GURPARTAP SINGH BRAR, PRESIDENT:- Brief facts of the complaint are that the complainant alongwith his friends were sitting in the restaurant and bar of opposite party No.1 in the table No.T03. The complainant demanded two beers of Hayward 5000, one Tandoori Chicken and one Cheese Malai Tikka. The complainant and his friends were enjoying the same and used the first bottle of Beer Hayward 5000 and after finishing the said first bottle, the complainant tried to open the second bottle of beer, but the friend of the complainant stopped him and told him that there was some shining paper in the inner side of the bottle. The complainant and his friends checked the beer of bottle and found that a wrapper of Bhujia is in the bottle. The bottle was still intact and the same was not opened. The complainant and his friends called the Manager/Proprietor of the opposite party No. l and told him about the wrapper of Bhujia, which was lying in the bottle of beer. The complainant requested opposite party No.1 to change the bottle. The complainant requested opposite party No. l to report the matter to the opposite party C.C.No. 482 of 2014 //3// No. 2 on his toll free No. 1800-258-2504. Opposite party No. 1 reported the matter to opposite party No. 2 and the complainant was given the mobile No. 098232-32220 and 90990-46440 of Mr. Anil Kumar. The complainant contacted Mr. Anil Kumar and told about the wrapper of Bhujia, which was lying in the bottle of beer. When the complainant told to Anil Kumar about the wrapper of Bhujia then the said Anil Kumar put off the matter on one pretext or the other. Thereafter disconnected the mobile phone of the complainant. The complainant paid an amount of Rs. 690/-to opposite party No.1 and left the restaurant/bar alongwith the said beer. But the opposite party put off the matter on one pretext or the other. Further it has been pleaded that the complainant also requested the opposite party No. 2 many a times that the said beer is not fit for human body and due to that reason the persons will suffer an irreparable loss of health by way of illness. If the complainant and his friend consumed the bottle then they can suffer an irreparable loss of health. Pleading deficiency in service and unfair trade practice on the part of the opposite parties, the complainant has prayed that the opposite parties be directed to seal the company of opposite party No.2, to pay Rs.15,00,000/- as compensation for mental agony, pain and harassment and Rs.22,000/- as litigation expenses, to refund the cost of bottle of bear of Rs.130/-. C.C.No. 482 of 2014 //4//
2. Upon notice the opposite parties have appeared and filed their separate written replies to complaint. In its written reply, opposite party No.1 took some preliminary objection interalia that the complaint is not maintainable against the opposite parties because opposite party No.1 is running the Restaurant and Bar at Malwal Road, Ferozepur City as the said Beer Hayward 5000 was purchased by the opposite party No.1 from D.K. Wines (Contractor) and D.K. Wines are the dealer of the said Beer Hayward 5000. The said D.K. Wines had taken the said beer Hayward from opposite party No.2, who is manufacturer of the said Beer Hayward 5000. On merits, it is admitted by the opposite party No.1 that on 20.08.2014 at about 12.20 PM the complainant and his friends reached in the restaurant of opposite party and as per bill, it is correct that they were sitting in table No.T03 of the restaurant/bar of opposite party No.1 and demanded two beers of Hayward 5000, one Tandoori Chicken, one Cheese Malai Tikka and the same was given to the complainant. It is also admitted by the opposite party that the complainant and his friends checked the same and found that a wrapper of Bhujia was in the bottle. It is also admitted by the opposite party that the bottle was intact at that time. It is also admitted by opposite party No.1 that the complainant and his friends called the opposite party and told the above said entire story to the opposite party. The complainant and his friends never requested to opposite party No.1 to C.C.No. 482 of 2014 //5// change the bottle. It is admitted by opposite party No.1 that the complainant requested the matter to opposite party No.2 on his toll free number. Opposite party No.1 was ready to change the bottle, but opposite party No.2 put off the matter on one pretext or the other. Other allegations of the complaint have been denied.
3. In its written reply, opposite party No.2 took some preliminary objections interalia that the present complaint is false, frivolous and vexatious to the knowledge of the complainant; that a complicated question of law and facts are involved in the present complaint, which is not possible in the summary procedure under the Consumer Protection Act; that the complainant has not come to this Forum with clean hands and has suppressed the material facts from this Forum; that the complaint is bad for non-joinder of necessary party as the supplier of Beer i.e. SAB Miller India Limited has not been impleaded as a party, who is a necessary party; that the complainant is not a consumer; that the complainant has no locus standi to file the present complaint against the opposite party and that the present complaint is not maintainable and the same is liable to be dismissed. On merits, it has been pleaded that the complainant and his friends has not noticed some shining paper in the bottle of bear as alleged by the complainant. The bottle shows the probable tampering of seal, crown and packaging paper foil in order to get illegal gains from opposite party No.1 C.C.No. 482 of 2014 //6// by blackmailing . Opposite party No.1 is involved in the work of brewing and bottling of beer through 100% mechanized process totaling ruling out the possibility of entry of any foreign element in the bottle. The complainant never approached or reported the matter to opposite party No.1. The Toll Free number of mobile number mentioned in the complaint are not of the opposite party rather the same are of supplier of the beer SAB Miller and not of the opposite party. If the complainant reported the matter to the opposite party No.1 then the matter could have been finished. The beer bottle was purchased after proper checking by the purchaser without any foreign element therein and thereafter probable tampering was made in order to get illegal gains by adding foreign element therein in a clever manner. The beer was fit for human body. It is also denied by the opposite party that if the complainant and his friends consumed the alleged beer then they will have suffer irreparable loss of health. Although there was no foreign element in the beer still in case this Forum comes to the conclusion that there was any foreign element i.e. wrapper of Bhujia, the same could not be injurious to health as alleged by the complainant. In the process of manufacturing of beer undertaken by opposite party, the crushing of malt takes place through automatic process of machines operated by human being with no human activity. The bottle produced by the complainant was a tampered one with an intention to get illegal gain by C.C.No. 482 of 2014 //7// blackmailing the opposite parties and to injure reputation and goodwill of the opposite parties. Other allegations of the complaint have been denied.
4. The learned counsel for the complainant has closed evidence on behalf of the complainant by tendering into evidence Ex. C-1 to Ex.C-2. Evidence of opposite party No.1 was closed by order vide order dated 28.08.2015. On the other hand, learned counsel for the opposite party No.2 tendered into evidence Ex.O.P.2/1 to Ex.O.P 2/27 and closed evidence on behalf of the opposite party No.2.
5. We have heard the learned counsel for the parties and have also gone through the record.
6. The version of the complainant is that the complainant alongwith his friends were sitting in the restaurant and bar of opposite party No.1 in the table No.T03. The complainant demanded two beers of Hayward 5000, one Tandoori Chicken, one Cheese Malai Tikka. The complainant and his friends were enjoying the same and used the first bottle of Beer Hayward 5000 and after finishing the said first bottle, the complainant tried to open the second bottle of beer they found that a wrapper of Bhujia is in the bottle. The bottle was still intact and the same was not opened. The complainant and his friends called the Manager/Proprietor of the opposite party No. l and told him about the wrapper of Bhujia, which was lying in the bottle of beer. The complainant C.C.No. 482 of 2014 //8// requested opposite party No.1 to change the bottle. The complainant requested opposite party No. l to report the matter to the opposite party No. 2 on his toll free No. 1800-258-2504. Opposite party No. 1 reported the matter to opposite party No. 2 and the complainant was given the mobile No. 098232-32220 and 90990-46440 of Mr. Anil Kumar. The complainant contacted Mr. Anil Kumar and told about the wrapper of Bhujia, which was lying in the bottle of beer. When the complainant told to Anil Kumar about the wrapper of Bhujia then the said Anil Kumar put off the matter on one pretext or the other. Thereafter disconnected the mobile phone of the complainant. The complainant paid an amount of Rs. 690/-to opposite party No.1 and left the restaurant/bar alongwith the said beer. There is a deficiency in service on the part of the opposite parties.
7. The version of opposite party No.1 is that he is running the Restaurant and Bar at Malwal Road, Ferozepur City as the said Beer Hayward 5000 was purchased by the opposite party No.1 from D.K. Wines (Contractor) .The said D.K. Wines had taken the said beer Hayward from opposite party No.2, who is manufacturer of the said Beer Hayward 5000. it is admitted by the opposite party No.1 that on 20.08.2014 at about 12.20 PM the complainant and his friends reached in the restaurant of opposite party and as per bill, it is correct that they were sitting in table No.T03 of C.C.No. 482 of 2014 //9// the restaurant/bar of opposite party No.1 and demanded two beers of Hayward 5000, one Tandoori Chicken, one Cheese Malai Tikka and the same was given to the complainant. It is also admitted by the opposite party
8. As per version of opposite party No.2 is that the complainant and his friends has not noticed some shining paper in the bottle of bear as alleged by the complainant. The bottle shows the probable tampering of seal, crown and packaging paper foil in order to get illegal gains from opposite party No.1 by blackmailing . Opposite party No.1 is involved in the work of brewing and bottling of beer through 100% mechanized process totaling ruling out the possibility of entry of any foreign element in the bottle. The complainant never approached or reported the matter to opposite party No.1. The Toll Free number of mobile number mentioned in the complaint are not of the opposite party rather the same are of supplier of the beer SAB Miller and not of the opposite party. If the complainant reported the matter to the opposite party No.1 then the matter could have been finished. The beer was fit for human body. It is also denied by the opposite party that if the complainant and his friends consumed the alleged beer then they will have suffer irreparable loss of health. In the process of manufacturing of beer undertaken by opposite party, the crushing of malt takes place through automatic process of machines operated by human being with no human activity. The bottle produced by the complainant was C.C.No. 482 of 2014 //10// a tampered one with an intention to get illegal gain by blackmailing the opposite parties and to injure reputation and goodwill of the opposite parties.
9. Vide order dated 30.03.2015, the bottle in question Beer was sealed and sent to the Public Analyst, Punjab, Chandigarh, for its analysis on the following points :-
1. Whether the crown on the bottle corked is intact ?
2. Whether the liquid in the bottle is fit for human consumption ?
3. Whether there is any foreign element in the bottle in question?
4. Any other relevant information ?
5. Code of Sample : G.S.
10. The report of the Food Analyst, Punjab, Chandigarh dated 15.05.2015 has been received, which has been placed on the file. In the said report, it has been written that the Crown on the bottle was found to be intact. The contents of the sample contain an empty plastic packet of dimensions approximately 21.5 cm x 14.5cm and black coloured suspended matter. Hence unsafe for human consumption. In the report, it has been mentioned that the product has not been labelled as per the provisions of regulation 2.2.2(8) & (9) of Food safety and Standards (Packaging and Labelling) regulations 2011 as batch number and date of manufacture/packing has not been given on the label. Hence misbranded. C.C.No. 482 of 2014 //11// In the report, it is also mentioned that seal (s) affixed on the container of the sample was/were found intact on arrival and tallied with the specimen impression of the seal separately. Opposite party No.2 filed the objection to the report that alleged report has been prepared at the back of the opposite party No.2 without any notice as the bottle has been alleged to be opened and inspected in the absence of opposite party No.2, so report is not binding upon the rights of the opposite party. No microbial/microbiological test has been done to determine as to whether the beer is fit for human consumption or not. Opposite party No.2 has got a right to get the bottle re- inspected and re-analyzed and to get the sample contents examined from another laboratory, which has not been done and allowed and hence deprived of its valuable right. The report mentioned that there is no mention of batch number and date of manufacture/packing on the label which shows and proves that the product actually does not belong to opposite party No.2 & 3 and the crown, paper foiling and label have been tampered with in order to get undue gain and advantage. So far as the objection of opposite party No.2 no microbial /microbiological test has been done as to whether the beer was fit for human consumption or not . The opposite party No.2 has not placed on file any evidence/literature as the microbial /microbiological test is necessary to determine as to whether the beer was fit for human consumption or not and that he got a right to get C.C.No. 482 of 2014 //12// the bottle re-inspected and re-analysed. The opposite parties have not moved an application before this Forum to get the bottle re-inspected and re-analysed and to get the sample contents examined from another laboratory. So far as the objection that in the report, there is no mention of batch number and date of manufacturer/packing on the label, in the report of Food analyst, Punjab Chandigarh it is correct that it is mentioned that the product has not been labelled as per the provisions of regulation 2.2.2.(8) & (9) of Food Safety and Standards (Packaging and Labelling) regulations 2011, as batch no and date of manfacture/packing has not been given on the label. Hence misbranded. From the report, it is proved that the bottle, which was manufactured by opposite party No.2 was misbranded. In view of the report of the Food Analyst, Punjab, it is proved on the file that the beer manufactured by opposite party No.2 and supplied by opposite party No.1 contained suspended matter and was unfit for human consumption. Opposite party No.1 pleaded in the written reply that on 20.08.2014 at about 12.20 PM the complainant and his friends reached in the restaurant of opposite party and as per bill, it is correct that they were sitting in table No.T03 of the restaurant/bar of opposite party No.1 and demanded two beers of Hayward 5000, one Tandoori Chicken, one Cheese Malai Tikka and the same was given to the complainant. It is also admitted by the opposite party that the complainant and his friends checked the same and C.C.No. 482 of 2014 //13// found that a wrapper of Bhujia was in the bottle. It is also admitted by the opposite party that the bottle was intact at that time. It is also admitted by opposite party No.1 the complainant and his friends called the opposite party and told the above said entire story to the opposite party. It is admitted by opposite party No.1 that the complainant requested the matter to opposite party No.2 on his toll free number. It is proved that opposite party No.2 is the manufacturer of the bottle in question. From the admission of opposite party No.1it is proved that the complainant informed opposite party No.2 on his Toll free regarding the wrapper in the bottle of Bhujia. Opposite party No.2 has pleaded in the written reply that mobile number given by opposite party No.1 to the complainant was not his mobile number. But opposite party No.2 has not mentioned in the written reply what was his mobile number. From this it is proved that the complainant contacted the opposite parties regarding the wrapper of Bhujia in the bottle of beer and requested him not to supply bear of that type. Opposite party No.1 and 2 are, therefore, negligent in manufacturing, bottling and further distributing/selling a product in the market for consumption of public, which was unfit for human consumption. The negligence on the part of opposite party No.1 and 2 is writ large. Though the complainant, being a vigilant consumer, has not consumed the said C.C.No. 482 of 2014 //14// bottle, but it does not in any way reduce the burden of responsibility of selling a product unfit for human consumption on the part of opposite party No.1 and 2.
11. Opposite party No.1 and 2 offered the product in question to the people at large and have also made a wide advertisement for influencing the people to consume it. The report of the Food Analyst, Punjab, Chandigarh is self speaking, wherein it has been held in clear terms that the product was containing suspended matter and the same is unfit for human consumption. There is no weight age in the objection filed by opposite party No.2 to the report of the Food Analyst, Punjab, Chandigarh
12. The companies, engaged in the manufacturing and marketing food items such like beers etc., are required to maintain a high care and diligence. It cannot be an excuse that the consumer has not suffered any loss because he has not consumed the same. Therefore, we hold that opposite party No.1 and 2 are grossly negligent and deficient in manufacturing and marketing/distributing the said product. Opposite party No.1 is also negligent in service as he offered the beer manufactured by opposite party No.2 and distributed by opposite party Nos. 1 & 2 to the consumer without noticing that the same is containing suspended matter. Opposite party No.1 and 2 were required to keep utmost care, caution and C.C.No. 482 of 2014 //15// diligence of not selling a product, which are unfit for human consumption. Hence it is a fit case where suitable compensation and costs should be imposed upon opposite party No.1 and 2.
13. In view of the above discussion, this complaint is accepted and opposite party No.1 and 2 are directed to pay jointly and severally a sum of Rs.10,000/- as compensation for mental pain and harassment and Rs.2000/- as litigation expenses to the complainant. Opposite party No.1 is also directed to refund a sum of Rs.130/- as price of the beer of bottle to the complainant. This order is directed to be complied with within a period of thirty days from the date of receipt of a copy of this order. File be consigned to the record room. Announced (Gurpartap Singh Brar) 15.09.2015 President (Inderjeet Kaur) Member