Mr.Rajesh Rao K.,

S/o. K.Bhaskar Rao,

Aged 29 years,

R/A. SGK Kripa,

2-14-1203/3, Anegundi,

4th Cross, Bejai,

Mangalore. …….. COMPLAINANT



(Advocate: Sri.Shashiraj Rao Kavoor).



VERSUS



1. The Managing Director,

Karnataka Breweries &

Distilleries (P) Ltd.,

20th Mile Tumkur Road,

Nelamangala Post,

Bangalore – 562 123.



2. The Authorized Officer,

United Breweries Ltd.,

Registered Officer at 9th Mile,

Tumkur Road,

Nagasandra Post,

Bangalore – 560 073.



3. The Proprietor,

Dolphin A/C and Non A/C

Bar and Restaurant,

Kadri, Mangalore. ……. OPPOSITE PARTIES


1. The facts of the complaint in brief are as follows:

This complaint is filed under Section 12 of the Consumer Protection Act alleging deficiency in service against the Opposite Parties claiming certain reliefs.

Complainant submits that, the Opposite Party No.1 is the manufacturer of the braveries such as beers and other alcoholic products. Opposite Party No.2 is the registered office of Opposite Party No.1, Opposite Party No.3 is running a bar and restaurant at Mangalore.

It is submitted that, Complainant had visited the Opposite Party No.3 for taking parcel of food and beer on 22.5.2008 at about 12.15 p.m. and ordered for one beer and half chicken sukka in the restaurant, since there was a get-together function at his house he has ordered for parcel. It is alleged that the beer purchased by the Opposite Party No.3 is contaminated and it contains some foreign particles found inside the beer bottle.

It is submitted that, after taking the beer and the lunch the Complainant’s stomach became upset, started vomiting and approached the doctor and taken treatment and spend certain amounts. It is submitted that the product sold by the Opposite Parties was contaminated and filed the above complaint before this Hon'ble Forum under Section 12 of the Consumer Protection Act 1986 (herein after referred to as ‘the Act’) seeking direction from this Hon'ble Forum to the Opposite Parties to pay jointly and severally a sum of Rs.12.00 lakhs as compensation for physical, financial sufferings and also refund Rs.597/- towards the bill and Rs.15,000/- claimed as expenditure and cost of the complaint.



2. Version notice served to the Opposite Parties by RPAD. Opposite Party No.2 and 3 appeared through their counsel filed separate version.

Opposite Party No.1 despite of serving notice, neither appeared nor contested the case till this date and proceeded exparte as against Opposite Party No.1. The acknowledgement placed before the FORA marked as court document No.1.


Opposite Party No.2 denied the entire allegations alleged in the complaint and submitted that there is no contamination in the beer manufactured by the Opposite Parties and the Complainant has suffered in any manner. It is seriously contended that, the bottle and its contents exhibited by the Complainant carries no paper seal/foil covering the crown cap. Every bottle of beer retailed in the open market would also carry a seal of the Exercise Department.

The bottle produced by the Complainant does not bear any such seals and denied that it has been supplied by this Opposite Party and also submitted that there is possibility of the exhibited bottle being tampered as a pretext to file the complaint under reply. The Opposite Party No.2 submitted that the bottle is manufactured over a year ago and is quite obviously beyond shelf life of any beer bottle and the bill produced by the Complainant alleged to have been issued by the 3rd Opposite Party does not bear any description relatable to the bottle produced as an exhibit before the FORA and denied that the Complainant has purchased the beer bottle from the 3rd Opposite Party.

And further submitted that, at all times the Opposite Party maintained optimum levels of quality control, leaving no room of any sort of contamination finding its way to the final product and denied that the beer manufactured by the Opposite Party is contaminated and submitted that there is no deficiency or negligence on the part of the Opposite Party and prayed for dismissal of the complaint.

Opposite Party No.3 has raised a contention that the Complainant has not taken any parcel as alleged from this Opposite Party. It is submitted that the bill referred by him is in relation with the consumption of beer and other items in the bar and restaurant itself and that does not pertain to the outdoor parcel service. And further contended that there was no immediate complaint by this Complainant to the 3rd Opposite Party or to the other Opposite Parties. The Complainant has falsely filed the complaint and it is self motivated to make unlawful gain and prayed for dismissal of the complaint.



3. In view of the above said facts, the points now that arise for our consideration in this case are as under:

(i) Whether the Complainant proves that the beer purchased by the Complainant is contaminated and contains foreign particles?



(ii) If so, whether the Complainant is entitled for the reliefs claimed?

(iii) What order?



4. In support of the complaint, Sri.Rajesh Rao K. (CW1) filed affidavit reiterating what has been stated in the complaint and answered the interrogatories served on him. Ex C1 and C2 were marked for the Complainant as listed in the annexure. One Sri.Vishwas (RW1), authorized signatory of the Opposite Party No.1 and 2 filed counter affidavit but not answered the interrogatories served on him. One Mr.Maxwell Lobo (RW2) – Partner of the Opposite Party No.3 filed counter affidavit and answered the interrogatories served on him. Both parties have produced notes of arguments along with citations.

We have considered the notes/oral arguments submitted by the learned counsels and we have also considered the materials that was placed before the Hon'ble Forum and answer the points are as follows: Point No.(i): Affirmative.

Point No.(ii) & (iii): As per the final order.
Reasons



5. Point No. (i) to (iii):

In the present case, the Complainant came up with a complaint stating that he had purchased some parcel of food and beer from the Opposite Party No.3. After taking the above said beer the Complainant’s stomach started giving problem and also he started vomiting and his health became upset and later he came to know that the beer which he brought parcel from Opposite Party No.3 was contaminated as some foreign particles found inside the beer bottle. The above said beer bottle produced before the FORA and contended that the Opposite Parties sold the beer which is contaminated and the Opposite Parties are jointly and severally accountable for the manufacturing defect of the spurious drinks and hence the above complaint is filed.

On the other hand, the Opposite Party No.2 contended that they have maintained a record of strict quality control and there is no instance where there has been any deficiency in their products or services and the primary objection raised would be regarding the genuineness of the bottle and its contents exhibited by the Complainant. And further contended that the exhibited bottle is manufactured over a year ago and is quite obviously beyond shelf life of any beer bottle and the manufacturer of the above said beer is not held liable in the event of a product being sold beyond its shelf life.

And further the 3rd Opposite Party raised a contention that the Complainant has not taken any parcel as alleged from this Opposite Party. It is submitted that the bill referred by him is in relation with the consumption of beer and other items in the bar and restaurant itself and that does not pertain to the outdoor parcel service. And further contended that there was no immediate complaint by this Complainant to the 3rd Opposite Party or to the other Opposite Parties. The Complainant has falsely filed the complaint and it is self motivated to make unlawful gain.

In the instant case, the entire burden lies upon the Complainant to show before the FORA that the above said beer bottle purchased from the Opposite Party No.3 and manufactured by the Opposite Party No.1 and it contains foreign particles and it is contaminated.

In order to prove the case of the Complainant, the Complainant produced Ex C1 and C2. The Opposite Party not produced any documentary evidence except the oral evidence. After having been heard the counsel for the Complainant and the material on record i.e., Ex C1 is the bill dated 22.5.2008 proved that the Complainant purchased the MO1 from the Opposite Party No.3. The receipt issued by the Opposite Party No.3 reveals that the Complainant purchased UB Export 4 bottle, king fisher one bottle and other items from the Opposite Party No.3.

The Opposite Party No.3 specifically contended that the Complainant has not taken any parcel from the Opposite Party No.3 but admitted the bill stating that the consumption of beer and other items in the bar and restaurant itself it does not pertain to the outdoor parcel service. However, the bill is admitted and it contains the food items and UB Beer etc. it does not mean that the bill issued by the Opposite Party No.3 should specify the outdoor parcel service. Just because in the receipt the word parcel is not highlighted it cannot be considered that the Complainant not purchased the MO1 from the Opposite Party No.3.

On careful scrutiny of the MO1 i.e., 650 ml. beer on the said bottle, on the middle of the wrapper it is shown as Opposite Party No.1 is the manufacturer of the said drink, the said drink is best before 6 months from the date of manufacture and also it bears UB Export Lager Beer sealed cap. No doubt, the bottle is fully sealed but there is no Exercise Department seal (green label).

Just because there is no exercise department seal to be seen on the cap of the bottle it cannot be said that the bottle is not genuine. It is noteworthy to mention that any bottle of beer taken by the consumers, first they will attempt to remove the green label. On careful seeing of the bottle we have noticed that the above said beer manufactured on 7th June 2007 but the same has been sold after the expiry date i.e., 22.5.2008. And further we have noticed by naked eyes that some foreign particles floating inside the bottle and it appears, it has been spreaded all over the bottle and it is contaminated. The said beer definitely cannot be consummated and it requires no further proof.

We observed that, in these days, when public health is the matter of concern for every one, when food products flood the market unless rigid standards are maintained, the safety of the public would be in jeopardy. The mere advertisement is not sufficient there have to be effective checks at every stage.

We have been referred a similar case wherein, the Tamil Nadu State Consumer Disputes Redressal Commission, Chennai, in Pepsico India Holdings Limited Versus H.Ashok Kumar & ANR - IV (2004) CPJ 485 held as under:

Consumer Protection Act, 1986 – Sections 2(1)(g) and 14(1)(d) – Food and Beverages – Cold drink – Worm found in Pepsi bottle – contention, spurious drinks manufactured by petty shop keepers not acceptable in absence of request to send the bottle to laboratory for test to find out whether it is genuine or spurious product – mere a look at factory or mere fact that high tech-machinery implanted, cannot rule out possibility of something going wrong somewhere – Deficiency in service proved – compensation and cost awarded.

(Paras 3 and 4)



Similarly in the present case, there has been negligence and carelessness in some corner of the Opposite Parties. May be while the bottling was being done, some objects got in the way and while the process of bottling was going on or the water used was contaminated or polluted. And another point also comes in our mind that the drink was 6 months old and the Opposite Party No.3 sold the drink after the expiry and there is every possibility of the drink gets contaminated by its own because there is possibility of involve fermentation of certain solid ingredients and also bound to leave certain residuary particles in the beer. Opposite Party No.3 being a proprietor of the bar and restaurant should have checked before selling the same.

But it is proved that the Opposite Party No.3 sold the above said beer after the expiry date there is every possibility of drink gets contaminated by its own after its expiry. Since it is sold after the expiry, we cannot blame the manufacturer in the present case on hand. The Opposite Party No.3 is accountable for selling the expired product. Now the fact remains that, it happened which all we only point out the lack of care and disregard for public health. We find proof of negligence in the bottle containing the drinks under the brand and name of UB Export Beer which is contaminated. It needless to point out that it lacked of requisite attention, care as well as proper supervision made during the process of selling the drinks to the consumers. The beer drink which produced before the FORA is contaminated and not consumable; Opposite Party No.3 has failed to act with a concern for public safety and public health.

Therefore, we hold that the Opposite Party No.3 being the seller would be squarely liable and accountable and the service rendered by the Opposite Party No.3 amounts to deficiency in service and the product/drink sold by the Opposite Party No.3 is an expired drink. The Opposite Party No.1 is the manufacturer manufactured the beer and sold to the dealers it is the look after of the Opposite Party No.3 while selling the drinks to the consumers in general. It is only the Opposite Party No.3 is held responsible for the same. The safety of the public health is very important and one should maintain the standard of the food and beverage in the market. And further it is noticed from the evidence of the Complainant that after consuming the drink suffered from food poison and consulted the family doctor and produced some documents. Now the point is not that the Complainant suffered food poison but mainly he has brought to the notice of the general public that the goods sold by the Opposite Party No.3 is expired one and it is contaminated.

However, it is contended by the Opposite Parties that the documents produced by the Complainant is concocted and he has not suffered any food poison or not taken any treatment. We do not accept the submission of the Opposite Parties because admittedly the foreign particles are visible to the naked eye. Thus, the Complainant discharged the initial onus on him to prove that there is something defect in the drink. After this, the onus shifted to the Opposite Party to prove by way of laboratory test that the drink is free from any defect. But in the instant case, Opposite Parties not taken any steps to go for laboratory test. In such a situation, one cannot contend that the drink sold by the Opposite Party No.3 is not contaminated and the Complainant not suffered any food poison.

As per the amendment introduced to the act, the District Forum, State Commission and the National Commission are conferred with the power to award punitive damages. Normally, the punitive damages will be awarded taking into consideration the conduct of the Opposite Party. In the instant case, the conduct of the Opposite Parties are not straight as the product purchased by the Complainant is shown to be a contaminated one as it had contained foreign particles floating inside the bottle. Therefore, even though the Complainant has not suffered, in our view, by taking into consideration of the conduct of the Opposite Party No.3 that he has sold the expired drink to the consumers we award Rs.25,000/- as punitive damages to the Complainant. Since there is no negligence/deficiency proved on behalf of the Opposite Party No.1 and 2 the complaint against Opposite Party No.1 and 2 is hereby dismissed. Since the Opposite Party No.3 sold the expired drink to the Complainant is accountable in the present case.

By considering the facts and circumstances of the present case, we award Rs.25,000/- as compensation payable to the Complainant by the Opposite Party No.3 i.e., the seller of the UB Export Beer and further Rs.1,000/- awarded as cost of the litigation expenses. The payment shall be made within 30 days from the date of this order.



6. In the result, we pass the following:


ORDER

The complaint is allowed. Opposite Party No.3 is hereby directed to pay to the Complainant Rs.25,000/- (Rupees twenty five thousand only) as compensation and Rs.1,000/- as cost of the litigation expenses. Payment shall be made within 30 days from the date of this order.