Distt Forum awards Rs 1.15 lacs to consumer against Hindustan Coca Cola

Adulterated cold drink contained foreign matter

21/11/2014

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, JAMMU
(Constituted under J&K Consumer Protection Act, 1987)
Case File No. : 87/DFJ
Date of Institution : 09-08-2011
Date of decision : 12-11-2014
Joginder Singh S/o S. Ram Singh R/o HN-1546F Sector No.-13 Nanak Nagar, Jammu.
…..Complainant
`V/S
1. Hindustan coca-cola Bevreages Pvt. Ltd. 47-50A Industrial Extension Area Gangyal Jammu J&K, through its Manager sales Sh. Rs Rawat.
2. Managing Director, Hindustan coca-cola Bevreages Pvt. Ltd. Register officer at Abdul Fazal Road, Bangali Market New Delhi-110001.
3. New Krishna Bakery Khalsa Chowk Nanak Nagar, Jammu.
…….Opposite Parties
QUORUM:-
Shahzad Azeem-- -- (Distt. & Session Judge) -- -- President
Mrs. Veena Julmaria ---- (Advocate) -- Member
In the matter of : Complaint u/s 10 of J&K Consumer protection Act,1987.
Mr. S.S. Sahni, Advocate for Complainant, present.
Mr. Virender Bhat, Advocate for OP1&2, present.
Nemo for OP3.
ORDER
Grievance of the Complainant, as disclosed in the complaint, is that, the Complainant purchased five bottles of Soft drink,200ml, each, having logo thumps up on each bottle, from New Krishna Bakery Khalsa Chowk, Nanak Nagar, Jammu (For short OP3). The soft drink said to have been purchased on 03-07-2011, on payment of Rs. 45 (Cash Memo, annexure- "A'). According to Complainant, Hindustan coca-cola Bevreages Pvt. Ltd. (For short OP1) and Managing Director, Hindustan coca-cola Bevreages Pvt. Ltd. (For short OP2), are the manufactures of thumps up, whereas, OP3 is earlier. Complainant further submits that so purchased soft drink, thumps up, when on same day, served by Complainant to his guests, he suspect foreign particles, like plastic Pouch, in one of the sealed bottles, therefore, requested his guests not to take soft drink. However, when guests realized presence of foreign material in the soft drink, they started vomiting, which not only embarrassed the Complainant, but complainant also felt humiliated. Complainant also said to have tendered apology to his guests, because guests in Indian societies, are held in very high esteem. Complainant further submits that OP3 had been informed by the Complainant on the same day and further requested to withdraw whole stock from entire Jammu City, which would be comprising of around one lakh bottles. However, OP3 said to have told the Complainant to approach the manufacturer. Accordingly, Complainant approached Manager, (sales) of OP1, who sent two persons one after the other, who checked the bottle. Representatives of OP1, said to have checked the bottle and told Complainant for testing the bottle in company's lab, but Complainant refused and further told the representatives to take the unhygienic bottles to Govt. laboratory, but representatives of OP1 refused to get the analysis of unhygienic bottles from Govt. laboratory, hence Complaint in hand. In the final analysis, Complainant prays for compensation to the tune of Rs. 4.0 lacs, along with cost of soft drink. Further, prays for litigation charges to the tune of Rs. 25,000/-.
On the other hand, OP1&2, filed its version and resisted the complaint on the ground that question of compensation would arise only if there is negligence on the part of OPs, but OP1&2, took all reasonable care, while manufacturing and sealing of its products, therefore, in absence of any loss or damage to the Complainant, question of compensation does not arise. OP 1&2, had also given the details of procedure adopted during manufacturing of soft drink, which includes, washing of bottles, warm bottle soaking, pre final rinse, final rinse, Caustic Carry -over Test , Methylene Blue Test, Empty Washed Bottles Inspection, Filling & Crowning, Coding, Filled Inspection, etc. OP1&2, further submits that there is no possibility of any foreign object to make way into the soft drink, in view of advanced and sophisticated equipments, used in manufacturing the soft drinks. Further more,OP1&2, denied, intimation to Manager (Sales) or sending of any representatives of OP1&2, for checking alleged contaminated soft drink.
In so far as, OP3 is concerned, despite duly served, did not take any action to represent his case, therefore, vide order dated 20-01-2012, his right to file written version stand closed.
Before heading further, it would be relevant to point out that on application moved by the Complainant for analysis of alleged contaminated soft drink from authorized laboratory, vide order dated 05-08-2013, alleged sealed contaminated bottle of soft drink was ordered to be sent to the concerned laboratory for the analysis. The analytical report, dated, 03-12-2013, of Public Analyst, Public Health Laboratory, Jammu, was submitted before this Forum, on 06-12-2013, to which OP1&2, had also filed objection, which will be taken care of hereinafter.
Complainant has adduced evidence by way of duly sworn his own affidavit end affidavit of one Nachal Singh S/O S. Pritam Singh. Complainant has placed on record photocopy of cash memo of Rs 45/-, dated 03-07-2011 postal receipt legal notices and also deposited sealed bottle of Thumps up.
On the other hand, OPs have adduced evidence by way of duly sworn affidavits of Sarabjeet Singh S/o S. Amarpal Singh, H.R.Manager and Authorized Signatory of Hindustan coca-cola Beverage Pvt. Ltd. and R.K. Yadav, Quality Control Manager of Hindustan coca-cola Beverage Pvt. Ltd, respectively.
We have perused case file and also heard learned counsels appearing for the parties at length.
At the outset, it is relevant to point out that OP1&2, raised to fold pleas, firstly, questioned the maintainability of complainant, in view of Food Safety and Standard Act, 2006, (for short, Act of 2006), secondly, on merits also.
Since, OP1&2, have filed detailed objection to the analytical report dated, 3-12-2013, therefore, it would be relevant to take note of the grounds taken in objection, qua maintainability of complaint, in view of Act of 2006. OP1&2, have taken specific objection to the report of analyst and also questioned the maintainability of complaint, on the ground that Consumer Protection Act 1987, (For short, Act of 1987) being general law of compensation can not supersede, special statute operating in the same field.
OP1&2, took further objection that Law relating to Food has been consolidated and "The Food Safety and Standard, Act, 2006" has been enacted by the Parliament. According to OP1&2, the Act of 2006, also includes provision for compensation, in case of any harm or injury suffered by the consumer for unsafe food items. It is further convassed by OP1&2, that under the Act of 2006, complete mechanism regarding lifting of sample by the authorized officer is contained in the Act of 2006.At the same time, according to OP1&2, under section 11(1) ( C ), of Consumer Protection Act, 1987, Sample of goods can be obtained, sealed and authenticated in the manner prescribed, which can be referred to the appropriate laboratory, but in view of section 89 of Act, 2006, jurisdiction of Consumer Forum would be ousted, in that special statute being operating in the same field.
To be brief, Learned Counsel for OP1&2, taken us to various Sections of Act of 2006, which at the moment, we are not referring to, and if need arises would be taken care of at appropriate stage. Be that as it may, while taking is t0 various provisions of Act of 2006, Learned Counsel for OP1&2, canvassed at bar that Act of 2006, exclusively deals with the food items and complete mechanism, including complete hierarchy is provided under the Act of 2006, which includes food analyst, food authority, food safety management system, labeling of food items etc. Learned Counsel also referred to various Sections of Act of 2006, in order to point out that under the Act of 2006, certain protections are also available to a person, who is alleged to have been found in conflict with Act of 2006, but under the Consumer Protection Act, no such protection is available. Learned Counsel further submits that mood and manner prescribed under the Act of 2006, regarding lifting of sample of food items for analysis is more elaborate and also contains corresponding protection in favour of the person against whom action is proposed to be taken. Learned Counsel vehemently argued that only general provision regarding sending of sample for analysis is contained, under the Act of 1987, therefore, in view of Section 3 of Act of 1987, in case food items if allegedly found unhygienic or substandard and if are brought under the ambit of 1987, same would operate in derogation of special statute, dealing with the food items, i.e., Act of 2006. While concluding, Learned Counsel for OP1&2, submits that food items are specifically dealt with under the Act of 2006 and complete mechanism is provided there-under, therefore, in view of Section 3 of act of 1987, the jurisdiction of Consumer Forum is ousted, being in derogation to the law contained under the Act of 2006.
Since OP1&2, had raised specific point regarding jurisdiction of this Forum to deal with the complaint, where dispute is raised in respect of food items, for which complete mechanism is provided under the Act of 2006, therefore, we deem it proper to first deal with the point of jurisdiction and maintainability of complaint in hand, before dealing with the matter on its merits.
There is no denial to the fact that Parliament enacted "The Food Safety and Standard Act 2006" to consolidate the laws relating to food and to establish the Food Safety and Standards Authority of India for laying down science based standards for articles of food and to regulate their manufacture, storage, distribution, sale and import, to ensure availability of safe and wholesome food for human consumption and for matters connected therewith or incidental thereto. Act of 2006, as rightly pointed out by Learned Counsel for OP1&2, extensively deals with adulterant, contaminant, extraneous matter, hazard, misbranded food, etc, and also provides, different authorities to regulate the provisions of Act of 2006, e.g. Chairperson of Food Safety, Commissioner of Food Safety, Designated Officer, Food Analyst, Food Authority, Food Safety Officer. It is relevant to note that under the Act of 2006, complete mechanism is laid down to regulate the food items, under Section 26 -77 of Act of 2006, which inter alia, includes responsibilities of food business operators', manufacturers', packers', wholesalers' etc. Act of 2006, also defines the authorities responsible for enforcement of act, passing of prohibition orders, provision relating to providing of reasonable opportunities to the business operator, before initiating any action, analysis of food and resultant penalties.
However, on the other hand, under Section 11(1) (C), of Act of 1987, District Forum is empowered to obtain samples of goods from the Complainant, seal it and authenticates it, in the manner prescribed and referred the sample so sealed to the appropriate laboratory along with direction that such laboratory to make analysis or test. Rule "8" of Consumer Protection Rules, 1988, lays down the manner in which sample of goods for test or analysis is to be sealed and send to the appropriate laboratory.
Before heading further it would be relevant to take note of Section 3 of Act of 1987, because Learned Counsel for OP1&2, raised the plea that Act of 1987, is in addition to and not in derogation of the provisions of any other law for the time being in force. Learned Counsel for OP1&2, raised this plea. in order to bring home the point that Act of 2006, being special Act, operating in the same field and in case, if Consumer Forum would entertain a complaint regarding contaminated food items, same would operate in derogation to the Act of 2006, in that according to Learned Counsel for OP1&2, Act of 1987, is general in nature and if samples are sent for analysis under the provisions of Act of 1987, same would be in derogation to the Act of 2006, which lays down 'complete procedure for taking sample, sealing and sending the same for analysis. In this backdrop, Section 3 of Consumer Protection Act 1987 assumes importance, which reads as under
3. Act not in derogation of any other law
The provisions of this Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force.
It is by now, settled legal proposition of Law that Consumer Protection Act,1987, came into force with a view to provide protection of the interest of Consumers and for that purpose to make provision for the establishment of the Consumer Authorities and Consumer Councils for settlements of the Consumer's Disputes and the matters connected thereto.
From the plain reading of Section 3 of Act of 1987; it is crystal clear that remedies available under the Act of 1987, for redressal of disputes are in addition to the existing remedies under any other law, therefore, it follows that under the Act of 1987, additional jurisdiction is conferred on the Forum and not their exclusion. Choice lies with the Consumer to avail appropriate remedy; where more than one course to remediate the grievance is available. As in the case in hand, choice was with the Complainant, either to take recourse to the remedies, as envisaged under the Act of 2006 or to approach this Forum in terms of Act of 1987. But in any event, remedy other than available under the Act of 1987, cannot be construed ouster of jurisdiction of this Forum to entertain a complaint, particularly where complainant alleges deficiency in service or unfair trade practice on the part of manufacturer of goods.
Our view is fortified by the law laid down by Hon'ble Supreme court in "Secretary, Thirumurugan Co-op. Agri. Credit. Socy v/s M. Lalitha" (AIR 2004 SC 448), wherein Hon'ble Supreme Court while dealing with similar point in Para, 14, 15 and 16 held:-
14. In Fair Air Engineers Pvt. Ltd. and another v. N. K. Modi ((1996) 6 SCC 385), this Court, after referring to Lucknow Development Authority case (supra), held that the provisions of the Act are to be construed widely to give effect to the object and purpose of the Act. It went on to say that "It is seen that Section 3 envisages that the provisions of the Act are in addition to and are not in derogation of any other law in force. It is true, as rightly contended by Shri Sun, that the words "in derogation of the provisions of any other law for the time being in force" would be given proper meaning and effect and if the complaint is not stayed and the parties are not relegated to the arbitration, the Act purports to operate in derogation of the provisions of the Arbitration Act. Prima facie, the contention appears to be plausible but on construction and conspectus of the provisions of the Act we think that the contention is not well founded. Parliament is aware of the provisions of the Arbitration Act and the Contact Act, 1872 and the consequential remedy available under Section 9 of the Code of Civil Procedure, i.e., to avail of right of civil action in a competent Court of civil jurisdiction. Nonetheless, the Act provides the additional remedy." Further, dealing with the jurisdiction of the forums under the 1986 Act in paragraph 16 this Court has stated, thus:-
"16. It would, therefore, be clear that the legislature intended to provide a remedy in addition to the consentient arbitration which could be enforced under the Arbitration Act or the civil action in a suit under the provisions of the Code of Civil Procedure. Thereby, as seen, Section 34 of the Act does not confer an automatic right nor create an automatic embargo on the exercise of the power by the judicial authority under the Act. It is a matter of discretion. Considered from this perspective, we hold that though the District Forum, State Commission and National Commission are judicial authorities, for the purpose of Section 34 of the Arbitration Act, in view of the object of the Act and by operation of Section 3 thereof, we are of the considered view that it would be appropriate that these forums created under the Act are at liberty to proceed with the matters in accordance with the provisions of the Act rather than relegating the parties to an arbitration proceedings pursuant to a contract entered into between the parties. The reason is that the Act intends to relieve the consumers of the cumbersome arbitration proceedings or civil action unless the forums on their own and on the peculiar facts and circumstances of a particular case, come to the conclusion that the appropriate forum for adjudication of the disputes would be otherwise those given in the Act."
(emphasis supplied)
15. Again in Spring Meadows Hospital and another v. Harjol Ahluwalia through K. S. Ahluwalia and another ((1998) 4 SCC 39), this Court, having taken note of the background in which the 1986 Act came to be placed on the statute book, observed that the Act creates a framework for speedy disposal of consumer disputes and an attempt has been made to remove the existing evils of the ordinary court system. The Act being a beneficial Legislation should receive a liberal construction.
16. A Bench of three learned Judges of this Court in a recent decision in State of Karnataka v. Vishwabharathi House Building Co-op. Society and others ((2003) 2 SCC 412), expressed the view that the 1986 Act was brought into force in view of the long-felt necessity of protecting the common man from wrongs where for the ordinary law for all intent and purport had become illusory and that in terms of the said Act, a consumer is entitled to participate in. the proceedings directly as a result whereof his helplessness against a powerful business house may be taken care of. Referring to the Fair Air Engineers (P) Ltd. case (aforementioned) the Court stated that the provisions of the said Act are required to be interpreted as broadly as possible. On the question jurisdiction it is stated that he forums under the Act have jurisdiction to entertain a complaint despite the fact that other forums/courts would also have jurisdiction to adjudicate upon the lis. It is also noticed that the Act provides for a further safeguard to the effect that in the event a complaint involves complicated issues requiring recording of evidence of experts, ,the complainant would be at liberty to approach the civil Court for appropriate relief.
In view of settled proposition of law, Complainant, once in his wisdom chosen the remedy, as provided under the Act of 1987 and complaint has been entertained by this Forum, thereafter, in our opinion, particularly in absence of any mitigating circumstance, we do not think it proper to relegate the complainant to available other remedy, which otherwise would amount to enforcing the complainant to choose specific remedy in derogation to the additional remedy conferred by the Act of 1987.
OP1&2, failed to address to the procedural impropriety, if any observed, as provided under the Act of 1987, in sending the sample to the laboratory for analysis. It is to be borne in mind that Act of 1987, is complete code in itself, which contains, inter alia, complete procedure for sealing, authentication and referring the sample to the appropriate laboratory (Section 11 and Rule 8, of Act of 1987). OP1&2, did not question the procedure followed by the Forum in terms of Act of 1987, in sending the sample for analysis to the laboratory, therefore, the report of analyst dated 13-12-2013, submitted by Public Analyst, Public Health Laboratory, Jammu is admitted, having probative value, in finding out, as to whether bottle of soft drink, Thumps Up, sent for analysis, was fit for consumption or not".
In view of discussion made hereinabove, we are of considered opinion that Complainant has rightly availed the remedy, which legislature intended to provide in addition to the available remedies, therefore, objection taken and plea raised by OP1&2, regarding ouster of jurisdiction, of this Fourm is turned down.
Now we would advert to deal the matter on its merit.
Specific grievance of the Complainant is that he purchased, as many as, 5 bottles of Soft Drink, each of 200 ML, manufactured by OP1&2. Those bottles of Soft Drinks, said to have been purchased from OP3 and when Complainant served the Soft Drink to his guests, he noticed foreign material, like plastic pouch in one of the sealed bottles, therefore, did not uncork the bottle and tendered apology to his guests, and was embarrassed by offering such unhygienic soft drink to the guests. Complainant categorically submitted that matter was brought to the notice of OP3 and distributors of Soft Drink and further requested to withdraw whole stock comprising of about one lack bottles from the market, but no remedial steps taken by the OPs. Rather OP1 sent his representatives, only to check the bottles.
On the other hand, OP1&2, filed their version and elaborately given the details of manufacturing process and also denied the allegations contained in the complaint.
OP1&2 lead evidence in the shape of duly sworn affidavit of Sarabjeet Singh, the authorized signatory of Hindustan coca cola limited Beverage Pvt. Ltd., and affidavit of R.K. Yadav, Manager, which is reproduction of averments contained in written version of OP1&2.
At the same time, Complainant filed his duly sworn affidavit and affidavit of one Nachal Singh, respectively. Complainant corroborated the averments contained in the complaint, whereas, Nachal Singh deposed that on 03-07-2011, he was present at the residence of Complainant, when Complainant served Soft Drink, Thumps Up, of 200 ML each. Witness further deposed that Complainant when was about to uncork, fifth bottle of Soft Drink, he noticed pouch in the bottle and all the guests, who had consumed rest four bottles of soft drink had started vomiting. There is no rebuttal to the evidence of Nachal Singh, which is dully corroborated by the deposition of Complainant and Analyst report, dated 03-12-2013. Sealed bottle of Soft Drink, produced by the Complainant before the Forum, was duly sent to the Public Health Laboratory, Jammu for analysis, and analytical report, dated 03-12-2013, was dully submitted by Food Analyst, Public Health Laboratory, Jammu. Food Analyst, on examination of bottle, observed; the sample was received in a company sealed bottle; dark brown colour in appearance, contain black particles, plastic packet at the time of opening bottle; trade name, Thumps Up; manufactured by Hindustan coca cola Bevreages Pvt. Ltd., Extension Area, Gangyal, Jammu.
Final opinion of Public Analyst reads as under:
The sample contains Plastic Packet and Black particles as Extraneous matter. Hence declared as unsafe. Moreover the sample does not carry the term ingredients, Specific name or INS for Permitted natural Colour & Common name of the artificial Flavouring Substances on the label of the cork as required under regulation 2.2.2(2) &(5) of the Food Safety and Standards (Packing & labeling) regulations2011. Hence also declared as Misbranded.
From the perusal of analyst report, it transpire that on analysis of Soft Drink bottle, besides other extraneous matter, plastic packet was also found in the Soft Drink bottle, manufactured by OP1&2.
There is no rebuttal to the averments and , evidence lead by the Complainant, with regard to purchase of five bottles of soft drink, Thumps Up, on 3-7-2011, from OP3 against sale consideration of Rs. 45/-. Therefore, we have no hesitation in holding that Complainant has purchased five bottles of Soft drinks, Thumps Up, 200ML, each on 3-7-2011, from OP3, against sale consideration of Rs. 45/-. It also proved by the Complainant that one bottle, out of total five bottles could not be uncorked, because Complainant noticed plastic pouch and foreign material and did not serve the same to the guests, therefore, sealed bottle produced before the Forum, which was duly sent for analysis and report of analyst, dated 03-12-2013, submitted on 6-12-2013, , before the Forum. AS observed, hereinabove, that report of Public Analyst has duly confirmed presence of plastic packet and black particles, as extraneous matter in the soft drink bottle, therefore, Complainant successfully bring home the point of contaminated unhygienic soft drink, which was manufactured by OP1&2.
It is generally well known fact that most of the diseases are on account of drinking of adulterated and contaminated water. The general public purchases beverages and mineral water manufactured by various companies in this country, in order to avoid any possible disease. Therefore, Hindustan coca-cola Bevreages though being a reputed company, expected to sell hygienic soft drink.
Object and scheme of act of Consumer Protection Act, 1987, inter alia is to prevent sale of hazardous goods and if consumer comes across such hazardous goods, he can maintain a complaint in order to
prohibit the sale of such hazardous goods or to remove the defects, including Forum can award compensation and cost as well. Under these circumstances, this Forum is not powerless to award punitive damages as well, therefore, plea raised by the Ops that since bottle of soft drink is not
consumed by the complainant, therefore, he did not suffer any health hazard, is without any substance and same is turned down. It is relevant to note that the present instance of unhygienic manufacturing of
beverages may not be an isolated case, because it is matter of common knowledge and understanding that during process of manufacturing it is not that only single bottle is manufactured, there may be hundreds of thousands bottles manufactured in one slot, but it is only because of Mr. Joginder Singh, who took one of the rare exceptions to the unhygienic manufacturing of beverages, matter landed before this Forum. If the manufacturing companies like in the present case, who are world renowned for their advance technologies for hygienic processing are found indulging in such health hazardous activities, than it would be very difficult for the Governments of Centre or State to protect the health of its citizens. We say so, because these beverages became so popular that what to talk of adults, even children are obsessed with them, therefore, such beverages, if are manufactured in this fashion, same would be not less harmful than sedative drugs. One may argue that such contaminated beverages which are visible to naked eye would not be consumed by the consumers; therefore, question of health hazard would not arise at all. In this regard it is to be noted that once it has been shown to the satisfaction of this Forum that manufacturing process is so unhygienic that even foreign particles visible to naked eyes are not noticed during manufacturing process or at the time of bottling, than we have no doubt in our minds that manufacturing process meets the requirement of Food Safety and Standards Act. 2006,at all. Therefore, we feel that Ops are required to be burdened with some punitive costs also for commercial unfair trade practice and for putting the health of general public in peril.
In view of - discussion made hereinabove, it i5 proved to the satisfaction of this Forum that bottle of "Thumps Up" duly produced by the complainant was containing foreign particles, besides plastic pouch.
Therefore, it is ordered that:-
(1) OP1&2, shall remove the defects, by manufacturing hygienic beverages, as per the standards lay down under Food Safety and Standards Act, 2006 and Rules made there under.
(2) OP1&2, shall discontinue un- fair trade practice, and shall desist from offering hazardous soft drinks for sale to the consumer.
(3) OP1&2, shall withdraw all hazardous bottles of 'Thumps Up" from being offered for sale. In the facts and circumstances of the case, OP1&2, being manufacturer, held liable for salting unsafe soft drink and also indulging in un-fair trade practice, therefore, punitive damages are quantified as Rs. one lac, and cost of litigation, quantified as Rs.15,000/-.respectively. OP1&2 are also directed to pay Rs. 9/- as cost of bottle to Complainant. OP1&2, shall comply the order within one month from the date of receipt of this order. Copy of this order be provided to both the parties as per requirement of the Act. On deposit of the amount in this Forum, the same shall be paid to the complainant through payees account cheque to the extent quantified hereinabove and rest shall be deposited in the account of Jammu & Kashmir High Court Legal Services Authority. The complaint is accordingly disposed of and file after its due compilation be consigned to records.
Order per President
Announced
12-11-2014. Sd/-
President
Sd/-
Member
Certified True Copy Attested
Member
Divisional Consumer Forum
Jammu.

Photo Gallery

BSE Sensex

NSE Nifty