COMPLAINT NO. 02 OF 2009

Raghuraj .J
S/o Jairaj,
Aged about 36 yrs,
R/at No.94, 4th Cross,
Coxtown, Jeevanahalli,
Banagalore-5.

…. Complainant.

V/s

The Managing Director,
M/s Pepsi Co(1) Holding Pvt. Ltd.,
No.34, K.M.Stone, NH-4,
Teppada, Begur, Nelamanagala – 123.

…. Opposite Party

-: ORDER:-

This complaint is filed claiming compensation of Rs.95,000/- from the Opposite Party on the following grounds:-
On 09.11.2008 the complainant purchased PEPSI BOTTLE of 200 M.L. from SRI.VENKATESHWARA GENERAL STORES, NO.56, NEAR RAILWAY UNDER BRIDGE, COX-TWON JEEVANAHALLI, BANGALORE-5 for consuming the same. Before opening the cork of the bottle, he found some black colour fibrous matter floating at the top of the liquid in the bottle. Thus, the liquid in the bottle was found to be contaminated and deteriorated and not fit for consuming. If consumed it was likely to cause danger to the life of the person consuming it. He issued legal notice dated:15.12.2008 calling upon the Opposite Party to give explanation for manufacturing the PEPSI in an unhygienic and unhealthy manner causing danger to the life of the public. In spire of receipt of notice, Opposite Party failed to give any reply. Hence the complaint.
2.In spite of service of notice by RPAD, the Opposite Party has remained absent.
3. In support of the claim, the complainant has filed his affidavit and has produced PEPSI BOTTLE purchased by him. The learned counsel for the complainant has filed written arguments.
4. The points for consideration are:-
1.Whether the complainant has proved deficiency in service on the part of the Opposite Party?
2.Whether the complainant entitled to the relief prayed for in the complaint?
5. Our findings are:-

Point No.1 : In the Affirmative

Point No.2 : As per final order

for the following:-

-:REASONS:-

6. From the PEPSI BOTTLE produced by the complainant before the Forum, it is seen that the cork of the bottle is intact and a lump of a foreign substance like a fibrous matter is found floating inside the PEPSI BOTTLE and the same is visible to the naked eye. This supports the contention of the complainant that the liquid in the bottle is contaminated and not fit for human consumption. If consumed such beverage is likely to cause health hazards to the person consuming it. Since Opposite Party has remained absent in spite of service of notice, the material on record has gone unchallenged. When the Opposite Party is manufacturing beverage and marketing the same for consumption by general public it is required to take all-most care to see that the beverage is not contaminated and no foreign body is found in the beverage. If any foreign body is found or the beverage is contaminated it is likely to endanger the life of person consuming such beverage. The fact that the PEPSI BOTTLE purchased by the complainant contains fibrous matter makes it clear that the Opposite Party has not taken proper care in manufacturing and marketing beverage. This act of the Opposite Party clearly amounts to not only deficiency in service but to unfair trade practice. Fortunately finding the foreign body floating in the liquid, the complainant has not consumed the same and therefore he is not subjected to health hazards. However, for the deficiency in service and unfair trade practice on the part of the Opposite Party, the complainant needs to be compensated. But it appears to us that the compensation claimed by the complainant at Rs.95,000/- is exorbitant and on the higher side. Therefore, we hold that it is just and sufficient if the complainant is granted compensation of Rs.5,000/-. In the result, we pass the following:-

-:ORDER:-

• The complaint is ALLOWED IN PART.
• The Opposite Party is directed to pay compensation of Rs.5,000/- inclusive of the costs of the proceedings to the complainant. Compliance of this order shall be made within eight weeks from the date of communication.
• The PEPSI BOTTLE produced by the complainant shall be destroyed after the appeal period is over.
• 
  

Shri Parminder Singh Thakur Proprietor Café Grand View,

Village Khajurna, Near Markanda Bridge, Tehsil Nahan,

District Sirmour P.O. Shambuwala.





… Complainants.



Versus



1. Pepsi India Company C/O Aradhna Soft Drinks Private Ltd. 13 Floor, Mohan Dev Building, 13 Talastag Marg, New Delhi.



2. M/S Quality Bakers and Confectioners, through its Proprietor Shri Ashol Saini, The Mall Nahan.



…Opposite Parties.


O R D E R:


Pritam Singh (District Judge) President:- This order shall dispose of complaint under section 12 of the Consumer Protection Act, 1986. The case of the complainant in brief is that he purchased forty crates of cold drinks of various brands of Pepsi Soft Drink including Mirinda orange from the OP No.2 on 29.07.2006, for a total consideration of Rs.7,112/-. That his customers made complaint about quality of soft drinks supplied by him to his customers. Therefore when he checked the store where the soft drinks were stored by him, in a bottle of Mirinda Orange, he found sediments which were settled on the bottom of the aforesaid bottle and started floating when the bottle was shaken. It is further alleged that the Pepsi India Company is a renowned multinational company and it is not expected that the soft drinks manufactured by it would contain such articles which are injurious to health. That he suffered his clientage on account of short coming in the quality of the soft drinks manufactured by the OP No.1 and supplied by OP No.2 to him. Hence, feeling dissatisfied and aggrieved by the act of the OPs, the complainant perforce filed this complaint against the OPs.



2. The complaint is resisted by OP No.1 & 2 who took various preliminary objections regarding jurisdiction alleging that the complaint is false and vexatious, and not maintainable. On merits, OP No.1 alleged that they did not allow selling in the market any soft drink which contains foreign material and dirty substance or which does not conform to the prescribed standard. That the complainant has filed this false and frivolous complaint to grab money from them. That there being no deficiency in service, the complaint is sought to be dismissed. The OPs No. 2 also filed reply and denied the allegations of the complainant alleging that it is only a supplier/distributor of the sealed bottles which are received by him from the OP No.1 and complaint is sought to be dismissed. Thereafter, the parties led oral and documentary evidence in support of their claim/counter claim.



3. We have heard the learned counsel for the parties at length and also thoroughly scanned the entire record of the complaint.



4. It may be stated at the very out set of case that the complainant alleged that he purchased forty crates of cold drinks of various brands of Pepsi Soft Drink and mirinda orange from the OP No.2 on 29.07.2006, for a total consideration of Rs.7,112/- and when he served the cold drinks to his customers, they made complaint about its poor quality. Therefore when he checked the store where the soft drinks were stored by him, in one bottle of Mirinda Orange, he found that it was containing sediments which were settled on the bottom of the cold drink bottle and started floating when the bottle was shakened.



5. Therefore it is manifest and clear from pleadings of complainant that complainant purchased forty crates of cold drinks of various brands of pepsi etc from the OP No.2 for their further sale to his customers. He nowhere alleged specifically that he is running café at village Khajurana for earning his livelihood. Hence the complainant does not fell within the definition of ‘consumer’ as defined in section 2(d) of Consumer Protection Act, 1986 as he had purchased aforesaid soft cold drink 24 crates from OP No.2 on 29.07.06 for further sale in retail to his customers visiting his café house duly registered with the tourism department.



6. No doubt, one bottle of disputed cold drink was sent to the Public Analyst for examination by this forum on 11.01.07 and public analyst in his report dated 28.05.2007 opined that the contents of Lehar Mirinda sweetened carbonated water is not fit for human consumption due to the presence of sufficient quantity of objectionable suspended and deposited foreign matter. But on this report of the Public Analyst, the OP No.1 has filed objections thereby this report of the Public Analyst did not remain unchallenged and thus cannot be safely used against OPs.



7. Beside as has already been discussed supra the complainant is not a ‘consumer’ for the purpose of consumer protection act 1986. Hence the complaint is not legally maintainable.



8. Resultantly, the complaint being merit less is liable to be dismissed. It is ordered accordingly. No order as to the cost.

Shri Jitender Thakur S/O Shri M.S. Thakur,

R/O Kala Bhawan, Upper Vihar, Khalini, Shimla-9,HP.



… Complainant.

Versus





1. Pepsi Foods Private Limited, 3 B DLF Corporate Park

S. Block, Qutab Enclave, Phase III, Gurgaon-1122002

(Haryana) India through its Managing Director.



2. M/S Malook Sons, Malook Cottage, Lower Bazar,

Shimla, H.P. 171001.



3. M/S Departmental Store, Near Police Chowki,

B.C.S. New Shimla, Shimla, H.P.



…Opposite Parties






O R D E R:




Per, Charanjit Singh, Member:- The instant 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, 18.09.2007, he purchased two bottles of soft drink named and styled and labeled as “Lehar Marinda” from the OP No.3, for his personal consumption and for consumption of his servant. It is averred that when he was about to finish, the soft drink, he noticed some dust particles at the bottom of the bottle, as such, when he inspected the other soft drink bottle, which was to be consumed by his servant, he found a tongue cleaner and dust particles in it, thereby rendering the said bottle of soft drink unfit for human consumption. He further proceeded to aver that the aforesaid defect in the soft drink was brought to the notice of the OPs, but they instead of settling the matter, started pressurizing the complainant. 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.2, in its written version, to the complaint, raised preliminary objection, vis-à-vis maintainability of the complaint. On merits, it is contended that the complainant has filed this complaint on false allegations, in order to make unlawful gain. It is denied that the soft drink bottle was having foreign particles in it. Hence, it is denied, that, there was any deficiency in service on its part or that it has indulged in an unfair trade practice. The OPs No.1 & 3 did not put in appearance before this Forum and as such, the complaint was ordered to be heard exparte against them.

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, is aggrieved by the act and conduct of the OPs, inasmuch, as, that the product styled as ‘Lehar Marinda’ soft drink purchased by him from the OP No.3, had a tongue cleaner and dust particles in it, as such, rendering the same unfit for human consumption.

6. The complainant avers that he purchased the said bottle of soft drink labeled as ‘Lehar Marinda’ on 18.09.2007 from OP No.3. The present complaint was filed by the complainant before this Forum on 08.10.2007. The product of goods, i.e. soft drink was not produced before the Forum, at the time of filing of the complaint. However, from the scrutiny of the record, it reveals that on 17.06.2008, an application under section 13(1)(c) of the Act was filed on behalf of the complainant with the prayer to carry out the analysis of the goods and as per the order dated 24.06.2008, this Forum observed that the bottle in question has been manufactured by M/S Aradhana Soft Drinks Company, Village Alasgarpur, Panipat Haryana and is best for use before six months from manufacture. The Forum, while sending the bottle to the Public Analyst further observed that the date of the manufacture is not legible.

7. Thus, it is clear from the zimni order passed by this Forum, on 24.06.2008 that the soft drink labeled as “Lehar Marinda” has been manufactured by M/S Aradhana Soft Drinks Company, Village Alasgarpur, Panipat Haryana, who has not been impleaded as party by the complainant. For lack of impleading the manufacturer, as a party, we are not inclined to award huge compensation of Rs.2.00 lacs, as claimed by the complainant in this complaint.

8. Moreover, since the product in question, i.e. soft drink purportedly purchased by the complainant from the OP No.3, on 18.09.2007, and this complaint came to be instituted before this Forum on 08.10.2007. The bottle of soft drink was produced before this Forum only on 17.06.2008, i.e. approximately after 9 months of its purchase. There is no explanation coming forth on behalf of the complainant for producing of the bottle of soft drink so belatedly.


Therefore, from the above narrated facts, it is clear that the bottle of soft drink remained in the custody of complainant for approximately 9 months, hence, the possibility of interpolation on the part of the complainant, cannot be denied. Be that as it may, had the bottle of soft drink actually having a tongue cleaner and dust particles in it, then who prevented the complainant to produce the said bottle of soft drink before this Forum, at the time of filing the complaint. On this score, there is no plausible explanation furnished by the complainant for belatedly producing the bottle of soft drink before this Forum, hence, we are constrained not to award such a huge compensation of Rs.2.00 lac in favour of the complainant.

9. In the light of the above discussion, the complaint merits dismissal and we order accordingly, with no order as to the costs. 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.

Shri Ajay Saini S/o Sh. Babu Ram,

R/o Ward No. 8 Ranital Nahan,

District Sirmaur, H.P.





… Complainant.

Versus





1. Pepsi India through Aradhana Soft Drinks Company

through its Managing Director 3-B, DLF,

Corporate Park S-Block, Qutab Enclave Phase – III Gurgaon Haryana.



2. M/s Ram Deen and Sons Jain Bazaar Nahan.



3. M/s Hari Ram & Sons Naya Bazaar Nahan.

…. Opposite Parties




O R D E R:




The instant complaint has been filed by the complainant against the OPs, by invoking the provisions of Section 12 of the Consumer Protection Act, 1986. The complainant avers that on, 20.06.2007, he purchased six bottles of soft drink ‘slice’ from the OP No.2, manufactured by OP No.1, for a sale consideration of Rs.60/-, for serving the same to the guests. It is averred that when the aforesaid bottles of soft drink were consumed by the guests, they experienced headache and giddiness and hence, they could not consume entire soft drink. The complainant-further proceeded to aver that the OPs by selling a defective soft drink, which is not fit for human consumption, has indulged in an unfair trade practice. 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 filed reply to the complaint. The OP No.1 in its reply contended that it is having a great reputation and engaged in business of manufacturing and sale of beverages and the process of manufacturing and bottling of the product passes through various stages in the unit and after the completion of all stages, which includes washing of bottles carefully before bottling and after filling the product and before corking up the bottle, the bottle goes from various steps which are checked by the skilled worker and in that eventuality there is no chance of any default or negligence in manufacturing and bottling the product. It is denied that there was any foreign object in the bottle or that it was having any fungs. However, the OPs No.2 & 3 did not contest the complaint, hence, were ordered to be proceeded against exparte.

3. Thereafter the parties led evidence by way of affidavits and documents in support of their rival contentions.

4. We have heard the learned counsel for the parties at length and have also thoroughly scanned the entire record of the case meticulously.

5. The complainant, though, alleges that, he, purchased six bottles of slice from the OP No.2, yet, the OP No.2 having chosen not to contest the said fact, it is to be presumed that the complainant did purchase six bottle of “slice” from the OP No.2, on, 20.06.2007. However, there does not exist any bill reflecting the said fact of the complainant having purchased from the OP No.2.

6. The controversy, which requires to be put to a rest, is, whether the OPs can be held liable for the presence of a foreign substance having been found in one of the bottle, of, slice purchased by the complainant from the OP No.2, which was, so, detected by the complainant. The, product so purchased by the complainant from the OP No.2 had come, to, be served, to, the guests. However, the product, came to be brought before this Forum, on, 10.01.2008, hence, after, more-than six months had elapsed since the product, as, purchased by the complainant from the OP No.1.


Considering the delay which has taken place from the purchase of the product and its purported production before this Forum, and this Forum ordering belatedly, on, 10.01.2008, the, bottle of slice, be sent for analysis to C.T.L. Kandaghat, therefore, the inference, which ensues from the aforesaid facts, is, that when the complainant ought to have promptly initiated measures, at, the time of his having opened the bottle of slice and, his, then having purportedly detected in it, the, foreign substance so as ,to, fasten the liability upon the OPs, for the impurity which had occurred in the “goods”, i.e. in bottle of slice purchased by the complainant from the OP No.2, hence, for lack of promptitude on his part or delay, the complaint, is, to be inferred to be a result of an after thought and concoction.


Obviously, inference of after thought and concoction smothers the truth, especially, when there, is, possibility of deterioration of the product, with the belated steps having been taken by the complainant, to, allege that he had detected a foreign substance, in, the bottle of slice purchased by the him from the OP No.2. As such, the defect or impurity may be attributable, to, lack of proper storage of the goods on the part of the complainant more so, when even, at, the stage of its production, we, observed that the bottle was leaking.

7. As a sequel of the above, we disallow the relief, as claimed by the complainant and the complaint is ordered to be dismissed, leaving the parties to bear their own cost. 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.

Shri Jitender Thakur S/O Shri M.S. Thakur,

R/O Kala Bhawan, Upper Vihar, Khalini, Shimla-9,HP.



… Complainant.

Versus





1. Pepsi Foods Private Limited, 3 B DLF Corporate Park

S. Block, Qutab Enclave, Phase III, Gurgaon-1122002

(Haryana) India through its Managing Director.



2. M/S Malook Sons, Malook Cottage, Lower Bazar,

Shimla, H.P. 171001.



3. M/S Departmental Store, Near Police Chowki,

B.C.S. New Shimla, Shimla, H.P.



…Opposite Parties












O R D E R:




The instant 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, 18.09.2007, he purchased two bottles of soft drink named and styled and labeled as “Lehar Marinda” from the OP No.3, for his personal consumption and for consumption of his servant. It is averred that when he was about to finish, the soft drink, he noticed some dust particles at the bottom of the bottle, as such, when he inspected the other soft drink bottle, which was to be consumed by his servant, he found a tongue cleaner and dust particles in it, thereby rendering the said bottle of soft drink unfit for human consumption.


He further proceeded to aver that the aforesaid defect in the soft drink was brought to the notice of the OPs, but they instead of settling the matter, started pressurizing the complainant. 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.2, in its written version, to the complaint, raised preliminary objection, vis-à-vis maintainability of the complaint. On merits, it is contended that the complainant has filed this complaint on false allegations, in order to make unlawful gain. It is denied that the soft drink bottle was having foreign particles in it. Hence, it is denied, that, there was any deficiency in service on its part or that it has indulged in an unfair trade practice. The OPs No.1 & 3 did not put in appearance before this Forum and as such, the complaint was ordered to be heard exparte against them.

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, is aggrieved by the act and conduct of the OPs, inasmuch, as, that the product styled as ‘Lehar Marinda’ soft drink purchased by him from the OP No.3, had a tongue cleaner and dust particles in it, as such, rendering the same unfit for human consumption.

6. The complainant avers that he purchased the said bottle of soft drink labeled as ‘Lehar Marinda’ on 18.09.2007 from OP No.3. The present complaint was filed by the complainant before this Forum on 08.10.2007. The product of goods, i.e. soft drink was not produced before the Forum, at the time of filing of the complaint. However, from the scrutiny of the record, it reveals that on 17.06.2008, an application under section 13(1)(c) of the Act was filed on behalf of the complainant with the prayer to carry out the analysis of the goods and as per the order dated 24.06.2008, this Forum observed that the bottle in question has been manufactured by M/S Aradhana Soft Drinks Company, Village Alasgarpur, Panipat Haryana and is best for use before six months from manufacture. The Forum, while sending the bottle to the Public Analyst further observed that the date of the manufacture is not legible.

7. Thus, it is clear from the zimni order passed by this Forum, on 24.06.2008 that the soft drink labeled as “Lehar Marinda” has been manufactured by M/S Aradhana Soft Drinks Company, Village Alasgarpur, Panipat Haryana, who has not been impleaded as party by the complainant. For lack of impleading the manufacturer, as a party, we are not inclined to award huge compensation of Rs.2.00 lacs, as claimed by the complainant in this complaint.

8. Moreover, since the product in question, i.e. soft drink purportedly purchased by the complainant from the OP No.3, on 18.09.2007, and this complaint came to be instituted before this Forum on 08.10.2007. The bottle of soft drink was produced before this Forum only on 17.06.2008, i.e. approximately after 9 months of its purchase. There is no explanation coming forth on behalf of the complainant for producing of the bottle of soft drink so belatedly.


Therefore, from the above narrated facts, it is clear that the bottle of soft drink remained in the custody of complainant for approximately 9 months, hence, the possibility of interpolation on the part of the complainant, cannot be denied. Be that as it may, had the bottle of soft drink actually having a tongue cleaner and dust particles in it, then who prevented the complainant to produce the said bottle of soft drink before this Forum, at the time of filing the complaint. On this score, there is no plausible explanation furnished by the complainant for belatedly producing the bottle of soft drink before this Forum, hence, we are constrained not to award such a huge compensation of Rs.2.00 lac in favour of the complainant.

9. In the light of the above discussion, the complaint merits dismissal and we order accordingly, with no order as to the costs. 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.