| Final Order / Judgement | DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION PATIALA. Consumer Complaint No. 470 of 20.12.2017 Decided on: 6.8.2021 Satpal Garg son of Kasturi Lal, r/o 131, Lower Mall , Narula Colony, Patiala. …………...Complainant Versus - T.K.General Store, through its Prop. Opposite Buda Dal Public School, Patiala.
- Varun Beverages Ltd.JL 47, Barhans Fartabad, Charaktala 24, Parganas (S) Kolkata, 700084 West Bengal, CDV 5255, Lic No.10012031000047.
- Varun Beverages Ltd.A2 UPSIDC Industrial Area, Jaipur-209311,Kanpur Dehat Utar Pradesh, CDV-5160Lic No.10015051001311.
- Varun Beverages Ltd.village Ali Asarpur, P.O.Ganjbar GT Road, Panipat, Haryana-132103,CDV 953 Lic. No.10015064000529.
- Pepsi Co Consumer Service Manager at P.O. Box 27, DLF Qutab Enclave,1 Gurgon 122002,Haryana.
…………Opposite Parties Complaint under the Consumer Protection Act QUORUM Sh. Jasjit Singh Bhinder, President Sh.Vinod Kumar Gulati, Member ARGUED BY Sh.Gaurav Bansal, counsel for complainant. Opposite party No.1 ex-parte. Smt.Nisha Rishi, counsel for OPs No.2to4. None for OP No.5 ORDER JASJIT SINGH BHINDER,PRESIDENT - This is the complaint filed by Satpal Garg (hereinafter referred to as the complainant) against T.K.General Store and others (hereinafter referred to as the OP/s).
- The brief facts of the case are that on 30.10.2017, the complainant purchased some items i.e. lays blue 2 packets, taka tak masala 3 packets, mad angle achri 2 packets, good day cashew (Britannia) 2 packets, cake veg.(Britannia) 2 packets, Tropicana slice 1 ½ (1.2 L) liter Mango 2 bottles, Miranda 1 bottle (2 liter) and Nutri choice oats orange 2 packets Britannia from OP No.1 and paid Rs.410/- in cash.
- It is further averred after coming at home the complainant noticed that in the bottle of slice there was a fly bee/black insect inside the bottle and he could not serve the bottle before his guests. It is further averred that the bottle was manufactured vide M BN, 953 B17E17 dated 17.5.2017 00:02 MRP 60/- but expiry date is not mentioned on the bottle although it is mentioned that the best before six months from manufacturing. The complainant visited OP No.1 and shown the bottle but no satisfactory reply was given by him and asked the complainant to complaint the company in this regard. Thereafter the complainant tried to contact customer care number of OP No.5 but of no avail. It is averred that OPs No.2to5 have violated the standard norms and limits as mentioned in Food Safety and Standard authority of India. It is further averred that till date nothing has been done by the OPs despite he sent legal notice to the OPs. It is averred that the OP Varun Beverages has totally denied the facts mentioned in the legal notice vide its reply dated 8.11.2017.There is thus deficiency in service and unfair trade practice on the part of the OPs which caused mental agony and harassment to the complainant. Hence this complaint with the prayer for giving direction to the OPs to check their product before supplying the same to general public in market as per the rules and norms of FSSAI in near future; to pay Rs.1,50,000/- including litigation expenses of Rs.7500/-to the complainant .
- Notice of the complaint was issued to the OPs who appeared and filed the written reply. After filing reply by OP No.1 none appeared on its behalf and OP No.1 was accordingly proceeded against exparte vide order dated 14.5.2018. Initially Smt.Nisha Rishi, Adv. appeared on behalf of OPs No.2to5 but on 24.5.2018 she has made a separate statement that she has to appear only on behalf of OPs No.2to4 and has inadvertently filed the vakalatnama on behalf of OPs No.2to5, accordingly fresh notice to OP No.5 was issued who appeared through counsel and contested the complaint by filing written reply.
- In the written reply filed by OP No.1 preliminary objections have been raised to the extent that the present complaint is not maintainable against OP No.1 and that the complainant has not approached the Hon’ble Forum with clean hands.
- On merits, it is admitted that the complainant purchased the items in question, as per record. After denying all other averments , the OP No.1 prayed for the dismissal of the complaint.
- In the reply filed by OPs No.2to4 , in the preliminary submissions, it is submitted that the company has been manufacturing Pepsi Branded products, one of the most reputed brand names in the competitive market and it has achieved brand recognition, goodwill in many countries. It has strictly taken all due care towards its products to make the product best by using modern sophisticated automatic machine at its various plants located in several states of the country and also involves strict quality check at various stages of manufacturing. It has no manual intervention in filling operation. It is further averred that all the plants of the OPs No.2and 3 are ISO 22000 certified facilities. This certificate is provided on the basis of FSSC 22000 certification scheme, which consists of an annual or semi annual audit of the food safety management system and an annual or semiannual verification of the Pre Requisite Program elements.
- Further the OPs raised preliminary objections to the extent that the present complaint is wholly misconceived, groundless and unsustainable in the eyes of law; that the present complaint is baseless and a flagrant abuse of process of law; that the complainant has concealed the material facts from this Hon’ble Forum; that the present complaint is false, frivolous, baseless, concocted, malafide, sheer misuse of the process of law.
- On merits it is submitted that the alleged bottle is purchased by the complainant from OP No.1.Therefore, there is direct relationship between OP No.1 as retailer and the complainant as purchaser. It is further submitted that the retailer must ensure the goods before supply them to its customers, in respect of their quality, expiry date etc.It is further submitted that the responsibility of compensation, if any, solely rests upon OP No.1 for supplying alleged defective goods. It is further submitted that in the absence of chain of invoices, it is not proved that the impugned bottle is manufactured and sold by OPs to OP No.1 who is not the authorized distributor of OPs. It is further submitted that the alleged bottle should have been referred to the specialized laboratory during its shelf life in order to ascertain the correct facts and findings, in the absence of which no inference can be drawn that the contents of alleged bottle was not fit for consumption. Further the OPs reiterated the facts as raised in the preliminary objections which are not repeated for the sake of brevity. It is further submitted that the raw materials used are of the highest grade and quality and the water used in the manufacturing process is filtered, sterilized and is absolutely clean. The whole process of manufacturing, filling and packing is free from human intervention and is done through machines right from blowing of Pet bottles from performs, filling of liquid in the Pet Bottle, sealing, labeling .The whole process is done in highly hygienic and clean environment. There is thus no deficiency in service of mal practice on the part of the OPs. After denying all other averments, the OPs prayed for the dismissal of the complaint.
- In the written reply filed by OP No.5 it also raised preliminary objections to the extent that complaint is wholly false, frivolous and vexatious as the OP does not manufacture soft drinks in the Northern Region of the country; that this Hon’ble Forum does not have the jurisdiction to try and entertain the present complaint and that the complainant is not a consumer.
- On merits, it is submitted that the complainant has concocted a false story and has leveled false and baseless allegations against the OP. It is further submitted that the complainant has never approached for any of his grievance to the OP. It is further submitted that the present complaint has been filed after the expiry of statutory period of limitation and the complainant has failed to prove that any loss or injury has been suffered to him. There is no deficiency in service of mal practice on the part of the OP. After denying all other averments, the OP no.5 also prayed for the dismissal of the complaint.
- In support of the complaint, the ld. counsel for the complainant has tendered in evidence Ex.CA affidavit of the complainant alongwith documents Exs.C1 to C13 and closed the evidence.
- On the other hand, the ld. counsel for OPs No.2to4 has tendered in evidence Ex.OPA affidavit of Pardeep Kumar, Deputy Manager alongwith documents Exs.OP1 to OP7 and closed the evidence.
- The ld. counsel for OP No.5 has tendered in evidence Ex.OPB affidavit of Shrinkhla Shekhar, authorized signatory of OP No.5 alongwith documents ExOP8 and closed the evidence.
- We have heard the ld. counsel for the parties and have also gone through the record of the case, carefully.
- The ld. counsel for the complainant has argued that the complainant purchased 8 articles on 30.10.2017 from OP No.1 vide bill Ex.C1 placed on the file. The ld. counsel further argued that he also purchased one bottle of slice and he found that there were insects in the bottle. The ld. counsel further argued that he purchased the said bottle for Rs.60/-.The ld. counsel further argued that the complainant tried to contact the OP No.5 but of no vain. So the complaint be allowed.
- The Ld. counsel for OPs No.2to4 argued that there is no document on the file, which can show that alleged bottle of Slice was purchased by the complainant from the authorized agent of OPs and there is no evidence on the file in the shape of expert report that Slice bottle was adulterated. The ld. counsel further argued that in fact from the bill which has been attached by the complainant it is not proved as the name of the complainant is not mentioned on the bill. The ld. counsel further argued that so it is not proved that alleged articles were purchased by the complainant. So the complaint be dismissed. Written arguments have also been filed by OPs No.2to4. The ld. counsel has also relied upon the citations Pepsi Cola India Marketing Company Vs. Ashok Kumar Gupta 2001(1)UC43, Marinda Varun Beverages Limited Vs. Arun Kumar Bhaduria and Ors. First Appeal No.203 of 2006 decided on 15.9.2008 by the Hon’ble Uttarakhand State Commission, Dehradun, Pepsico India Holdings Pvt. Ltd. Vs. Hotel Partap and Ors. RP No.56 of 2010 decided on 14.1.2015 by the Hon’ble National Commission, New Delhi.
- Same arguments have been addressed by OP No.5.
- To prove his case, Sh.Satpal Garg has tendered his affidavit, Ex.CA and he has deposed as per his complaint,Ex.C1 is aadhar card,Ex.C2 is invoice of T.K.General Store vide which the complainant purchased 8 articles but it is not proved that in fact the complainant purchased these items from T.K.General Store as the name of the complainant is not mentioned. Moreover T.K.General Store never appeared and he proceeded against exparte. The complainant could have summoned some witness of OP No.1 to prove that in fact he had purchased these articles from OP No.1,Exs.C3 to C5 are the photographs,Ex.C6 is the legal notice, Exs.C7 to C11 are the postal receipts, Ex.C12 is the reply to legal notice of OPs No.2to4.
- On behalf of OPs No.2 to 4 Sh.Pradeep Kumar has tendered his affidavit, Ex.OPA and he has deposed as per the written statement, Sh.Shrinkhla Shekhar has tendered his affidavit Ex.OPB and has deposed as per the written statement,Ex.OP1 is the letter of authority of Varun Beverages Limited, Ex.OP2 is details of FIRs lodged by OPs No.2to 4 against various persons,Ex.OP3 and Ex.OP4 news paper cuttings, Ex.OP5 is the judgment passed by the Hon’ble State Commission, Haryana, Panchkula,Ex.OP8 is the judgment passed by the Hon’ble H.P.State Consumer Disputes Redressal Commission Shimla.
- As already stated above, the case of the complainant is that he had purchased various articles from OP No.1 on 30.10.2017 and one bottle of Slice was found adulterated with insect. As already stated above, bill, Ex.C1 is on the file but from this bill it is not proved that these articles were purchased by the complainant as the name of the complainant is not mentioned on the file. Even otherwise if it is considered that these articles have been purchased by the complainant then also there is no evidence in the shape of laboratory report on the file which can show that it was adulterated one. There is no evidence on the file which can show that OP No.1 has purchased these articles from the authorized agent of OPs No.2to5 and it is not proved whether Slice bottle has been got manufactured by the OPs. So the complainant was duty bound to prove that the bottle which he had purchased was purchased by OP No.1 from the authorized agent of OPs No.2to5 and it was also the duty of the complainant to prove that the bottle in question was manufactured by OPs No.2to5.
- So due to our above discussion, it is not proved that the complainant has purchased these articles from OP No.1, it is also not proved that bottle in question was manufactured by OPs No.2to5 and it is also not proved that OP No.1 has purchased the bottle from the authorized agent of OPs No.2to5.So the complaint is dismissed. Parties are left to bear their own costs.
ANNOUNCED DATED:6.8.2021 Vinod Kumar Gulati Jasjit Singh Bhinder Member President | |
