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Ludhiana Bottling Shital Singh son of Sh. Sant Ram, resident of village and Post Office Khoara, near Ram Dass Tent House, Kohara, Tehsil and Distt. Ludhiana.
(Complainant)
Vs.
1. Sunny Manny Cold Drinks having its office at HE/256, Jamalpur Colony, Ludhiana through its authorised representative Parkash Singh son of Sh.Harjit Singh.
2. M/s Ludhiana Bottling Company, Plot no.185, G.T. Road, near Railway Crossing, Gias Pura Ludhiana, through its Director/Managing Director/authorised representative.
3. M/s Ludhiana Bottling Company, having its office C-54, Phase-IV, Focal Point, Ludhiana through its Director/Managing Director/Authorised representative.
(Opposite parties)
O R D E R
1. Complainant claiming himself to be a senior citizen, purchased two crates on 13.4.2008 of various cold drinks from opposite party no.1, vide bill no. 992 dated 13.4.2008. The complainant after counting the bottles kept the same in his shop. On account of hot weather, feeling thirsty, took out one Maaza bottle for drinking and was surprised to see an insect floating inside the bottle. This matter was brought to the notice of The Tribune newspaper and opposite parties. But the opposite parties failed to take proper remedial action. Consequently, claiming such act to be negligence on the part of opposite parties and resorting to unfair trade practice by selling the soft drink bottle with an insect, filed the present complaint under section 12 of the Consumer Protection Act, 1986 and sought for such negligence on their part, compensation of Rs.1,00,000/-.
2. Opposite party no.1 in reply admitted sale of two cold brink crates to the complainant. But rest of the allegations are claimed to be concocted, false, managed to harass and blackmail the opposite party. Averred that the complainant previously had been purchasing cold drinks from the answering opposite party and also from other persons selling the cold drinks at lesser price. He personally approached the opposite party to expand his business and to purchase bottles in larger quantity and asked them to provide him freezer, ice box etc. from the manufacturer of cold drinks. But he was asked to contact the manufacturer himself. On 13.4.2008, there was a scheme by manufacturer to supply two bottles free with the purchase of one crate to the re-seller, like complainant. He purchased two crates and got 4 bottles free. Subsequently, complainant also sought two free bottles with a crate, which was not the scheme at that time. So, in order to put pressure and black mail opposite party, complainant concocted false story. Complainant filed this complaint on the basis of spurious filled or tampered bottle, which was never supplied by them under the invoice. The cold drink supplied by them was manufactured by Multi National Company in most sophisticated modern and automatic plant, ensuring very high standard of hygiene and cleanliness and strict quality checks. Bottles were filled with drinks after cleaning, washing and rinsing the same, which rules out possibility of any foreign particle in the drink. Complainant is claimed to be a clever person, who himself had given false news to The Tribune newspaper. There is no negligence on their part.
3. Opposite parties no.2 & 3 in separate reply claimed that the complaint is totally false, filed with intention to harass and black mail them. The beverages are bottled by the franchise of Coca Cola with most sophisticated modern and automatic plant, ensuring very high standard of hygiene and cleanliness and strict quality checks are applied. Bottles are cleaned, washed and rinsed properly, ruling out possibility of foreign particle. Complaint is filed by procuring or using spurious drink, readily available in the market.
4. In order to prove their respective contentions, parties led their evidence by way of affidavits and documents and stood heard through their respective counsels.
5. Complainant in support of his case filed his own affidavit and invoice Ex.C.2 dated 13.4.08 along with copy of the Newspaper Ex.C.3, reflecting insect found in the cold drink bottle. Whereas opposite party no.1 has filed affidavit of its Prop. Sh. Harjit Singh Ex.RW1/A.
6. Undoubtedly, under invoice Ex.C.2, two crates of different kinds of soft drink bottles such as Coca Cola, Fanta, Sprite, Thums up, Limca, Maaza etc. were purchased by the complainant from opposite party no.1
7. Now question is whether Maaza bottle, which contained insect as per claim of the complainant, was bottled/manufactured by opposite parties no.2 & 3 and then supplied to opposite party no.1, who consequently, sold it under invoice Ex.C.2 to the complainant. Complainant in his affidavit only says that an insect was found in that bottle, so, purchased from opposite party no.1. Sh. Sukhdev Singh Assistant of the complainant in totality is silent qua source of the bottle containing insect or that it was supplied or purchased from opposite party no.1 by the complainant. He simply says that on 13.4.2008, he was assisting the complainant, when two crates of cold drink bottles were delivered. He is silent who delivered those crates. Complainant asked him, due to summer, to give one cold drink bottle and as the complainant was about to open, saw insect floating inside the bottle, which fact was brought to the notice of the opposite party.
8. At this stage, we may say that the complaint has been wrongly instituted against opposite parties no.2 & 3 being manufacturer of the bottle. Because, there is no proof that bottle was manufactured and marketed by opposite parties no.2 & 3. Neither there is any proof that they sold it to opposite party no.1.
9. Opposite party no.1 as well as other opposite parties have taken defence that the bottle produced by the complainant is spurious one, easily available in the market and the bottle in question was never sold by them. From evidence of the opposite parties, it is made out that Coca Cola Company is a most sophisticated modern automatic plant, insuring very high standard of hygiene and cleanliness. Strict quality checks are applied. Before filling, bottles are cleaned, washed and rinsed properly, ruling out possibility of presence of any foreign material. Also, complainant has not been able to link that the bottle in question purchased by him was actually purchased under that invoice Ex.C.2 from the opposite party no.1. Bottle was appearing to be spurious and consequently none of the opposite parties can be blamed for selling this spurious bottle to the complainant as it is not proved that it was sold by them. Possibility of getting it from other source by the complainant can not be ruled out.
10. The bottle as produced by the complainant along with the complaint was found having loose cork and leaking and due to such reason, was not sent to public analyst for the purpose of its analysis. Leakage due to cork problem of the bottle again is evident of fact that possibility of tampering with the bottle can not be ruled out
11. It is contended on behalf of the opposite parties that the complainant is not a consumer under section 2 (1) (d) of the Consumer Protection Act, 1986. Because, he had purchased two crates of soft drinks as a shop keeper for the purpose of resale. No doubt, complainant had purchased two crates not for own consumption but for the purpose of resale to the customers as a small shop keeper. Consequently, under section 2 (1) (d) (i) of the Consumer Protection Act, 1986, he would not fall under the definition of a ‘consumer’. Because, had purchased the bottles for resale, connected with commercial purpose. For such reason, the complaint is also not maintainable.
12. Where the goods were purchased for resale purpose, Hon’ble National Commission in case Kirloskar Electric Co. Ltd. Vs. Fabionix India pvt. Ltd. & Anr. reported as II (2008) CPJ 372 (NC) has held that in such cases, the complaint under the Consumer Protection Act, is not maintainable.
13 Sequel to above discussions, finding no merit, the complaint is dismissed.
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