Colgate Palmolive India Ltd. vs O.P. GAGNEJA

THIS is an appeal against the order dated 9.7.1998 of the District Consumer Disputes Redressal Forum, Amritsar (hereinafter called the District Forum) vide which the appellant, M/s. Colgate Palmolive India Limited, Apejay House, 3-Dinshwa Vaccha Road, Mumbai-I, who was opposite party before the District Forum, was directed to pay compensation of Rs. 2,000/- to the complainant.

BRIEFLY stated the facts are that the complainant/respondent purchased Colgate Gel Toothpaste of 150 g. pack bearing batch No. M-C/393, manufactured by the appellant, from M/s. Shiv Shakti Stores, Anand Avenue, Amritsar (opposite party No. 3 in the complaint). The toothpaste in question was manufactured and marketed by the appellant. Opposite party No. 2, M/s. Chawla Sales Agency, Golden Avenue, Amritsar is the distributor of the products of the appellant including the toothpaste in question for Amritsar. Opposite party No. 3 had taken the above said toothpaste from opposite party No. 2 for retail sale. Respondent-complainant opened new pack of toothpaste, which he had purchased as stated above from the opposite party to brush his teeth before bedtime and took out the paste on his toothbrush by squeezing the tube. He found a dead fly in the paste. According to the complainant he felt cheated and suffered tension and mental harassment when he found a dead fly in the toothpaste

Above said factual position mentioned in the complaint was substantiated by the complainant by filing his affidavit on the record.

THE appellant, i.e. the opposite party No. 1 before the District Forum, appeared and filed written statement wherein the purchase of Colgate Gel Toothpaste of 150 g. pack from opposite party No. 3 for his personal use was denied. THE possibility of any fly being found in the toothpaste was also denied. It was reiterated by the opposite party in its reply that the opposite party was a world leader in manufacture of Oral Care Products and is well known for the quality of its products. Opposite party Nos. 2 & 3 before the District Forum were served. But they did not put in apppearance despite service. They were thus proceeded ex parte. The District Forum gave its verdict as has been stated in the begining of this order.

WE have heard learned Counsel for the parties and have gone through the record of the case with their assistance. The fact that the complainant purchased Colgate Gel Toothpaste of 150 g. pack for 32/- from opposite party No. 3, M/s. Shiv Shakti Stores, Anand Avenue, Amritsar vide Cash Memo No. 388 dated 16.4.1998 has been proved on the record of this case. To prove the purchase of the toothpaste, the complainant has stated so in his complaint as well as in his affidavit dated 4.5.1998, which was filed by way of evidence before the District Forum. It has been specifically stated in para No. 1 of his affidavit by the complainant that he had purchased Colgate Gel Toothpaste, a pack of 150 g. manufactured 10/97 and bearing Batch No. M-C/393 for a price from the opposite party No. (3) which was manufactured by opposite party No. (1) and was distributed by opposite party No.(2) for his personal use. The fact of purchase of toothpaste is further fortified by Cash Memo No. 388 dated 16.4.1998, vide which the complainant had purchased Colgate Gel Toothpaste of 150 g. pack for Rs. 32/- from M/s. Shiv Shakti Stores, Anand Avenue, Amritsar, opposite party No. 3. Photostat copy of this Cash Memo is placed on the record of this case. This factual position is not denied by opposite party No. 3. The denial by the appellant that the complainant did not purchase the above said toothpaste from opposite party No. 3 is not of any evidential value particularly when opposite party No. 3 did not deny the fact of purchase of the toothpaste by the complainant from opposite party No. 3. Opposite party Nos. 2 & 3 did not even bother to put their appearance before the District Forum despite their being served. It has also been stated in his affidavit by the complainant that when he used the paste on his brush there was a dead fly on the paste. The sample of the paste containing dead fly on his toothbrush has been preserved as such and was not tampered with. The complainant, who is a retired Professor of D.V.A. College, Amritsar had produced the toothbrush on which a small quantity of toothpaste with a dead fly was preserved before the District Forum. The District Forum had seen the dead fly on the toothpaste as displayed by the complainant. This factual position is also not rebutted.

IT is not borne out from the record that the complainant, who is a retired Professor of D.A.V. College, Amritsar shall file a complaint without any substance just for the fun of it. No enmity or grudge or any type of prejudice of the complainant against the opposite parties is proved on the record. Decision of the Hon''ble National Commission in case Anup Kumar @ Kailash Sharma v. S.M. Kanwar & Ors., I (1993) CPJ 45 (NC)=1993 (1) CPR page 113 (N.C.), is not applicable to the facts of the case in hand. District Forum according to us has given valid reasons while holding that Anup Kumar''s case (supra), is not applicable to the facts of this case. In the case in hand when the complainant while taking out toothpaste from the tube to put it on the brush found a dead fly in the toothpaste had certainly suffered mental tension, harassment and inconvenience. He has stated so in his affidavit filed before the District Forum.

THE factual position as has emerged from the record of the case certainly proves that the product supplied to the complainant by the opposite parties was not the same as it was alleged to be. It certainly amounts to unfair trade practice. THE District Forum, we feel, has rightly awarded compensation to the complainant, who suffered tension and mental harassment when he opened new pack of toothpaste to brush his teeth and took out toothpaste with dead fly on the toothbrush by squeezing the tube. In view of our discussion made above, we do not find any infirmity in the order of the District Forum. Consquently, this appeal is dismissed, however without any order as to costs. Appeal dismissed.