BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, PONDICHERRY

                                         C.C.No.12/2012

Dated this the 12^th day of July 2017

(Date of Institution:27.04.2012)

R. Rajesh Kumar, son of P. Rajendiren,

29, Lenin Nagar, Samipillai Thottam,

Lawspet, Puducherry rep. by Human Rights and Consumer

Protection Society through its Executive Secretary

R. Muruganantham, No.107 Lenin Street,

Kosapalayam, Puducherry – 605 013. 

…      Complainant

Vs

1. Amudhasurabhi Liquors Co-operative Super Market

    Unit of the Pondicherry Co-operative Wholesale

    Stores Ltd P-44, 301, M.G. Road, Muthialpet,

    Puducherry – 605 003 rep. by its Authorised Signatory. 

2. Skol Breweries Ltd., rep. by its

    Authorised Signatory, BKN Ambaram Estate,

    648/L, 1^st Main, 1^st Stage, Indira Nagar,

    Bangalore – 560 038, Karnataka

…      Opposite parties

BEFORE:

            THIRU. A. ASOKAN, B.A., B.L.,

            PRESIDENT 

THIRU V.V. STEEPHEN, B.A., LL.B.,

           MEMBER

TMT. D. KAVITHA, B.A., LL.B.,

MEMBER                 

FOR THE COMPLAINANT                     :  S. Vimal, Advocate.

FOR THE OPPOSITE PARTIES   :  For OP1 – Thiru B. Mohandoss, Advocate

                                                                            For OP2 – Thiru L. Sathish, Advocate.

O R  D  E  R

(By Thiru.V.V. STEEPHEN, Member)

This is a complaint filed by the complainant under section 12 of the Consumer Protection Act, 1986 praying to direct the opposite parties either jointly and severally, to pay the complainant a sum of Rs.1000/- towards monetary loss for supplying the defective product;  to pay the complainant compensation of Rs.25,000/- for the physical hardship, mental agony caused to him due to their selling a defective product and Unfair Trade Practice and to direct the opposite parties to pay a sum of Rs.3000/- towards cost of this proceedings.   

          2.  The case of the complainant is as follows:

The complainant purchased three bottles of Haywards 5000 Beer manufactured by second opposite party and two other products for personal consumption from the first opposite party's shop in ECR Road on payment of a total sum of Rs.236/- on 05.03.2011.  Upon consumption of two bottles out of 3 bottles, the complainant and his friends found that the remaining 3^rd bottle of 650 ml. bearing bath No. 408-18:36 manufactured on 22.10.2010 contained some unknown foreign particles inside the product like algae and dust, visible to naked eye.  Though immediately the complainant showed the same to the then in-charge of 1^st opposite party shop and complained the same to him, his response was careless and he did not offer to replace the defective product.  Further, though the complainant purchased the product at 1^st Opposite Party's branch at ECR Road, the bill issued to him showed an incorrect address as if the product was purchased at the above mentioned shop of the first OP.  Selling of such adulterated and spurious product to the complainant has not only caused monetary loss but also made the purpose of his purchase as waste.  Neither he nor his friends could consume the same fearing injury to their health on consumption but are also thereby put to physical hardship and mental agony.  The complainant approached the Human Rights and Consumer Protection Society and lodged a complaint dated 15.03.2011 who in turn, forwarded the same to the opposite parties.  Both the opposite parties received the said letter and sent reply notice dated 09.04.2011 and 03.06.2011 respectively.  The second opposite party assured that they shall appoint one of their representatives, who shall visit the complainant's place as per his convenience and requested to hand over the sealed Haywards 5000 beer bottle to him to enable them to investigate the root cause of the defect if any and that they shall apprise the complainant of is outcome, but did not send any one of their person and investigated.  Thus, the opposite parties' selling the defective product despite knowledge that the same was not worth human consumption and later its refusal either to replace the product with a better product or refund the cost of the same amount to unfair trade practice and therefore, the opposite parties are jointly and severally responsible for selling a defective product to the complainant.  Hence, this complaint. 

3. The reply version filed by the first opposite party briefly discloses the following:

          While denying all the allegation of the complainant in the complaint, this OP admitted the purchase of three nos. of Haywards 5000 Beer bottles.  This opposite party stated that the complaint is not maintainable either in law or on facts.  The fact remains that after consuming liquor in the shop, the complainant and three others who accompanied him were under the influence of alcohol and started quarrelling with the sales in charge one D. Murugavel and three others in respect of the address printed in the bill; that the sales persons pointed out that the above liquor shop was shifted from Muthialpet to Balaji Nagar and new bill book would be ready in two or three days, but the complainant and others did not accept for the explanation and left away from that place without saying anything. Hence, it is clear that the complainant has preferred the claim with untrue allegations as an after-thought belatedly after ten days of purchase and consumption of liquor bottles.  The complainant reported the matter to the Human Rights and Consumer Protection Society only on 15.3.2011.  Further during this period, the complainant could have tampered with the sample of beer purchased from this opposite party.  Moreover, the claim has been made to get unjust enrichment.  The complainant seems to have deliberately designed a plot against the opposite parties by completely consuming two out of three bottles and keeping one bottle unconsumed to make it a big issue.  The complainant with a malafide intention of obtaining compensation by unfair means, has preferred the above claim as if a public spirited person fighting for a noble cause.  Further, the above said society should file its primary documents relating to its rules and regulations and also showing its objects.  Further, the representative of the complainant society cannot use the words "Human Rights" in its name.  Further, it is mandatory to refer the sample of goods to the appropriate laboratory for analysis or test with a view to find out whether such goods suffer from any defect.  In the absence of such step, no conclusion should be made against the opposite parties.  This opposite party has no knowledge or information about the correspondence and other acts between the complainant and second opposite party.  Claiming exorbitant sum of Rs.1000/ towards monetary loss for total purchase of Rs.236/- is not justified.  This opposite party stated that it only sold the product manufactured by the 2^nd opposite party in the open market as its dealer.  In so far as there is no negligent of this opposite party, no compensation can be claimed by the complainant.  Further there is no cause of action for this complaint.  Hence, prayed for dismissal of the complaint. 

          4. The reply version filed by the second opposite party briefly discloses the following:

          The complainant has suppressed material facts.  The fact remains that after consuming liquor in the shop, the complainant and three others who accompanied him were under the influence of alcohol and started quarrelling with the sales in charge one D. Murugavel and three others in respect of the address printed in the bill dated 05.03.2011; that the sales persons pointed out that the above liquor shop was shifted from Muthialpet to Balaji Nagar and new bill book would be ready in two or three days, but the complainant and others did not accept for the explanation and left away from that place without saying anything. Hence, it is clear that the complainant has preferred the claim with untrue allegations as an after-thought belatedly after ten days of purchase and consumption of liquor bottles.  The complainant reported the matter to the Human Rights and Consumer Protection Society only on 15.3.2011.  Further during this period, the complainant could have tampered with the sample of beer purchased from this opposite party.  Moreover, the claim has been made to get unjust enrichment.  Further the seal of beer bottle was tampered with and the fact whether the seal was tampered or not needs to be examined from an independent laboratory.  The complaint is not maintainable as the claim for the alleged defective product and unfair trade practice is wholly imaginary and no relief can be granted by a Forum under the Act on an imaginary dispute as admittedly complainant did not consume the contents of impugned bottle of beer.  This opposite party adopts highly scientific process in manufacturing the beer and therefore, there is no room left for omission or lacuna as is alleged by the complainant.  Further, there is no possibility of any foreign substance getting into the bottle at the time of manufacturing or its sealing as the Plant of this opposite party is quite sophisticated having the most modern mechanism and robust quality control system.  Each and every product manufactured by this opposite party undergoes a thorough, effective and stringent quality control system and unless each and every product meets the prescribed quality standards, it is not cleared by the quality control system.  The filled bottles are checked again and then only label pasting and foil covering are done.  Hence, there is no physical hardship or mental agony faced by the complainant.  Further, the complainant never showed the bottle containing unknown particles to the sales in charge of this opposite party.  Further stated that the seal of the beer was found to be tampered and that the complainant seems to have placed the adulterated material into the beer bottle and seek compensation from this opposite party.  This opposite party appointed one Vinod Kumar, the Area Sales Manager as their representative to meet the complainant to investigate the root cause of the issue raised by the complainant, if any.  He also visited the place of the complainant, however, the complainant refused to show him the beer bottle and even entered into the argument which forced him to leave the place without doing the investigation.  Further, there was no negligent on the part of this opposite party.  There is a reason to believe that the seal of the beer bottle was tampered with and the fact whether the seal was tampered or not needs to be examined from an independent laboratory.  The complainant has filed this complaint with ulterior motive to defame this opposite party and seeking compensation on false contentions.  Further, as a matter of goodwill, this opposite party is willing to give free replacement for the alleged defective products.  Thus, there was no unfair trade practice by this opposite party.  There is no proof placed on record to prove that the complainant has suffered physical hardship, mental agony to substantiate his allegations.  This opposite party stated that it is incumbent upon the complainant to establish the veracity of allegations and to prove that the product suffers from the defect as alleged; defect is harmful and this opposite party was negligent while manufacturing the same.  Since the complainant has produced the impugned product before this Hon'ble Forum, there is no need to be analysed by an independent laboratory.  The entire complaint is totally motivated and is without any cause of action against this opposite party and the claim of Rs.1000/- towards monetary loss is absolutely baseless and unsubstantiated.  The claim of Rs.25,000/- towards physical hardship and mental agony is imaginary and exaggerated.  Hence, prayed for dismissal of the complaint. 

 5.  The complainant has not let in any oral evidence, but the documents filed in support of the complainant was marked as Exs. C1 to C6 on consent and the disputed bottle of beer was marked as MO1 and the photographs of MO1 is marked as Ex.X1.  The expert report on MO1 is marked as Ex.X2.  OP2 has not let in any oral evidence, but OP1 has let in evidence by examining two of its employees as RW1 and RW2 and Exs.R1 to R3 was marked through RW1. 

6.  POINTS FOR DETERMINATION:

1. Whether the complainant is a Consumer and whether the complaint is maintainable?
2. Whether the OP has adopted unfair trade practice  by selling a defective product to the complainant?
3. Whether the complainant is entitled for any relief?

 7. POINT No.1:

          The complainant has purchased some liquor items mentioned in Ex.C3 from the 1^st opposite party in which the purchase of three bottles of beer (Haywards 5000) finds place in Ex.C3 and one out of three bottle of beer so purchased contained foreign particle alleged to have been purchased from the first opposite party is the subject matter of this complaint marked as MO1.  It is admitted by the OP1 that the complainant has purchased Haywards 5000 beer bottles 3 nos. and other liquor items under Bill No. 22555 dated 05.03.2011 (Ex.C3) from them and RW1 who is an employee of OP1 has admitted during cross-examination that the bottle of beer under the brand name Haywards 5000 is manufactured by the second opposite party and hence, the complainant can be construed as a Consumer as against the Opposite parties. 

          8. It is contended by the opposite parties that the complainant filed and represented through an Association in the name of "Human Rights and Consumer Protection Society" vide Ex.C2 is not maintainable as per the decision of the Hon'ble High Court, Madras reported in CDJ LAW JOURNAL 2015 MHC 4194 in Abdul Rahman vs. The Inspector of Police, Pattukottai Town Police Station and another wherein, it was held that "Nobody can use the word Human Right to the name of any Association registered under the Societies Registration Act and it is only for the State to protect the rights of the people though National  / State Human Rights Commission and no NGO/Organisations/Societies are to be registered using the words "Human Rights". 

          9. Even though the citation referred by the Opposite Parties speaks about the directions issued by the Hon'ble Madurai Bench of Madras High Court to the Government concerned for taking necessary actions against persons who uses the word "Human Rights"  to the name of any Association registered under the Societies Registration Act, it is for the appropriate Government / Authority concerned to implement the order.  As such, no evidence was brought on record by the opposite parties to prove that the Government of Puducherry has effected an Amendment to the Societies Registration Act incorporating the directions as per the circular of the Government of Tamil Nadu concerned referred in the decision of the case of Hon'ble High Court referred above.  In view of this observation, the contention raised by the opposite parties that the complaint represented through an Association in the name of Human Rights and Consumer Protection Society is not maintainable  cannot be taken into consideration and the complaint is held maintainable by this Forum.  This point is answered accordingly. 

10.  POINT No.2:

          It is submitted by the complainant that the complainant has purchased three bottles of beer (Haywards 5000) through Ex.C3 from the first opposite party manufactured by the second opposite party and that after the consumption of two bottles of beer, the complainant found that the third bottle of beer contained foreign particle and demanded the first opposite party for the replacement of defective bottle with a good one, but the first opposite party denied that it has not sold the contaminated bottle of beer (MO1) and that the beer sold through Ex.C3 was a good one and denied the fact that the complainant approached the first opposite party for the replacement of defective bottle of beer (MO1) with that of good one.  The second opposite party submitted that the alleged defective bottle of beer was not that of 2^nd opposite party and it was tampered by the complainant for getting unjust enrichment.

          11. On the perusal of records and evidence it is observed by the Forum that the purchase of beer by the complainant from the first opposite party through Ex.C3 is not denied by the first opposite party but the second opposite party contended that the alleged bottle of beer (MO1) was  tampered by the complainant by placing the adulterated material into the bottle of beer (MO1) for getting unjust enrichment from the opposite parties.  The Expert Report (Ex.X2) on MO1 was perused and the report reads as follows:

          "Brownish turbid liquid with sedimented particles.  Hence the same is unfit for analysis."

And also the report specified that the Haywards 5000 Super Strong beer was found in sealed condition.

12. It was also observed by the Forum that the MO1 contained foreign material easily visible to the naked eye and the opposite parties have not filed any objection to the expert report and hence it was marked on consent as Ex.X2.  Undisputedly, it was admitted by the opposite parties that MO1 was contaminated and contain foreign particles but contended that it was tampered and that the adulteration in the MO1 was due to the act of complainant, in that case it is the burden of the opposite parties to prove such contention by seeking an expert opinion on technical aspect with regard to the tampering of MO1.  The failure of the opposite parties in taking steps to prove that MO1 was tampered as contended by the opposite parties, the evidence supporting the claim of the complainant remains unshattered and the plea taken by the opposite parties that the complainant has tampered the beer bottle (MO1) cannot be taken into consideration.

          13. It is contended by the opposite parties that MO1 was not sold by OP1 for the reason that OP1 maintain proper records regarding the movement of goods and that the records will reveal that disputed MO1 was not that of OP2 sold by OP1, but OP2 has not taken any steps to produce the records or register to prove that MO1 was not that of OP2 sold by OP1 to the complainant inspite of the evidence given by RW1, an employee of OP1 that they will maintain proper records for the purchase of goods.

          14. It is observed by the Forum that the contention raised by the Opposite Parties that the act of issuance of  Receipt (Ex.C3) bearing different address from that of the actual place of address wherein the complainant alleged to have purchased the beer bottle led to the altercation with that of the complainant and that irked the complainant to design a plot by keeping one bottle of beer unconsumed and tampered  giving rise to this complaint is highly unreasonable and whimsical and does not hold good. 

          15. In view of the discussions in the points aforementioned, it is held that the opposite parties have adopted Unfair Trade Practice in selling a defective product to the complainant and the act of the opposite parties in not replacing the defective product of OP2 and its consequential events might have caused hardship and mental agony to the complainant.  Hence, the Opposite Parties are jointly and severally liable for their Unfair Trade Practice. 

This point is answered accordingly. 

          16. With regard to the relief claimed by the complainant, this Forum is of the view that the granting a reasonable amount of compensation would justify the relief prayed by the complainant.

          17. POINT NO.3:

          In the result, the complaint is allowed.  The opposite parties are directed to pay the complainant

1. A sum of Rs.49/- towards cost of the MO1  i.e. the defective product.
2. To pay a sum of Rs.25,000/- as compensation for adopting Unfair Trade Practice by the opposite parties and for the physical hardships and mental agony suffered due to the sale of defective product by the opposite parties; and
3. To pay a sum of Rs.5000/- towards cost of this proceedings. 

  Dated this the 12^th day of July 2017.

1. ASOKAN)

PRESIDENT

(V.V. STEEPHEN)

   MEMBER

(D. KAVITHA)

   MEMBER

COMPLAINANTS' WITNESS:   NIL

OPPOSITE PARTY'S WITNESS:   

RW1           09.10.2015           D. Murugavel

RW2           21.01.2016           N.S. Deiveegan

COMPLAINANTS' EXHIBITS MARKED ON CONSENT:

OPPOSITE PARTYS' EXHIBITS:  

LIST OF MATERIAL OBJECTS:  NIL

1. ASOKAN)

PRESIDENT

(V.V. STEEPHEN)

   MEMBER

(D. KAVITHA)

   MEMBER