Oral Order:
Per Mr. P.N. Kashalkar, Honble Presiding Judicial Member
1) This is an appeal by filed by O.P.No.1 and 2 Pepsico India Holding Private Limited against the judgment and award passed by the Additional Thane District Forum, at Konkan Bhavan, Navi Mumbai in Consumer Complaint No.33/2007 decided on 29/12/2007. By the said judgment and award, the Forum below allowed the complaint partly and directed O.P.No.1 and 2 to jointly and severally pay Rs.8,000/- as compensation and Rs.2,000/- as cost within sixty days from the date of order.
2) Facts to the extent material may be state as under:
3) One Madhukar Ramdas Patil, r/o Vashi, Navi Mumbai filed consumer complaint against Pepsico India Holding Private Limited and against Shri Sai Darshan Hotel of Vashi, Navi Mumbai alleging supply of goods which were hazardous to health. He pleaded that he purchased two bottles of cold drinks namely Mountain Dew on 14/2/2007 from Sai Darshan Hotel, Vashi, Navi Mumbai. Out of which he consumed one and on finding some different taste he examined second bottle thoroughly and he noticed that there was some fungus in the second bottle. Hence, he filed consumer complaint seeking order of restraining opponents from selling these bottles.
4) O.P.No.1 and 2 filed written statement and pleaded that they were maintaining high standard of hygiene and cleanliness in their bottling plant and it would never allow such impurities to pass. They pleaded that it is impossible for any one to notice impurities as noticed by the complainant. They pleaded that the bottles might be spurious mix with genuine stock. The complainant should have approached municipal authorities with a complaint. The complainant had not suffered any loss or injury and therefore he is not entitled to get any relief. They further pleaded that complainant has not produced any bill on record to prove that he had purchased these two bottles from O.P.No.3 Shri Sai Darshan Hotel. They also challenged the jurisdiction of the Forum to entertain the complaint.
5) O.P.No.3 filed its written statement and confirmed that complainant had purchased the two bottles from his hotel. But, he pleaded that he is not responsible for the fungus found in the bottle because it was manufacturing defect for which he can not be held responsible.
6) Parties filed affidavits and documents on record. In the course of trial, the bottle in question was sent for chemical analysis at Public Health Laboratory, Konkan Bhavan by the direction of the Forum below. The Public Health Laboratory, Konkan Bhavan gave following observations in its report.
1) Sample Description: - Sample of Mountain Dew received in Manufacturers printed glass bottle label as Mountain Dew
2) Physical Description: - Yellowish coloured liquid along with dead insect and fragment.
Above sample of Mountain Dew contravenes rule 32(e) and (f) of Prevention of Food Adulteration Rules, 1955 and it is also unfit for human consumption.
7) The said report further reveals about of presence of impurity in the said bottle about drink hazardous to health and contravention of rule 32 (e) and (f) of Prevention of Food Adulteration Rules, 1955. Thus, it was found by the Forum below that the said drink was unfit for human consumption and it was hazardous drink because of impurities present in the bottle. The Forum below therefore held that O.P. was guilty of deficiency in service and the objection of the O.P.No.1 and 2 that complainant had not produced the bill of purchase was turned down because O.P.No.3 hotel owner clearly admitted that he had been supplied the said bottles from authorised supplier. The Forum below relying on public analyst report held that O.P.No.1 and 2 were responsible for the defective goods supplied to the complainant through O.P.No.3. Therefore, it allowed the complaint partly against O.P.No.1 and 2 and passed impugned award directing payment of Rs.10,000/- in all to the complainant. As such O.P. No.1 and 2 have come up in appeal.
8) We heard submission of Mr.Prashant More, Adv. H/F Mr.R.V.Talasikar, Adv. for the appellant, none appeared for the respondent.
9) We perused the impugned award passed by the Forum below. Facts are as clear as sunlight. Bottle Mountain Dew manufactured or bottled by appellant company was supplied to O.P.No.3 through authorised supplier. O.P.No.3 sold bottle to the complainant and complainant found that it was containing hazardous material which was unfit for human consumption. This fact was confirmed when the Forum below sent the said bottle to public health analyst at Konkan Bhavan Navi Mumbai. Company like Pepsico should have taken reasonable and greatest care in bottling these drinks. The drink was containing fungus and other impurities as is revealed in the public analyst report relied upon by the Forum below. What is pertinent to note is that fact that sample was yellowish coloured liquid along with dead insect and fragments and said sample was contravening rule 32(e) and (f) of Prevention of Food Adulteration Rules, 1955 and was also unfit for human consumption. It was a drink hazardous to health and when it was packed bottle, the manufacturer of the drink can not escape its liability if consumer finds dead insect in the drink. The Forum below therefore rightly allowed the complaint and passed an award in favour of alert consumer. The respondent/consumer had taken a lot of pains to file consumer complaint against giant drinks company like the appellant herein. The complaint was rightly held tenable in law in view of the fact that it was pertaining to goods which was hazardous to life and safety and which was being offered for sale to the general public in contravention of the standards relating to the safety of such goods under any law for the time being in force. So, there was contravention of clause 5 and 6 of Sec.2(1)(c) of Consumer Protection Act and therefore the Forum below rightly took cognizance of the complaint and held that it was defective drink offered for sale to the general public as mentioned in Sec.2(1)(f) of Consumer Protection Act, 1986. It was certainly a spurious goods claimed to be genuine but actually it was not so as mentioned in Sec.2(1)(oo) of Consumer Protection Act, 1986. Therefore, the Forum below rightly allowed the complaint and passed an award in favour of the complainant. We are finding no substance in the appeal preferred by the Pepsico Company. This is really a full proof case brought before the Forum by the diligent consumer and has exposed the appellant companys recklessness. We are finding no substance in the appeal. The appeal is liable to be dismissed at the stage of admission itself. Hence, we pass following order.
Order:
1) Appeal is summarily rejected at stage of admission itself.
2) Parties are left to bear their own costs.
3) Copies of this order be sent to the parties free of cost.