by suitably reducing the amount of compensation. This authority, in our view at no point helps contention of the opposite party. Because, complainant became consumer once he purchased the product manufactured by opposite party for own consumption. It was irrelevant, whether he consumed the same or not. But certainly, product was defective, having fly therein.

10. Also urged on behalf of the opposite party that product was not manufactured by opposite party no.1 & 2, not sold by opposite party no.3. Receipt qua such purchase has been fabricated by the complainant in connivance with the opposite party no.3. We may say that such contention has no legs to stand with. Because, claim of the complainant supported by affidavit and receipt of purchase Ex.C.1 proves his contention having purchased beer bottle for Rs.65/- from opposite party no.3. Bottle is packed and sealed bearing label containing name of the manufacturer.

11. In view of this complaint deserves to be allowed and complainant compensated for selling a defective produce. Question is now what amount should be awarded in such like cases. Undoubtedly, product was not consumed by the complainant. It would have been hazardous for his safety and health, had he taken it. But big multinational companies like of opposite parties are expected to adhere to basic safety standard, so as not to effect public health or by taking material hazardous to general public. Therefore, such aspects have to be taken in mind so that such big concern may have proper monitoring of is manufacturing system to avoid any mishap effecting health of general public. Such a goal can only be achieved, if high damages are awarded to the complainant, a person who high lighted such matter.

12. In view of circumstances of the case, we allow the complaint and award compensation of Rs.30,000/-(Rs. Thirty Thousands only) to the complainant against opposite party no.1 & 2. Out of this compensation, a sum of Rs.20,000/-(Rs. Twenty Thousands only) is ordered to paid to the Indian Red Cross Fund, Ludhiana Branch, for spending the same on health of poor persons, by providing life saving medicines to the poor who are unable to meet on account of poverty, such expenses. Opposite parties no.1 & 2 also directed to pay litigation cost of Rs.3000/-(Rs. Three Thousands only) to the complainant. Order be complied within 45 days of the receipt of copy of order, which be made available to the parties free of costs. File be completed and consigned to record.