Dinesh Kumar son of Sh. Ram Tirath Goyal, R/o H. No. 21406, St. No. 5, Power House Road, Bathinda.
.... Complainant
Versus

1. Mount Shivalik Breweries Ltd., Bhankarpur, Distt. SAS Nagar, Mohali 140201, Punjab through its MD/Chairman.
2. English Wine & Beer Shop, Adjoining New Deepak Dhaba, Opposite Railway Station, Bathinda through its Licencee/Partner/Proprietor.
... Opposite parties

O R D E R


1. Sh. Dinesh Kumar, complainant has filed the present complaint under Section 12 of the Consumer Protection Act, 1986 (here-in-after referred to as 'Act') against the opposite parties with the allegations that he purchased Thunder Bolt Beer bottle of 650 ml. manufactured by opposite party No. 1 from opposite party No. 2 for a consideration of Rs. 52/-. The said Beer bottle is having batch No. 52 and best for use before six months from the date it was sealed/manufactured i.e. 11-06-2008. The complainant after purchasing the said Beer bottle, surprised to note that some foreign material having size of approximately one inch was floating in the bottle. This foreign material is oval/round shape having other small particles of foreign material which rendered the contents of the Beer unhygienic. The bottle was, therefore, kept in sealed condition as foreign material is visible with naked eye from outside itself.

He purchased the said Beer bottle with the impression that the same is of best quality product and free from any type of unhygienic substance, but on seeking the foreign material, he was shocked as the foreign material made the said Beer completely unconsumable. If he would have consumed it, that would have adversely affected his health. It amounts to grave deficiency in service on the part of the opposite parties by selling a quality product with visible defect and it also amounts to negligence in performing their functions and duties as manufacturer and seller. The complainant tried his best for his redressal by directly dealing with the opposite parties and accordingly, he issued a legal notice dated 08-09-2008 calling upon opposite party No. 1 to compensate him by paying damages to the tune of Rs. 20,000/- within ten days from the date of receipt of notice. The notice duly received by opposite party No. 1, but opposite party No. 1, instead of paying any heed to the request of the complainant, gave a false and vague reply to his notice. Re-joinder to the notice was also sent, but opposite party No.1 took no cognizance. The complainant has, thus claimed a compensation to the tune of Rs. 20,000/- and litigation expenses to the tune of Rs. 2200/- against the opposite parties for selling unhygienic, unconsumable and defective product in the form of Beer in sealed condition which is injurious otherwise.


2. Opposite party No. 2 was proceeded against exparte as it did not prefer to context the claim.


3. Opposite party No. 1 filed a detailed reply raising preliminary objections interlia ; that this Forum does not have territorial jurisdiction; the product of opposite party No. 1 are sold not only in almost entire territory of India and even abroad; sale takes place to its own L-1 licence holder from where opposite party No. 2 have purchased the same and, therefore, opposite party No. 1, has no liability for selling the product directly to the complainant; neither the complainant has purchased any product from opposite party No. 1 nor the complainant has any cause of action against it; the complainant has not suffered any kind of illness, therefore, defect, if any, has not caused any injury to him; he has not come to this Forum with clean hands and the complaint is misconceived and beyond the provisions of section 14 of the Act.


On merits, it is denied that Beer bottle purchased by the complainant had any foreign material in it. The seal of the bottle may have been opened and foreign material introduced in it. This aspect could only have been determined through proper forensic examination. The product of opposite party No. 1 is of high standard and , therefore, there is no question of carelessness in the manufacture of the same. Some unscrupulous elements indulged in activity which is detrimental to the goodwill of opposite party No. 1. The complainant is not entitled to any compensation and costs for the reason that the contents of the said Beer bottle were never consumed by him. There is no deficiency or defect either in the manufacturing or sale of the said product of opposite party No. 1 and therefore, it has not adopted any unfair trade practice.



4. To prove their respective assertions, the complainant and opposite party No. 1 led their respective evidence.


5. The complainant Dinesh Kumar, filed his affidavit dated 26-11-2008 Ex. C-1, legal notice served upon opposite party No. 1 dated 08-09-2008 Ex. C-2, postal receipt Ex. C-3, reply to the notice of the complainant Ex. C-4, rejoinder to the legal notice sent by the complainant to opposite party No. 1 Ex. C-5, postal receipt Ex. C-6, Bottle of Thunderbolt Super Strong Lager Beer of batch No. 52 , date of manufacturing 11-06-2008, date of expiry 10-12-2008 of 650 ml. in sealed condition produced in the court during the course of evidence and it was exhibited as Ex. C-7.


6. To rebut the evidence of the complainant, opposite party No. 1 tendered in evidence only one affidavit of its Manager Co-ordination namely Sh. D P Kheterpal, Ex. R-1.


7. We have heard, the learned counsel for the parties and perused and considered the oral and documentary evidence adduced on record by them, carefully.


8. Learned counsel appearing on behalf of the complainant contended that the complainant purchased Ex. C-7 from opposite party No. 2 at Bathinda and when the complainant was about to consume the same, he noticed foreign material which is visible by naked eye in the bottle and, therefore, he did not consume the same as apparently it appears to be unhygienic and unconsumable material. Feeling aggrieved, he took up the matter with opposite party No. 1 by serving it with a legal notice Ex. C-2 giving full details of the product and foreign material he found, in Ex. C-7 after purchase, which rendered the material of the said bottle unhygienic and unconsumable.

He kept the bottle in sealed condition as such and called upon opposite party No. 1 to pay compensation. Due to the negligence of opposite party No. 1 in manufacturing and bottling of the said product and opposite party No. 2 by floating a defective product in the market have rendered both of them deficient in service towards the consumer and especially towards the complainant who unfortunately, purchased the said Beer bottle.


He further urged that opposite party No. 1 instead of solving the controversy tried to deny the fact by saying that it is not possible for such an object to enter a bottle of Beer that has been manufactured by it and it was pleaded that opposite party No. 1 is ready to replace the said bottle if it is found to be bottle which has been manufactured by opposite party No. 1 and bottle contains foreign material as claimed and for that further laid down a condition in para No. 5 of reply of notice Ex. C-4 that :

“For the above stated purpose of verifying that the alleged bottle of Beer containing foreign matter is a product of my client and contains foreign matter, an official will visit the residence of your client at a time and date that is convenient to your client. Please indicate the date and time to me.”

The learned counsel further urged that complainant in order to give an opportunity to opposite party No. 1, to inspect the bottle to settle down the controversy, sent letter dated 04-10-2008 Ex. C-5, and fixed the date and time for the inspection/verification i.e. 12-10-2008 from 10.00 a.m. to 5.00 p.m. This letter was sent through registered post vide postal receipt Ex. C-6, but none from the office of opposite party No. 1 came to inspect and verify the claim of the complainant. Learned counsel further urged that the act of the opposite parties, constrained the complainant to move this Forum for his redressal by filing the present complaint on 27-11-2008.


9. The learned counsel appearing on behalf of opposite party No. 1 vehementally controverted the arguments put forward by the learned counsel for the complainant and he strongly urged that this Forum at Bathinda has no jurisdiction to entertain and try the complaint since the opposite party No. 1 has the manufacturing plant at S.A.S. Nagar and not at Bathinda. The complainant has no direct dealing with opposite party No. 1, therefore, opposite party No. 1 has no liability to compensate the complainant. No expert evidence has been examined by the complainant and therefore, it cannot be held that contents of the Beer bottle are either unhygienic or unconsumable. He further urged that the opposite parties are ready to replace the bottle of Beer and contended that since no injury has been caused to the complainant, therefore, he is not entitled for any damages or litigation expenses.


10. We have considered the respective arguments and perused the entire record of the case carefully.


11. The Beer bottle Ex. C-7, is not denied by opposite party No. 1 as their product. The naked eye examination of Ex. C-7, which was conducted by all three of us, reveals that the liquid material of the bottle Ex. C-7 contains floating a foreign material oval in shape less than an inch in size. Its small particles are breaking/spreading in the liquid part of the bottle. However, it is unascertainable as to what this foreign particle in fact is. It could not be said that liquid part of the Beer does not contain any foreign material. Normally liquid Beer is clear liquid without any foreign material and the liquid Beer in bottle Ex. C-7, which is properly and duly sealed condition is containing foreign material which is breaking in small particles and has also made the liquid unclear. Whether it is unhygienic or not, but definitely, it is unconsumable.

As to how in a sealed bottle this foreign material is found, it is for opposite party No. 1 to explain, which they failed to do so. The injury whether caused or not, is not material, Any article manufactured, sealed and brought in the market by any manufacturer for sale for the general public with patent or latent defect, it is for the manufacturer and seller to ensure that product made available for sale is without any such latent or patent defect which makes the product unconsumable.


The Hon'ble Supreme Court in the case titled as Jose Philip Mampillil vs. Premider Automobiles 2004 CTJ 205 (SC)(CP), in which case a car sold by the respondent was found to be defective causing immense loss to the complainant and the manufacturing company denied its liability, remarked that “it is shameful that a defective car was sought to be sold as a brand new car. It is further held that the Premier Automobiles instead of acknowledging the defect chose to deny its liability.”


The Hon'ble National Consumer Disputes Redressal Commission by following the law laid down by the Supreme Court in the above case held in Ashok Khan Vs. Abdul Karim & Ors. 2005 CTJ 1207 (CP) (where a defective power tiller was sold to the complainant) that “both the dealer and the manufacturer of the machine, having defects in it, are jointly and severally liable to the purchaser because he knows only the dealer from whom he purchased that machine not its manufacturer.”


In a recent case reported as Charisma Goldwheels (P) Vs. Dr. B K Arora 2008 CTJ 1127 (CP) Hyundai Motors, the manufacturer of Santro car sold by its dealer to the complainant and found to be defective, denied its liability on the ground that 'dealings between it and its dealer is on principal to principal basis and as such omission/commission if any, committed while retailing/servicing the cars to its customers was the sold responsibility of the dealer.” The Hon'ble Himachal Pradesh State Consumer Disputes Redressal Commission has repelled this contention in its order dated 9th May, 2008 and observed that 'in fact the dealer is the frontman or the face of the manufacturer for the sale/marketing its manufactured products, therefore, both of them cannot escape from liability and are jointly and severally liable.'
In the light of above discussion, the consumer are well advised to make both the manufacturer and the dealer as parties to the dispute in an action for malfunctioning of a product purchased by them as the law makes them jointly liable.


12. The complainant has made an effort to settle the dispute with opposite party No. 1 by serving it with a notice Ex. C-2 and in reply to notice Ex. C-2, opposite party No. 1 sent letter Ex. C-4 requiring him to fix the date and time. The complainant, as desired by opposite party No. 1, fixed the date and time vide his letter Ex. C-5, for the inspection of the bottle by the representative of opposite party No. 1, but opposite party No. 1 did not persuade due to unexplained reasons. The opposite party No. 1 has not produced any material on record except an affidavit of Sh. D P Kheterpal, Ex. R-1, but this affidavit does not help opposite party No. 1 to controvert all the facts and circumstances and legal aspects of this particular case as have been discussed and referred to herein above.

13. The contention raised on behalf of the opposite party No. 1 that this Forum at Bathinda, has no jurisdiction to entertain and try the present complaint, appears to be without any force for the reason that opposite party No. 1 is selling its products at Bathinda through their authorised agent L-II i.e. opposite party No. 2 and, therefore, opposite party No. 1, is having their representative opposite party No. 2 to market their product and conduct business at Bathinda. Hence, this Forum has got the jurisdiction to entertain and try the present complaint.

14. The contention of opposite party No.1 that it has no liability to compensate the complainant as it has no direct dealing with the complainant, also appears to be without any force for the reason that the product is admittedly manufactured and floated in the market for sale by opposite party No. 1 and in fact opposite party No. 2 has purchased the product of opposite party No. 1 in sealed condition which was sold to the complainant in the same condition in which it was purchased from opposite party No. 1. Thus, opposite party No. 1 cannot escape its liability and responsibility to adequately compensate the complainant for floating a defective product for sale in the market.

15. The contention of opposite party No. 1 that matter may be settled down as opposite party No. 1 is ready to replace Beer bottle Ex. C-7 and since no injury has been suffered by the complainant as Beer was not consumed by him, therefore, he is not entitled for any damages, also appears to be without any force for the reason that an unconsumable product with visible defect is floated in the market by opposite parties No. 1 & 2 and it is not expected that first consumer should consume the defective material, suffered badly in his health and then only he should come to the Forum, if fortunately he remains alive to claim compensation.

16. No other points were raised or contended before us.


17. Taking into consideration totality of the facts and circumstances as has been referred to herein above, we are of the considered view that the both the opposite parties are guilty of floating a defective product in the market for sale which is in fact unconsumable and thus, they are not only deficient in service but also grossly negligent in selling the defective product in the open market. Therefore, only the replacement of the defective product in this particular case, will not meet the ends of justice.
This case requires an examplary, adequate, reasonable and punitive damages, which we, keeping in view the facts and circumstances of the case, assess at Rs. 10,000/-. In addition to this, as the complainant due to adamant conduct of the opposite parties had to file complaint before this Forum for his redressal, is also entitled for adequate and reasonable litigation expenses which we assess as Rs. 1,000/-.


18. In the result, complaint is accepted and both the opposite parties are held jointly and severally liable to compensate the complainant damages to the tune of Rs. 10,000/-. The opposite parties are also liable to pay to the complainant a sum of Rs. 1,000/- as litigation expenses.


19. We direct that this order be complied with by the opposite parties within 45 days from the date of receipt of copy of this order.