1. The complainant filed the instant complaint firstly before the DCO/Chairman District Consumer Protection Council Gujranwala on 13-12-07 upon which the notices were issued to the respondents and subsequently the complaint was sent to this Court by the order of DCO/Chairman District Consumer Protection Council Gujranwala for adjudication.
2. The grievances of complainant against respondents is that he purchased one litre bottle of Teem through his friend from respondent No.5 on 19-11-07 and before using the drink he observed that sealed bottle contained some ugly clot inside it and the matter was referred to Pepsi officials who misbehaved with him and then he contacted DCO/Chairman District Consumer Protection Council Gujranwala and reported the entire matter who instructed him to approach the District Consumer Protection Council on the same day. He further stated that there were numbers of complaint against the local Pepsi for not producing and processing of the entire range according to International Standard. In addition to this Food and Health Officials also did not perform their function and they were in hands gloves with respondents company and now the agent of company threatened him and offered considerable amount to him for retrieving the defective and substandard bottle from his custody just to hush up the matter, therefore, the respondent company was guilty of violating the different provisions of Punjab Consumer Protection Act, 2005.
He claimed compensation against the respondents and also demanded the punishments of respondents for manufacturing defective products.
3. The respondent No.1 to 4 submitted their written reply where they raised preliminary objections regarding maintainability, malafide, cause of action, limitations, and non compliance of mandatory provision of legal notice before filing the complaint and special cost. On facts that stated that the alleged defective bottle was not genuine of Pepsi supplied by the respondent's company and also denied the averment of complaint and prayed for the dismissal of complaint.
4. The complainant appeared as PW1 and reiterated the same facts as mentioned in his complaint.
In addition to this he stated that he sent Amjad Sohail Munawar to purchase one litre bottle but due to polluted sealed bottle he did not use it, Amjad Sohail told him that he purchased the bottle from respondent No.5,therefore, he at once contacted the respondent No.2 who instructed him to contact respondent No.4 upon which he informed respondent No.4 on telephone who offered him one carte of drinks in lieu of polluted bottle and stated that he would forward his complaint to respondent No.3. He further stated that he paid Rs.25000/- as fee to his counsel and also spent his precious time in the prosecution. Amjad Sohial Munwar appeared as PW2 who supported the version of PW1. PW3 is brother of complainant who also supported the version of PW1&2. Malik Asim Ali Awan Assistant Director Legal District Consumer Protection Council Gujranwala appeared as PW4 who made the statement regarding the proceeding taken by him on the direction of the DCO/Chairman District Consumer Protection Council Gujranwala and Khalid Pervaiz appeared as Pw5 who is also respondent No.5 in complaint from which complainant purchased the one litre bottle of team through Amjad Sohail Munwar PW2. He also stated that the purchased bottle from authorized distributor of Pepsi name and style Abid & Co. All the 5 witnesses were cross examination at length by the learned counsel for the respondents but nothing could be brought in favour of the respondents.
5. On the other hand Saeed Ullah Khan Tareen General Manager of Naubahar Bottling Company
(Pvt) Ltd. S.I.E-I, Gujranwala as respondent No.1 he simply stated that the bottle produced by the complainant in the Court was not genuine. However he admitted the bottle produced in the Court having his trade mark. He also admitted that the bottle was polluted, dirty and also visible with necked eye but denied that liquid of the bottle was not bottled by its company and closed the evidence.
6. I have heard the counsel for the parties and gone through the record.
7. It is proved from the corroborative evidence of the complainant the one litre bottle of team was purchased form respondent No.5 through PW2 and respondent No.5 who admitted as PW5 that it was purchased from him, therefore, in the presence of corroborative evidence of complainant it is clear that bottle produced by the complainant in the Court was purchased by PW2 from PW5 who is also respondent No.5 in the complaint. The admission of the respondent No.5 as PW5 is indicative of facts that he is also liable to supply a defective product to the complainant, therefore, he cannot be absolved the liability of supplying the defective and substandard bottle to the complainant.
Moreover the respondent No.1 admitted his bottle and trade mark and his simply denial is not sufficient to absolve him from liability of producing and supplying of defective products. The respondent No. 1 to 4 &6 were also negligent in monitoring the market forces and to keep up the International standard of bottling.
8. The objections of learned counsel for the respondents that complaint was barred by time carries no weight because complainant filed the complaint immediately before DCO/Chairman District Consumer Protection Council Gujranwala Authority who could take cognizance under section 23(2) the authority may file a claim which was filed in the District Consumer Court and by adopting this procedure there is no need of sending any notice and complaint itself before District Consumer Protection Council amounts to notice, therefore, I hold the complainant has successfully proved his case on merits against the respondents and is entitled to get the relief from the Court but as the bottle was not used, therefore, under section 10 of Punjab Consumer Protection Act, 2005 he is not entitled to claim any damages except return of consideration and the part thereof and costs, therefore, in these circumstances the complaint is partially accepted in the following terms that:-
1. The respondent No.1 to 4&6 would be liable to supply one litre bottle of team or its price to the complainant.
2. The respondent No.1 to 4&6 would also be liable to pay Rs.20000/- as counsel fee and legal expenses of proceedings to the complainant.
4. The respondent No.1 to 4&6 would also be liable to pay Rs.50000/- as a fine which shall be deposited in the state treasury for supplying and manicuring of defective bottles which are unfit for human health.
5. The respondent No.5 would also be liable to pay Rs.10000/- as a fine which shall be deposited in the state treasury for supplying of defective bottle.
6. So far as the claim of complainant regarding the damages is concerned suffice to say that under section 10 of Punjab Consumer Protection Act, 2005 no damages can be awarded if the product is not used, therefore, it is declined.
7. The disputed bottle is confiscated in favour of State and the Registrar of this Court is directed to destroy the defective bottle after finalization of decree till then be kept in safe custody.
The respondents would be liable to pay all above payments, within 30 days of announcement of this judgment without fail.