VIJAY SINGH vs M/S. MOHAN MEAKIN LIMITED & ANR.

This revision is directed against the order of the State Commission Himachal Pradesh dated 01.04.2015 in Appeal No. 395 of 2013 preferred by the petitioner and dismissed the consumer complaint filed by the petitioner.

Briefly stated facts relevant for the disposal of the revision petition are that petitioner Vijay Singh initially filed a consumer complaint against M/s Suruti & Co. and one Jai Singh

alleging that on 02.08.2011, he purchased two bottles of beer from the liquor vend of M/s Suruti & Co. from the salesman Jai Singh. One bottle of liquor was consumed by the complainant and his friend. On consumption, both the complainant and her friend started feeling giddy. Upon this, complainant examined the second unopened bottle, which contained some foreign material which appeared to be body part of lizard. Second bottle was preserved and was produced before the District Forum on 06.08.2011. It was sent to CTL Kandaghat for analysis and as per the report of the analyst, there was some foreign material in the sealed bottle and the content was opined to be unfit for human consumption.

It is pertinent to note that during the pendency of the complaint, the petitioner moved an application under Order 1 Rule 10 CPC seeking to implead respondent Pawan Kumar in place of M/s Suruti & Co. as the proprietor of liquor vend from where the beer bottles were purchased. The said application was allowed and the petitioner was directed to substitute the name of Pawan Kumar as opposite party and also to omit the name of Jai Singh from the array of opposite parties.

The complaint was resisted by the respondent Pawan Kumar as also M/s Mohan Meakin Limited who is alleged to be manufacturer of the aforesaid bottles of beer. Pawan Kumar in his written statement pleaded that Jai Singh was not his salesman. It is denied that beer bottles were purchased by the petitioner from his liquor vend. It was pleaded that Vijay Singh might have purchased adulterated beer bottles from some unauthorised vendor.

OP No.2 in their written statement took the plea that there is no privity of contract between the complainant and OP No.2 and as such the complainant Vijay Kumar is not a consumer qua OP No.2. On merits also, allegations of the petitioner were denied. It was pleaded that complainant might have purchased the subject bottles of beer from some unauthorised person selling spurious liquor. According to OP No.2, OP No.2 had produced 22968 of beer bottles of batch No. 199 which bottles were supplied in different parts of the Himachal Pradesh but no complaint from any customer except that of the petitioner has been received.

The District Forum on consideration of the pleadings and evidence allowed the complaint and directed the opposite parties as under: "In view of the above discussion, the complaint is allowed and the opposite parties are jointly and severally directed to pay an amount of Rs.50,000/- as compensation to the complainant within 30 days from today failing which to pay interest at the rate of 9% per annum from the date of filing of the complaint till realization. The opposite parties are further directed to pay an amount of Rs.5000/- as costs to the complainant."

Being aggrieved of the order of the District Forum, OP No.2 M/s Mohan Meakin Limited preferred an appeal and the State Commission allowed the appeal, set aside the order of the District Forum and dismissed the complaint. Being aggrieved of the order of the State Commission, petitioner has filed the instant revision petition.

Learned counsel for the petitioner has contended that order of State Commission is not sustainable because State Commission has failed to appreciate that sealed bottle of beer pertaining to batch no. 199 manufactured in June 2011 was produced before the District Forum and it was sent to the Composite Testing Laboratory at Kandaghat, District Solan for analysis where it was opined that contents of the bottle contained foreign matter and was not fit for human consumption.

It is contended that aforesaid report is sufficient to conclude that OP No.2 had manufactured and distributed it for sale and the said beer bottles were not fit for human consumption. In support of this contention, learned counsel for the petitioner has drawn my attention to the report of Public Analyst. It is further contended that State Commission has committed an error in holding that petitioner has failed to establish that he had purchased the bottles from the liquor vend of OP No.1 Pawan Kumar.

I have heard learned counsel for the petitioner. On careful consideration of the record, I do not find merit in the contention of learned counsel for the petitioner. The State Commission has allowed the appeal mainly on the ground that complainant has failed to prove that he purchased the subject beer bottles from the liquor vend of OP No.1 Pawan Kumar. Relevant observations of the State Commission are reproduced as under: "Admittedly, Vijay Singh is not having any cash memo or bill, showing that he had purchased the beer from Pawan Kumar. Vijay Singh has taken the plea that Jai Singh, salesman was asked to give cash memo but he refused to issue one. Jai Singh is not a party to the amended complaint in which Pawan Kumar has been substituted for M/s Shruti & Company who was initially impleaded as opposite party no.1. As already noticed, Jai Singh was impleaded as opposite party in the initial amended complaint in the capacity of a salesman but in the amended complaint, he is not named a party. The omission of name of Jai Singh in the present complaint gives rise to a legitimate presumption that Jai Singh is not a salesman at liquor vend of Pawan Kumar, but works with M/s Shruti & Company, who was initially impleaded as opposite party and that is why when substituting respondent Pawan Kumar, as opposite party for M/s Shruti & Company, name of Jai Singh has also been omitted.

Now, if Jai Singh, is not a salesman of respondent, Pawan Kumar, as presumed hereinabove, there should be no hitch in rejecting Vijay Singh''s plea that he had purchased the beer from liquor vend of Pawan Kumar. This is particularly so, when Pawan Kumar has denied that Jai Singh is his salesman and respondent Vijay Singh has not adduced any evidence, showing that Jai Singh is Pawan Kumar''s servant, or salesman

It is quite likely that there is another liquor vend at the station, where respondent Vijay Singh purchased the bottles of beer and that vend is named and styled as M/s Shruti & Company. We are saying so for the reason that Vijay Singh initially impleaded M/s Shruti & Company, as the owner of the vend, at which the beer was purchased and Jai Singh as its salesman. Later ?on, when Pawan Kumar''s name was substituted for M/s Shruti & Company''s name, Jai Singh''s name was omitted, which fact implies that to the knowledge of Vijay Singh, Jai Singh is not a salesman at the liquor vend of Pawan Kumar, otherwise, there could not have been any reason for deleting his name when in the complaint filed against M/s Shruti & Company, he was named as one of the opposite parties."

In absence of any cash memo regarding purchase of subject bottles as also the fact that Jai Singh who is alleged to be the salesman and who could be the best witness to resolve this controversy has not been examined by the petitioner to substantiate the allegation. I do not find fault with the approach adopted by the State Commission in allowing the appeal. The petitioner has not been able to point out any material irregularity or jurisdictional error which may call for interference in exercise of revisional jurisdiction. Revision Petition is, therefore, dismissed.