BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, PONDICHERRY

C.C.No.71/2010

Dated this the 10^th day of April 2015.

R. Jayakumar,

S/o. P.S. Rajagopal

No.64, Perumal Koil Street,

Puducherry-605 001.                                                                      ….       Complainant

Vs.

1. The Manager,

     M/s.PEPSICO INDIA HOLDINGS PVT. LTD.,

     No.6, GST, Mamandur, Madhuranthakam Taluk,

     Kancheepuram District, Tamil nadu.

2. The Proprietor

    M/s.Dilip Kumar Agency

    DISTRIBUTORS FOR PEPSICO INDIA HOLDINGS PVT. LTD.,

    6/4, Anna Nagar Main Road, Anna Nagar Extn.,

    Puducherry-605 005.

3. The Proprietor

    M/s. SRI VARAGI STORE

    No.29, M.G. Road, Puducherry-605 001.                                 ….     Opposite Parties

BEFORE:

            THIRU.A.ASOKAN, B.A., B.L.,

            PRESIDENT 

Tmt. PVR. DHANALAKSHMI, B.A.,B.L.,

           MEMBER

FOR THE COMPLAINANT          :  Thiru.S. Vimal, Advocate.

FOR THE OPPOSITE PARTIES  : OP.1: Thiru. A.Thirumalvalavan, Advocate

      OP.2&3: Exparte

O R  D  E  R

(By Thiru.A.ASOKAN, President)

This is a complaint filed by the complainant under section 12 of the Consumer Protection Act, 1986 praying to:

1. Direct the opposite parties either jointly or severally to replace the defective product with a better product or refund the complainant a sum of Rs.10/- towards the cost of the defective product.
2. Direct the opposite parties either jointly or severally to pay the complainant compensation of Rs.75,000/- for the physical suffering, mental agony and monetary loss and agony caused to him due to their defective product and Unfair Trade Practice as per section 14(d) of Consumer Protection Act.
3. Direct the opposite parties to pay the complainant a sum of Rs.5000/- as cost and litigation expenditure towards this complaint.

2.         The case of the complainant is as follows:

            The complainant has purchased a bottle of 200 ml. Cool Drink branded in the name of "SLICE" (In L30 No.46, dated 11.03.2010 02.34 a.m.) for personal consumption from the third opposite party on payment of a sum ofRs.10/- vide cash bill dated 07.04.2010.  Complainant was about to consume the same and looked at the product and to his shock he found that the bottle contained some usual think, like a Gutka Pouch inside the product, visible to naked eye.  Immediately he rushed back to the third opposite party and complained the same.  Though the third opposite party agreed with all the defects in the product, refused to either replace the defective product or agree to refund the cost of the product.  As advised by the third opposite party, the complainant tried to contact the representatives of the opposite parties 1 and 2 but in vain including his letter dated 14.05.2010 through registered post. Complainant though purchased the impugned products from the opposite parties on payment of money, could not consume the same,  The product were unworthy for human consumption and therefore said supply of defective product by the opposite parties has cause undue hardship and suffering to complainant.  The opposite parties unfair trade practice has caused the complainant to physically suffer and undergo severe mental agony and distress as also monetary loss to him.  Hence this complaint.

3.         The reply version of the first opposite party is as follows:

            This opposite party denies all the allegations made out in the complaint except those that are admitted in the reply version. The statements made in the complaint are contradictive to one another and therefore the complaint is liable to be dismissed. The complainant is not a consumer within the meaning of Section 2(1)(d) of the Consumer Protection Act, 1986.  In the present complaint there is neither allegation nor any material on record to point out that the complainant purchased any goods for consideration from this opposite party.  Opposite party that unless and until it is proved on record that the impugned bottle was manufactured by the opposite party no liability in law or on facts can accrue upon the opposite party.   The soft drinks manufactured by the first opposite party are manufactured in modern sophisticated plants by using a very high standard of hygiene and cleanliness methods and the raw materials used are of the highest grade and quality and the used in the manufacturing process is filtered, sterilized and is absolutely clean.   The soft drink beverages undergo multistage cleaning process at the bottling plant where there is no scope for contamination.  The entire story of the complainant is fictitious and badly concocted for the sole purpose of misleading this Forum and making pecuniary gains.

4.         It is 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.  The complaint is clearly an abuse of process of law and is liable to be dismissed with costs as contemplated under Section 26 of the said Act.  Assuming without admitting that the complainant had found that the product was adulterated then in that case the first course of action that the complainant should have approached the Municipal authorities and made a representation to them or file a complaint with them.  The complainant has admittedly purchased the impugned bottle on 07.04.2010 and he has retained the bottle with him for more than one month without taking any steps to get the contents of the bottle analysed. The opposite party's centralized Legal Department located at Gurgaon did not receive any such notice and therefore could not be replied.   When the authenticity of the product of the first opposite party itself in question then selling defective product by the first opposite party does not arise.  Hence prays to dismiss the complaint with cost.

5.         The opposite parties 2 and 3 remained absent and were set exparte.

6.         On the side of the complainant, he has chosen to examine himself as CW.1 and marked Exs.C1 to C4 and MO.1.  On the side of the first opposite party, one R.Senthilkumar, Accounts Development Coordinator  has been examined as RW.1

7.         Points for determination are:

1. Whether the complainant is the consumer to the opposite parties?
2. Whether the opposite parties were adopted Unfair Trade Practice and deficiency in service?
3. To what relief the complainant is entitled for?

8.         Point No.1:

            The complainant has purchased a bottle MO.1 of 200ml. cool drink branded with the name of "SLICE" (in L30 No.46 dt.11.03.2010 02.30 a.m.) vide Ex.C1 for personal consumption from the third opposite party, the seller/retailer for Rs.10/- on 07.04.2010.  The said MO.1 is manufactured by the first opposite party and distributed by the second opposite party.  Hence the complainant is the consumer for the opposite parties.

9.         Point No.2:

            We have perused the entire records, pleadings and the reply version filed by the first opposite party and the exhibits and MO.1 marked by the complainant and the evidence adduced by the complainant and the first opposite party.  The opposite parties 2 and 3 were set exparte.

10.       The complainant submits that he has purchased the MO.1 from the third opposite party shop for his consumption.  The allegation of the complainant is that while he was about to consumer and before open the MO.1 he looked at the MO.1 and to his shock he found that the MO.1 contained some unusual think like a Gutka pouch inside the product MO.1, visible to naked eye.

11.       The complainant further alleged that he was rushed back to third opposite party and complained about the same.  The third opposite party refused to replace the defective MO.1 or to repay the cost paid by him.  The complainant sent a letter Ex.C2 dated 14.05.2010 to the first opposite party, the manufacturer through registered post  vide the receipt Ex.C3.  The first opposite party has not responded for the same.  The complainant's allegation is that the opposite parties were adopted Unfair Trade Practice and deficiency in service by producing and selling the product which is unworthy for human consumption.  The complainant further alleged that the unusual things like a Gutka Pouch inside the MO.1 is visible by naked eye itself enough and no need to send the MO.1 for analysis.

12.       The first opposite party submits that unless and until it is proved on record that the impugned bottle was manufactured by the opposite party no liability in law or on facts can accrue upon the opposite party.   The soft drinks manufactured by the first opposite party are manufactured in modern sophisticated plants by using a very high standard of hygiene and cleanliness methods and the raw materials used are of the highest grade and quality and the used in the manufacturing process is filtered, sterilized and is absolutely clean.   The soft drink beverages undergo multistage cleaning process at the bottling plant where there is no scope for contamination.  The entire story of the complainant is fictitious and badly concocted for the sole purpose of misleading this Forum and making pecuniary gains. It is further submitted by the first opposite party that the complainant should have approached the Municipal authorities and made a representation to them or file a complaint with them.  The complainant has admittedly purchased the impugned bottle on 07.04.2010 and he has retained the bottle with him for more than one month without taking any steps to get the contents of the bottle analyzed.

13.       The case of the complainant is that the third opposite party has not adhered the complaint made by the complainant. On contra the third opposite party advised the complainant to contact the representatives of the second and third opposite parties.  The complainant has taken steps to approach the first opposite party and sent Ex.C2 to them.  But the first opposite party has not replied for the same.  Then only the complainant approached this Forum.

14.       The plea taken by the first opposite party is that the complainant should have approached the Municipal authorities for adulteration or he should have taken steps to get the contents of the MO.1 to be analyzed.  For the said plea, the complainant's submits that the MO.1 supplied to the complainant is apparently defective as evident to the naked eye and is not worth for human consumption and no need to send for analysis. To that effect the complainant relied the decision reported in 2010 STPL(CL) 1441 NC and III-2010 CONSUMER PROTECTION JUDGEMENT 325(NC)

15.       The first opposite party/RW.1 during his cross examination admitted that the MO.1 is the product of the first opposite party and confirmed the batch number and date.  The first opposite party further admitted that "it is true that I have not produced any record to show that we have ruled out that MO.1 was not produced by us".  From the above facts it is clear that the MO.1 was manufactured by the first opposite party, distributed by the second opposite party and sold by the third opposite party.

16.       We have perused the MO.1 that contains a foreign particle i.e. Gutka Pouch.  There is no need to send the MO.1 for analysis because the foreign particle is visible to the naked eye.  Therefore it is clear that the opposite parties are adopted unfair trade practice and produced goods negligently which will be hazardous to life and safety when used by the consumer/complainant. The opposite parties are not maintained the standard, which is required to be maintained by the law and practice.  The copy of the FIR No.22/15, 24/15 filed belatedly on 09.04.2015 by the first opposite party is not relevant to this case on hand.

17.       From the above facts and evidence it is clear that the first opposite party has manufactured the hazardous goods the MO.1, distributed by the second opposite party and sold by the third opposite party.  Thus the opposite parties are indulged in unfair trade practice.  Even though the complainant has not consumed the same,  he suffered the loss and injuries.  Therefore the opposite parties are liable and the complainant is entitled for compensation.

18.       Point No.3:

            In view of the decision taken in point no.2, this complaint is hereby allowed and the opposite parties are jointly and severally directed to pay a sum of Rs.25,000/- as compensation to the complainant for their negligent act and for unfair trade practice and to pay a sum of Rs.5000/- as cost of the proceedings.  The opposite parties are directed to discontinue the unfair trade practice and not to offer the hazardous goods for sale.

Dated this the 10^th day of April 2015.

1. ASOKAN)

PRESIDENT

(PVR. DHANALAKSHMI)

MEMBER

COMPLAINANTS WITNESS:  

CW.1             31.01.2012                R. Jayakumar

OPPOSITE PARTY S WITNESS: 

RW.1              28.01.2014                R.Senthilkumar

COMPLAINANTS EXHIBITS:

OPPOSITE PARTY S EXHIBITS:    Nil

LIST OF MATERIAL OBJECT:

MO.1              Slice Bottle (L 38 No.46, 11.032010 02.34 a.m.) 200 ml.

1. ASOKAN)

PRESIDENT

(PVR. DHANALAKSHMI)

MEMBER