This order will dispose of the above mentioned private complaint, launched at the instance of complainant, Imran Sohail Tarrar, under Sec. 25 read with Sec. 30 of the Punjab Consumer Protection Act.2005, against M/S Pepsi-Cola and 05 others, fully described in the complaint herein respondents, while alleging therein that on 29-08-2007, at about sham-waila, complainant purchased 06 Pepsi-Cola bottles, in value of Rs. 60/-, vide cash memo (EX-AW1/A) from respondent No.6, situated in his residential area, in order to serve his guests. Only two bottles were opened / de-sealed but he stopped opening the remaining 04 bottles, while finding a sold article (a wrapper) in the drink of bottle, herein disputed bottle (Ex A/1) whereupon he while taking two sips of opened bottles and finding different taste/ odor from the true drink, immediately decided to return all bottles, as complainant had apprehension that these bottles, were defective, low- substandard and injurious to the human health and consequently he visited respondent No 06 and returned 05 bottles except the one having some solid article therein ( Ex-A1). He also narrated the whole situation to respondent No. 06 who while justifying his no fault maintained that those bottles were manufactured and supplied by M/S Pepsi-Cola etc, hence, the claim for damages, in sum of Rs.5,00,000/-, (Rupees Five Lac only), against respondents and other legal consequence as justice demands.
2. According to the complainant he has also served a notice, (Ex-1A/B), to the respondents which was received by respondent No 5 vide A.D (Ex-Aw1/C).
3. In response to the complaint and allegations contained therein, the respondents No. 1-5 submitted their reply while raising, as many as, eight legal objections and controverted the allegations alleging therein that no doubt respondent No. 6 was regular seller of the drinks, manufactured/ prepared by respondent No.1 (M/S Pepsi- Cola) and was under regular supply of the drink by respondent No 1 to 5 but he used to black-mail the respondent No1 to 5 on one or the other pretext. It was further maintained that respondents No. 1 to 5 had received a complaint against respondent No. 06, for the sale of local made drinks under the garb of drinks prepared by their multinational company as a result of which supply to respondent No. 6 was closed and that respondent No. 6 being tenant in the shops of complainant, while joining hands with him managed the institution of this complaint with ulterior objective. Respondent No. 06, while submitting his reply, supported the grouse of complainant.
4. In view of divergent versions of the parties, they were asked to place affidavits in evidence of their witness and to produce their respective evidence, in support of their versions.
5. The complainant examined himself as witness in support of his allegations and claim mentioned in the complainant and also examined Hafiz M. Safdar advocate in corroboration where after closed the evidence. The complainant also furnished also documentary evidence i.e. Deposition of complainant (Ex-Aw1/D) and postal receipts (Ex-Aw1/ E to J).
6. To rebut the complainant evidence respondents No. 1-5 examined. R.w.1- Tanveer Hussain Qurashi, Regional Sales Manager of M/S Pepsi-Cola, R.w.2- Altaf Hussain, local distributor and R.w.3- Khalid Mehmood, Customer Representative/ company salesman and closed the evidence.
7. It is worth to mention that before the commencement of the evidence the complainant submitted an application for transposition/examination of complainant as witness having identical versions, however, this Court while evaluating the entire record and written reply submitted by respondent No. 6 containing similar version, directed his examination as C.W. 1, who also while appearing as C.W.1, supported the case of complainant against respondents.
8. Both sides were invited to lead the arguments.
9. Learned counsel for the complainant while supporting the allegations of the complaint, argued that complainant after purchasing the bottles, without loss of time served a notice, (Ex-Aw1/B), received by the respondent No. 05 through A.D. (Ex-Aw1/C) that, while appearing in the witness box complainant supported each and every fact, as mentioned in the complaint and notice, whereas, despite lengthy course of cross examination his veracity could not be shaken; that, even, respondents No. 1 to 5 while submitting written reply and examining their Witnesses showed complete somersault throughout the course of trial i.e, respondents had been changing and deviating their version maintained in the written reply, whereas, it is a golden principle of law that no party can go beyond the version setup in the pleadings; that C.W.
1. Mehar Sharaft Ali also supported the case of complainant and that complainant party had proved its claim and case beyond any shadow of doubt.
10. On the other hand learned counsel for the respondent No 1- 5, while vehemently opposing the contentions raised by the learned counsel for the complainant and supporting his case argued that the complainant was failed with ulterior objective in order to achieve malicious aims, while joining hands with respondent No. 6 that there are serious contradictions, flows, gaps and differences in the evidence of the complainant qua the allegations contained in the complaint.
That the entire story introduced by the complainant is hatched up, engineered, cooked up and concocted in order to black mail the respondent No.1 (a multinational company), in order to grab monitory benefit. That no laboratory test of disputed bottle, (EX- A1), was ever secured in order to see whether it was injurious to human health or not nor any evidence was ever furnished to show that manufacturing was made in an untidy and unhygienic atmosphere and that respondents No. 1-5 had proved their case by held and have rebutted the allegations leveled by the complainant party and also claimed the dismissal of the complaint with heavy cost.
11. Arguments have been heard and record also perused.
12. Having heard both sides and examined the record, it is depicted from the subject matter of the complaint that on 29-08-2007 complainant purchased six Pepsi-Cola bottles through receipt, (Ex- Aw1/A), in order to serve his guests and during opening of the bottles, one solid material, (Wrapper), was found in disputed bottle (Ex-A1) and stopped opening the remaining. Thereafter, he went to respondent No. 06, (Drink Corner), of his residential area to return the bottles and launched the complaint, however, complainant retained disputed bottles (Ex-A1) Complainant, thereafter, while serving a notice, (Ex-Aw1/B), to the respondents No.1-5 launched the instant complaint and claimed that the manufactured bottles were defective, low qualitative and low standard and if used could injure the human life and also prayed for compensation in sum of Rs. 5,00,000/- (Rupees Five Lac), besides legal expenses.
13. Although allegations were vehemently controverted by the respondents through their written statements but it was also alleged that infact respondent No.06 (an agent of M/S Pepsi-Cola) was found indulged in the sale of local made drinks, entailing the stoppage of supply of M/S Pepsi-Cola.
It was further maintained that respondent No. 06, (Drink Corner) while joining hands with complainant with malafide intention and in order to blackmail remaining respondents lodged the complaint while introducing a false story.
14. The complainant while appearing as (Aw1) and supporting his affidavit (Ex-Aw1/D) fully corroborated his plea/version setup in the complaint, however, (Aw2) Mehmood Safdar Raza, who failed to support the case of the complainant or to give any strength to the case of complainant.
15. Although learned counsel for the respondents had attempted to point out some inconsistencies and variations in the evidence of complainant (Aw1) but these are immaterial which naturally occur with the passage of time, however, the substantive evidence could neither be shaken nor damaged, even, in his evidence on the question of learned counsel for the respondents this court proceed to record the observations that disputed bottle (Ex-A1) having a computer number on it (although dim) was manufactured by respondent No. 1.
16. It was already observed and admitted position that there was a solid material in the drink. In any way the respondents side failed to put any suggestion that disputed bottle was a local made bottle or was not manufactured by respondent No.1.
17. In rebuttal (Rw.1) Tanveer Hussain, Area Sales Manager (Rw2) Distributor Altaf Hussain and (Rw.3) Khalid Mehmood CR / sales man of M/S Pepsi-Cola, while supporting their affidavits (Ex-RA, Ex-RB & Ex-RC) respectively disclosed that on a complaint launched by (Rw.3) Khalid Mehmood, supply of Pepsi-Drinks to Respondent No. 06 was closed on the ground that in the grab of drinks manufactured by M/S Pepsi-Cola (a multinational company) used to sell local made cheaper beverages. It is in the evidence of Rw.1and Rw.2 that it was Khalid Mehmood (Rw.3) who launched complaint but pleading/written reply to allegations, at the instance of respondent No. 1-5, as well as, affidavits, (Ex-R/A to Ex-R/C), do not show the mention of his name and it is settled principle of law that no party can give a new story during the evidence, beyond the pleadings.
18. While meticulously examining the evidence of (Rw.3) Khalid Mehmood, it is also depicted that he furnished absolutely a new story which was never setup in the pleadings written reply to the allegations or in his affidavit (Ex-R/C) in as much as, in the 1st week of August 2007, while he was supplying drinks manufactured by M/S Pepsi-Cola, (Respondent No. 1 to respondent No. 6) he had seen that respondent No. 6 was purchasing two crates of local made and fake Pepsi-Cola drinks from a person who had brought on bicycle and that he had seen this event from a distance of about 12/13 feet, while present on another Drink-Corner. Surprisingly he was representative of M/S Pepsi-Cola but he was seeing this foul game silently, even, a question arises, how he had come to know that these were fake and local made beverages from a long distance, particularly, when he had stated before the Court that it is not unusual that purchased Pepsi-Cola can be returned to the seller of Pepsi-Cola, of course all this nullifies respondents version. Apart from this the question arises as to why he had not reported to his High ups through telephone or nearby P.S in order to save the society from fake beverages of course legal presumption can be inferred that respondents 1-5 had woven a concocted, manufactured, a hatched up and a cock and bull story, after the institution of complaint in their defense. Would that it was the case of respondents No. 1-5, they would have alleged the same plea at the initial stage in their written reply to the allegations. It is also in the evidence of (Rws) that they had not bothered to bring this foul game in the notice of manufacturer (M/S Pepsi-Cola).
19. It is further revealed from the entire record that at no stage respondents No. 1-5 had not raised any plea that manufacturing of Pepsi-Cola drinks is/was made in strict hygienic and healthy atmosphere, even, no iota of material evidence is brought on record or through evidence that all possible and reasonable hygienic measures are observed for the care of human health and human life by respondents No. 1-5 in their Production Department, which also imbeds in the mind of Court that no reasonable measures are being taken up in the production department of M/S Pepsi-Cola.
20. As hinted above respondent No. 6 Shrafat Ali was examined as C.W. 1, who also fully supported and corroborated the version of the complaint. He was subjected to cross-examination by both sides but his credibility and authenticity could not be shaken or dislodged he categorically stated that disputed bottle (Ex-A1) was a product of M/S Pepsi-Cola.
21. There is also another interesting and admitted aspect of this case as revealed from the evidence of respondents that company is used to supply the Freezer, Fridge and other advertising material to his agents who sell their drinks at the shops. It is also in the evidence that their agents are also given incentive of free crates after a fixed yardstick and if sale exceeds beyond the yardstick, the free supply of crates is also enhanced. Although in pleading, it was alleged that respondent No. 06 while joining hands with complainant had managed the institution of this complaint with malicious intention to blackmail respondent No. 1 to 5 but without any specification, however, during the evidence a specific story was built that respondent No. 6 had demanded more free crates, deep-freezer etc but as held above no party is permitted to put other party at surprise, while introducing a different story beyond its pleadings, accordingly, this plea of respondent No. 1 to 5 is also turned down being disbelieved, hatched up and devoid of any force.
22. It is also transparent from surface of the record that all of the RWS consistently deposed before the Court that in case supply of product of M/S Pepsi-Cola is closed to an agent the Freezer, advertising material and other facilities given to the agent are removed forthwith but as admitted by them those are still lying with respondent No.6 who is enjoying the same, meaning thereby the respondents have closed the supply of their product to respondent No.6 in Order to compel him to restrain from support of complainant and it is their malafide intention.
23. During the arguments the learned counsel for the respondent No. 1 to 5 also raised the plea that disputed bottle (Ex-A1) was never sent for laboratory test and that merely oral assertion of complainant is not substitute of laboratory, as defined in Sec. 2 (g) of the Punjab Consumer Protection Act, 2005. Be that as it may, as observed by this Court there was a solid material in the form of a wrapper of any toffee or cigarette, a foreign material in the disputed bottle and it is not disputed that viral and bacterial diseases are spreaded due to such alien materials. A legal inference can be safely drown from the available material that possibility cannot be ruled that some worker of production department had thrown this material in the raw material of the drink entailing into production of disputed bottle (Ex-A1) and possibility cannot be ruled out that viruses and bacteria of different diseases while clinging with wrapper had entered into the drink and in case it was used or drunk it would have caused an alarming if situation to the human life, thus, the allegations under Sec.4 PCP Act, 2005 are proved and established against respondent No.1 to 5.
24. While concluding the whole evidence and discussion, this court is of confident view that stance of complainant is proved and established whereas, version of respondent No.1 to 5, being fake, ambiguous, hatched up, afterthought and concocted is hereby disbelieved and rejected, thus, compensation in sum of Rs 50,000/- (Fifty Thousand only) is, hereby, awarded against the respondent No.1 (M/S Pepsi-Cola) out of which Rs. 15,000/- (Fifteen Thousand only) whereas, Rs.35,000/-(Thirty Five Thousand only) will be depositable in the State Treasury, falling which the manufacturer/ proprietor of M/S Pepsi-Cola will be imprisoned for Four Months S.I alongwith Fine in sum of Rs. 1,00,000/-( One Lac only). The respondent No. 1 (M/S Pepsi-Cola) is also burdened with legal expenses, payable to complainant, besides compensation.
25. It is further directed that Authority (DCO) Gujranwala or any other 0fficer duly authorized by him in the company of EDO (Health) and DO (Health) Gujranwala will be bound to visit M/S Pepsi-Cola Gujranwala, fortnightly in order to ensure the observance of production of Pepsi Drinks in hygienic and healthy atmosphere under strict measures settled by multinational companies under intimation to this court. A copy of this order be sent to Authority (DCO) EDO (Health) and Do (Health) Gujranwala for compliance.
26. It is also observed that respondent No.2 to 4 representatives of M/S Pepsi-Cola are found to provide defective services in the area of District Sialkot in as much as none of them has/had ever tried to point out the responsible authority about fake and low standard and local made drinks in order to cater-down this foul tendency and for care of human life, probably while joining hands with criminal minded persons who are indulged in the manufacturing of low standard, Low quality and fake local made beverages, which are harmful to human life and health. The case property disputed bottle (Ex-A1) will be destroyed after the expiry of period of appeal/revision, whereas, bottle (Ex-A2) taken from respondents for the purpose of sampling will be returned to the respondents after the expiry of period of appeal/revision if so applied for and that after destroying the case property the cost of bottle will be deposited in the state treasury.
27. Before parting with the order this Court is mindful to observe that during the hearing of this case disputed bottle (Ex-A1) was allegedly desealed tempered with by P.S of this Court in connivance with respondents No. 1 to 5, resulting into registration of case against him, vide FIR No. 501/07 and disciplinary action against him. File be consigned to the record room.