BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

VAZHUTHACAUD, THIRUVANANTHAPURAM.

PRESENT

SRI. P. SUDHIR                                       : PRESIDENT

SMT. PREETHA G. NAIR                        : MEMBER

C.C. No. 326/2010 Filed on 14.10.2010

ORDER DATED: 29.07.2019

Complainant:

S. Kolappa Pillai (S.K. Pillai) Boxing Coach, Sports Authority of India, L.B. Stadium Quilen residing at Sree Krishna Vilas, T.C 26/1642, Pulimoodu Junction, Thiruvananthapuram.

(By Adv. C.S. Rajmohan)

Opposite parties:

1. The General Manager, Southern Railway, Divisional Office, Thycaud, Thiruvananthapuram.

(By Adv. S. Renganathan)

2. The Manager, Five Star Food and Beverages Containers (BIBO), Packaged Drinking Water, Kolemcherry, Ernakulam- 682 311.

(By Adv. Narayan. R)

This case having been heard on 20.06.2019, the Forum on 29.07.2019 delivered the following:

ORDER

SMT. PREETHA G. NAIR : MEMBER

Complainant is a Boxing Coach of Sports Authority of India, now working as Coach in Sports Training Centre, Kollam.  Complainant along with his friend one Udayakumar in order to submit a petition to the Kollam East Circle Inspector of Police reached Kollam on 22.08.2010.  After submission of petition to the police he returned to Thiruvananthapuram in K.K. Express from Kollam.  Inside the train the complainant purchased a bottle drinking water which was packed by the 2^nd opposite party.  The label of the said packed drinking water is ‘BIBO’.  When the complainant was about to open the said packaged drinking water, a child nearby told the complainant that there is something inside the bottle.  Complainant checked the bottle and found that there is a dead spider inside the bottle.  Complainant immediately informed the supplier of the catering units of the K.K. Express.  But they turned deaf to the grievance made by the complainant.  When the train reached Thiruvananthapuram, it was duly informed to the railway authorities but no steps were taken from their part to redress the grievance of the complainant.  The BIBO packaged drinking water is available inside the pantry car of the train and authorization was given by the 1^st opposite party to allow the 2^nd opposite party to sell the packaged drinking water in railway station and train.  It is the duty of the railway authorities to provide good and hygienic food and water to the customers of Indian Railway.  Here 1^st opposite party allowed unhygienic and unhealthy food and water to the customers causing health hazards to society at large.  2^nd opposite party packed contaminated water.  The careless and negligent attitude of the opposite parties amounts to unfair trade practice and deficiency in service.  Hence the complaint.

On receiving notice opposite parties entered appearance and filed version. 

1^st opposite party filed version contending as follows:  The alleged packaged water which contained a dead spider was not supplied or sold by agency or any employee of the 1^st opposite party.  The catering unit in Kerala Express is managed by the Pantry car manager/contractor who works under the contractual obligation with Group General Manager, Licensee Catering Services, Indian Railway Catering and Tourism Corporation, New Delhi.   Complaints regarding the services of Indian Railway Catering and Tourism Corporation are dealt by the Regional Director, Indian Railway Catering and Tourism Corporation, Ernakulam or by the Area Manager, Area Office, Indian Railway Catering and Tourism Corporation, Trivandrum.  1^st opposite party has no administrative control over the working or management of affairs with the procurement, storing or sale of the alleged defective packaged drinking water in Kerala Express.  So the 1^st opposite party is an unnecessary party to this case.  Hence 1^st opposite party may be exonerated from the list of opposite parties. 

2^nd opposite party filed version contending as follows:  The complaint is not maintainable either in law or on facts and is liable to be dismissed.  The subject matter of the complaint pertains to a matter which falls outside the jurisdiction of the Consumer Protection Act.  The complainant has not availed any goods or services for consideration to attract the provisions of the Act.  The complainant may be put to strict proof regarding the date, place and time of purchase of the impugned bottle in question and consideration paid for the same.  Further there is no document to show that the complainant was a passenger in the impugned train or that he travelled from Kollam to Trivandrum on 22.08.2010.  The train tickets do not show any details regarding the name of the passengers.  The 2^nd opposite party has been doing the business of supply of packaged drinking water by name BIBO for the past few years and is the sole approved supplier of IRCTC in Kerala region.  Because of its high patronage the 2^nd opposite party has earned the wrath of other packaged drinking water manufacturers and has been threatened with dire consequences.  There was also immense pressure upon 2^nd opposite party to withdraw from the tender floated by IRCTC.  The bottle presented before this Forum is a partially opened one and the seal is partially detached.  A trickster can easily break open the cap of the bottle put/place anything inside the bottle and then create a ruckus.  No complaint has been received from the IRCTC regarding the alleged incident.  The bottle is not among the batch supplied to IRCTC.  The bottle has been deliberately tampered with for undue gain.  There is no question of negligence, unfair trade practice or deficiency of service on the part of 2^nd opposite party.  Hence there is no question for claim of compensation.  There is no chance of having any insect in the bottle packaged and sealed by this opposite party.  Hence prayed that the complaint be deemed false, frivolous and vexatious and the complaint be dismissed.  

Evidence in this case consists of deposition of complainant as PW1 and four documents which were marked as Exts. P1 to P4.  The partially opened bottle of BIBO is marked as MO1.  The report from the Laboratory has been marked as Ext. C1.  The 2^nd opposite party was examined as DW1.  No oral or documentary evidence from the side of 1^st opposite party.      

Issues:

 (i) Whether the complaint is maintainable before the Forum?

(ii) Whether there is any deficiency in service or unfair trade practice on the part of opposite parties?

(ii) Whether the complainant is entitled to compensation and cost?    

Issue (i):- Complainant purchased a bottle of packaged drinking water of 2^nd opposite party while he was travelling in train from Kollam to Trivandrum.  2^nd opposite party admitted that they had been doing the business of the supply of packaged drinking water by name Bibo for the past few years and is the sole approved supplier of IRCTC in Kerala region.  The complainant filed the complaint for directing the opposite parties to pay compensation for the mental agony and sufferings.  Nowhere in the complaint stated the matter of food adulteration.  Moreover 2^nd opposite party has no evidence to prove that normally they had given bill for sale of bottled drinking water.  Ext. P1 is the train ticket dated 22.08.2010 showing the train journey.  1^st opposite party has no evidence to prove that the name of the passenger was mentioned in the train tickets.  Hence the complainant is a consumer under Sec. 2(d)(i) of the Consumer Protection Act.  So the complaint is maintainable.

Issues (ii) & (iii):- The 1^st opposite party stated that all the pantry car and distribution of food inside the train is managed and operated by the IRCTC and they have no role in the distribution of water and other food items inside the train.  But the complainant has not impleaded IRCTC as a party.  1^st opposite party has no oral or documentary evidence.  According to 2^nd opposite party they had been doing the business of supply of packaged drinking water by name Bibo for the past few years and are the approved supplier of IRCTC.  2^nd opposite party has no case that the impugned partially opened bottle of Bibo marked as MO1 is not given to the complainant.  The only contention raised by 2^nd opposite party is that the bottle presented before the Forum is a partially opened and its seal is partially detached.  As per Ext. C1 report, the commissioner clearly stated that the water sample contains dead insect and contains nitrite in excess amount, hence it is not recommended for drinking purpose.  The commissioner further stated that the sample consists of clear colourless liquid with insect like spider.  In short the cap of the bottle was partially detached from the sealing ring and the sample consists of clear colourless liquid with insect like spider.  2^nd opposite party has not produced any evidence to prove that the insect was already present in the bottle or was its presence indeed into the bottle after the bottle was opened by the complainant.  There is deficiency in service on the part of 2^nd opposite party.  The complainant has not produced any documents to prove that 1^st opposite party did not provide good and hygienic food and water to the customers.  Hence the 1^st opposite party is exonerated.  The complainant purchased the bottle on 22.08.2010.  The commissioner examined the bottle on 08.12.2010.  Relying on the evidence adduced by the complainant we are of the view that the act of 2^nd opposite party is deficiency in service for which 2^nd opposite party is liable to compensate the complainant.  Hence the complaint is partly allowed.   

In the result, the complaint is partly allowed.  2^nd opposite party is directed to pay Rs. 7,000/- as compensation to the complainant for the mental agony suffered by the complainant within one month from the date of receipt of this order failing which Rs. 7,000/- shall carry interest @ 6% per annum from the date of default till realization.  1^st opposite party is exonerated.  No order as to cost.

A copy of this order as per the statutory requirements be forwarded to the parties free of charge and thereafter the file be consigned to the record room.

Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the Open Forum, this the 29^th day of July 2019.       

         Sd/-      

P.SUDHIR                              : PRESIDENT

            Sd/-

PREETHA G. NAIR  : MEMBER   

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APPENDIX

  I      COMPLAINANT’S WITNESS:

          PW1  - S. Kolappa Pillai

 II      COMPLAINANT’S DOCUMENTS:

P1     - Copy of train ticket

P2     - Copy of receipt issued by Kollam East Police Station

P3     - Newspaper cutting

P4     - Photo of Bibo bottled drinking water

III      OPPOSITE PARTY’S WITNESS:

          DW1 - Jacob T. Abraham

 IV     OPPOSITE PARTY’S DOCUMENTS:

NIL

  V     COURT EXHIBIT

          C1     - Analysis Report

          MO1 - Partially opened bottle of Bibo drinking water

                                                                                                      Sd/-

PRESIDENT

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