| ORDER | DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, BATHINDA CC.No.607 of 01-10-2014 Decided on 14-12-2015 Naresh Garg aged about 37 years S/o Des Raj S/o Gora Lal R/o H.No.15694, Street No.1-B, Hazura Kapura Colony, Bathinda. ........Complainant Versus 1.English Beer & Wine Shop, Adjoining Ram Telecom & Near Khurana Sweets Shop, Near Sirhind Canal, Bathinda, through its Proprietor/Partner. 2.Broswon Bewaries Pvt. Ltd. Village Kari Afgana, Tehsil Batala, District Gurdaspur (Punjab). 3.Hywards 5000, Sab Miller, Jalahalli Camp. Road, Yeshwanthpur, Bangalore-560022, through its Customer Care Executive. .......Opposite parties Complaint under Section 12 of the Consumer Protection Act, 1986 QUORUM Sh.M.P Singh Pahwa, President. Smt.Sukhwinder Kaur, Member. Sh.Jarnail Singh, Member. Present:- For the Complainant: Sh.Pardeep Sharma, counsel for the complainant. For Opposite parties: Complaint against opposite party No.1 already dismissed. Sh.Vinod Garg, counsel for opposite party No.2. Sh.S.S Maur, counsel for opposite party No.3. ORDER M. P. Singh Pahwa, President The complainant Naresh Kumar (here-in-after referred to as complainant) has filed complaint U/s 12 of Consumer Protection Act, 1986 against opposite parties English Beer & Wine Shop and others (here-in-after referred to as opposite parties). Briefly stated, the case of the complainant is that on 23.6.2014, he purchased one bottle of beer (650 ml.) make Haywards 5000 from opposite party No.1 on payment of its price. Opposite party No.2 is the distributor of the company for the area of Punjab and opposite party No.3 is manufacturer of said Beer. It is alleged that at the time of purchase of bottle, the complainant could not check the bottle. He only checked that it is sealed properly. When he was trying to open the bottle, he noticed foreign particle in the bottle, which was a condom. On next day, he showed the bottle to opposite party No.1, but it refused to replace it with new one as it has not issued any bill. Opposite party No.1 also refused to refund the money and did not give any satisfactory reply to him.
On this backdrop of facts, the complainant has alleged unfair trade practice on the part of opposite parties and claimed compensation to the tune of Rs.1 lac and Rs.5500/- as cost of litigation. Hence, this complaint. Subsequently, the complaint against opposite party No.1 was dismissed vide order dated 28.1.2015 due to non-furnishing of its correct address despite giving repeated opportunities. Opposite party Nos.2 and 3 appeared through their respective counsel and contested the complaint by filing their separate written version. In written version, opposite party No.2 has raised the legal objections that this complaint has been filed by the complainant to injure its goodwill and reputation. It is liable to be dismissed with special cost U/s 26 of 'Act'. The intricate questions of law and facts are involved in this complaint, which require voluminous documents and evidence for determination, which is not possible in the summary procedure under 'Act'. The appropriate remedy lies only in the civil court. It is further added that the beer bottle in question is tampered in crowning and paper foiling at its top. Otherwise the fully mechanized process of brewing, bottling and packaging of opposite party No.2 makes it almost impossible that any foreign element enters into the bottle. The complainant has concealed the material facts and has concealed the fact that he has not used the contents of the bottle. The complaint is false and baseless. The complainant has no locus-standi or cause-of-action to file this complaint against opposite party No.2. The complaint is not maintainable in its present form. On merits also, opposite party No.2 has controverted all other averments and reiterated its stand as taken in the legal objections and detailed above. In written version, opposite party No.3 has also raised the legal objections that the complaint is based on false, frivolous and baseless grounds. There is no valid cause-of-action. The complaint is liable to be dismissed. After raising these legal objections, opposite party No.3 made further preliminary submissions that it is a unit of multinational company and is the second largest brewer in the world having state of art plants situated at various locations in India. All the products are made with the latest technology and in most hygienic conditions and with the use of best quality of raw materials. Opposite party No.3 processes and sells millions of bottles throughout the year and in generality adhere to the principles of zero defects. All the products are manufactured and packed through fully automatic machines. Every product manufactured by opposite party No.3 undergoes a thorough, effective and stringent quality control check and only then it is cleared for sale by the Quality Control Department. The impugned product needs to be analyzed by an independent laboratory as per Section 13(1)(c) of 'Act'. The allegations in the complaint do not make out any case against opposite party No.3. There is no question of any loss, damage or harassment, but the complainant has demanded an astronomical amount of compensation for mental agony and harassment. On merits also, opposite party No.3 has controverted all other averments and reiterated its stand as taken in preliminary submissions and detailed above. Parties were afforded opportunities to produce evidence. In support of his version, the complainant tendered into evidence his own affidavits, (Ex.C1 and Ex.C4); photograph of beer bottle, (Ex.C2) and bottle in question, (Ex.C3). In order to rebut the claim of complainant, opposite party No.2 tendered into evidence photocopy of flow diagram, (Ex.OP2/1); photographs, (Ex.OP2/3 to Ex.OP2/28) and closed the evidence. Opposite party No.3 tendered into evidence affidavit of Sridhar dated 9.1.2015, (Ex.OP3/1) and closed the evidence. We have heard learned counsel for the parties and gone through the file carefully. Learned counsel for complainant reiterated his version as taken in the complaint and detailed above. It is submitted by learned counsel for complainant that the complainant purchased one beer bottle from opposite party No.1. The Forum can take notice of the fact that no liquor vendor issues any bill. Therefore, the case of the complainant is not to be disbelieved only for want of bill. The complainant has produced bottle in question, (Ex.C3), which was purchased by him. It is admittedly manufactured by opposite party No.3 and marketed by opposite party No.2. Opposite party Nos.2 and 3 have not denied these facts. The only stand of opposite party Nos.2 and 3 is that the bottle is tampered with. Therefore, this fact is to be proved by opposite parties. Opposite party Nos.2 and 3 have failed to discharge their onus. The foreign matter is clearly visible even with the naked eye. The bottle is properly sealed. Therefore, deficiency in service stands proved. To support these submissions, learned counsel for complainant has cited 2013(2) CPJ 157 in case Gurleen Kaur (Minor) Vs. Lancer Pharmaceuticals Private Limited & Anr. On the other hand, learned counsel for opposite party Nos.2 and 3 have submitted that first of all, the complainant has to prove himself a consumer, but he has failed to prove this fact. As per complainant, he has purchased bottle in question from opposite party No.1. Therefore, the presence of opposite party No.1 was necessary for just decision of the case, but the complaint was dismissed against opposite party No.1 vide order dated 28.1.2015. No cause-of-action survives against remaining opposite parties. To support these submissions, learned counsel for opposite party Nos.2 and 3 has cited II (2015) CPJ 754 (NC) in case title Cadbury India Limited & Anr. Vs. Grahak Parishad & Anr. We have given careful consideration to these submissions. As per averment of the complainant, he purchased one bottle from opposite party No.1. Therefore, the presence of opposite party No.1 was necessary to decide whether the complainant has purchased the bottle from opposite party No.1 for consideration or not, but due to non-furnishing of correct address of opposite party No.1 despite repeated opportunities, the complaint was dismissed against opposite party No.1 vide order dated 28.1.2015. In the absence of opposite party No.1, it cannot be concluded that the complainant has purchased the bottle in question for consideration from opposite party No.1. Therefore, the complainant has failed to prove himself a 'consumer'. When the complainant has failed to prove himself a consumer, opposite parties were not required to prove that the bottle in question is tampered with. For the reasons recorded above, the complainant is hereby dismissed without any order as to cost. The bottle in question be destroyed after expiry the period of filing of appeal/revision and subject to result of appeal/revision, if any. The complaint could not be decided within the statutory period due to heavy pendency of cases. Copy of order be sent to the parties concerned free of cost and file be consigned to the record. Announced : 14-12-2015 (M.P Singh Pahwa ) President (Sukhwinder Kaur) Member (Jarnail Singh ) Member
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