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Judgment
Dr. Inder Jit Singh, Presiding Member
The present Revision Petition (RP) has been filed by the Petitioner against Respondent(s) as detailed above, under section 58(1)(b) of Consumer Protection Act 2019, against the order dated 09.06.2021 of the State Consumer Disputes Redressal Commission, Rajasthan, (hereinafter referred to as the ‘State Commission’), in First Appeal (FA) No. 436/2020 in which order dated 05.02.2020, District Consumer Disputes Redressal Commission, Bharatpur (hereinafter referred to as District Commission) in Consumer Complaint (CC) no. 237/2018 was challenged, inter alia praying to set aside the order passed by the State Commission.
While the Revision Petitioner (hereinafter also referred to as OP) was Appellant before the State Commission and OP-1 before the District Commission. The Respondent-1 (hereinafter also referred to as complainant) was Respondent-1 before the State Commission and complainant before the District Commission. Respondent-2 (hereinafter also referred to as OP-2) was Respondent-2 before the State Commission and OP-2 before the District Commission.
Notice was issued to the Respondents. Due to absence of Respondents despite service, they were proceeded ex-parte. Petitioner filed Written Arguments/Synopsis on 21.11.2023.
Brief facts of the case, as emerged from the RP, Order of the State Commission, Order of the District Commission and other case records are that:-
The complainant alleges that on 23.04.2018, he purchased four 5-liter bottles of Bisleri pure and fresh drinking water from Sanjeev Enterprises (OP-2), a district-level retailer of the Petitioner/OP-1, for personal use. The transaction was documented through bill invoice number 541, amounting to Rs. 200/-. After consuming water from three bottles without issue, he discovered filth in the fourth bottle. Upon reporting this to OP-2, the retailer, he was informed that sold products cannot be replaced. The complainant asserts that he was influenced by the OP-1's advertisements, promoting the purity and cleanliness of Bisleri water, and had been a regular consumer. However, he alleges that the company engages in unfair trade practices by selling impure and filthy water at high prices, misleading consumers through their advertising. This, he claims, constitutes both an unfair trade practice and a service fault, as it poses a risk to the health and safety of consumers while causing financial losses. The complainant contends that the deliberate sale of poor-quality water, despite the company's advertising claims, has resulted in significant mental, physical, and economic distress for him. He accuses the OP-1 of knowingly endangering consumer health and financial well-being for profit. Consequently, complainant filed complaint in District Commission.
Vide Order dated 05.02.2020, in the CC no. 237/2018 the District Commission has allowed the complaint against OP-1; dismissed the complaint against OP-2; directed OP-1 to deposit amount of Rs. 25,000/- as penalty in Consumer Welfare Fund; directed OP-1 to pay Rs. 50/- against cost of one Bisleri bottle and to pay Rs. 25,000/- on account of compensation to the complainant.
Aggrieved by the said Order dated 05.02.2020 of District Commission, Petitioner/OP-1 appealed in State Commission and the State Commission vide order dated 09.06.2021 in FA No. 436/2020 has dismissed the appeal and upheld the District Commission’s order.
Petitioner has challenged the said Order dated 09.06.2021 of the State Commission mainly on following grounds:
i. The petitioner’s/OP-1’s company specializes in packaging and distributing natural water, subjecting each bottle to a rigorous purification process. OP-1’s brand is reputed as one of the most respected in the industry. There is no possibility of contaminated water being consumed. The respondent-1's/complainant’s claim of a threat to life or limb is unfounded. Every batch of water undergoes extensive purification and mandatory checks, with additional random checks conducted to ensure quality. The test reports are maintained as part of standard protocols, and no contamination was found in the alleged batch of water.
ii. The complainant should have contacted OP-1 directly to provide an opportunity for examination of the allegedly contaminated bottle. The complainant did not present the bottle for examination before the District Commission, thus failing to meet the burden of proof required by law. Without examination by expert witnesses before the bottle's expiration, it cannot be concluded that the water was contaminated. There is no clarity about the origin of the foreign substance allegedly found in the bottle, suggesting the possibility of manual introduction. The expert reports could have ruled out such possibilities. The District Commission and State Commission failed to consider the potential for tampering with the bottle, which could introduce foreign substances and contaminate the water. The company's water is pure and does not contain any preservatives.
iii. The State Commission should have recognized that the water bottle purchased by the complainant needed to be stored in a cool, dry place away from direct sunlight to prevent the growth of fungi. The assumption made by the State Commission that the water would remain fit for consumption even if exposed to direct sunlight before the expiry of six months from manufacture is highly erroneous. The storing of the water bottle as directed is mandatory for its safety, but there is no indication in the complaint or evidence provided by the complainant that the bottle was stored as directed.
iv. The State Commission incorrectly concluded that the invoice was in the name of the complainant and not in the name of M/s Jitu Provisional Store. The bottles were purchased by the complainant for sale in their shop, and it is not claimed that they were purchased for livelihood or self-employment. Therefore, the District Commission lacked jurisdiction to entertain the complaint. The State Commission's finding that the presence of dirt in the bottle was disputed by the OP-1 company. The State Commission erroneously concluded that there was a deficiency on the part of the OP-1 company. Without the presence of expert witness testimony, such a conclusion cannot be drawn.
Heard counsel of Petitioner. None appeared for the Respondents despite service, accordingly respondents were proceeded ex-parte. Contentions/pleas of the parties, on various issues raised in the RP, Written Arguments, and Oral Arguments advanced during the hearing, are summed up below.
i. The learned counsel for the petitioner/OP-1 has put forth a strong argument emphasizing the commitment of the company to maintain the quality and safety of its packaged natural water. They have highlighted the rigorous purification process implemented, which includes assigning unique batch numbers to each water bottle and conducting extensive testing to detect any foreign substances or contamination. The counsel has emphasized transparency in packaging as a measure to ensure that consumers receive uncontaminated water. Furthermore, they have pointed out that each batch undergoes thorough purification processes and mandatory checks, with additional risk mitigation through random bottle checks.
ii. Furthermore, the counsel argued that the complainant failed to engage with the OP-1 company, which could have provided an opportunity for the examination of the allegedly contaminated bottle. This lack of engagement deprived the OP-1 company of the chance to inspect the bottle and assess any potential contamination. Additionally, the counsel highlighted that the bottle in question was not presented for examination before the District Commission, further complicating the assessment of contamination. Without expert witness examination and the presentation of the allegedly contaminated bottle, any determination regarding contamination remains inconclusive.
iii. Furthermore, regarding jurisdiction, the counsel challenged the State Commission's assumption that the invoice was issued in the complainant's name rather than M/s Jitu Provisional Store. They contended that the bottles were purchased for resale, not for personal use, thereby disputing the jurisdiction of the District Commission over the matter. Additionally, the counsel criticized the State Commission's assumption that the OP-1 company did not dispute the presence of dirt in the bottle, highlighting the lack of opportunity for the OP-1 to present their case before the District Commission. This, they argued, violated principles of natural justice and hindered the OP-1's ability to defend themselves adequately.
iv. The counsel for petitioner relied on the judgement of Narendra Tomar vs Bisleri International Private Limited and Ors. RP/42/2018, pronounced on 17.01.2018 by the National Commission.
We have carefully gone through the orders of the State Commission, District Commission, other relevant records and rival contentions of the parties. In this case, there are concurrent findings of both the fora below against the petitioner herein.
The objection regarding the purchase of water bottles for commercial purposes lacks substance based on the evidence provided. The invoice clearly indicates that the four Bisleri 5-liter bottles were purchased by the complainant, Mukesh Chand Khandelwal, in his own name, not in the name of the Jeetu Provisional Store. Therefore, it cannot be inferred that the purchase was made for commercial purposes or for resale in the shop simply because the complainant operates the Jeetu Provisional Store.
Regarding the issue of the bottle being kept in the sun for six months, leading to the generation of fungus, no evidence has been provided to support this claim. It is unreasonable to assume that water would be kept in such conditions after purchase without any evidence to substantiate it. Furthermore, the presence of filth in the bottle was discovered within four months, as indicated by the complaint filed in August, within the six-month timeframe. This indicates a service fault on the part of the OP-1.
As for the contention of having expert witness, the complainant asserted that upon attempting to use the water from the fourth bottle, he noticed dirt and insects. When he requested a replacement from the seller, it was refused. Subsequently, the complainant had the water tested at the State Central Public Health Laboratory in Jaipur, which found green algae in the sample, deeming it unsafe for human consumption.
The extract of the Report submitted in District Commission is reproduced below:-
“report on dated 08.04.2019:-
The above sample of "Water (Bisleri)”
Marked: Case No. 237/18 is Unsafe Food under Section 3 (I) (zz)(iii) of Food Safety and Standards Act, 2006 due to presence of green algae.
Thus, according to the above-said report, it has been reported that the above-said water is not fit for human use (consumption).”
Given (OP-1) Bisleri's extensive advertising on the purity of its water, the discovery of filth is a serious concern. Considering this, the lower forums rightly ruled in favor of the complainant, and there is no basis to interfere with the judgment. It is clear that the bottles were purchased on 23.04.2018, and the complaint was filed on 06.08.2018. The water was tested on 08.04.2019, and found unsuitable for human consumption. Despite the instruction to use the product within six months from the date of manufacture, the presence of green algae could not be attributed solely to the passage of time, especially since the bottle was sealed. In view of the aforementioned, we are of the view that the OP-1, as the manufacturer of the water brand, is indeed at fault. The sealed bottle supplied by the OP-1 contained contaminated water, which constitutes a deficiency in service on their part.
As was held by the Hon’ble Supreme Court in Rubi Chandra Dutta Vs. United India Insurance Co. Ltd. [(2011) 11 SCC 269], the scope in a Revision Petition is limited. Such powers can be exercised only if there is some prima facie jurisdictional error appearing in the impugned order. In Sunil Kumar Maity Vs. State Bank of India & Ors. [AIR (2022) SC 577] held that “the revisional jurisdiction of the National Commission under Section 21(b) of the said Act is extremely limited. It should be exercised only in case as contemplated within the parameters specified in the said provision, namely when it appears to the National Commission that the State Commission had exercised a jurisdiction not vested in it by law, or had failed to exercise jurisdiction so vested, or had acted in the exercise of its jurisdiction illegally or with material irregularity. "
We have carefully gone through the orders of State Commission, District Commission, and other relevant records. Both the State Commission and District Commission have issued well-reasoned orders, duly and appropriately addressing the issues raised by Petitioner. There is no illegality or material irregularity or jurisdictional error in the order of the State Commission. We are in agreement with the findings of State Commission and District Commission as regard to deficiency in service on the part of OP-1 and grant of compensation to the complainant for such deficiency. However, we are of the view that while consumer fora below have the power to order compensation to the complainant for the deficiency and decide the quantum of such compensation, the consumer fora cannot in addition impose penalty on the OP-1 for deposit in the Consumer Welfare Fund. Hence we set aside the order of fora below as regards payment of penalty of Rs. 25,000/- in the Consumer Welfare Fund. Rest of the order is upheld. Accordingly, orders of District Commission and State Commission are upheld subject to modification with respect to payment of penalty of Rs. 25,000/- in the Consumer Welfare Fund. RP is disposed off accordingly.
The pending IAs in the case, if any, also stand disposed off.