Tamil Nadu

North Chennai

CC/245/2018

P.C.Anand Kumar - Complainant(s)

Versus

M/s. Pepsi Foods Pvt. Ltd.,Chief Executive Officer & others - Opp.Party(s)

A.Suresh

26 Aug 2022

ORDER

                                                                   Complaint presented on:29.06.2010                                                                  

                                                                        Date of disposal         :26.08.2022

                                                                                  

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION,

CHENNAI (NORTH)

@ 2^ND Floor, T.N.P.S.C. Road, V.O.C. Nagar, Park Town, Chennai – 600 003.

 

PRESENT:   THIRU. G.VINOBHA, M.A., B.L.                          : PRESIDENT

                     TMT. KAVITHA KANNAN,M.E.,                          : MEMBER-1

                                  THIRU V. RAMAMURTHY, B.A.B.L., PGDLA    : MEMBER II

 

C.C. No.245/2018

 

DATED THIS FRIDAY THE 26^th DAY OF AUGUST 2022

 

P.C.Anand Kumar,

•  

No.7, Anna street, Nehru Nagar,

Velacherry, Chennai-600 042

1.  

              

•  

 

1. M/s.Pepsi Foods Pvt.Ltd.,

M/s.Pepsico India Holding Pvt.Ltd.,

  Rep.by its Chief Executive Officer, 

No.3B, DLF Corporate Park,

‘S’ Block, Qutab Enclave, Phase- III,

Gurgaon-122 002, Haryana, India.

 

2.  Hotel Renuka Chetinad A/C,

Rep.by its Manager,

No.6 GST Road, Mamandur,

Madhuranthagam Taluk,

Kancheepuram District-603 111.

 

3.  

Rep.by its Proprietor,

No.53/30, Motilal Street,

T.Nagar, Chennai-600 017.

1.  

 

Counsel for the complainant                  : M/s.A.Suresh  and T.Tamilmani

 

Counsel for the opposite parties 1 and 2: M/s. M.Kandasamy &

P.Krishnamurthy

           Counsel for the opposite party 3            : Ex-parte

 

ORDER

THIRU. G.VINOBHA, M.A., B.L.      : PRESIDENT

 

          This complaint has been filed by the complainants against the opposite parties under section 12 of the Consumer Protection Act, 1986 prays to direct the opposite party to pay a sum of Rs.9,50,000/- as compensation towards suffering and mental agony and to pay a sum of Rs.25,000/- towards the loss of Income and to pay a sum of Rs.22/- towards the cost for the cool drink and to pay a sum of Rs.5,000/- towards the litigation cost.

This complaint was originally filed before the District Commission, Chennai (South) and taken on file in C.C. No.296/2010.  Thereafter, the said complaint has been transferred to this Commission as per the proceedings of the Hon’ble S.C.D.R.C. and taken on file as C.C. No.245/2018.

1.THE COMPLAINT IN BRIEF:

          The complainant submitted that he visited the restaurant Hotel Renuka Chettinad of third opposite party at T.Nagar, Chennai-17. The complainant submitted that they ordered two meals and after finishing the food the complainant ordered two bottles of 200 ml ‘Nimbooz’ cool drink a product of 1^st and 2^nd opposite parties.  The complainant submitted that he opened one bottle and drunk 1/4^th of cool drink and then gave it to his friend S.Balasubramanian who had drunk sips the cool drink while the other bottle of drink remained unopened, meanwhile after serving the cool drinks the server of the 3^rd opposite party and  served the bill the same was paid by the complainant in cash and the 2^nd bottle cool drink was not opened.  The complainant stated that at the point of time the complainant noticed that the opened bottle of the cool drinks was not in ordinary course of purity level but it had been mixed up with dust and found in a contaminated manner. The complainant submitted that checked the second unopened bottle and to his utter shock and found that the second unopened cool drink bottled was also infected in the same manner. The complainant further submitted that immediately he informed the same to the proprietor of the third opposite party and he replied that the cool drinks were distributed by 1^st and 2^nd opposite parties in the sealed packs and they are not responsible for the cool drinks. The complainant further submitted that with much frustration requested to 3^rd opposite party allow him to take the infected cool drink with him and without hesitation the 3^rd opposite party handed over the cooldrink bottle to the complainant and the complainant left the restaurant with unopened bottle of unhygienic cool drink and cool drink bottle is in possession and custody of the complainant. The complainant further submitted that on the same day when returning to velacherry the complainant  and his friend suffered severe stomach ache, vomiting and faintness. Further the complainant and his friend rushed in to the hospital without delay and both were treated for stomach ache and vomiting.  The complainant submitted that they are treated as outpatient in the Government General Hospital at Saidapet on 25.02.2010 and they under gone treatment for four days.  The complainant further submitted that the infected cool drink the complainant and his friend were put into lots of trouble and sufferings. The 1^st and 2^nd opposite party have committed deficiency in service grave negligence while manufacturing the product and 3^rd opposite party failed to check the quality of product. The complainant sent a legal notice to both the opposite parties on 27.02.2010.  The complainant further submitted that the opposite parties are liable to pay compensation for the mental agony suffered by the complainant.

2.WRITTEN VERSION OF OPPOSITE PARTIES IN BRIEF:

The opposite party in their written version states that the complaint is not maintainable in law and in facts.  That the complainant is not a consumer within the meaning of Sec 2(1)(d) of the Consumer Protection Act 1986 hereinafter referred to as the said Act. In the present complaint there is neither any allegation nor any material on record to point out that the complainant purchased any goods for consideration from the answering opposite parties.  Further submitted that soft drinks manufactured by the 2^nd opposite party are manufactured in modem sophisticated plants, which use a very high standard of hygiene and cleanliness.  The manufacturing process involves strict quality checks at various stages of manufacture, ruling out all possibility of any foreign matter in the bottled product as alleged by the complainant.  The raw materials used are of the highest grade and quality and water used in the manufacturing process is filtered, sterilized and is absolutely clean.  The bottles used in bottling each bottle is washed, disinfected and visually checked prior to filling. The opposite party submitted that the present complaint amounts to an abuse of the process of this Hon’ble forum and the complaint has been filed dishonestly with a view to put pressure upon the 2^nd opposite party to succumb to illegal, unlawful and dishonest demands of the complainant, and is liable to be dismissed.  The answering opposite parties submitted that even if impurity was found in any bottle, ideally the shopkeeper could have replaced the alleged bottle for another bottle, instead of handing over the bottle for the purpose of litigation which clearly brings out the malafide intention of harassing the answering opposite parties by pressurizing the answering opposite party. Further submitted that it is very easy for anyone to mix spurious bottles of soft drink with genuine bottles and then to claim the spurious bottles to have been manufactured or sold by the original manufacturer purchased under bill for valid consideration. Further submitted that the contents of para no.4 are denied being wrong and false.  It is denied that complainant had purchased two Nimbooz bottles of 200ml each as can be from the averments that the amount for which the same was purchased has not been mentioned in the complaint and therefore the complainant is put to strict proof thereof.  It is submitted that a perusal of the bill produced by the complainant has various contradictions and the complainant is to prove the same and further it has not been proved on record that the alleged bottle was manufactured by the answering opposite party. It is denied that the complainant has found dust in the bottle and other unclean and dirty elements. Further submitted that the complainant has miserably failed to make out any case against the answering opposite parties and has not been able to justify the huge claim of Rs.950000/-towards mental agony pain, suffered by the complainant at the instance of the answering opposite parties.

3. POINTS FOR CONSIDERATION:

1. Whether the there is any unfair trade practice and deficiency in service on the part of opposite parties?
2. Whether the complainant is entitled to the reliefs prayed?  To what extent?

The complainant have filed proof affidavit as their evidence and documents Ex.A1 to Ex.A6 are marked on their side.The opposite parties 1 and 2 has filed proof affidavit and no document is marked on his side.Ex.C1 was marked as court document.

4.POINT NO :1

                The complainant alleged that on 24.02.2010 he visited the 3^rd opposite party restaurant along with his friend S.Balasubramanian and M.Sugumar to have lunch and ordered along with lunch two bottles of 200 ml Nimbooz cool drinks which is product of 1^st and 2^nd opposite party and he opened one bottle and had drunk some sips in one bottle and other remained unopened and he has paid cash for cool drinks and at that point he found that the cool drink was mixed with dust and found in contaminated manner and when the complainant checked the unopened bottle it was also in a contaminated state and thereafter when he questioned to the 3^rd opposite party who is proprietor he replied that the cooldrinks were distributed by 1^st and 2^nd opposite party in a sealed pack and he is not responsible for adulteration if any. It is alleged by the complainant he and his friend Balasubramanian had stomach ache and vomiting and immediately rushed to the hospital and to avoid further complication they were admitted as outpatient in GH saidapet on the next date and undergone treatment of four days,  therefore the complainant has claimed for mental agony and deficiency in service Rs.9,50,000/- as compensation and other reliefs.

                  5. The 3^rd opposite party remained Ex-parte. It was mainly contended by the 1^st and 2^nd opposite party that it is for the complainant prove that the alleged Nimbooz cool drink was manufactured by 1^st and 2^nd opposite parties and further contended that there is no material to show that the complainant purchased any good for consideration from the 1^st and 2^nd opposite parties and unless the complainant prove that the impunched bottled was manufactured by 1^st and 2^nd opposite parties no liability can fixed on them.  It was further contended that the manufacturing process involves quality check at various stages and the raw materials used and the water used for manufacturing is filtered sterilized and absolutely clean and bottles were washed and undergo cleaning process and there is no scope for contamination and further alleged that the complainant wants to make illegal gain by filing this complaint.

             6. It is found from Ex.A1 cash bill it is simply mentioned as cooldrinks of two in numbers purchased each for 11 rupees.  There is no name of the complainant or the name of cooldrink purchased by the complainant in Ex.A1. The word Nimbooz is not found in Ex.A1, further Ex.A1 does not contain the batch number and manufacturer name.  In the photo filed as Ex.A4 also the manufacturers name, date of manufacture, Expiry date and batch number were not found.  Ex.A2  does not state the cause for the illness.  Though it is alleged in the complaint that the complainant and his friend Balasubramanian has taken treatment for four days as outpatient in GH saidapet no documents were filed to prove the same.  Even the affidavit of said Balasubramanian was also not filed by the complainant to prove that he was also affected by drinking the alleged Nimbooz cooldrinks.  It is found from Ex.C1 which is analysis report by the Food Analysis Laboratory, Guindy that the sample sent for the test found to contain black color foreign particles which is unfit for human consumption and adulterated even in this report the name of manufactures and the batch number of the bottle along with date of manufacture and expiry was not mentioned. Hence Ex.C1 cannot be relied upon to fasten liability upon opposite parties 1 and 2.  It is for the complainant to prove that the alleged material or sample which was sent for analysis was manufactured by opposite parties 1 and 2.  But the complainant failed to prove the same.  No liability can be fastened upon 3^rd opposite party also since Ex.A1 does not contain the name Nimbooz or batch number and the name of the purchaser.  Further even as per the version of the complainant the cooldrinks were supplied to the 3^rd opposite party in sealed packs and on that ground also the 3^rd opposite party cannot be held liable for the alleged adulteration.  The counsel for the opposite party also relied upon a decision reported in FA.No.487/2007 of TNSCDRC Pepsico India Holdings Pvt. Ltd  vs.  R.Praksh dated 22.02.2011 and also a decision of TNSCDRC dated 18.01.2010 Karthik E.Hariharan  Vs Pepsico India Holdings Pvt. Ltd  in FA.No.377/2005 and the facts of the both the above said case are similar to the present case even in that case also the sample was sent for analysis a report was received as adulterated but the State Commission held that without furnishing the batch number and date of manufacturing no bottle is produced which serves for purpose of tracking the bottle and therefore there is possibility of somebody filling up the said bottle having no batch number and hence liability cannot be fasten based on the analytical report.  The complainant failed to prove that the alleged Nimbooz cooldrinks was manufactured by the opposite party 1 and 2 and further the complainant failed to prove that he and his friend balasubramanian become ill due to the drinking of adulterated cooldrinks manufactured by the 1^st and 2^nd opposite parties and the complainant failed to prove the alleged unfair trade practice and deficiency in service on the part of the opposite parties 1 to 3. Point No.1 is answered accordingly.

7. Point No.2

            Based on findings given to the Point.No.1  there is no deficiency in service and unfair trade practice on the part of  Opposite parties 1 to 3 as alleged in the complaint.  Hence the complainant is not entitled to any of the reliefs claimed in the complaint. Point No.2 answered accordingly.

          In the result, the complaint is dismissed.  No costs.    

Dictated  by the President to the Steno-Typist taken down, transcribed and computerized by him, corrected by the President and pronounced by us in the open Commission on this the 26^th day of August 2022.

 

MEMBER – I                   MEMBER II                      PRESIDENT

LIST OF DOCUMENTS MARKED ON THE SIDE OF THE COMPLAINANT:

Ex.A1	24.02.2010	Cash bill from 3rd opposite party.
Ex.A2	24.02.2010	Doctor prescription.
Ex.A3	25.02.2010	General Hospital OP Chit.
Ex.A4		Photo of cool drink bottle
Ex.A5	27.02.2010	Legal Notice.
Ex.A6		Acknowledgement cards

LIST OF DOCUMENTS MARKED ON THE SIDE OF THE  OPPOSITEPARTIES 1 & 2:

                                      -NIL-

 

LIST OF DOCUMENTS MARKED ON THE COURT SIDE:-

Ex.C1

10.01.2011

Certificate of Analysis.

 

 

MEMBER – I                       MEMBER II                                  PRESIDENT