TARUN KUMAR ACHARYYA vs CALCUTTA SOFT DRINKS PVT.LTD

THIS is a complaint filed under Section 17 of the Consumer Protection Act, 1986 by one Advocate, Shri Tarun Kumar Acharyya alleging that a soft cold drink purchased by him was found to be a spurious one with the existence of some foreign materials within it. The complainant number one''s allegation is that he is a practising Advocate at Howrah Judges Court and being thirsty he purchased one Limca soft drink manufactured by the O.P. No. 1 from one Pan Biri Cigarette Stall belonging to the petitioner No. 2, Ram Gopal Ram at a price of Rs. 7/- on 19.8.1996. After the purchase of the drink he found the remains of an old/used straw in the bottle although the same was sealed by the Company. On noticing the foreign article in the bottle the petitioner drew the attention of the petitioner No. 2 who also found the existence of the material on visual inspection. The opposite party No. 1 is M/s. Calcutta Soft Drinks Pvt. Ltd. who is the manufacturer of the disputed soft drink in this case. The opposite party No. 2 is the Works Manager and opposite party No. 3 is the Sales Manager of opposite party No. 1. The petitioner No. 2 has been carrying on his business within the Howrah Court Premises building for the last 60 years and he used to purchase the soft cold drink of various kinds namely, Gold Spot, Thumps Up, Coca Cola, Limca etc. from the opposite party No. 3. The Limca bottle involved in this case was also purchased by the petitioner No. 2 from opposite party No. 3. It has been stated that the petitioner No. 1 was very much shocked by noticing the foreign material in the bottle of the soft drink in question. He did not drink it and instead purchased the same with the bottle itself by paying the price of the drink and the bottle. It has been alleged that the opposite parties were negligent in bottling the drink contents without removing the used old noxious straw from the said bottle and without inspec- tion of the same before putting it to sale. It has also been alleged that the relevant drink with the foreign material is a health hazard and there is gross deficiency in service. The petitioners have accordingly claimed a compensation of Rs. 7 lakhs for the mental agony of petitioner No. 1 and Rs. 3 lakhs for petitioner No. 2.

THE sample of cold drinks was sent for analysis to the West Bengal Public Health Laboratory at 2, Convent Lane, Calcutta-15 and they have sent a report which has been kept in the record. Due notice was sent to the opposite parties and they appeared praying for time for filing written objection. Ultimately, however, they did not file any such objection and the matter was heard ex parte. The point for consideration is if the opposite parties were guilty of defect in the goods sold and if the petitioners are entitled to the amounts of compensation claimed by them.

The petitioners have produced a letter addressed to the Officer-in-Charge, Howrah Police Station urging the police to make an enquiry into their allegation regarding the spurious nature of the Limca. They have also, produced a cash memo showing the purchase of soft drink from Calcutta Soft Drinks Pvt. Ltd. Besides these papers no oral evidence have been adduced by the parties. The report on analysis of the soft drink is as follows: "1 Extraneous colouring matter - Nil 2. Test for Carbon-dioxide - Positive 3. Total sugar expressed as sucrose -10.7% The report further states that one foreign sub- stance like straw is found in the bottle which is unwanted. The Laboratory was also asked whether any sterilization was made at the time of filling up the bottle and whether the content of the bottle was spurious. The answers to the above queries could not be given by the Laboratory. Now, under the Consumer Protection Act, 1986 a complaint has been defined in Section 2(1)(c) as follows: "Complaint" means any allegation in writing made by a complainant that - (ii) the goods bought by him or agreed to be bought by him suffer from one or more defects; (v) goods which will be hazardous to life and safety when used, are being offered for sale to the public in contravention of the provisions of any law for the time being in force requiring traders to display information in regard to the contents, manner and effect of use of such goods."

Again, a defect has been defined in Section 2(1)(f) as follows: "defect means any fault, imperfection or shortcoming in the quality, quantity, potency, purity or standard which is required to be maintained by or under any law for the time being in force or under any contract, express or implied or as is claimed by the trader in any manner whatsoever in relation to any goods."

On the basis of the above definitions we are required to see if there is any valid complaint in this case against the opposite parties and if so, if the allegation in the complaint have been proved. As regards Clause (v) of the definition of complaint, it will be seen that the allegation must be that goods which will be hazardous to life and safety when used are being offered for sale to the public in contravention of the provisions of any law for the time being in force requiring traders to display information in regard to the contents, manner and effect of use of such goods. There is no doubt that a soft drink offered for sale to the public if found to be impure may be hazardous to life and safety, but to be covered by the definition of complaint, such offer must be in contravention of the provisions of any law for the time being in force requiring the traders to display information regarding the contents, manner and effect of use of such goods. In the instant case no law has been produced before us requiring the trader to display any information of this type. The complainants have also not shown specifically the provisions of any law requiring the display of contents etc. of soft drink, hence the requirements of Clause (v) regarding the complaint are not fulfilled.

NOW coming to Clause (ii) of the definition of complaint, if there is any defect in the goods, purchased, the same is covered by the definition of complaint and if the defect is proved the consumer is likely to succeed. In the instant case the sample of the soft drink in question was sent for laboratory test. The Laboratory has, however, been unable to satisfy whether any sterilization was made at the time of filling of the bottle and whether the content of the bottle is spurious. So on all these points there is no proof that as a soft drink any spurious drink was sold. But it has been amply proved by visual as well as by laboratory test that a foreign sub- stance like straw is found in the bottle. It is not expected that a soft drink bottle should contain straw. It would be really hazardous to life if the straw is a contaminated substance not fit for human consumption. So the presence of the substance by itself is a defect in the goods in question. Considering the fact that such cold drinks are bought for drink by thousands of people and consumed by them without any suspicion, it is of utmost importance that the drink must be cent-per-cent pure. In a poor Country like India where teeming millions of persons are living without any consciousness of the real value of their life, sale of such drinks is a real hazard to the safety of life. Purity of goods which are offered for sale is not checked by any responsible officer, and people consume the drinks in blind belief about their purity. Hence the manufacturer of such drinks should be made aware of his duty to maintain purity in the contents of a bottled drink and we have no hesitation in holding that the opposite parties are guilty of selling soft drinks, which are defective in nature. In the result, the allegation of the complainants is proved. We are, however, not impressed with the high amount of claims made by the complainant in this case. There is nothing to show that they had suffered loss to the tune of a total of Rs. 10 lakhs and we are of the opinion that the claims are highly exaggerated. Considering the importance of the matter and the nature of the defect found in this case we are inclined to award a compensation of Rs. 5,000/- to be payable to each of the parties. The case is accordingly al- lowed and the opposite parties are directed to pay Rs. 5,000/- to each of the petitioners as compensation in this case. They will also be entitled to a cost of Rs. 500/-. Complaint allowed with costs.