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Karthik E. Hariharan Rep. by Power of Attorney Agent, Vilivakkam, Chennai v/s M/s. Pepsico India Holdings Ltd., Rep. by its Managing Director, Anna Salai, Chennai & Another

    F.A.NO.377 of 2005 (Against order in O.P.No.213/2003 on the file of the DCDRF, Chennai (South)

    Decided On, 18 January 2010

    At, Tamil Nadu State Consumer Disputes Redressal Commission Chennai

    By, B.L.
    By, MEMBER - I

    For the Appearing Parties: Mr. S. Vaidyanathan, M/s. Ramasubramaniam Associates, Advocates.

Judgment Text

M. Thanikachalam J, President.

1. The unsuccessful complainant, in OP.No.213/2005, on the file of District Forum, Chennai (South), is the appellant.

2. The complainant had purchased two cartons of bottles soft drinks of Mountain Dew, Slice 200 ml. on 28.6.2003, from M/s.Supraba Super Market, Villivakkam, to provide to his guests and relatives. When the party was on, the complainant took a bottle of Mountain Dew, and found some insects inside the sealed bottle. Similarly, he had also noticed small insect inside the soft drink, slice bottle also, thereby causing disturbance and embarrassment in the presence of his guests.

3. The complainant caused notice dt.29.6.2003, for which there was no proper response, conceding the compensation. Hence this petition is filed for the compensation of Rs.2 lakhs.

4. The opposite parties totally denying the allegations in the complaint, as well as the alleged damage, have stated that the prayer in the complaint is not in accordance with Sec.14 of the Consumer Protection Act, that they have not manufactured the contents of the impugned bottles, and that their products are manufactured in the sophisticated plant, under strict vigilance, following most hygienic condition, that the complainant has not impleaded the party, from whom it is alleged that he had purchased the products, and that there is no negligence on the part of the opposite parties, causing any mental agony or disturbance, thereby praying that the complaint must be dismissed with cost.

5. The District Forum, as per the order dt.30.3.2005, has come to the conclusion that the complaint was bad for non-joinder of necessary parties, that the complainant has failed to prove that the product in question viz. soft drinks, were manufactured and marketed by the opposite parties, and that there was no negligence of any kind on their part. Thus deducing the conclusions, the claim of the complainant was negatived. Aggrieved, by the said order, appeal is preferred for redressal.

6. Heard, the learned counsel appearing on either parties, perused the written submission, in addition to the documents filed by the appellant, including the order of the District Forum.

7. The learned counsel for the appellant would submit that, no case could be dismissed for non-joinder of necessary parties, and in this view, the order of the District Forum is erroneous. It is the further submission of the learned counsel that the soft drinks purchased were manufactured by the opposite parties, which contained foreign particles viz. insects, which was not properly analysed by the District Forum, resulting miscarriage of justice, which is to be redressed by allowing the appeal.

8. Per contra, it is the submission of the learned counsel for opposite parties/ respondents, that there is no materials of any kind to prove that the soft drinks said to have been purchased by the complainant, were manufactured by the opposite parties, and that the fact the bottles sent for chemical analysis, contained some insects, will not be an automatic proof, that the soft drinks were manufactured by the opposite parties, which fact was properly analysed, just conclusion reached, which does not require any eraser.

9. The accusation of the complainant, as seen from the complaint, was that in the soft drinks viz. Mountain Dew and Slice, manufactured by the opposite parties, there were insects inside, though the bottles were sealed, and this should be construed as injurious to the health, and in this way, they have committed deficiency, for which they should be directed to pay compensation, since he was put to mental agony and other sufferings, that too in the presence of the guests. No where in the written version or in the affidavit, the opposite parties have admitted that they have manufactured the soft drinks impugned, in their plant, though it seems the contents were available in the bottles bearing their trade name viz.. Pepsi Co. Therefore, it is the bounden duty of the complainant, at the first instance to prove that, what he had purchased under Ex.A1, including the bottles impugned, and its contents therein, were manufactured by the opposite parties, floated in the market, through their recognized agents or through the retailers, who had purchased from recognized agent. If the above aspect are not made out, we cannot compel the opposite parties to answer the claim of the complainant, whether it is monetary compensation or someother relief, sought for, or can be granted by the District Forum or the State Commission.

10. Consumer Protection Act contemplates reception of evidence on affidavits. To prove certain facts, affidavits of a person can be obtained, provided he has direct knowledge about the facts, which he swore. If the person, who has filed an affidavit had no direct knowledge, then that cannot be taken as evidence, to prove certain things, and in this view, the reception of evidence on affidavit filed by somebody, who had no knowledge about the facts in dispute, should be taken as inadmissible.

11. The case was filed by one Karthik E. Hariharan, represented by Power of Attorney Agent, Mr.E.Hariharan, probably the father of the complainant. The complaint was also signed by the power agent. Law permits a power agent, to represent the principal in a court of law, and even to file a case on the instructions or on personal knowledge. In this case, the power agent, had no personal knowledge about the facts, alleged in the complaint. It is also not the case in the complaint, that the power agent was present at the time of the alleged injury or mental agony suffered or sustained by the complainant. Para 3 of the complaint discloses, that when the complainant took out a bottle of Mountain Dew, he noticed the insects inside and similarly in the soft drink Slice also, the complainant alone had noticed the insect. Nowhere it is stated, that the power agent, was also present. It is also not the case, that the power agent purchased the goods in question, from the super market. Therefore, to prove the averments/ allegations, in the complaint, proper person who can file the affidavit, which could be accepted, must be the complainant by name Karthik E. Hariharan, and not the power agent, though he is empowered to represent the complainant. As seen from the records, only the power agent alone had filed the complaint, wherein he has stated that while his son came to India, had purchased soft drinks, that when he took the bottle, he found some insects etc., and nowhere the power agent said, he had personal knowledge about the averments alleged in the complaint. In this view, the affidavit filed in support of the complainant, which is to be taken as evidence under the Act goes, and if that is eschewed, then we do not have, practically any evidence to prove the averments, which should follow, there is no evidence to prove the complaint, and therefore we have no option except to say that no case has been made out. Though this point was not properly considered by the District Forum on available facts, we cannot shut our eyes, and in this view, we conclude the averments available in the complaints are in dead letters, and they have no life to act, and therefore the complaint has to be dismissed, as not proved.

12. Assuming that the affidavit filed by the power agent, or other materials available, may be taken as an evidence, let us see, whether any case has been made out.

13. The product under question was said to have been produced-manufactured-floated, by the opposite parties, for common use, not restricted to the individual, including the complainant. In this kind of cases, after finding of the District Forum, what kind of orders should be passed, are available under Sec.14, which says not only direction to pay compensation but also to issue direction to discontinue the unfair trade practice or the restrictive trade practice or not to repeat them; not to offer the hazardous good for sale; to withdraw the hazardous goods from being offered for sale. But no such prayer was sought for in the complaint, and the complaint is restricted only for compensation for Rs.2 lakhs. Therefore, the complainant should make out a case, that he suffered injury or mental agony by the so called spurious soft drinks said to have been manufactured or produced by the opposite parties. Admittedly, as seen from paragraph 3 and 4, the complainant has not consumed the soft drinks, said to contain insects, and therefore no injury could have been caused, either mentally or physically. It is also not the case of the complainant that he came to know, about the defective drinks, when he was offering the soft drinks to his guests; thereby he was put to humiliation in the eyes of the relatives, leading to mental suffering etc. This being the position, it is not known, how the quantum of Rs.2 lakhs is fixed, and in the absence of allegations, we fell the complaint deserves to be dismissed.

14. Admittedly, the complainant had not purchased the disputed soft drinks from the opposite parties, whereas he had purchased the soft drinks from M/s. Supraba Super Market, Villivakkam, Chennai, said to have been manufactured by the opposite party. The legislatures, while giving explanation for ?manufacturer? have stated

i. makes or manufactures any goods or part thereof; or

ii does not make or manufacturer any goods but assembles parts

thereof made or manufactured by others; or

iii puts or causes to be put his own mark on any goods made or

manufactured by any other manufacturer

Thus it is seen from the definition, if the opposite parties have allowed somebody, to put their trade mark or causes to put his own mark, then though actually the opposite parties have not manufactured the said goods, they can be brought under the definition of manufacturer, for which we do not have any details. It is not the case of the complainant, that M/s. Supraba Supermarket, was permitted by the opposite parties, to manufacture the contents of the bottles in their name for floating in market. Therefore, as rightly pointed out by the District Forum, and as urged before us by the learned counsel for respondent, the complainant ought to have impleaded M/s. Supraba Supermarket, as party to the lis, in order to have effective adjudication. If M/s. Supraba Supermarket, had been impleaded, The District Forum or this Commission would have had the liberty to ascertain, where from M/s. Supraba Supermarket had purchased the disputed soft drink, whether they are the recognized agent or not and this opportunities were shut down by the act of the opposite parties. Though it may be the rule that no case could be dismissed for non-joinder of proper party, but the same principle cannot be extended in a case of non-joinder of necessary party. Here we feel that M/s. Supraba Market is a necessary party, and for the non-joinder, as held by the District Forum, the complaint deserves to be dismissed, since no case has been made out, that the complainant had purchased the said product from the said supermarket, and that the product was produced by the opposite parties.

15. After filing the complaint and after 6 months, from the date of purchase of the soft drinks, the bottles which were said to have contained Mountain Dew and Slice, were sent for chemical analysis, through the court, which were analysed by the public analyst on 18.2.2004 and 19.2.2004, as seen from Ex.C1. The public analyst report says, that in the bottle contained Mountain Dew, they noticed a big size ant and fragments of ant, floating in the beverage, rendering the food not fit for human consumption. Similarly, it is reported that in the Slice bottle, fungal matter noticed, rendering the food not fit for human consumption. Nowhere in the reports, it is indicated that the contents analysed, were the products of the opposite party, and in fact it cannot be said so also by public analyst. It is also noticed by the public analyst, that no particulars are available, legibly on the neck of the bottles, regarding date of manufacture, batch number. Therefore, based upon the public analyst report, though one can say that the contents in those bottles were unfit for human consumption, it cannot be stated that the contents therein were manufactured by the opposite parties. Thus Ex.C1 also fails to come to aid of the complainant, to prove the averments in the complaint.

16. The learned counsel for the appellant would contend that it is the duty of the o

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pposite parties to control the spurious soft drinks in their name floated, and having failed to do so, it should be construed that they have committed deficiency in service, in which submission; we failed to understand any logic. When it was made out that the opposite parties have permitted the others, to float the soft drink, spurious in nature, in their name, then only this kind of accusation could be leveled. We do not have any materials, even to come to the conclusion that M/s. Supraba Supermarket had purchased the disputed bottles from the recognized agent of the opposite parties, and therefore when there is nil evidence to prove that the contents of the bottles were manufactured by the opposite parties, making them liable to pay compensation, which is imaginary in our consideration, is an impossibility, which we cannot do, as rightly held by the District Forum. 17. Having regard to the facts and circumstances of the case, and for the reasons assigned the irresistible conclusion, that comes to surface once again is that the complainant has miserably failed to make out the case for compensation, and therefore the appeal is devoid of merits, which is liable to be dismissed with cost. 18. In the result, the appeal is dismissed, with cost of Rs.2000/-, to be paid by the appellant to the respondent, confirming the order of the District Forum in OP.No.213/2003 dt.30.3.2005.