Usha S. Thakare, Presiding Judicial Member

1. Being aggrieved by the order passed by the learned Additional District Consumer Disputes Redressal Forum, Mumbai Suburban in consumer complaint No. 162/2011 dated 2.8.2014, original opponent Nos. 1 and 2 have preferred appeal bearing No. A/14/998.

2. By the impugned order, the learned District Forum was pleased to allow consumer complaint bearing No. 162/2011 partly which was filed by the respondent/complainant. It was declared that the opponents have adopted unfair trade practice. All three opponents are jointly and severally directed to pay an amount of Rs. 15,000 to the complainant/ respondent towards compensation with interest @ 10% p.a. from the date of filing of consumer complaint till realization of amount. It was further directed to pay an amount of Rs. 5,000 to the complainant/respondent towards costs of litigation.

3. Facts giving rise to present appeal in short are as under:

Complainant Shyam Sharad Gumte is resident of Goregaon, Mumbai. He claims himself to be consumer of opponents. M/s. Pepsi Co India Holdings Pvt. Ltd. is the manufacturer of cold drinks. Opponent No. 1 is the Chairman and Managing Director of M/s. Pepsi Co India Holdings Pvt. Ltd. Opponent No. 2- Smt.Shirin V.S. works as a Manager at M/s. Pepsi Co. India Holdings Pvt. Ltd. Opponent No. 3- Shiv Shankar Sharma runs Society Medical and General Stores shop bearing Nos. 6 & 7 at Jogeshwari (East), Mumbai. The complainant is an Advocate by profession. On 31.12.2008, complainant had purchased two bottles of cold drinks and some medicines from the opponent No. 2 for an amount of Rs. 110. The complainant had purchased cold drinks for the celebration of New Year party. He had invited guests and children for New Year party. He found that there were some foreign particles (fungus) in the bottle of cold drink Leher Pepsi. Complainant had been to opponent No. 3/ dealer and lodged his complaint. He had requested opponent No. 3 to change the bottle of cold drink Pepsi. However, opponent No. 3 refused for the same. Complainant was abused and threatened by opponent No. 3. Therefore, complainant had lodged complaint in police station. At police station, non-cognizable offence was registered. The complainant had brought sale of unfit and defective product to the knowledge of opponent Nos. 1 and 2 by sending notice. However, the opponents refused to accept the notice. It is alleged by the complainant that cold drink was not distributed to the children on seeing foreign particles inside the Pepsi bottle and, therefore, unwanted unforeseen incident could not occur. Opponent Nos. 1 and 2 are the manufacturers of cold drink Pepsi. They have manufactured the cold drink, which is not fit for human consumption. The product manufactured by opponent Nos. 1 and 2 was duplicate. Complainant is entitled for claiming compensation. Therefore, complainant had filed consumer complaint before the learned District Forum and claimed an amount of Rs. 10 lakh towards compensation and amount of Rs. 25,000 towards costs of litigation.

4. Opponent Nos. 1 to 3 have resisted the claim by filing independent written statements. Opponent Nos. 1 and 2 have submitted that consumer complaint is not maintainable. Complainant cannot be said to be consumer of opponent Nos. 1 and 2. He has no right to claim compensation from the opponents. The cold drink in the bottle purchased by the complainant was not consumed by the complainant or by anyone. Therefore, there is no question of causing any injury, hurt or damage. The complainant does not establish that the cold drink in the bottle purchased by the complainant was manufactured by opponent Nos. 1 and 2. Opponent No. 1 is a reputed company. The product prepared by opponent No. 1 passes through various tests. It is impossible to send cold drink to the retailer having foreign particles/fungus. The bottle of the cold drink was lying for long time. Therefore, there was a possibility of formation of fungus. Complainant is not entitled for any compensation. It is possible for the consumer to tamper with the product of the cold drink. Consumer complaint is filed with a view to extract amount and it is liable to be dismissed with costs.

5. Opponent No. 3 admits that on 31.12.2008 complainant had purchased bottles of cold drinks and medicines from his shop. Opponent No. 3 submits that on 31.12.2008 complainant had purchased two bottles of Pepsi vide receipt No. 12817. However, he denies that duplicate bottles of cold drink Pepsi were sold to the complainant. It is submitted that on 23.12.2008 opponent No. 3 had purchased bottles of cold drinks from opponent Nos. 1 and 2. However, there was no defect in the bottles of cold drink sold to the complainant. He also states that consumer complaint is liable to be dismissed as it is false.

6. Complainant/respondent led his evidence by filing affidaivt. Along with affidavit he had filed bill of purchase, photographs of bottles showing foreign particles, copy of report filed with police station and copy of notice sent to opponent Nos. 1 and 2. Opponents have filed affidavit of evidence along with various rulings. During pendency of consumer complaint disputed bottles of cold drink were sent for chemical analysis. Report was filed by the analyst and it was included in compilation.

7. Both the parties had filed brief notes of arguments. After considering the evidence, documents and the arguments filed on record, Learned District Forum was pleased to allow the consumer complaint partly. Being dissatisfied with the decision, original opponents are before us in this appeal.

8. Heard learned Counsel Mr. Ashish Pimple for the appellants. No one appeared on behalf of respondents to argue the matter. Original opponent No. 3/dealer has not filed any appeal to challenge the decision.

9. Learned counsel Mr. Pimple vehemently urged that the order passed by the learned District Forum is illegal and incorrect. It is against the facts and merits of the case. Learned District Forum committed an error while appreciating the evidence on record in its proper perspective. Learned District Forum failed to appreciate that bottle of cold drink Pepsi was not sent to the approved laboratory for testing. There is inordinate delay in sending disputed bottle of Pepsi to the analyst for analysis. Possibility to tamper with contents of bottle cannot be ruled out. Apart from that cold drink was not consumed by the complainant or his family members or invitees and therefore, no damage was caused to the health of anyone. In fact, consumer complaint was not tenable for want of any damage. The documents on record create doubt whether same bottle was sent for chemical analysis as the batch number on the report of the analyst and batch number mentioned in the consumer complaint do not tally with each other. Report of the public analyst is not of any use to complainant/respondent. Under these circumstances, learned District Forum should have dismissed the consumer complaint with compensatory costs. Learned Counsel has requested to set aside the illegal order by allowing the present appeal to avoid injustice, particularly, when there is no evidence to show that appellant manufacturer adopted unfair trade practice.

10. By keeping in mind all these facts let us proceed to appreciate the evidence on record.

11. Appellants/opponents challenged maintainability of consumer complaint by submitting that original complainant is not a consumer. Respondent No. 1/complainant did not purchase bottles of cold drink manufactured by the appellants. As such respondent No. 1 is not a consumer. Learned District Forum should have dismissed the complaint by holding that consumer complaint is not maintainable. Respondent No. 2-Shiv Shankar Sharma, Society Medical and General Stores is a retailer. It is evident from the documents and affidavit of evidence that respondent No. 1/complainant had purchased from respondent No. 2 on 31.12.2018 two bottles of cold drink and some medicines on payment of Rs. 110. Respondent No. 2 never denied this fact. Complainant/respondent No. 1 filed on record bill issued by respondent No. 2 dated 31.12.2018 and photographs of sealed bottle of cold drink Leher Pepsi. Present appellants/original opponent Nos. 1 and 2 are the manufacturers of cold drink Pepsi. There is sufficient evidence and documents on record to show that respondent No. 1 bought the bottles of cold drink from respondent No. 2 and the same is not denied by respondent No. 2. The learned District Forum considered the evidence on record and considered the objections raised by the appellants/opponents and arrived at proper conclusion to hold that the complainant/ respondent is a consumer. Respondent No. 1 raised the issue that bottles of cold drink sold to the complainant were duplicate. Cold drink was unfit for human consumption and, as such, original opponents have adopted unfair trade practice. The nature of allegation was that there is a consumer dispute between the parties. Complainant/respondent is a consumer. Original opponents are service providers and consumer dispute is maintainable before the learned District Forum. In view of this discussion, we do not find any substance in the arguments advanced on behalf of the appellants that consumer complaint was not maintainable before the learned District Forum. We uphold the view taken by the learned District Forum.

12. Complainant/respondent purchased the bottles of cold drink for the programme at his house. The programme was arranged to celebrate the New Year party. Some guests with children were invited for the party. However, foreign particles/fungus was noticed in the bottle. The bottle was sealed bottle and foreign particles can be seen by naked eyes. The conduct of respondent No. 1was that he rushed to the retailer’s shop of respondent No. 2 for change of bottle of cold drink. Respondent No. 2 refused to change the bottle of cold drink. Hot altercations were taken in the shop. Complainant/respondent was constrained to file report in police station. At police station non cognizable offence was registered against respondent No. 2. Complainant/respondent is a lawyer by profession. Certainly, no prudent person will raise objection without any reasons. He raised objection about bottle of cold drink on seeing the foreign particles and also lodged police report against respondent No. 2 when his request was not considered by respondent No. 2. There was no reason for the complainant/ respondent to extract the monies from original opponents, particularly, when purchase was only for the amount of Rs. 110. During pendency of trial, disputed bottle of cold drink was sent to the Government Laboratory for analysis through learned District Forum. Report of Analyst supports the case of complainant/respondent. Report is at ‘Exhibit D’ page 73 of compilation. For analysis, Public Analyst arrived at the conclusion that sample of Sweetened Carbonated water (Lehar Pepsi) content unidentified suspended matter hence it contravenes Section 2(ia) Sub-section (e) of Prevention of Food Adulteration Act, 1954 and unfit for human consumption. Report of Public Analyst dated 15.2.2010 clearly establishes that the purchased cold drink was unfit for human consumption.

13. Appellants have raised several objections pertaining to the report issued by the Public Analyst. It is urged that the bottle in question was allegedly purchased by the complainant/respondent on 31.12.2008. The bottle in question was allegedly manufactured on 10.12.2008. It was best before date of these products manufactured by opponents/appellants within three months from the date of manufacture. After the expiry of three months the product deteriorates quickly as gas in the bottle escapes and product comes in contact with air outside. Also the bottle in question was in possession of complainant for a long time and therefore, the opponents apprehend that the bottle in question must have been tampered with. It is also alleged that the laboratory where the sample was sent, is not the authorized laboratory. In the Laboratory report Batch number is mentioned as 1012 and in the complaint the Batch number is mentioned as 101208/18.44 B 101. Therefore, both batch numbers are not the same but different. Therefore, reliance cannot be placed on the said report. Document ‘Exhibit D’ shows that the report was given by Food Testing Laboratory, Mumbai-400 051. Sample was sent by the Registrar of learned District Forum. Laboratory where the sample was sent is a Government Laboratory. In Section 2(1)(a) definition of appropriate laboratory is given, which is as under:

“appropriate laboratory” means a laboratory or organisation—

(i)recognised by the Central Government;

(ii)recognised by a State Government, subject to such guidelines as may be prescribed by the Central Government in this behalf; or

(iii)any such laboratory or organisation established by or under any law for the time being in force, which is maintained, financed or aided by the Central Government or a State Government for carrying out analysis or test of any goods with a view to determining whether such goods suffer from any defect.

14. The Food Testing Laboratory, Mumbai is established under the law and as such, it is an appropriate laboratory. We are of the view that report issued by the laboratory is binding on the parties.

15. It is true that description of the bottle sent for analysis is mentioned in the report. Said description tallies with the description mentioned in the complaint. The description of the bottle is given on the basis of the labels, which is as under:

Label (i) On Plastic Bottle:

(a)Name : Leher Pepsi (Sweetened Carbonated water)

(b)Ingredients : Natural colour (150d) and flavours-Natural flavouring substances, contains no fruit, contains caffeine, quantity added sugar 10 gm per 100 gm.

(c)Manufacturer : pepsico India Holding Pvt. Limited, Off Sion-Trombay Road, Chembur, Mumbai-88

(d)Net weight/content : 2.0 litres

(e)Batch No. :1012

(f)Mfg date: 10.12.08

(i) Best before-3 months from date of Packaging

(ii) Label on Plastic lead : CDV 4051, FPO 730

Pepsico India Holding Pvt.Limited, Off Sion-Trombay Road, Chembur, Mumbai-88

16. In consumer complaint or in notice, detailed batch number is given. But in the report batch number is shown as ‘1012’. So whole batch number is not written in the report. But it appears that only last 4 figures of batch number are mentioned. However, after considering the manufacturing date on plastic bottle and label on plastic lid, we find no hesitation to hold that the bottle purchased by the respondent/complainant was sent for analysis. However, there is delay in sending the bottle of cold drink for analysis but delay does not appear to be fatal. It is observed by Public Analyst that seal of the bottle was intact. It is nowhere observed that the contents of the bottle were unfit for analysis. As such, objection raised by the appellants does not hold good.

17. The cold drink was analysed by the Public Analyst by keeping in view the provisions of Food Adulteration Act, 1954.

To impose punishment under Food Adulteration Act, 1954, all technicalities are to be fulfilled. Here we are dealing with the case in a quasi civil matter as per provisions of Consumer Protection Act, 1986. We are dealing with the matter as quasi judicial authority. The learned District Forum after considering the rulings relied upon by the appellants/opponents properly arrived at the conclusion that cold drink bottle purchased by the complainant was unfit for consumption due to presence of foreign particles/fungus and said report had binding effect. The learned District Forum rightly discussed the rulings relied on by the appellants. Complainant/ respondent after purchase of cold drink bottle immediately noticed foreign particles. It is duly proved by the respondent on the basis of report of Public Analyst that purchased bottle of cold drink was unfit for consumption. Fortunately, the cold drink was not consumed by the children, invitees or by the family members of the respondent/complainant and, therefore, injury to health was not occurred. However, complications might have been arisen on consumption of unfit cold drink. Only because no injury was caused to the family members of the complainant or invitees, it cannot be said that complainant/respondent is not entitled for claiming compensation. With this view, we hold that the order passed by the learned District Forum is just, legal and correct. It requires no interference. As a result, appeal deserves to be dismissed. Hence, we pass the following order: ORDER 1.Appeal is dismissed. 2.No order as to costs. 3.Copies of the order be furnished to the parties. Appeal dismissed.