COMPLAINANT:-
Sri. Asif
S/o Peer Ahmed Sab,
Aged about 38 years,
9th Cross, 1st Main
Vinoba Nagara,
Davangere.

(By Sri. B.S. Lingaraja & K.S. Raju Advocates )

V/s
OPPONENTS:
(1) Managing Director
S.P.R. Group Holdings Pvt.Ltd.,
121/123 Mysore Road,
Machanayakanahalli village ,
Bidadi ( Post )
Ramanagara (Dist )

(2) Davangere wine store,
Represented by its owner/
licenses holder -Sri. Nagaraj ,
Opp . Old bus-stand, P.B.Road,
Davangere.
(…………Exparte )

Date of filing : 17-09-2008.
Date of disposal : 15-05-2009.

JUDGMENT



The Complainant Sri. Asif s/o Peer Ahmed Sab has filed this complaint against the OPs 1 and 2 U/sec. 12 of the Consumer Protection Act to direct the OPs to pay a compensation of Rs.1,00,000/-towads the damage caused on account of consuming of spurious liquor .



2. The facts of the case in brief are as follows :-

The complainant is the permanent resident of Davangere. . The complainant is in the habit of consuming the liquor specifically “SUPER JACK DRY ZIN” brand manufactured by the 1st OP Company. On 05-07-2008 the complainant has purchased 180 ml quantity bottle of “SUPER JACK DRY ZIN’ containing batch No.243 and MTE No.1656652236 from OP-2 shop at Davangere. The above said product is manufactured by OP-1 company and has obtained cash bill. The above said product is completely polluted and contained fungus and other volatile unhealthy substances , which are very spurious to human beings. The above said product is unfit for human consumption. After noticing this fact the complainant taken the bottle and brought to the knowledge of OP-2 shop owner, but the OP-2 answered evasively to the complainant and without caring to the words of the consumer of his shop .

Prior to this incident, the complainant had become unhealthy and expended more than Rs.25,000/- towards medical expenses due to consuming of this type of unhealthy hazardous liquor manufactured by OP-1 company . By that time he lost his earning also. Selling of spurious liquor is also brought to the knowledge of Deputy Commissioner of Excise Department, Davangere. The department officials are also verified the liquor bottle, which contained spurious liquor. But, except taking of the statement of the complainant the department officials have failed to take any action against the OPs . Instead of canceling the license issued to manufacturer and seller of the liquor i.e. OPs 1 and 2 , the Excise Department kept Mum in this regard. Manufacturing and distributing of this type of spurious liquor to the public at large without verifying negligently by OP-1 is clear violation of statutory laws .

That the OP-2 shop owner must take care at the time of selling this type of spurious liquor. Manufacturing and distributing of this spurious liquor by OP-1 company and selling of this spurious liquor to consumers by OP-2 without apprehension of danger to be created by this liquor is clear violation of statutory laws and punishable under law. This negligent act of both the OPs 1 and 2 shows the deficiency in service on the part of the OPs 1 and 2. The complainant got issued legal notice on 18-7-2008. Despite of service of notice the OP.2 neither replied nor complied the notice demands. Under the above said facts and circumstances , complainant has filed this complaint against the OPs for the above said relief .



3. Inspite of service of notices issued by this forum, the OPs 1 and 2 remained absent and were placed ex-parte. The complainant has filed his affidavit evidence and produced some documents in support of his case and also produced sealed liquors bottle.



4. We have heard the arguments advanced by the learned counsel for complainant.



5. Now, the points that arise for consideration of this Forum are as follows:-



(1) Whether there is any deficiency in service and negligence on

the part of the OPs 1 and 2 in selling spurious liquor causing health problem to the complainant and also public at large ?

(2) If so, whether the complainant is entitled to the reliefs as sought?

(3) What Order?



6. Our findings on the above points are as follows:-

i) Point No.1: In affirmative

ii) Point No.2: As entitle to the extent stated below.

iii) Point No.3: See, as per order below:



for the following:-

REASONS
Points 1 and 2 :-



7. In the instant case , though the complainant has got issued legal notice to the OPs 1 and 2 on 18-07-08, still the OPs 1 and 2 have neither replied the said notice nor complied with the notice demands. The said notice got issued by the complainant, by registered post were returned duly served on both OPs as per postal receipts and postal acknowledgments.



8. The complainant has produced the 180 ML sealed bottle of “SUPER JACK DRY ZIN’ manufactured by the 1st OP sold by 2nd OP in his retail shop at Davangere. The complainant has produced the photos of quarter bottle . These photos were taken in Raghu Digital Studio & Video on 6-9-2008. The said Digital Studio received Rs.40/- as per receipt produced by the complainant.



9. From the office copy of legal notice; from the averments and

allegations made in the complaint and also from the affidavit evidence of complainant , it is found that the complainant is the permanent resident of Davangere . It is also clear from the affidavit evidence of complainant and the averments and allegations made in the complaint that the complainant was in the habit of consuming liquor and the complainant on 5-7-2008 purchased 180 ml quantity bottle of “SUPER JACK DRY ZIN’ , containing batch no.243 and MTE No. 1656652236 from the 2nd OP shop at Davangere. It is clear from the affidavit evidence of complainant that OP-2 is the licensed retail liquor dealer running the liquor shop under the name and style as Davangere Wine Store , P.B. Road , Davangere..

It is clear from the affidavit evidence of PW-1 that the said product is manufactured by 1st OP company and the complainant purchased the said item from the OP-2 under the cash bill . The complainant has produced the cash bill in support of his evidence. From the cash bill, it is found that the complainant purchased the said 180 ml quarter bottle by paying a sum of Rs.32.96 paise . From the receipt , it is very clear that the complainant purchased the said liquor bottle from ‘Davangere Wine Store’ on 5-7-2008. It is clear from the affidavit evidence of complainant that he saw or noticed some polluted and contaminated particles in the bottle and when he observed the said bottle thoroughly, the said bottle was completely polluted and contained fungus and other volatile unhealthy substances, which are very spurious to human beings.

It is stated that the above product is unfit for human consumption. It is also clear from his affidavit evidence that after noticing this fact , he brought the said bottle containing fungus and other volatile substances in the bottle , which he has purchased from OP-2 shop owner; but OP-2 answered evasively without caring to the words of the consumer . It is clear from his affidavit evidence that prior to the said incident , he had also consumed several times of the same type of liquor in the same shop without observing that the said liquir is unhealthy and made him to spend more than Rs.25,000/- towards medical expenses .



10. No- doubt the complainant has produced the sealed bottle before

this forum. One could see from naked or bare eyes, the containing of the contaminated particles in that bottle and also there is fungus . From this fact it can be stated that the said bottle containing liquor is completely polluted and contained fungus and other volatile unhealthy substance, which are very spurious to human beings . It is very clear from the affidavit evidence of complainant that the said product is unfit for human consumption .

It is clear from the affidavit evidence that immediately the complainant brought the said fact to the notice of OP-2 , but he has not in a position to caring for his words. Though the complainant stated in his affidavit evidence that he spent more than Rs.25,000/- towards medical expenses due to consuming of such type of unhealthy hazardous liquors manufactured by 1st OP company and sold by the OP-2 . It is also clear from the affidavit evidence of the complainant that he brought the said fact to the notice of Deputy Commissioner of Excise Department , Davangere and the officials and they also verified the liquor bottle , which contained spurious liquor and they have taken the statement of the complainant, but they have not taken any action against the OPs and the selling of such spurious liquor is clear cut negligence on the part of the OPs and it amounts to deficiency in service on the part of OPs. In spite of service of notice , both the OPs remained absent .

The evidence given by PW-1 is remained unchallenged and un-rebutted . The evidence given by PW-1 is supported by receipt and Photos of the bottle . Apart from it , the complainant has produced the sealed bottle before this forum. Though the complainant has stated that he spent a sum of Rs.25,000/- towards medical expenses , still he has not produced any medical certificate/medical bills. However it is clear from the material placed on record that the OPs sold the spurious liquor containing polluted and contaminated particles in the bottle and the said liquor was completely polluted and contained fungus and other volatile unhealthy substances , which are very spurious to human beings . Nothing prevented the OPs to appear before this forum and to contest the matter or to give any explanation about the said spurious liquor . Even they have not given reply to the legal notice got issued by the complainant .



11. We have carefully scrutinized the evidence on record . Further

the complainant consumed several time of such type of liquor purchased by him from the said shop without observing the said spurious liquor and spent some amount towards medical expenses and sustained loss in his earning. On going through the evidence on record , it is found that the said bottle was sent by this forum to State Forensic Science Laboratory, Madiwala, Bangalroe City. The said Forensic Science Laboratory returned the said bottle for the following reasons :-

a. The sample is sent for analysis is not sealed with the wax.

b. The file should contains triplicate copies of details of the case and sample seal.

c. Rs.2000 has to be paid in favour of DFSL to State treasury


12. The OPs have not denied by appearing before this forum that the said liquor is not a spurious liquor and the said liquor is pure un-contaminated liquor . From the evidence on record , we have no hesitation to hold that the OPs negligently sold the said contaminated liquor to the complainant and also public at large, which is hazardous or dangerous to the health of human beings .



13. The complainant has satisfactorily and sufficiently proved the deficiency of service on the part of the OPs. The 1st OP is manufacturer and 2nd OP is the retail seller of the said liquor . In view of the same both the OPs are answerable for selling of such spurious liquor . The complainant has claimed compensation of Rs.1,00,000/- , which is highly exhorbitant and un-reasonable, looking in to the quantity of the liquor purchased by him . After taking in to consideration the facts and circumstances of this case , we feel it just and proper to award compensation of Rs.5000/- to the complainant for having sold the spurious liquor to the complainant , which contained polluted and contaminated particles in that bottle . Further we feel it just and proper to direct the OPs 1 and 2 to pay a sum of Rs.1000/- towards litigation expenses. Accordingly we answer point No.1 in affirmative , Point No.2 as entitled to the extent stated below .

Point No.3:

14. In view of our findings on points 1 and 2, the complaint filed

by the complainant against the OPs 1 and 2 has to be allowed in part. In the result we pass the following :-

: O R D E R :



o The complaint filed by the complainant against the OPs 1 and 2

is partly allowed.

o The OPs 1 and 2 are hereby directed to pay a compensation of Rs. 5000/- to the complainant.

o Further the OPs 1 and 2 are hereby directed to pay a sum of Rs.1000/- toward litigation expenses .

o The OPs 1 and 2 are hereby directed to comply with this order within 30 days from the date of communication of this order.