Pepsico India Holdings Pvt. Ltd., Vs. R. Prakash and Others - Court Judgment

SooperKanoon Citationsooperkanoon.com/1109797
CourtTamil Nadu State Consumer Disputes Redressal Commission SCDRC Chennai
Decided OnFeb-22-2011
Case NumberF.A.487/2007 [Against order in C.C.358/2003 on the file of the DCDRF, Coimbatore]
JudgeHONOURABLE THIRU JUSTICE M. THANIKACHALAM PRESIDENT, THIRU J. JAYARAM, M.A., M.L., JUDICIAL MEMBER & THIRU S. SAMBANDAM, B.SC., MEMBER II
AppellantPepsico India Holdings Pvt. Ltd.,
RespondentR. Prakash and Others
Excerpt:
the first respondent / complainant filed a complaint before the district forum against the opposite parties to pay rs.5 lakhs as damages for mental agony, hardships, torture and physical pain suffered by the complainant with 18% interest per annum. the district forum allowed the complaint, against the said order, this appeal is preferred praying to set aside the order of the district forum dt.25.06.2007 in c.c.358/2003. this appeal coming before us for hearing finally on 11.02.2011, upon hearing the arguments of the appellant and first respondent counsels and perused the documents, as well as the order, of the district forum, this commission made the following order: m. thanikachalam j, president 1. the 3rd opposite party in op.358/2003, on the file of the district consumer disputes redressal forum, coimbatore, unable to digest the order of the district forum, wherein, a direction has been given to pay a compensation of rs.20,000/- has challenged the same in this appeal. 2. the complainant/first respondent had purchased two miranda pet bottles from the first opposite party-retail seller, supplied by the agent/second opposite party, manufactured by the third opposite party on 8.5.2003. one of the two miranda bottle contained dirty articles and on seeing the same, the complainant became allergic and bed ridden, which had happened due to the gross negligence of the opposite parties, even causing mental agony. therefore, claiming compensation for selling adulterated miranda unfit for human consumption, a legal notice was issued, quantifying the compensation at rs.5 lakhs, not paid and therefore, seeking a direction against all the opposite parties to pay the compensation of rs.5 lakhs, a consumer complaint came to be filed before the district forum. 3. the third opposite party, questioning the status of the complainant as consumer as well disputing the alleged purchase, resisted the complaint, inter alia, contending that the miranda said to have been purchased by the complainant were not manufactured by them and if at all that should be spurious one, initiated due to business rival that since they have not manufactured the alleged miranda, which is subject matter of the complaint, they are not liable to pay any compensation, praying for the dismissal of the case. 4. the district forum during the course of trial, had sent the disputed miranda bottle to the public analyst for examination, which revealed that the samples were adulterated, contaminated, unfit for human consumption. based upon the said report, as if, the drink or beverage purchased by the complainant was manufactured and marketed by the third opposite party through the first and second opposite parties, has slapped an order, directing them to pay a sum of rs.20,000/- as compensation, as if, they have committed negligent act, amounting to deficiency in service, which is challenged by the third opposite party alone. 5. the learned counsel for the appellant argued that the trial court has committed an error, without any acceptable material, as if, the beverage was manufactured and marketed by the third opposite party, that too, erroneously considering the public analyst report, which is inadmissible, even as seen from the records having inherent defect and in this view, the order is liable to be set aside, which is opposed. in this context, we have to see the pleadings. 6. the complaint does not contain the particulars of purchase, namely the quantity of miranda bottle, amount paid, batch number of the bottle etc., except the date of purchase namely 08.05.2003. the bottle said to have been purchased on 8.5.2003, was sent for chemical analysis in the year 2005 that is after two years. it is an admitted fact that, the bottle used to contain the expiry date “best before six months from the date of manufacturing”. therefore, if the contents of the bottle was kept beyond six months, from the date of manufacturing, who had manufactured, there is a possibility of contamination due to internal chemical changes also, making the drink unfit for human consumption. so, the fact that the food analyst has reported that the drink is unfit for human consumption alone, cannot be the reason to find fault with the third opposite party, unless it is proved that the liquid tested was actually manufactured by the third opposite party, marketed through the second opposite party, sold by first opposite party. to prove the above facts, practically we have “nil” evidence. therefore, the conclusion of the district forum, as if, the opposite parties have committed negligent act, in selling the miranda bottle adulterated, unfit for human consumption, appears to be incorrect, not based upon merit, that can be seen even from the inherent defects available in the records as well as inconsistency in the report which are exposed by the correspondence between the public analyst laboratory and the district forum. 7. in order to sustain the order of the district forum, the complainant should make out a case, that he had purchased the disputed miranda bottles from the first opposite party and not only that, that was supplied by the second opposite party, the agent of the third opposite party, but also the same was manufactured by the third opposite party. ex.a1 is the receipt said to have been issued by the third opposite party for the purchase of the miranda bottles. ex.a1 does not contain any particulars, such as date of manufacture, lot number or batch number, manufacturer name, expiry date etc., and therefore, it is impossible to say that the complainant had purchased two miranda bottles, under ex.a1. even assuming that the complainant had purchased two miranda bottles under ex.a1, that will not help to prove that the bottles were manufactured, including the contents, by third opposite party. 8. the bottles are not before the court. it is also not the case of the district forum, that it had noticed foreign particles in the bottle itself, visibly known to a naked eye. in this juncture, we have to remember the pleadings. it is said in para 3 of the complaint “he had found dirty articles along with the liquid in the bottle, which had made him allergic, which inurn had made him bed ridden”. if the complainant had noticed dirty articles, what prevented the district forum to note the same when the bottles were purchased, is not known. in the communication also, we find no reference, about the dirty articles or foreign bodies, visibly known in the bottles. the complaint does not contain the quantity of the miranda bottle such as whether it is 200ml bottle or 300ml bottle or 500ml bottle. ex.a1 says 200ml. if 200ml bottle was purchased, and sent to the public analyst, the correspondence should disclose the same. from the perusal of the records also, we are unable to see, any document for purchasing the bottles by the complainant, giving date etc., 9. as seen from the records, a letter emanated from the district forum, to the government analyst, food analysis laboratory, king institute campus, guindy, chennai, seeking particulars, whether 300ml bottle can be sent for analysis, as per the letter dated 23.02.2005. based upon this letter and subsequent communication dated namely 3.2.2005, the laboratory replied, minimum requirement is 600ml for analysis. on further verification, the laboratory accepted 300ml is sufficient. therefore, the bottle said to have been produced by the complainant, was sent for analysis, as seen from the communication dated 19.04.2005, which says the sample of miranda pet bottle of 300ml with contents was sent, in well packed condition with the necessary fees for testing, thereby indicating what the complainant had produced before the district forum was only 300ml bottle, not 200ml bottle, said to have been purchased under ex.a1, which says only 200ml. it cannot be taken as mistake also since the government analyst confirmed, the receipt of 300ml miranda pet bottle with contents, as seen from the communication dated 17.02.2005, which is followed by court letter dated 19.04.2005 as well as dated 23.02.2005. though the district forum had sent 300ml miranda pet bottle with contents, as seen from ex.c1-“certificate of analysis”, 200ml sample bottle was received, tested, which would go to show, what was sent, something different and what was tested, something different. as rightly submitted by the learned counsel for the appellant, the rules formulated under the food adulteration act, made applicable to the consumer protection act, have not been properly followed while sending the sample also. therefore, based upon this doubtful analytical report, it is impossible to come to a conclusion, that the bottle manufactured by the third opposite party, was purchased by the first opposite party and same was produced for public analysis and sent for analytical report also. unfortunately, the district forum without going through the records, what was the bottle purchased, what was the contents sent, taking the report as it is unquestionable or not questioned drew a conclusion, that the miranda bottle was containing adulterated drink manufactured by opposite parties, unfit for human consumption, which finding, we are unable to concur. 10. as seen from the analytical report, date of manufacturing is given, batch number not given. as submitted by the learned counsel for the appellant, it is the usual practice of the third opposite party, to put the batch number and without batch number, no bottle is produced, which serves the purpose of tracking the bottle. the batch number is not clear, as said in ex.c1. the empty miranda bottle is available anywhere. therefore, if somebody has filled up the said bottle, not assigning the batch number, sold it, as if, produced by the third opposite party, we cannot fasten any liability upon the third opposite party, which had happened in this case. if really, the alleged bottle said to have been purchased by the complainant, was manufactured by the third opposite party, certainly that will contain the batch number and the very fact, that there was no batch number, makes it abundantly clear, that it was not manufactured by the third opposite party. further as said above, the district forum has not noted any external particles, visibly in nature. the story of the complainant, as if, on seeing the dirty articles, he became allergic and bed ridden, shows the figment of imagination, to claim a sum of rs.5 lakhs as compensation. it is not the case of the complainant that he had consumed the miranda causing any problem. the very fact, he has not consumed and on seeing dirty article, it had made him bed ridden, itself sufficient to draw an inference that this case is false and frivolous, invented for the purpose of the claim. the district forum, without giving a finding, who is the manufacturer by this alleged miranda bottle, and who is the authorized agent of the third opposite party, has granted an order unjustifiably, which should be erased, since we are unable to support legally the same. 11. in the result, the appeal is allowed, the order of the district forum in op no.358/2003, dt.25.06.2007 is set aside, and the complaint is dismissed. there will be no order as to cost throughout. 12. the registry is directed to handover the fixed deposit receipt, made towards the mandatory deposit, to the appellant/ third opposite party duly discharged, since appellant succeeded, and there is no need to retain the fdr.
Judgment:

The first Respondent / complainant filed a complaint before the District Forum against the opposite parties to pay Rs.5 lakhs as damages for mental agony, hardships, torture and physical pain suffered by the complainant with 18% interest per annum. The District Forum allowed the complaint, against the said order, this appeal is preferred praying to set aside the order of the District Forum dt.25.06.2007 in C.C.358/2003.

This appeal coming before us for hearing finally on 11.02.2011, upon hearing the arguments of the appellant and first respondent counsels and perused the documents, as well as the order, of the District Forum, this commission made the following order:

M. THANIKACHALAM J, PRESIDENT

1. The 3rd opposite party in OP.358/2003, on the file of the District Consumer Disputes Redressal Forum, Coimbatore, unable to digest the order of the District Forum, wherein, a direction has been given to pay a compensation of Rs.20,000/- has challenged the same in this appeal.

2. The complainant/first respondent had purchased two Miranda pet bottles from the first opposite party-retail seller, supplied by the Agent/second opposite party, manufactured by the third opposite party on 8.5.2003. One of the two Miranda bottle contained dirty articles and on seeing the same, the complainant became allergic and bed ridden, which had happened due to the gross negligence of the opposite parties, even causing mental agony. Therefore, claiming compensation for selling adulterated Miranda unfit for human consumption, a legal notice was issued, quantifying the compensation at Rs.5 lakhs, not paid and therefore, seeking a direction against all the opposite parties to pay the compensation of Rs.5 lakhs, a consumer complaint came to be filed before the District Forum.

3. The third opposite party, questioning the status of the complainant as consumer as well disputing the alleged purchase, resisted the complaint, inter alia, contending that the Miranda said to have been purchased by the complainant were not manufactured by them and if at all that should be spurious one, initiated due to business rival that since they have not manufactured the alleged Miranda, which is subject matter of the complaint, they are not liable to pay any compensation, praying for the dismissal of the case.

4. The District Forum during the course of trial, had sent the disputed Miranda bottle to the Public Analyst for examination, which revealed that the samples were adulterated, contaminated, unfit for human consumption. Based upon the said report, as if, the drink or beverage purchased by the complainant was manufactured and marketed by the third opposite party through the first and second opposite parties, has slapped an order, directing them to pay a sum of Rs.20,000/- as compensation, as if, they have committed negligent act, amounting to deficiency in service, which is challenged by the third opposite party alone.

5. The learned counsel for the appellant argued that the Trial Court has committed an error, without any acceptable material, as if, the beverage was manufactured and marketed by the third opposite party, that too, erroneously considering the Public Analyst Report, which is inadmissible, even as seen from the records having inherent defect and in this view, the order is liable to be set aside, which is opposed. In this context, we have to see the pleadings.

6. The complaint does not contain the particulars of purchase, namely the quantity of Miranda bottle, amount paid, Batch Number of the bottle etc., except the date of purchase namely 08.05.2003. The bottle said to have been purchased on 8.5.2003, was sent for chemical analysis in the year 2005 that is after two years. It is an admitted fact that, the bottle used to contain the expiry date “best before six months from the date of manufacturing”. Therefore, if the contents of the bottle was kept beyond six months, from the date of manufacturing, who had manufactured, there is a possibility of contamination due to internal chemical changes also, making the drink unfit for human consumption. So, the fact that the Food Analyst has reported that the drink is unfit for human consumption alone, cannot be the reason to find fault with the third opposite party, unless it is proved that the liquid tested was actually manufactured by the third opposite party, marketed through the second opposite party, sold by first opposite party. To prove the above facts, practically we have “NIL” evidence. Therefore, the conclusion of the District Forum, as if, the opposite parties have committed negligent act, in selling the Miranda bottle adulterated, unfit for human consumption, appears to be incorrect, not based upon merit, that can be seen even from the inherent defects available in the records as well as inconsistency in the report which are exposed by the correspondence between the Public Analyst Laboratory and the District Forum.

7. In order to sustain the order of the District Forum, the complainant should make out a case, that he had purchased the disputed Miranda bottles from the first opposite party and not only that, that was supplied by the second opposite party, the agent of the third opposite party, but also the same was manufactured by the third opposite party. Ex.A1 is the receipt said to have been issued by the third opposite party for the purchase of the Miranda bottles. Ex.A1 does not contain any particulars, such as date of manufacture, Lot Number or Batch Number, Manufacturer Name, expiry date etc., and therefore, it is impossible to say that the complainant had purchased two Miranda bottles, under Ex.A1. Even assuming that the complainant had purchased two Miranda bottles under Ex.A1, that will not help to prove that the bottles were manufactured, including the contents, by third opposite party.

8. The bottles are not before the Court. It is also not the case of the District Forum, that it had noticed foreign particles in the bottle itself, visibly known to a naked eye. In this juncture, we have to remember the pleadings. It is said in Para 3 of the complaint “he had found dirty articles along with the liquid in the bottle, which had made him allergic, which inurn had made him bed ridden”. If the complainant had noticed dirty articles, what prevented the District Forum to note the same when the bottles were purchased, is not known. In the communication also, we find no reference, about the dirty articles or foreign bodies, visibly known in the bottles. The complaint does not contain the quantity of the Miranda bottle such as whether it is 200ml bottle or 300ml bottle or 500ml bottle. Ex.A1 says 200ml. If 200ml bottle was purchased, and sent to the Public Analyst, the correspondence should disclose the same. From the perusal of the records also, we are unable to see, any document for purchasing the bottles by the complainant, giving date etc.,

9. As seen from the records, a letter emanated from the District Forum, to the Government Analyst, Food Analysis Laboratory, King Institute Campus, Guindy, Chennai, seeking particulars, whether 300ml bottle can be sent for analysis, as per the letter dated 23.02.2005. Based upon this letter and subsequent communication dated namely 3.2.2005, the Laboratory replied, minimum requirement is 600ml for analysis. On further verification, the Laboratory accepted 300ml is sufficient. Therefore, the bottle said to have been produced by the complainant, was sent for analysis, as seen from the communication dated 19.04.2005, which says the sample of Miranda pet bottle of 300ml with contents was sent, in well packed condition with the necessary fees for testing, thereby indicating what the complainant had produced before the District Forum was only 300ml bottle, not 200ml bottle, said to have been purchased under Ex.A1, which says only 200ml. It cannot be taken as mistake also since the Government Analyst confirmed, the receipt of 300ml Miranda pet bottle with contents, as seen from the communication dated 17.02.2005, which is followed by Court letter dated 19.04.2005 as well as dated 23.02.2005. Though the District Forum had sent 300ml Miranda pet bottle with contents, as seen from Ex.C1-“Certificate of Analysis”, 200ml sample bottle was received, tested, which would go to show, what was sent, something different and what was tested, something different. As rightly submitted by the learned counsel for the appellant, the rules formulated under the Food Adulteration Act, made applicable to the Consumer Protection Act, have not been properly followed while sending the sample also. Therefore, based upon this doubtful Analytical Report, it is impossible to come to a conclusion, that the bottle manufactured by the third opposite party, was purchased by the first opposite party and same was produced for public analysis and sent for analytical report also. Unfortunately, the District Forum without going through the records, what was the bottle purchased, what was the contents sent, taking the report as it is unquestionable or not questioned drew a conclusion, that the Miranda bottle was containing adulterated drink manufactured by opposite parties, unfit for human consumption, which finding, we are unable to concur.

10. As seen from the Analytical Report, date of manufacturing is given, Batch Number not given. As submitted by the learned counsel for the appellant, it is the usual practice of the third opposite party, to put the Batch Number and without Batch Number, no bottle is produced, which serves the purpose of tracking the bottle. The Batch Number is not clear, as said in Ex.C1. The empty Miranda bottle is available anywhere. Therefore, if somebody has filled up the said bottle, not assigning the batch number, sold it, as if, produced by the third opposite party, we cannot fasten any liability upon the third opposite party, which had happened in this case. If really, the alleged bottle said to have been purchased by the complainant, was manufactured by the third opposite party, certainly that will contain the Batch Number and the very fact, that there was no Batch Number, makes it abundantly clear, that it was not manufactured by the third opposite party. Further as said above, the District Forum has not noted any external particles, visibly in nature. The story of the complainant, as if, on seeing the dirty articles, he became allergic and bed ridden, shows the figment of imagination, to claim a sum of Rs.5 lakhs as compensation. It is not the case of the complainant that he had consumed the Miranda causing any problem. The very fact, he has not consumed and on seeing dirty article, it had made him bed ridden, itself sufficient to draw an inference that this case is false and frivolous, invented for the purpose of the claim. The District Forum, without giving a finding, who is the manufacturer by this alleged Miranda bottle, and who is the authorized agent of the third opposite party, has granted an order unjustifiably, which should be erased, since we are unable to support legally the same.

11. In the result, the appeal is allowed, the order of the District Forum in OP No.358/2003, dt.25.06.2007 is set aside, and the complaint is dismissed. There will be no order as to cost throughout.

12. The Registry is directed to handover the Fixed Deposit Receipt, made towards the mandatory deposit, to the appellant/ third opposite party duly discharged, since appellant succeeded, and there is no need to retain the FDR.