Full Judgment
Dev Raj, Member:
1. This appeal is directed against the order dated 14.11.2013, rendered by the District Consumer Disputes Redressal Forum-II, U.T., Chandigarh (hereinafter to be called as the District Forum only) vide which it allowed the complaint filed by the complainant and directed the Opposite Parties, jointly and severally, as under:-
œ12. In the light of above observations, we are of the concerted view that the Opposite Parties are found deficient in giving proper service to the complainant. Hence, the present complaint of the Complainant deserves to succeed against the Opposite Parties, and the same is allowed, qua them. The Opposite Parties, jointly and severally, are directed to:-
[a] To pay Rs.1000/- incurred by the Complainant for testing of the mineral water bottle by the Food Analyst Punjab, Chandigarh;
[b] To pay Rs.25,000/-on account of deficiency in service and causing mental and harassment to the Complainant;[c] To pay Rs.7,000/- as cost of litigation;
13. The above said order shall be complied within 45 days of its receipt by the Opposite Parties; thereafter, Opposite Parties shall be liable for an interest @18% per annum on the amount mentioned in sub-para [a] and [b] of Para 12 above, apart from cost of litigation of Rs.7,000/-, from the date of institution of this complaint, till it is paid.
2. In brief, the facts of the case, are that the complainant had purchased one Blue Guava flavoured mineral water bottle with added vitamins and minerals from M/s Rama Stores i.e. Opposite Party No.3, on 23.09.2012 for Rs.30/-. It was stated that the complainant was on his way alongwith his friend and when he was about to open the said bottle, he was shocked to notice fungus floating, in the said water bottle. It was further stated that on 24.9.2012, the complainant went to Opposite Party No.3 for getting the bottle, in question, replaced with a fresh one, which after contacting the distributor of the Company, showed his inability to do anything. It was further stated that thereafter, the complainant tried his level best to contact all the Opposite Parties and also sent a number of e-mails dated 25.9.2012 and 2.10.2012, but to no avail. It was further stated that as regards its consumption, it was mentioned on the bottle, in question, that œBest before six months from manufacture? and the date of manufacture was mentioned as 31.07.2012 but the said bottle already contained fungus, which if consumed, could harm the body and mind of the complainant. It was further stated that the complainant, at the time of purchasing the said bottle, did not obtain the bill. It was further stated that the claim of the Opposite Parties was of high quality and they were selling the product at high cost of Rs.30/- as compared to other mineral water bottles available in the market. It was further stated that the Opposite Parties were selling totally inferior quality mineral water and misleading the public and their claim, as per the contents, mentioned on the bottle, was totally false. It was further stated that a legal notice was also sent to the Opposite Parties, but they did not respond to the same. It was further stated that the aforesaid acts of the Opposite Parties amounted to deficiency in rendering service and indulgence into unfair trade practice. When the grievance of the complainant was not redressed, left with no alternative, a complaint, under Section 12 of the Consumer Protection Act, 1986 (hereinafter to be called as the œAct? only), was filed seeking directions to the Opposite Parties, to pay compensation to the tune of Rs.1 Lac to the complainant.
3. Opposite Party No.1, in its written reply, took up a preliminary objection, that since Opposite Parties No.1 and 2 were situated at Mumbai and Pune respectively and moreover in the absence of bill regarding purchase of bottle, in question, allegedly from Opposite Party No.3, the District Forum did not have the territorial jurisdiction to entertain and decide the complaint. On merits it was stated that the complainant did not place, on record, bill of purchase of the bottle, in question, from Opposite Party No.3, and in the absence of the same, the factum of alleged purchase of the bottle, could not be confirmed or denied. It was further stated that if there was any fungus, although not admitted, in the bottle, that could be seen by the complainant at the time of its purchase itself, but he did not point out presence of the same to Opposite Party No.3. It was further stated that the complainant filed the complaint on 28.01.2013 i.e. only before 3 days from the date of expiry, which allegedly was 31.01.2013. It was further stated that the complainant had not brought the original bottle to be shown to the District Forum, and for sending the same to some Laboratory for its testing and, therefore, it could not be said that there was any fungus, in the bottle. It was further stated that neither there was any deficiency, in rendering service, on the part of the Opposite Party No.1 nor did it indulge into unfair trade practice. The remaining averments, were denied, being wrong.
4. Opposite Party No.3, in its written reply, also took up a preliminary objection, that the complainant had no locus-standi to file the complaint against it, as he miserably failed to place, on record, the bill of purchase of the bottle in question. On merits, it was denied that the bottle, in question, was purchased by the complainant from Opposite Party No.3, and therefore, the question of its replacement with fresh one did not arise at all. It was stated that, in case, the complainant had genuinely purchased the bottle from Opposite Party No.3, it would have surely replaced the same on the request of the complainant, as it was the manufacturer who had to bear the loss of replacement of the bottle. The receipt of any legal notice, from the complainant was denied by Opposite Party No.3. It was further stated that the contention of the complainant that for such a small shopping one does not care for obtaining the bill, speaks volume of his evil intentions to misuse the provisions of the beneficial legislation. It was denied that the complainant ever approached Opposite Party No.3 or it ever extended any threat to him. It was further stated that neither there was any deficiency, in rendering service, on the part of the Opposite Party No.3, nor did it indulge into unfair trade practice. The remaining averments, were denied, being wrong.
5. None appeared, on behalf of Opposite Party No.2, despite service and, as such, it was proceeded against exparte by the District Forum vide order dated 19.03.2013.
6. The Parties led evidence, in support of their case.
7. After hearing the Counsel for the contesting parties, and, on going through the evidence and record of the case, the District Forum, allowed the complaint as stated above, in the opening para of the instant order.
8. Feeling aggrieved, the instant appeal, has been filed by the appellant/Opposite Party No.1.
9. We have heard the Counsel for the appellant/Opposite Party No.1, at the preliminary stage, and have gone through the evidence and record of the case, carefully.
10. The Counsel for the appellant/Opposite Party No.1, submitted that the date of expiry of the mineral water bottle was 31.1.2013 (Best before six months from the date of manufacture) and the complainant filed the complaint on 29.1.2013 only two days before the date of expiry. It was also submitted that the respondent/complainant remained mum for four months after purchasing the bottle. It was further submitted that the District Forum wrongly placed heavy reliance on the Laboratory report. It was further submitted that the appellant/Opposite Party No.1, was not the manufacturer of the product, in question, and only a marketing agency. It was further submitted that as per the Laboratory report, sample was received therein after the expiry of shelf life. It was further submitted that the order of the District Forum is based on presumptions and suppositions.
11. After giving our thoughtful consideration, to the submissions, made by the Counsel for the appellant/Opposite Party No.1, and the evidence, on record, we are of the considered opinion, that the appeal is liable to be dismissed, at the preliminary stage, for the reasons to be recorded hereinafter.
12. As submitted by the respondent/complainant, he purchased Blue Guava flavoured mineral water bottle for Rs.30/- from Opposite Party No.3, on 23.09.2012. Though the appellant/Opposite Party No.1 contested before the District Forum, regarding the proof of purchase of the bottle, in question, but at the same time, there was no denial that Opposite Party No.3, does not sell such products. The fact is that the appellant/Opposite Party No.1, as admitted by it, is the marketing agency of the product and it also did not deny supply of the product to Opposite Party No.3. While it is normal practice that stores like Opposite Party No.3 do not issue bills and the customers like the respondent/complainant also do not insist for the bills for such purchases, therefore, the District Forum was right in placing reliance on the affidavit of the complainant that he purchased the mineral water bottle aforesaid.
13. As regards delay in filing the complaint, from the date of purchase of the product, it is evident, on record, that the respondent/complainant, before filing the complaint, duly brought the fact of existence of fungus in the bottle, in question, to the notice of Opposite Party No.3, the next day i.e. on 24.9.2012 followed by emails dated 25.9.2012, 2.10.2012. He also telephonically informed Opposite Party No.3 on 6.10.2012 and through legal notice dated 4.12.2012. The personal visits as well as communications sent by the respondent/complainant were not responded to by the Opposite Parties. Thus, the respondent/ complainant, after duly bringing the deficiency to the notice of Opposite Parties, personally as well as through various communications, preferred the instant complaint. When the appellant/Opposite Party No.1, ignored the emails and legal notice, its plea that the complaint was filed belatedly just two days before the expiry date of 31.1.2013, is not sustainable being devoid of merit. The fact that the Opposite Parties did not respond to various communications of the respondent/complainant itself, amounted to deficiency in rendering service.
14. Perusal of the proceedings before the District Forum, clearly reveals that the Opposite Parties were given due opportunity to file their reply, to the application for sending the sample to the Government Laboratory. It is clearly borne out, from the District Forum order dated 7.8.2013, that the Opposite Parties had no objection to the testing of the bottle, in question. Not only this, the alleged date of expiry viz. 31.1.2013 was to the effect, Best before six months from manufacture, which did not mean that the product will become unfit for consumption immediately thereafter. In fact, in the instant case, the product was found to be containing fungus much before the last date of 31.1.2013 i.e. on 23.9.2012 when the bottle, in question, was purchased. The product was tested in the Government Laboratory, which is an independent and expert authority, and there is no reason to disbelieve its findings/opinion that the contents of the sample marked as P-87-Aug 13 contained suspended matter and, hence, unsafe for human consumption.
15. The District Forum evaluated and assessed the entire evidence, and its order holding the Opposite Parties deficient, in rendering service, and indulgence into unfair trade practice, is just, correct and reasonable.
16. No other point, was urged, by the Counsel for the appellant/Opposite Party No.1.
17. The impugned order, passed by the District Forum, thus, does not suffer from any illegality or perversity, being based on the correct appreciation of facts and law and, as such, the same is liable to be upheld.
18. For the reasons recorded above, the appeal filed by the appellant/Opposite Party No.1, is dismissed, at the preliminary stage, with no order as to costs. The order passed by the District Forum is upheld.
19. Certified Copies of this order be sent to the parties, free of charge.
20. The file be consigned to Record Room, after completion.