The Respondent as complainant filed a complaint before the District Forum, Krishnagiri, alleging deficiency against the opposite party to repay a sum of Rs.15/- paid by the complainant towards purchase of Pepsi bottle and directed to pay Rs.1,00,000/- towards compensation for mental agony with a cost of Rs.1000/-. The District Forum, allowed the complaint against the opposite party. Against the said order, this appeal is preferred by the opposite party, praying to set aside the order of the District Forum, Krishnagiri, dated 22.06.07 in COP.No.43/2003.
This appeal coming before us for hearing finally on 06.05.2011, upon hearing the arguments of the counsel on complainants side and perused the documents, written submissions as well as the order of the District Forum, this Commission made the following order :-
A.K.ANNAMALAI, PRESIDING MEMBER JUDICIAL
1. Opposite party is the appellant.
2. The Respondent/complainant filed a complaint against the opposite party before the District Forum, claiming for repayment of Rs.15/- for the purchase of Pepsi drinks for the defective drink and for Rs.1,00,000/- towards compensation for mental agony with cost for Rs.1,000/-.
3. The brief details of the complaint are as follows :- The complainant has purchased 500 ml Pepsi Mountain dew bottle on 17.4.2003 from the Hosur Bus stand shop. But he was shocked to find a foreign body in yellow colour floating inside the bottle. The complainant thereafter sent a notice to the opposite party which is enclosed a photo copy of the said bottle for the manufacturer of the bottle and asked for explanation from the opposite party. The notice sent also to the Health Inspector of Hosur Municipality, zonal Director, Chennai, Indian Quality Control Board and other concerned parties. The notice received by the opposite party no reply forth coming but threats came against the complainant. To the reply of the opposite party, the complainant sent a rejoinder dated 30.5.2003 seeking explanation from the opposite party within 15 days. Thereafter, one Mr.Guraraj , Incharge of Quality Control Department of the opposite party company came and inspected the Pepsi bottle which was in the possession of the complainant. But till now no reply or response is forthcoming from the opposite party. The opposite party committed deficiency of service by marketing and selling defective and adulterated drink endangering the health and life of the public similar the complainant. The complainant is producing the Pepsi mountain Dew bottle with a foreign matter/object floating inside to the court along with the complaint. Hence direction sought directing the opposite party to repay a sum of Rs.15/- paid by the complainant towards purchase of Pepsi bottle and directed to pay Rs.1,00,000/- towards compensation for mental agony with a cost of Rs.1000/-.
4. The opposite party denied all the allegations of the complainant by filing written version in which it is stated that the complainant is not the consumer and the instant complaint is not a consumer dispute. The complainant suffers from non joinder of necessary party and further suffers from misjoinder of parties, the bottle has been allegedly purchased shop has not been made a party to the instant proceedings. The complaint is defective and not maintainable and is liable to be dismissed. The complainant has not produced any bill for the alleged purchase. The complainant has not even mentioned the name and address of the outlet from which he allegedly purchased the product. The complainant has failed to establish any connection between the alleged product and the opposite party has failed to substantiate his case. The complaint does not disclose any cause of action against the opposite party. The complainant being extra vigilant person has picked up such a deficient product with full knowledge of the presence of fungal formation in order to make an unsustainable claim for Rs.1,00,000/- as damages towards alleged mental agony not suffered. The allegations raised by the complainant are true then the immediate course of action of the complainant would have been to ask for replacement with a genuine/right product from the outlet from where purchased it. The complainant issued a notice dated 21.4.2003 to the opposite party, but the complainant did not seek any compensation in his letter. The opposite party provided a detailed reply dated 19.5.2003 to the complainant. The damage may have been caused due to mishandling multiple handling falling from height at the hands of the outlet or the complainant since there is no possibility of damage in the hands of the manufacturing opposite party since the bottles are packed in cardboard cartons in a mechanical process eliminating the chances of damage in the hands of the opposite party. The complainant has admittedly neither opened nor consumed the alleged contents and he has not suffered any injury on any account in order to make a cause of action in this Forum. It is reiterated that no damage or agony is caused and it is denied and disputed that discovery of fungal formation by a vigilant person would cause mental agony. For the award of compensation, the complainant should prove injury within the meaning of the Consumer Protection Act 1986. The bottling of various beverages under diverse trade marks is directly carried out in sophisticated and modern bottling plants which ensure a very high standard of hygiene and cleanliness. The raw materials are used of the highest grade and quality and the water used in the manufacturing process in filtered, sterilized. There is absolutely no chance of any foreign body entering into the bottle. There is no privity of contract between the complainant and the opposite party. The complainant is not a consumer. There is no cause of action to file this complaint. Hence it is liable to be dismissed.
5. The District Forum on the basis of both sides materials and after an enquiry allowed the complaint by directing the opposite party to pay a sum of Rs.15/- towards the price of the Pepsi Mount Dew bottle purchased by the complainant and Rs.1,000/- as compensation for mental agony and Rs.1000/- as costs.
6. Aggrieved by the order of the District forum, the opposite party has come forward with this appeal and in the grounds of appeal among other things it is stated the District Forum erred in considering the facts of the case, the complainant admitted having purchased the alleged defective product knowingly with an intention to make money by initiating the frivolous and vexatious litigation and file to harass the appellant and has not approached with clean hands. He has not consumed the drink he has purchased and not suffered any mental agony and he has not mentioned the name of the shop and not produced any purchase bill and it is not proved whether the purchase is a genuine product of the company.
7. The respondent remained absent before this Commission and after hearing the appellants arguments and on the basis of materials placed before this Commission the order being passed on merits.
8. While considering the contention of the appellant the District Forum allowed the complaint on the basis of materials placed by the complainant and as pointed out by the opposite party, the complainant has not produced any purchase bill for the alleged defective cool drinks except the production of colour photo of the cool drink bottle which can be taken by anybody and it is also it is admitted fact that the complainant has not furnished the details of the shop from where he is purchased and not filed any bill for the same. It is also proved that the bottle was not sent for analysis for the purpose proving that the contents of the bottle are the original products of the opposite parties company or as a furious drink. The complainant stated that he has purchased the bottle from Hosur Bus stand shop on 17.5.03 and he has sent letters to the opposite parties in this regard and on the opposite partys side it is stated that the companies representative was sent to him for inspection and for further actions in this matter and the complainant was asked to visit the manufacturing plant but he has not attended the same and it is stated by the opposite party the damage may have been caused due to mishandling, multiple handling, falling from height at the hands of and or the complainant since there is no possibility of damage in the hands of opposite party as the bottles are packed in cardboard cartons in a mechanical process eliminating chances of damage in the hands of opposite party. The complainant neither opened nor consumed the alleged contents and thereby he is not suffered any injury and it is also stated there may be furious drinks are available in the market with the same brand name of the opposite party and the complainant failed to prove the originality of the drink.
9. Further the learned counsel for the appellant relied upon various rulings and also cited the order passed by this Commission in earlier matters in FA No.487/2007 as appellant by the same opposite party against 3 other persons in which the appeal was allowed by setting aside the District Forum order and the case in which are similar nature of the case in our hand in which it is stated in the complaint it is not contain the particulars of purchase namely the quality of Miranda bottle, amount paid Batch number of the bottle etc., except the date of purchase and these details are all applicable in our case also and further it is observed complainant should make out a case that he had purchased the disputed bottle from the opposite party and the same was manufactured by the opposite party and these are all not proved in this case. He has also not produced the bottle before the Court even though stated so in the complaint. The bottle was not sent for any analysis to prove that the contents were having foreign particles. Further the appellant also relied upon another judgment pronounced by this Commission in A.P.No.145/2005 dated 8.5.08 in which the appellant company were the appellants and for the same type of facts in which also the appeal was allowed against the District Forum order and other various rules reported in, I (1992) CPJ 300 II (1998) CPJ 329 are relied by Appellant for the similar nature of cases.
In those circumstances the District Forum without taking in to consideration of all those details allowed the complaint erroneously which is to be set aside and thereby for the foregoing reasons stated above the appeal deserves to be allowed.
10. In the result, the appeal is allowed, by setting aside the order of the District Forum, Krishnagiri, in COP.No.43/2003 dated 22.06.07 and the complaint is dismissed. There will be no order as to cost in this appeal.
11. The Registry is directed to hand over the Fixed Deposit Receipt, made by way of mandatory deposit, to the appellant, duly discharged.