DHILLON KOOL DRINKS BEVERAGES LTD. vs SUNDERPAL DHANKAR

THIS appeal is directed against the order dated 22.2.2005 passed by District Forum, Rohtak whereby while accepting the complaint of the respondent No. 1 - complainant, directions have been given to the appellant-opposite party No. 2 to pay Rs. 10,000 as compensation along with Rs. 2,000 as litigation expenses to the complainant within one month from the date of the order.

THE facts as can be gathered from the complaint are that on 3.7.2002 the complainant had purchased vide bill No. 2598 for Rs. 680 nine bottles of Pepsi and nine bottles of Mirinda drinks containing two litres each from Gopal Trading Company-opposite party No. 1 in connection with birthday of his daughter for serving the same to his friends and relatives, who were to be invited on that occasion. When he took out the bottles from the packed carton for serving the same to his guests, he was surprised to notice a dead fly in one sealed bottle of Mirinda and two bottles of Pepsi were found cracked from the bottom and thus had become empty. THE guests present at his house did not take any drink seeing dead fly in the Mirinda bottle. He could not arrange any substitute of the cold drinks in a summer season and felt embarrassed before his guests. Claiming that opposite party No. 1 sold a sub-standard quality of cold drinks and alleging negligent and deficient service, a legal notice was served upon them but no response was received from the opposite party No. 1. Forced by these circumstances, the complainant invoked the jurisdiction of the District Forum claiming compensation amount of Rs. 50,000 on account of shock suffered by him and his family members on account of negligence on the part of opposite party No. 1. In addition, he claimed Rs. 680 being the costs of the bottles purchased by him. The claim was contested by the opposite party No. 1. In the written statement filed, it was pleaded by him that the complainant had never purchased bottles in question. It was maintained by him that the bottles were sold by him in a packed corrogated carton and if there was any deficiency in the cold drinks, manufacturer is responsible for the same. During the pendency of the complaint, opposite party Nos. 3 to 5 were impleaded as parties to the complaint but subsequently as per order dated 14.12.2004 the name of opposite party No. 5 was deleted from the array of opposite parties. The opposite party No. 2, who is the manufacturer of the above mentioned cold drinks, took up the stand that the opposite party No. 1 is not its authorized distributor as M/s. Ram Parkash and Company located at 217/20 DLF Colony, Rohtak through its sole proprietor Mr. Ram Parkash as per agreement dated 1.9.2000 is authorized distributor of the cold drinks. It denied the allegations made by the complainant and prayed that the complaint deserves to be dismissed.

The opposite party No. 3 in its separate written statement maintained that it had been appointed by High Sky Trade Links Pvt. Limited, village Babarpur, G.T. Road, Panipat as C&E agent- cum-Distributor for Pepsi Brand Cold Drinks for Rohtak and Jhajjar Districts and M/s. High Sky Trade Links Ltd. is a sister concern of opposite party No. 2. It was further averred that it had purchased cold drinks in question from the said High Sky Trade Links Pvt. Ltd. as per invoice No. 2132 dated 26.6.2002 and had sold the cold drinks in question to opposite party No. 1 as per invoice No. 1006 dated 26.6.2002. It was further stated that opposite party No. 2 being the manufacturer is responsible for negligence in this regard. Opposite party No. 4 claimed that it has no concern with any of the above stated facts. On scrutiny of the evidence and pleadings of the parties the District Forum accepted the complaint as per order dated 22.2.2005 and issued the directions noticed above. It is against this order, the present appeal has been filed by the opposite party No. 2.

THE learned Counsel for the appellant has been heard at length. None had appeared on behalf of the contested respondents at the time of arguments. The learned Counsel for the appellant while assailing the finding of the District Forum in order dated 22.2.2005 made five-fold submissions before us. Firstly, it was contended that factually it has not been proved on record that the complainant had purchased nine bottles of Pepsi and nine bottles of Mirinda each containing two litres in content and for that reason the complaint deserves to be rejected. Secondly, that no acceptable explanation has come on record with regard to the period of two months and 13 days in filing the complaint from the date of purchase of the above stated bottles. Thirdly, that in this case the story put up by the complainant is improbable because two broken bottles each containing two litres of Pepsi could not have sustained the contents without there being its leakage from the carton and could not have been carried unnoticed to the house of the complainant. Fourthly that it is the admitted case of the complainant that because dead fly was noticed in one Mirinda bottle of two litres, the same was not consumed by the complainant or any of his guests and as such no health hazard had resulted. Lastly, that despite the request made for analysis of the contents of the Mirinda bottle containing dead fly, the District Forum deliberately had not sent the same for analysis and thus committed the breach of mandatory provisions of Section 13(c) of the Consumer Protection Act which had caused prejudice to the appellant.

COMING to the respective submissions made, it cannot be denied that nine bottles of Pepsi and nine bottles of Mirinda soft drinks were purchased by the complainant on 3.7.2003 from opposite party No. 1 as per invoice No. 2598 dated 3.7.2002 issued by the opposite party No. 1. In support of the stand taken the complainant has also produced on record affidavit Exs. P1 to P6. The opposite party had also produced affidavit of Mr. Yogi Lal Sharma, Liaison Officer of opposite party No. 2 in which it was maintained that opposite party No. 1 is not authorized distributor of Dhillon Cold Drinks as Sh. Ram Prakash and Company is their authorized dealer. The opposite party Nos. 1, 3 and 4 have also produced their affidavits Exs. R 3, R4 and R2 respectively. The invoice No 2132 dated 26.6.2002 was also produced on record in order to prove that High Sky Trade Links (P.) Ltd. had purchased 2000 M.L. nine units for a sum of Rs. 2,50,500 from M/s. M.S. Trading Company. In addition, agreement entered between High Sky Trade Links Pvt. Ltd. Rohtak (Ex. R6) has been produced on record. These documents fully establish that opposite party No. 3 is C&F agent-cum-distributor for Pepsi brand cold drinks for Rohtak and Jhajjar so appointed by High Sky Pvt. Ltd., while opposite party No. 5 is sister concern of opposite party No. 2. It is further proved on record that the complainant had purchased above stated cold drinks from opposite party No. 1, who has purchased the same from opposite party No. 3, as is clearly brought on record from the invoice No. 2132 dated 26.6.2002. Thus, it is proved on record that the above stated bottles purchased by the complainant were manufactured by the appellant-opposite party No. 2. At the same time, it is clearly brought on record that the present complaint came to be filed on 16.9.2002 so to say after the period of two months and 13 days from the date of the purchase of the bottles. The version of the complainant that when the carton was opened on 3.7.2002 at the house of the complainant at the time of celebration of birthday of his daughter, in the presence of the guests, two bottles containing Pepsi were found cracked from the bottom and had become empty. It is also the case of the complainant that fly was noticed in one of the Merinda bottles at that very time. It is not the case of the complainant that immediately on the same day or on the next day he brought this factual position to the notice of opposite party No. 1. No doubt, it has been stated in para 5 of the complaint that the complainant visited time and again opposite party No. 1 to seek the refund of the price of the aforesaid three bottles but the opposite party No. 1 flately refused to do so. There is no conspicuous omission about the date of visit of the complainant to the shop of the opposite party No. 1. Instead of filing the complaint immediately thereafter, according to the complainant, he had served notice dated 7.8.2002 and still awaited for a period of another one month for the response. The version so rendered appears to be totally improbable and is not understandable at its face value. In this manner, the complainant has sufficient time so as to put up a coloured and concocted version. There can be many causes for breaking of the two bottles of Pepsi purchased by the complainant. It was all the more necessary because at the time when the complaint was filed the complainant had not chosen to produce the said three bottles before the District Forum so as to establish the authenticity of the version rendered, though in the complaint it was mentioned that if required the sample of the soft drink may be sent to the appropriate laboratory to test the fitness or otherwise of the contents of bottles for human consumption. The first order dated 16.9.2002, on the day the complaint was presented before the Members of the District Forum, does not reveal that the bottles were produced by the complainant at the time when the complaint was ordered to be registered and notice was given to the opposite party for 28.10.2002. No explanation has come on record as to why bottles have not been produced by the complainant before the District Forum. Under the circumstances, the stand taken from the side of the appellant that the version being improbable and concocted, cannot be rejected. It is not disputed on record that one Mirinda bottle containing dead fly was not consumed by the complainant, his family members or any of his guests, who had assembled in connection with birthday of his daughter. The version of the complainant that he could not find the substitute of the cold drinks becaue of the summer season and had felt sorry due to sub-standard quality of the cold drinks is an exaggeration on the part of the complainant as the bottle in which fly was noticed floating, has not been consumed. It can be safely assumed at this stage that no health hazard had resulted to the complainant, his family members or his guests. No doubt a dead fly was visible to the naked eyes but in the present case it has to be accepted that because of time taken in lodging the complaint and not producing the three bottles at the time of filing the complaint, has created a doubt as to the truthfulness of the version of the complainant. The story of the presence of the fly in the bottle as such cannot be accepted at its face value. Most important aspect of this case is that the complainant, right at the institution of the complaint, had requested the District Forum that the samples of the soft drink be sent to the appropriate laboratory. This request was made on 16.9.2002. After the opposite party had put in appearance, an application dated 2.4.2003 was filed from the side of the complainant before the District Forum with a prayer that there is a dead fly floating in a sealed bottle of Mirinda and for the decision of the present complaint, it is necessary to obtain the sample and authenticate it in the manner prescribed and refer the sample to the appropriate laboratory along with the direction to make the analysis or test, whichever may be necessary, with a view to find out whether such cold drink suffers from any defects alleged in the complaint or any other defect and also to file report regarding the seal of the bottle as to whether it is tampered or not report its finding to the District Forum. It was also prayed that the bottle of cold drinks may be taken from him. This application came to be filed after nine months from the date of purchase of said bottles. The orders dated 2.4.2003 recorded on the file make a reference to filing the application by the complainant for sending the bottles to the appropriate laboratory but the bottles in question were not taken into possession by the District Forum and rather notice of the application was given to the opposite party and the case was adjourned to 6.5.2003. Thereafter, on that day reply to the application was not filed and it was adjourned to 13.5.2003 for consideration. On that day reply to the application dated 2.4.2003 was filed and another application for impleading the party was moved and the case was adjourned to 20.5.2003 for filing reply to the said application and consideration on both the applications. On that day, the case was adjourned to 2.6.2003 and then to 4.6.2003. On 4.6.2003 the application dated 2.4.2003 submitted by the complainant was accepted and the complainant was directed to furnish the name of approved laboratory to conduct the laboratory test and the case was adjourned to 17.6.2003. Thereafter the case was adjourned to 17.6.2003, 10.7.2003, 14.8.2003, 4.9.2003, 16.9.2003, 7.10.2003, 23.10.2003, 4.11.2003 and 17.11.2003. On 17.11.2003 arguments of the parties were heard in part. The bottle was produced before the District Forum by the complainant. Opposite party No. 2 was directed to check/inspect the above said bottle minutely and to submit an affidavit on oath confirming that the above said product is manufactured by him or not and the matter was adjourned to 24.11.2003. On that day the affidavit was furnished on behalf of the opposite party No. 2 where Sh. Yogi Lal Sharma, Liaison Officer of opposite party No. 2 had stated that the bottle produced in the Court was not manufactured by the opposite party and not sold by it. On 24.11.2003 after the affidavit was furnished by Yogi Lal Sharma the matter was adjourned to 4.12.2003. Thereafter the opposite party No. 5 was impleaded as a party which was ultimately given up by the complainant on 14.12.2004 but no order was passed with regard to the analysis of the bottle produced before the District Forum and the case was decided against the appellant-opposite party No. 2 as already noticed. In this case because of the lack of due care on the part of the Members of the District Forum in getting the bottle produced for sending the same to the concerned laboratory for test at the time request was made by the complainant at the earliest stage of the case has resulted in prejudice to the complainant as well as to the appellant-opposite party No. 2. No doubt, the complainant has contributed to the delay because he did not produce the bottle at the time he filed the complaint initially. The District Forum also did not pass any order to produce the bottle so that it could have been sealed there and then and sent the same for analysis or test as the case may be. As the opposite party had taken objection to the authenticity and genuineness of the bottle containing dead fly, it was the duty of the District Forum to have ensured prompt action for sending the bottle in question of the laboratory because doubt regarding tampering of the seal of the bottle was also required to be dispelt. The very purpose of sending the bottle to the laboratory is to find out the fitness of contents for human consumption, the type of the dead fly and its hazardous health consequences. The District Forum by adopting indifferent approach has defeated the rights of the parties for getting the bottle tested from the appropriate laboratory. Needless to say that the cold drink in question is a perishable article and possibility it being render unfit for analysis on account of delay in analysis was also required to be kept in mind by the District Forum. Under the circumstances of the case, the order of the District Forum cannot be sustained.

FOR the aforesaid reasons, we have been left with no alternative but to accept the appeal and while setting the order of the District FORum, dismiss the complaint. Appeal allowed.