BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, PONDICHERRY

C.C.No.84/2014

Dated this the 10^th day of October 2017

(Date of Institution: 04.12.2014)

N. Sugunaraj, son of Natesan                    

No.5, II Cross, Sathya Sai Nagar          

Reddiarpalayam, Puducherry – 10.

….     Complainant

Vs

1. M/s M.S. Wines rep. by its Proprietor       

    Koodapakkam Main Road,                   

    Koodapakkam,                               

    Puducherry – 605 110.            

2. Sica Breweries Limited              

    Unit of SAB Miller India Limited               

    Vazhudavoor Road, Iyyankuttipalayam,

    Puducherry rep. by its Authorised Signatory.

                                       ….     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:  Thiru S. Muralidharan, Advocate       

FOR THE OPPOSITE PARTIES:  OP1 – Ex Parte                       

                                                          OP2 – Thiru L. Sathish, Advocate   

O R  D  E  R

(by Tmt. D. Kavitha, Member)

              This is a complaint filed by the complainant u/s 12 of Consumer Protection Act for directing the Opposite Parties either jointly or severally, to pay the complainant a sum of Rs.1000/- towards monetary loss for supplying the defective product;  to pay a sum of Rs.25,000/- for the physical hardship, mental agony caused to him  and Unfair Trade Practice and to pay a sum of Rs.3000/- towards cost of this complaint.    

2.  The case of the complainant is as follows:

          The Complainant purchased one bottle of Haywards 5000 Super Strong Beer and 180 ml bottle of Rum for personal consumption from the first Opposite Party on payment of total sum of Rs.160/- vide bill No. 10221 dated 03.08.2014 and the said product is manufactured by second opposite party.  On consumption of one bottle Rum, the complainant found that the Haywards 5000 Super Strong Beer 650 ml. bearing batch No. 55073 401 0 manufactured on 21.06.2014 contained some unknown foreign particles inside the product like algae and dust, visible to naked eye.  Immediately, the complainant showed the same to the OP1, but the OP1 did not offer to replace the defective product.  The complainant stated that due to selling of such adulterated and spurious product to him not only caused monetary loss, but also its purpose got 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 and also injuries to public in general.  Thus, 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 product amount to unfair trade practice.  1^st opposite party as the vendor / dealer / distributor and the second opposite party being the manufacturer are jointly and severally responsible for selling a defective product to the complaint amounting to unfair trade practice.  Hence, this complaint. 

          3. The first opposite party remained absent and set ex parte.

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

          The complaint is not maintainable either in law or on facts.  The complaint is based on false, frivolous and baseless grounds and is devoid of merits.    All the products manufactured by the company are made with latest technology and in most hygienic conditions and undergoes stringent quality control check.  Unless each product meets the prescribed quality standard the product is not cleared for sale by the quality control systems.  A detailed analysis needs to be carried out as per Section 13 (1) [c] of the Consumer Protection Act, 1986 by an "Appropriate Laboratory".  The complainant did not consume the contents of the impugned bottle of beer and therefore, there is no question of any loss, damage or harassment being suffered by the complainant.  The complaint is filed with ulterior motives to cause unlawful gains to the complainant.  The bill does not mention that the alleged purchase of Haywards 5000 was manufactured by this opposite party.  There are large number of unscrupulous brewers in the market who copying the numeral 5000 which is associated with the answered opposite party's premium branch Haywards 5000 and hence, this clearly casts a shadow of doubt as to whether the complainant has even purchased a genuine beer or the same is a spurious one.  This opposite party further stated that a thorough internal quality control check was conducted wherein, it was found that there was no defect in the batch number 5507340101.  This opposite party adopts the best manufacturing practices and it has manual as well as electronic sighters to detect any foreign object in the beer bottle and the bottle undergoes through several stages of processing, where even a micro thickness is easily detected by the quality control department, hence, the presence of foreign particles like algae and dust is completely out of question.  Further, this opposite party has a customer care toll free number and e-mail id through which any issues pertaining to the alleged product can be raised and effectively resolved.  The allegation of selling a defective product amounting to unfair trade practice is totally unfounded and imaginary.  The complaint has been filed as an afterthought since the complainant has himself admitted to have purchased the impugned beer bottle on 03.08.2014 whereas the complaint has been filed after more than a month after the purchase and hence, the chances of tampering cannot be ruled out.  Further the complainant has not produced any document to substantiate the loss allegedly suffered by the complainant.  Hence, prayed for dismissal of the complaint. 

          5. There is no oral and documentary evidence adduced by both the parties.  One Dr. G.L. Upadhyaya, Senior Public Analyst and Chemical Examiner was examined as RW1 / Court witness and Ex.X1 alone marked. 

          6.       Points for determination are :

1. Whether the complainant is a Consumer?
2. Whether the opposite parties have committed Unfair trade practice by selling a defective product to the complainant?
3. To what relief the complainant is entitled for?

7   Point No.1:

          The complainant purchased one bottle of Haywards 5000 Super Strong Beer and 180 ML Rum from OP1 shop on 03.08.2014 which was manufactured by OP2.  To prove the same, the complainant has produced bill dated 03.08.2014 vide bill No. 10221.  Hence, it is proved that the complainant is consumer for the opposite parties.

          8.       Point No.2:

          This Forum has perused the complaint, reply version and expert report filed by the complainant, the OPs and the Expert.  There is no oral evidence on the side of complainant and OP2.  OP1 was set ex parte on 10.02.2015.  Senior Public Analyst Dr. G.L. Upathyaya examined as Court Witness (RW1) and Ex.X1 was marked. 

          9. The complainant submitted that he has purchased one bottle of Haywards 5000 Super Strong Beer and 180 bottle Rum for personal consumption from OP1 shop on 03.08.2014 for a sum of Rs.180/- which was manufactured by OP2.  The complainant after consumption of one bottle of whisky 180 ML, complainant has found some foreign particle like algae and dust inside the another one bottle of Haywards 5000 Super Strong Beer bottle 60 ml bearing batch No. 5507340101 manufactured on 21.06.2014 which is visible to naked eye.  Immediately, the complainant showed the same to OP1 and complained about the foreign particle, but OP1 was careless and did not come forward to replace the defective bottle, therefore, the complainant approached this Forum, to redress his grievance as against OPs who have committed the Unfair trade Practice by selling the defective product.  To prove the same, the complainant recommended the impugned product to appropriate laboratory along with a direction that such laboratory make such as analysis or test with a view to find out if such foreign particles are free from any defect and report its finding. 

          10. OP2 alleged that it is a unit of Multinational Company and second largest brewer in the world having state of art plants situated at various places in India.  All the products are made with latest technology, most hygienic and best quality of raw materials through fully automatic machines.  Moreover, each and every product undergoes Quality Control Department.  The OP2 is very much diligent and careful about the quality of product manufactured by them.  The OP2 stated that the complainant did not consume the contents of the impugned bottle of beer and therefore, there is no question of any loss, damage or harassment being suffered by the complainant and also the complainant has approached only OP1 for replacement of the impugned bottle and it was not done by OP1.  If the complainant approached OP2, the complainant's redress would have been resolved.  Instead of that, the complainant has filed this complaint with malafide intention.  Therefore, prayed for dismissal of this complaint. 

          11.     We have carefully perused and considered the pleadings, reply version, arguments and the evidence adduced by the Expert.  On perusal of document No.1 filed by the complainant clearly shows that the complainant has purchased MO1 from OP1 shop dated 03.08.2014 vide cash bill No. 10221 and its batch number 5507340101 manufactured on 21.06.2014.  The OP2 in their reply version stated that even the bill annexed by the complainant does not mention the purchase of the brand Haywards 5000 which is manufactured by OP2.  Subsequent to this complaint, OP2 has been conducted internal quality control  check wherein, it was found that there was no defect in the said batch of beer.  Hence, OP2 is admitting the batch number mentioned beer manufactured by them. 

          12. The other allegation raised by OP2 that the complainant was already in an inebriated state by consuming one bottle of whisky hence, the statement given by the complainant that the complainant have noticed foreign particle in MO1 is in question.  Therefore, this Forum considered to send the MO1 for analysis by an appropriate laboratory.  As such, the report was received on 31.10.2014 vide Ex.X1.  Senior Public Analyst Dr. G.L. Upathyaya mentioned in his report that "Blackish visible particles present.  Hence, the same is unfit for analysis".  Hence, it is proved by the Expert that the presence of foreign particle is inside the MO1.  The Court witness / Expert also clearly stated in his cross examination by OP2 that "I have not done he analysis only blackish visible particle is present, hence, the same was not analysed".    Once the particles are present, the quantitative analysis is not having any meaning.  Further he stated that "As per Sec. 48 of Food Safety Act 2006 (1) A person may render any article of food injurious to health by means of one or more of the following operation, namely:-

1. Adding any article or substance to the food;

"Even though I have not stated in my report that it is unfit for analysis, it is deemed that if foreign particles are present, it is unfit for consumption of MO1.  I have done only visual analysis, not scientific analysis since MO1 does not need scientific analysis".

          13. From the above statement of Expert / Court witness, this Forum considered that the allegation raised by OP2 for scientific analysis is need not to be done. 

          14. To refute the contention of the complaint, the OP2 has relied upon a judgment report in CDJ 2007 (Cons.) Case NO.185 [Amit Swami versus Coca Cola India Ltd., and others] wherein, the Hon'ble National Commission observed that:

          "….coming to the aforesaid relief A, it is admitted by the complainant that the contents of bottle allegedly containing fungus was not consumed either by him or any of his family members.  Claim of Rs.2 crores for alleged mental agony etc. allegedly suffered by the complainant is obviously wholly imaginary".

          15. Further relied upon the judgment reported in M/s Pepsico India Holdings Pvt Ltd., vs. Hotel Pratap & Anr. Reported in CDJ 2015 Cons. Case No. 143 wherein, the Hon'ble National Commissioner, held that

"No report from the laboratory was filed.  In absence of the expert report, the value of the case further evinces.  There is no sold proof that the bottle in question belongs to the petitioner / Pepsico India Holdings Pvt Ltd.  They have denied that the bottle in question belongs to them.  Consequently, the bottle should have been sent to the laboratory by the District Forum under Section 13 (3) of Consumer Protection Act, 1986 for getting tested to show that the same does not belongs to the OPs."

The judgments relied upon by the learned Counsel for the OP2 is not applicable to the present case since the MO was not sent for laboratory analysis,  as well as the compensation claimed by the complainant is not huge as OP2 referred in the above judgment. 

          16. This Forum observed that it is quite natural that the MO sold by the OPs should not suffer from any kind of fault or imperfection or short coming in the quality, quantity, potency and standard which is required to be maintained.  But, in this case, the foreign particle is apparently visible to the naked eye in the MO1.  Hence, as per Sec. 2 (1) (f) of Consumer Protection Act, the MO1 is a defective one.  Expert Report also reflects the same.  Further, OP2 has stated that the complainant has not consumed the MO and the correlation to the relief is exorbitant and clearly brings to light greed and malafide intention of the complainant to make unlawful gain.  It is not the question of consumption of beer, in case, the complainant would have consumed the product, then there should be a chance for injury or loss.  Even though MO1 was not consumed by the complainant, it will not discharge the OPs from their liability.  The presence of the substance by itself is a defect in the goods in question.  Hence, the complainant established that the OPs have committed Unfair Trade Practice by selling defective products.  Hence, the OPs are liable and the complainant is entitled for the relief.

          17.     Point No.3:

          In view of the merits of the complaint and decision taken in point No.2, this complaint is hereby allowed with the following directions. 

1. The OP1 is directed to return the sum of Rs.70/- being the cost of beer (MO1) to the complainant;
2. The OPs 1 and 2 are jointly and severally directed to pay a sum of Rs.10,000/- as compensation to the complainant.

3. Pay a sum of Rs. 5,000/- as cost of the proceedings.

The MO1 is ordered to be destroyed after appeal time.

Dated this the 10^th day of October  2017.

1. ASOKAN)

PRESIDENT

(V.V. STEEPHEN)

   MEMBER

(D. KAVITHA)

   MEMBER

COMPLAINANTS' WITNESS:   NIL

OPPOSITE PARTIES WITNESS:  NIL

COURT WITNESS:

RW1           20.10.2016           Dr. G. L. Upadhyaya, Sr. Public Analyst and

Chemical Examiner.

COMPLAINANTS' EXHIBITS:  NIL

OPPOSITE PARTY'S EXHIBITS:   NIL

LIST OF EXHIBIT MARKED THROUGH COURT WITNESS / RW1

Ex. X1 series                 31.10.2014           Report of Expert  with photographs.

LIST OF MATERIAL OBJECTS: 

MO1           One bottle of Haywards 5000 beer

1. ASOKAN)

PRESIDENT

(V.V. STEEPHEN)

   MEMBER

(D. KAVITHA)

   MEMBER