DIRECTOR, PEPSI INDIA HOLDING LIMITED vs RAJESH SAINANI

-THIS appeal arises from order dated 8th January, 2001 rendered by the learned Vadodara District Consumer Disputes Redressal Forum in Consumer Dispute Redressal Case No. 247/99 directing the opponents to pay to the complainant Rs. 3,046/- within 30 days from the date of the order, failing which to pay interest @ 18% p.a. and cost quantified at Rs. 500/-.

WE have heard the learned Advocate appearing for the appellant, original opponent No. 1. WE have gone through the impugned order. No one is present for the original complainant, respondent herein. Complainant approached the learned Forum with the allegations of facts that he had purchased two bottles of Pepsi manufactured by the first opponent from Gurukrupa Pan House on 10.8.1999. He kept these bottles in the refrigerator and on the next day he consumed some cold drink from one of the two bottles. After few hours of such consumption of the soft drink he had great trouble with pain in the throat and heavy fever compelling him to take treatment for 5 to 6 days spending Rs. 587.90. It was his case that he was used to take cold drinks in every season but had no occasion to suffer such trouble. According to him the cold drink he consumed from one of the two bottles was contaminated and, therefore, he had to suffer the ailment noted hereinabove. The second bottle of the Pepsi with Batch No. 1569 was kept in the sealed condition in the refrigerator. But it was found that some fungus had already developed therein. He, therefore, drew the attention of the opponent No. 2 who gave evasive reply leaving no alternative to the complainant except to file complaint before the learned Forum. Along with the complaint the sealed Pepsi bottle was produced for the same being tested by the Laboratory. As per the order of the learned Forum dated 31.8.1999 the said bottle was sent to the Food and Drugs Laboratory at Baroda for analysis as contemplated under Section 13(1)(c) of the Consumer Protection Act, 1986. The Forum received the Analyis report dated 1.10.1999 saying "Sample Bottle contains brown coloured liquid showing the presence of fluffy soft mass, which when isolated and examined microscopically showed the presence of plenty of fungal mycelia sporengiophore and spores and the sample is not fit for human consumption."

After service of the summons the opponent No. 1 filed objections raising contention that there was no privity of contract between the aggrieved consumer and the opponent No. 1, that the empty bottles of the company would be available in the market and the same might have been refilled and sold in market by the retailer, that there might be a hair crack having taken place on account of mishandling of the bottle or of the seal therein resulting into air having entered into the bottle which might have caused the fungus, and that the opponent No. 1 could not be held liable for the finding of fungus in the bottle.

AFTER considering the material placed on record and the laboratory report learned Forum came to the conclusion that the first opponent being the manufacturer of the Pepsi bottle in question was liable in respect of the contents therein and the finding/development of fungus in the second bottle, that the first opponent being the manufacturer of the goods of the soft drink it was its duty to take necessary care and caution to see that pirated goods were not traded in the market in the name of the first opponent and that the first opponent failed to prove by giving cogent and reliable evidence that the bottles in question were pirated goods and, therefore, factually the complainant established his case with regard to soft drink getting contaminated and resulting into health hazard to the complainant as stated above. Learned Forum also examined the relevany provisions of the Sale of Goods Act, 1930, Section 16 in particular and the decisions referred to and found that there was violation of implied condition with regard to quality and fitness of the goods in question as its very use is for human consumption and hence bearing in mind all the circumstances learned Forum passed the impugned order.

THE first opponent would reiterate its contention that there was no privity of contract between the complainant and the first opponent. It is not disputed that the two bottles containing the soft drink were the products manufactured by the first opponent. THE relationship between the consumer and the manufacturer through its product is established on the record of the case. It has, however, been submitted that the complainant has failed to establish the very purchase of the two bottles from the retailer, he having not produced any bill or cash memo. A reference in this connection has been made to a decision of the National Commission in the case of P.A. Pouran v. McDowell & Co. & Anr., reported in I (1992) CPJ 300 (NC). In that case the complainant purchased one bottle of "McDowell''s Soda" from the hotel of the second respondent of that case on 3rd September, 1987. It was alleged that there was some foreign solid body floating inside the bottle. It was only after a period of more than five months that the complainant, first time got his grievances published through the columns of a newspaper "Madhyam" by name. THEre was nothing to show that the complainant made any complaint or representation to any authorities including the Municipal Authorities in-charge of administration of Prevention of Food Adulteration Act. No step has been taken to get the bottle sealed and its contents analysed by any recognized laboratory. Long afterwards the petition was filed before the National Commission on 8.6.1998 praying for compensation of Rs. 12,00,000/- including the manufacturer McDowell Co. Ltd. as a party. In the background of such facts it could not be ascertained as to whether the complainant himself purchased the disputed soda bottle and, if yes, he should have taken prompt action in respect of alleged contamination of soft drink inside the bottle. On the peculiar facts and circumstances before the National Commission it came to the conclusion that the facts indicated nothing but a clear abuse of process of law particularly when highly exaggerated claim in the sum of Rs. 12,00,000/- was made. In our considered opinion this decision displays altogether different facts and in the present case the complainant is vigilant. He made grievance immediately after he had consumed the soft drink from one bottle and fell ill. THE incident occurred soon after the purchase of the bottles. He presented the second bottle before the learned Forum having found therein objectionable solid fungus. It was his positive case before the learned Forum that he did not have the occasion to open the second bottle. Under such circumstances evidence in the form of bottles purchased by the complainant from the concerned dealer/retailer was very much present before the learned Forum and one of the bottles was presented for its test in appropriate/approved laboratory. In that view of the matter the argument in the form of absence of privity of contract cannot be accepted. It was then submitted on behalf of the first opponent that the appropriate laboratory/Government laboratory as per its communication dated 1st October, 1999 submitted that the learned Forum sent communication dated 1st September, 1999 to the said laboratory inter alia stating therein that the bottle sent for examination was duly packed but its seal was a little loose with some leakage and, therefore, the bottle should be kept upright. We do not find any consequence of this recital in the communication addressed by the learned Forum to the appropriate laboratory, particularly when the opponent No. 1 did not raise any factual dispute with regard to the identity of the bottle in question. If the opponent No. 1 had raised dispute with regard to the identity of the bottle in question. If the opponent No. 1 had raised dispute with regard to the factual aspect of the bottle the complainant would have got opportunity to explain the leakage on the loose part of the seal. Hence the submissions which have been made for the first time in this Commission arising from the aforesaid communication, cannot be accepted. It has then been submitted on behalf of the first opponent that the analysis report of the aforesaid laboratory was not supported by any affidavit. It might be noted that the laboratory is an approved and is authorised to test and report about the contents therein even under the provisions of Food Adulteration Act. As a matter of fact the report submitted to the learned Forum by the laboratory was a public document. It is then for the opponent No. 1 to set out all the facts of defence and establish them by adducing cogent evidence in respect of such defence. Opponent No. 1 has not undertaken any exercise or has not done any investigation with regard to how the bottle in question contained contaminated substance as noted hereinabove. It has not taken any action against the retailer or even bringing the retailer for evidence before the learned Forum. In fact, there is no evidence as such before the learned Forum with regard to the submissions sought to be made in this appeal. In that view of the matter decisions in the case of Aquaous Victuals Limited v. Rajesh Kumar Bajpai, reported in II (2003) CPJ 258 and Tata Engineering & Locomotive Co. Ltd. & Anr. v. Gajanan Y. Mandrekar, reported in III (1996) CPJ 123 (NC), would not be applicable in the present case.

IN the present case due notice was given by the complainant to the first opponent and that too well in time. Even then the opponents were not awakened with regard to the seriousness of the problem. Health hazard is one of the prime considerations under the provisions of the Consumer Protection Act, 1986. IN that view of the matter this is a fit case where no indulgence is required to be shown in favour of the first opponent, appellant before this Commission. Following order is, therefore, passed: This appeal is dismissed with no order as to cost. Office is to verify the amount of Rs. 3,046/- stated to have been deposited in this Commission by the appellant and the same shall be paid over to the complainant by A/c payee cheque upon the complainant preferring application before this Commission. Appeal dismissed.