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R. Ponkumar v/s PEPSICO India Holdings Pvt. Ltd. & Others

    F.A.No.356 of 2009 [Against order in C.C.No.371/2003 on the file of the DCDRF, Chennai (North)]

    Decided On, 18 October 2011

    At, Tamil Nadu State Consumer Disputes Redressal Commission Chennai

    By, THIRU A.K. ANNAMALAI
    By, M.A.
    By, M.L.
    By, M.PHIL.
    By, PRESIDING JUDICIAL MEMBER & THIRU S. SAMBANDAM
    By, B.SC.
    By, MEMBER

    For the Appellant : M/s. Madhan Babu, Advocate. For the Respondents : M/s. M. Kandasamy, Advocate.



Judgment Text

(The appeal coming before us for hearing finally on 20.09.2011, upon hearing the arguments of both sides and perused the documents, written submissions as well as the order of the District Forum, this Commission made the following order :-)

A.K.ANNAMALAI, PRESIDING JUDICIAL MEMBER

1. Unsuccessful complainant is the appellant.

2. Appellant/Complainant filed a complaint against the opposite parties claiming a sum of Rs.1,00,000/- as compensation for mental agony, pain and sufferings for the supply of soft drink containing foreign material and for costs.

3. The complainant working as an employee in Muthu Wines at Thiruvottiyur on 13.6.03 purchased two bottles of Pepsi soft drink for a sum of Rs.20/- supplied by the 2nd opposite party to his wine shop from where he has purchased. On reaching his residence he consumed one bottle of the soft drink he sensed different taste and on consuming almost of the drink he found some solid material in the bottle and immediately he spat out the drink from the mouth and on seeing the materials appeared to be broken parts of the some organism. When he has examined the contents of the 2nd bottle in which also found identical contents of dead organism and he sealed the bottle for preservating and he had began to feel dizzy he rushed to the private doctor who had treated him for food poisoning and bed ridden for 4 days from 13.6.03 to 16.3.03, by spending Rs.5,070/- as medical expenses. Then he sent legal notices to the opposite parties claiming compensation 1st opposite party gave unsatisfactory reply and 2nd opposite party did not reply. 3rd opposite party is the authorized distributor of the 1st opposite party and to various shops to other localities. Hence the complainant has come forward with the consumer complaint claiming with the reliefs as above.

4. Before the District Forum, the opposite parties 1 and 2 denied the allegations and stated that complaint is bad for non jointer of necessary parties. Since the complainant purchased the bottles from the Muthu Wine Shop and the bottles were purchased by the wine ship which was not purchased by the complainant for his own use and thereby he is not a consumer. 3rd opposite party is only a distributor of Pepsi products. Spurious manufacturers have primary marketier through wine shops, petty shops and other unscrupulous traders in the local market in the name of wine shop and the complainant could have purchased the such impugned product. The products are manufactured with multi stage process and high quality control and no chance for foreign materials inside the bottle. Hence complaint to be dismissed.

5. On the basis of both sides materials and after an enquiry the District Forum dismissed the complaint as no deficiency in service on the part of the opposite parties was proved by the complainant.

6. Aggrieved by the order of the District Forum the appellant/complainant filed this appeal and in the grounds of appeal among other things it is stated that the complaint was wrongly dismissed without taking in to consideration of the material documents by the complainant.

7. While considering both sides arguments, averments and contentions as per the complainant he has purchased two Pepsi bottles alleged to have been manufactured by the opposite parties 1 and 2 company supplied through the distributor 3rd opposite party to one Muthu Wine shop in which the complainant was working as an employee. So the complainant has not directly purchased the product from the distributor or from the opposite parties 1 and 2. But alleged to have purchased from the Muthu Wines and no documents filed regarding the same from Muthu Wines except the alleged cash bill Exhibits A1 and A2 in which it is found that the receipt in the name of 3rd opposite party dated 3.6.03 to Muthu Wines supply of Pepsi one quantity and other items Pepsi/Aha 7 UP, Mirinda in all Rs.484/- which does not contain total number of bottles and the complainant filed another receipt Exhibit A2 dated 13.6.03 mentioning as two Pepsi, 18 rupees, and signed by some person under rubber stamp of Muthu Wines. The complainant stated that he has purchased the bottles for Rs.20/-. But whereas in the bill Exhibit A2 it is mentioned as Rs.18/-. So whether the purchased bottles and the contents from which the bottle the complainant consumed are one and the same is the suspicion arises.

8. Further the opposite parties 1 and 2 have contended there are various spurious drinks in the name of branded companies like Pepsi, Mirinda, Fanta are all distributed by the unscrupulous criminals for which criminal action were taken by the concerned companies and to prove the same they have filed news paper reports regarding the seizure of such spurious soft drinks and arrest of the accused in this regard by producing the documents as Exhibit B1 and B2 containing the photographs of such seizure. Unless it is proved that the complainant consumed items were the original Pepsi products manufactured by the opposite parties 1 and 2 and actually distributed to Muthu Wines are all established, the Forum cannot come to the conclusion that the alleged foreign contents in the soft drinks used by the complainant were manufactured by the opposite parties 1 and 2 only. In the meanwhile the opposite parties have produced the procedure details of manufacturing soft drink which containing step by step process details as per Exhibit B4 consisting of 5 stages of 1) water treatment, 2) syrup preparation process 3) beverage making process/mixing 4) process/ bottle washing process/light inspection 5) filling process and from those details it is clear that there may not be any possibility of entering of the foreign materials or impunity in to the bottles in the process of bottling soft drinks. Since there are possibilities of such foreign materials entered in to the bottles due to spurious manufacturers by using contaminated bottles and sold in the market, Unless the complainant proved that the purchased bottle and were only manufactured by the opposite parties 1 and 2 alone there cannot be any fixing of liability on the part of the opposite parties 1 and 2 or 3rd opposite party will arise. Further even though the contents of the bottles were sent for analysis through the District Forum and the report was marked as Exhibit C1 in which it is stated that the foreign matter of fungal origin was present which made the food contaminated are not fit for consumption and also the yeast count of the sample is found to be more than the maximum permitted standard.

9. On perusal of the report Exhibit B1 it is stated that the examination was conducted on 19.12.03 which was received by the lab on 20.11.03 from the District Forum and it is seen that on the bottle neck MRP price was mentioned as Rs.7/-/04/2003. Whereas the complainant alleged to have purchased the bottle at the rate of Rs.10/- per bottle and the bill Exhibit A2 mentioned the price as Rs.18/- per two bottles and as the bottle sent for analysis after more than 5 months from the date of alleged purchase and in those circumstances the formation of fungal or yeast was every possibility due to the long duration from the date of manufacture and the complainant has not furnished any details relat

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ing to their date of expiry and as per the report the sample is said to be adulterated under the provision of Food Adulteration Act 1954. Further as contended by the opposite party side the Muthu Wines from which the bottle purchased was not added as a party which also renders the complaint as void because of non jointer of parties. In those circumstances we are of the view that the District Forum after considering all the aspects came to proper conclusion by dismissing the complaint with which on merits finding there is no need interfere with the same and thereby the appeal deserves to be dismissed as devoid of merits. 10. In the result, the appeal is dismissed by confirming the order of the District Forum, Chennai (North) in C.C.No.371/2003 dated 29.10.2008. No order as to costs in this appeal.
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