Exh. 24
BEFORE THE DISTRICT CONSUMER DISPUTES REDFESSAL FORUM, SANGLI
Hon’ble President – Mr.A.V. Deshpande
Hon’ble Member - Mr. K.D. Kubal
CONSUMER COMPLAINT NO. 176/2011
Date of Filing : 02/07/2011
Date of Admission : 01/08/2011
Date of Judgment : 16/04/2013
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Kum.Sakshi Satyajeet Soman,
Age 8 years, Occp – Education
Trough Guardian
Shri.Satyajeet Ramchandra Soman
Age – Major, Occup – Service,
At.Nrusinhawadi, Tal.Shirol,
Dist.Sangli. ……. COMPLAINANT
Versus
1. Ashwini Prasad Hospital
Through Dr.Shishir Gosavi,
Nr.Railway Station, Miraj, Tal.Miraj,
Dist.Sangli.
2. Kumar Medicals and General Stores,
Station Road, Miraj, Tal.Miraj,
Dist.Sangli. ……. OPPPONENT
Advocate on behalf of complainant – Mr.D.M.Dhavate
Advocate on behalf of Opponent Nos.1 & 2 - Mr. S.L.Retharekar
J U D G M E N T
Delivered by Hon’ble Mr. A.V. Deshpande, President
1. This complaint u/s 12 of Consumer Protection Act has been filed by the complainant claiming defective service and unfair trade practice on the part of the respondents and has claimed a compensation of Rs.1 lakh alongwith the interest thereon @ 18 p.c.p.a.
2. The applicant in this case is the minor child of the age of about 8 years and she has filed this complaint through her guardian, father. It is the contention of the complainant that she was suffering from some pain in her ear and there was a discharge from her ear and therefore, she was taken to Ashwini Prasad Hospital run by the Respondent No.1 by her father. After necessary tests, certain medicines were prescribed by the Respondent No.1 which included one tablet by name T-Nise (50 mg). The medicines prescribed by the Respondent No.1 were purchased by the father of the complainant from the farmacy run by the Respondent No.2 and those were purchased on 11/3/2011. It is the allegation of the complainant the said T-Nise (50 mg) was banned by the Central Govt. That despite the knowledge of the said ban the Respondent No.1 has prescribed the said medicine to a minor child and it was sold by the Respondent No.2 and thus, the respondents have given the defective service and have committed unfair trade practice. That due to the consumption of banned medicine, the minor complainant suffered physically and the complainant also suffered mentally. By the letter dated 24/3/2011, the father of the complainant demanded the damages from the respondents for prescribing the banned medicines but the said notice was not complied to and hence, the complainant has filed this complaint. On such contentions, the complainant is praying for compensation of Rs. 1 lakh jointly and severally from the respondent No.1 & 2 on account of the defective service and the unfair trade practice committed by the Respondent No.1 & 2. She has also claimed the interest on the said amount @ 18 p.c.p.a. from the date of complaint till realization and a further amount of Rs.5,000/- being the cost of litigation.
3. Alongwith the complaint, the complainant has filed affidavit of her father Mr. Satyajit Ramchandra Soman at Exh.2 and she has also filed as many as 7 documents alongwith list of documents at Exh.4. These documents include the prescription dated 11/3/2011 issued by Respondent No.1, the bill issued by Respondent No.2 for purchasing the medicines prescribed by Dr. Shirish Gosavi, dated 11/3/11 which includes the T-Nise (50 mg) tablets. A copy of the notification dated 10/2/11 issued by the Ministry of Health and Family Welfare whereby the sale of description of Nimesulide formulations for human use in children below 12 years of age was banned by the Central Govt. through the Deptt. Of Health and Family Welfare alongwith other 5 medicines. The complainant has also filed on record a copy of letter dated 24/3/11 whereby a compensation was claimed by her father for prescribing the banned medicines to the said child. The copy of another letter dated 24/3/2011 and the postal acknowledgement of these letters are filed on record. Besides these documents, alongwith the list at Exh.8, the complainant has also produced on record a copy of the description of the contents of Nimesulide tables 100 mg manufactured by Dr. Reddy’s laboratory and also the strip containing 15 tablets of nimesulide bearing batch No. V 100063 manufactured in the month of February 2011 with the expiry date in the month of January 2014.
4. The respondent No.1 has filed its written statement signed by its one of the trustees by name Dr. Shirish Gosavi at Exh.10 and has denied all the adverse allegations. The fact that the minor complainant Sakshi Soman was brought to the said hospital for treatment on 11/3/11 with the complaint of pains in the ear and the said child was examined and certain medicines were prescribed is admitted by Respondent No.1. The fact that T-Nise (50 mg) tablets were prescribed to the said minor child is also admitted. However, it is contended that instead of purchasing 10 tablets the father of the complainant had purchased only 5 tablets. It is contended that when on 15/3/2011, the father of the complainant had come to the hospital, he had not made any grievance about the tablet T-Nise (50 mg) which were prescribed. All other adverse allegations are specifically denied by the Respondent No.1. It is the specific contentions of the respondent No.1 that tablet Nise Nimesulide manufactured by Dr. Reddy’s laboratories is a pain killer and it is prescribed and used in many countries including India. That Nise tablets having 50mg strength are prescribed to the small children and the tablets having 100 mg are prescribed to the adults. Many doctors including the Respondent No.1 are prescribing the said tablets since very many years. Till today, nobody has suffered any adverse effect due to the said tablets. That on 11/3/11, the complainant had purchased only 5 tablets tablet Nise medicine from the opponent No.2 though the respondent No.1 had prescribed 10 tablets. It is alleged that the complainant has made false allegations against the opponent No.1 under ill-advice of the doctors and medical practitioners who are opposed to the Opponent No.1. That the opponent No.1 has not received any communication from the Indian Medical Association about the ban on T nise tablets. It is specifically denied that the opponent No.1 have prescribed a banned medicine which could prove harmful to the small child and such medicine was sold by the opponent No.2. It is also specifically denied that the said child Sakshi Soman had suffered due to the said tablets. It is denied that the Respondents are liable to pay anything to the complainant or that they have given any defective service to the complainant or have committed any unfair trade practice as alleged. On such contentions, the Respondent No.1 has prayed for dismissal of the complainant with cost.
5. The Respondent No.2 has filed a separate written statement at Exh.11 and has denied all the adverse allegations against him. His defence is more or less the same as that of the Respondent No.1 and it is specifically denied that the Respondent No.2 has committed any unfair trade practice. It is contended that the complainant has filed this complaint on the ill-advice of some medical practitioners who are opposed to Respondent No.1 & 2. So far as notifications relied upon by the complainant whereby the ban on Nise Tablet was put by the Central Govt., it is specifically contended that against that notification the Confederation of Indian Pharmaceutical Industries and Indian Drugs Manufacturers Association had filed writ petitions No.6253/2011 and 6254/2011 in Madras High Court and an intermediate stay to the effect and operation of the said notification was granted by the Madras High Court and later those writ petitions were heard on merit and they were allowed and the notification putting ban on Tablet Nise Nimesulide medicines was struck down by Madras High Court. It is contended that if at all any medicines is banned by the authorities, an intimation thereof is immediately issued by the manufacturers or by the distributors, to the retail pharmacies and such medicines are called back. That the distribution of Nise Nimesulide had not called back from the retail pharmacies nor they had issued any intimation in that behalf. That the day on which the medicines prescribed by Respondent No.1 were sold by the Respondent No.2, the ban imposed was not existing and therefore, the complaint filed by the complainant is not tenable. That the complainant has filed this complaint only with a view to extract money from the Respondent No.1 & 2. It is denied that the Respondents are liable to pay anything to the complainant. On such contentions, the Respondent No.2 has prayed for dismissing complaint with cost of Rs.10,000/- because the complaint has been filed with a view to defame the Respondent No.1 & 2 by such allegations.
6. The respondents No.1 & 2 have filed in all four documents alongwith the list at Exh.12 which included a bill for purchasing a medicine prescribed by Dr. Shirish Gosavi to the complainant dated 11/3/2011, another bill dated 15/3/11 for purchasing Augpen 375 tablets,T-Minic Tablets prescribed by Dr. Shirish Gosavi, copy of the new item appearing in daily Economic Times dated 13 Sept. 2011 regarding the court revoking the ban on the manufacture and the sale of pediatric drugs Nimesulide and PPA and the original copy of the said newspaper. The complainant has filed alongwith list at Exh.17 a circular issued by the Sangli Dist. Chemist & Druggist Association dated 3/3/2011 informing all its members about the ban imposed by the Central Govt. on the sale of Nimesulide and its variants for the children below the age of 12 years.
7. The complainant has filed affidavit of her guardian namely Satyajit R. Soman in lieu of examination of chief at Exh.16. The Respondent No.2 has filed his affidavit in lieu of examination of chief at Exh.19. No other evidence had been led down by either parties.
8. We have head the submissions of the learned counsels for both sides at length. In the course of argument, the learned counsel for respondent Adv. S.L. Retharekar has filed a uncertified copy of the stay order in Writ Petition No. 6253 of 2011 and 6254 of 2011 dated 15/3/2011 whereby the interim stay to the said notification putting ban on the sale of Nise/Nimesulide medicine was granted by the Madras High Court.
9. The following points arise for our determination.
Points Findings
1) Whether the complainant is a consumer ? Yes
2) Whether the complainant has proved an unfair
Trade practice or deficiency in service on the part
of Respondent No.1 & 2 as alleged ? No
3) What order ? As per final order.
The reasons for our findings above are as follows.
REASONS
10. Point No.1 to 3
At the outset, we may point out that none of the respondents have made any grievance to the fact that the complainant is a consumer and she could file the consumer complaint/dispute or that the dispute raised by her is a consumer dispute. So far as the merits of the disputes are concerned, we would address ourselves thereto in a little later one. But the fact remains that the complainant, in all totalities of the circumstances; in this complaint is a consumer and the dispute raised by her is consumer dispute. We hold accordingly and therefore, we have answered the point No.1 accordingly.
11. We have already pointed out above that the fact that on 11/3/11 the complainant was taken to the Respondent No.1 hospital with a case of pains in her ear and in the said hospital she was examined by Dr. Shirish Gosavi and after performing certain tests, the medicines were prescribed to her is admitted. Admittedly, the pain killer by name Tab. Nise 50 mg was also prescribed to her by Dr. Shirish Gosavi. The prescription issued and signed by Dr. Shirish Gosavi is filed on record alongwith Exh.4/1. The perusal of the said prescription shows that Dr. Shirish Gosavi had prescribed two tablets of Tab.Nise 50 mg per day for 5 days to the said child Sakshi. The bill issued by the Respondent No.2 which is filed with Exh.4/2 dated 11/3/13 shows that those medicines prescribed by Dr. Shirish Gosavi were purchased by the father of the complainant on the same date but the lesser quantity of the medicine prescribed by Dr. Shirish Gosavi was purchased.
12. Much controversy has been raised by the complainant on the basis of Notification dated 10/2/11 issued by the Ministry of Health and Family Welfare, by which the Central Govt. has banned the Nimesulide formulations for human use in children below 12 years of age. From the uncertified copy of the order passed by Madras High Court in Writ Petition No.6253/11 and 6254/11 dated 15/3/11, we find that the effect and operation of the said notification was stayed by Hon’ble Madras High Court. This order of stay issued by Hon’ble High Court relates back to the date of the filing of the said writ petitions or to some extent to the date of notification itself. There is no denial of the fact that subsequently both these writ petitions are allowed by the Madras High Court and the said notification was struck down. Legal fiction is that when said Notification is struck down by High Court, such order relates back to the date of Notification and fictionally said Notification did not exist at all. If that is there, then the necessary corollary would be that as on the date on which Sakshi was examined by the Doctor, such no notification was in existence and there was no ban. In this case, no specific evidence has been led by the complainant to show that the said notification has been given wide publicity and it was within the knowledge of both the respondents and still they have prescribed and sold the said medicine to her. Therefore, the very basis of the said entire superstructure of the allegations of unfair trade practice and deficiency in service etc. goes away. Therefore, complainant cannot be justified in saying that respondent No.1 had prescribed and Respondent No.2 had sold to her the banned medicine and thereby had committed unfair trade practice. Therefore, we conclude and hold that complainant has failed to prove her allegations of unfair trade practice and deficiency in service as alleged and therefore, we answer the point No.2 in negative.
13. The moment it is held that the complainant has failed to prove deficiency in service or unfair trade practice as alleged, she is not entitled to get anything by way of compensation from respondent No. 1 & 2. We have already outlined substantial prayers made by the complainant in her complaint above. Besides those prayers, no any other prayer is made by the complainant and therefore, the complaint as a whole is liable to be dismissed. In the facts and circumstances of the case, we are not inclined to grant heavy cost as claimed by the respondent other than the regular cost. Hence we hold accordingly and proceed to pass the following order.
O R D E R
The Complaint stands dismissed with cost of Rs.500/-.
SANGLI
Dated : 16/04/2013
( K.D. Kubal ) ( A.V. Deshpande )
Member President
