1. Shri GAURAV GARG,
S/o Shri Satsh Garg, R/o H. No. 6656,
DLF Phase-III, Block-U,
GURGAON.                                                                                 ......... Complainant(s)
                                           Versus 
  
M/s PEPSICO INDIA & ANR.,
Through its Managing Director, 3B,
DLF Corporate Park, S Block, Qutab Enclave, Phase-III,
GURGAON - 122002.                                                                 ......... Opp. Party(s)

BEFORE:    
     HON'BLE MR. JUSTICE J.M. MALIK, PRESIDING MEMBER
     HON'BLE DR. S.M. KANTIKAR, MEMBER

Dated : 01 Sep 2015

JUSTICE J. M. MALIK, PRESIDING MEMBER

1.      Sh. Gaurav Garg, the complainant was going to Faridabad to meet his friend on 31.10.2012 from Gurgaon.  On the way, at Gurgaon- Faridabad Road, the complainant purchased a ‘Slice’ bottle, 250 ml, to drink, from the retailer of the OPs namely – Pepsico India – OP-1 and M/s Varun Beverages Ltd.-OP-2.   He paid the consideration to the tune of Rs.12/-.  OP-2 on behalf of OPs, accepted and acknowledged the consideration amount from the complainant.  The OPs are financially beneficiary of the amount received by the retailer from the complainant and in this manner the complainant is a consumer qua OPs.  The complainant purchased the slice bottle being the product of the OP-1 who has acquired reputation and goodwill in the market of Soft drink for the quality of their products.

2.      After consuming the Slice bottle, the complainant started vomiting and feeling sick.  The complainant had headache and stomach pain.  He returned home and took some medication. However, in the evening, he developed high fever and diarrhoea, which lasted for several days and the complainant sought treatment from the doctor and eventually got well.  He remained under the intensive medical care with Max Hospital from 01.11.2012 to 12.11.2012.  The documentary evidence in this respect has been attached with this complaint as Annexure C-2.

3.      We have gone through the record.  Complete Summary mentions:-
“Fever, Headache, Bodyache-1 Day”.
Then medicines are written.  On 05.11.2012, the prescriptions mention of Dengue fever.  Then, there are receipts for Rs.800/-, Rs. 2,195/-, Rs.140.60 & Rs. 1,250/-.  Subsequently, it was found that the complainant did not suffer with Dengue fever.  There is report for Platelet Count.  No history or any fact was recorded that the trouble started after taking the above said drink.

4.      It is contended that the above said soft drink created threat and danger to the life of the complainant.  The OPs have acted in a highly rash, negligent and irresponsible manner.  Such conduct on the part of the OPs has caused immense mental torture, pain, agony, suffering and set back to the complainant as the OPs had put the life of the complainant in danger.  A complaint was made to the OP-1, but the OP-1 has not admitted its fault.   The complainant has placed on the record the photograph of the Slice bottle, as Annexure C-3.  The correspondence exchanged between the complainant and the OPs has been placed on the record as Annexure C-4 (colly).  Consequently, this complaint was filed before this Commission on 09.05.2013, with the following prayers:-

“i)      direct the respondents jointly and severally to pay a sum of Rupees One Crore twenty five lakh to the complainant on account of mental torture, pain, agony, suffering and set back to the complainant and also on account of deficiency of service rendered by the respondents.

ii)      direct the respondents to pay a sum of Rs.31,000/- to the complainant on account of litigation charges.

Any other order/relief/direction may also kindly be passed in favour of the complainant and against the respondents as this Hon’ble Commission may deems fit, just and proper according to the facts and circumstances of the case”.

5.      This may be mentioned here that the arguments for admission of this case were delayed for one reason or the other.  Counsel for the complainant admitted that he has not yet obtained the Expert’s report.  Though, in the letter dated 28.11.2012, the complainant had stated  that  he was  planning  to file a case before the Food and Safety Department in the next  few  days, yet, no report from the Expert of Food and Safety Department was filed.  Counsel for the complainant vehemently argued that the bottle is in possession of the complainant and it can be got inspected from the Food Department.  It is difficult to fathom, how, after a period of three years’, the same contents would be preserved.

6.      It is also difficult to fathom, whether, the said bottle is the same bottle, which was purchased by the complainant, three years’ back.  The possibility of it being changed, cannot be ruled out.

7.      However, the most important question is, whether the complainant is entitled to Rs.1,25,00,000/- plus Rs. 31,000/- on account of litigation charges, total being Rs.1,25,31,000/-.  Vide our order dated 27.08.2013, we asked the complainant to give break-up of Rs.1,25,00,000/- and adjourned  the case for 16.12.2013.  On 16.12.2013, however, the Advocate appeared, but prayed for adjournment, however, did not file the break-up of Rs.1,25,00,000/-.  Ultimately, the break-up  was filed, which is reproduced here, as under:-

“INCOME BREAK-UP
Net Annual Income for assessment Year 2012-2013 – (Assume 10,00,000)
In case of death due to that defective cold drink, we assume that you will Live 25 years more from today.
Net Income in case of Death is                        -         83,333,33
Loss of Mental Pain & agony & Harassment  -        25,00,000
Loss of Medical Treatment                               -             50,000
-------------------------------------------------------------------------------------
Total Amount of Compensation in case of death-  1,08,83,333/-
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8.      A duty casts upon the Commission to rule out, “whether the claim made by the complainant is exaggerated or within the permissible limit?   There lies no rub in demanding as much money as one feels correct, however, there should be some basis for the same.  Although, fortunately, the complainant is alive, yet, he is claiming the amount of a deceased person.  Such a huge amount cannot be adjudicated by a Consumer Court, which has to dispose of the case in a summary fashion. It is settled law that where huge demand claim has been made, the complainant should be advised to knock at the doors of the Civil Court.  The complainant claims Rs.1,25,31,000/- in his complaint,  but in the break-up, he mentions a sum of Rs.1,08,03,333/- only.

9.      The three Judges’ Bench in the case of  Synco Industries Versus State Bank of Bikaner & Jaipur and Others (2002) 2 SCC 1, was pleased to hold:-

“3.     Given the nature of the claim in the complaint and the prayer for damages in the sum of Rupees fifteen crores and for an additional sum of Rupees sixty lakhs for covering the cost of travelling and other expenses incurred by the appellant, is obvious that very detailed evidence would have to be led, both to prove the claim and thereafter to prove the damages and expenses. It is, therefore, in any event, not an appropriate case to be heard and disposed of in a summary fashion. The National Commission was right in giving to the appellant liberty to move the Civil Court. This is on appropriate claim for a Civil Court to decide and, obviously, was not filed before a Civil Court to start with because, before the Consumer Forum, and figure in damages can be claimed without having to pay court fees. This, in that sense, is an abuse of the process of the Consumer Forum”.

10.    Similar view was taken in a recent authority by the Hon’ble Supreme Court reported in Pessy Dady Shroff Vs. Boehringer Ingetheim Denmark & Anr., Civil Appeal No. 9453 of 2013, decided on 10.07.2013.

11.    In view of the above discussion, the complaint is, hereby, dismissed. However, the complainant is permitted to seek redressal of  his grievances  from  the appropriate e Forum/Civil Court, as per Law.  So far as the limitation is concerned,  he can seek help from  the law laid down in Laxmi Engineering Works Vs. P.S.G. Industrial Institute, (1995) 3 Supreme Court Cases 583.

......................J
J.M. MALIK
PRESIDING MEMBER
......................
DR. S.M. KANITKAR
MEMBER