Punjab

Ludhiana

CC/20/219

Arun Garg - Complainant(s)

Versus

Bureau of Pharma - Opp.Party(s)

complaint in person

06 Jul 2023

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, LUDHIANA.

                                                Complaint No: 219 dated 06.10.2020.                                                        Date of decision: 06.07.2023.

 

Er. Arun Garg, aged about 52 years son of Sh. Sham Lal Garg, resident of House No.40, Central Town, Near Keys Hotel, Pakhowal Road, Village Dad, P.O. Lalton, Ludhiana.                                                                                                                                                                        ..…Complainant 

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1. Bureau of Pharma PSUs of India (BPPI), 8^th Floor, Videocon Tower, Jhandewalan Extension, New Delhi-110055 through its Chairperson/Chief Execution officer.
2. Jan Aushadhi Kendra, Shop No.2652, St. No.12½, Dashmesh Nagar, Near Life Line Hospital, Gill Road, Ludhiana through its Owner/Occupier.                                                                                                                                                               …..Opposite parties 

Complaint under Section 35 of the Consumer Protection Act,      2019.

QUORUM:

SH. SANJEEV BATRA, PRESIDENT

SH. JASWINDER SINGH, MEMBER

MS. MONIKA BHAGAT, MEMBER

 

COUNSEL FOR THE PARTIES:

For complainant             :         None for the complainant.

For OPs                          :         Sh. Gurpreet Singh, Advocate.

 

ORDER

PER MONIKA BHAGAT, MEMBER

1.                In brief, the case of the complainant is that the son of the complainant namely Aditya aged about 22 years is suffering from mental retardation along with serious ailment of seizure disorder/epilepsy since childhood and is under medical treatment since long for which mainly two medicines namely Tab. Carbamezepine CR 400mg and Tab. Clobazam 5mg under the brand names of Tab. Tagrital CR 400 and Tab Frisium 5mg to be taken twice a day are prescribed by Dayanand Medical College and Hospital, Ludhiana. According to the complainant Tab. Namely Clobazam (Tab. Frisium) is restricted medicine and is available at some selective shops to be given against the prescription slip but earlier was available without prescription. Earlier the complainant used to purchase medicine from DMCH Pharmacy for 2-3 years after restriction on the medicine vide OPD card EX. C1. On 03.09.2019, the complainant took medicine for 6 months which was finished in March 2020 when the COVID-19 was spreading. On 17.03.2020, the complainant took his son to Shree Lakshmi Narayan (C) Hospital, Ludhiana where medicine was prescribed for further 6 months vide prescription slip Ex. C2, as the medicine was not available at any shops in the area and all the shops were closed due to imposition of curfew so the complainant went to DMCH Pharmacy on 27.03.2020 where he was given medicine for 3 months (vide receipt Ex. C3) against the prescribed period of 6 months due to limited stock of the medicine and stoppage of supply of medicine due to complete lockdown. He was asked to get the balance medicine for 3 months after opening of lockdown.

                   The complainant further stated that net price of Tab. Clobazam 5mg was more than Rs.42/- per 10 tablet and after lockdown, he came to know that the price is much lower than one third price of Rs.14/- per 10 tablet provided by OP1 at Jan Aushadhai Kendras under the Pradhan Mantri Aushadhi Pariyojna but the medicine was not available there for which he sent message and emails to marketing and customer care of opposite party No.1 on 26.06.2020 vide email Ex. C4 upon which he received a phone call in the evening from an executive of opposite party No.1 that the medicine was available at opposite party No.2 and nothing else was said, told or instructed by him. Then the complainant went to opposite party No.2 on 27.06.2020 at about 10 AM and asked the sales girl for the medicine by giving her empty strip of medicine but she asked for the prescription slip and Aadhar of the patient. The complainant gave her original slip dated 17.03.2020 of Shree Lakshmi Narayan Hospital, Ludhiana long with old record of DMC Hospital and bill dated 27.03.2020 of DMCH Pharmacy and told that his son is not with him. Then the sales girl of opposite party No.2 told that Aadhar card of the patient was required to be written for giving medicine. The complainant told her that he can provide Aadhar number of his son but the main shopkeeper in rude and arrogant manner told that the medicine is not available upon which the complainant became upset. He asked the shopkeeper about the receiving of phone call from executive of opposite party No.1 regarding availability of medicine with opposite party No.2 and also offered his driving licence for giving medicine but opposite party No.2 shopkeeper in arrogant manner told that the prescription slip is of 3 months old and refused to provide medicine and also misbehaved with the complainant. When the complainant tried to make video of opposite party No.2 shopkeeper, he attached upon him and asked him to get out of the shop and also dropped the mobile phone of the complainant due to which its glass guard was broken at 2-3 places. The complainant saved himself by sitting in his car. The complainant further stated that he called executive of opposite party No.1 who told him to get signed photocopy of Aadhar card of the patient along with copy of prescription slip and ensured him that he will get the medicine from opposite party No.2 on giving the said documents. On 30.06.2020, the complainant along with his daughter and another known person again went to opposite party No.2 along with prescription slip and Aadhar card of his son and on receiving the said documents, opposite party No.2 gave only 2 strips of medicine namely Tab. Clobazam 5 mg containing 10 tables each whereas 180 tablets in total were remaining as per the remaining prescribed period of 3 months. Upon asking of the complainant, opposite party No.2 just gave him 1 strip of 10 tablets more and refused to give balance medicine. Even he pressurized the complainant to take 40 tablets of other medicine namely Tab. Carbamazepine CR 400 mg of some cheap non-janaushadhi brand at much higher price than the Jan Aushadhi medicine and he did not provide bill/cash memo of the medicine. On 14.07.2020, the complainant again went to opposite party No.2 for further doze of medicine but the medicine was not given  and the complainant was asked to come after 1-2 days by saying that medicine is not in stock. Again on 16.07.2020 the complainant approached opposite party No.2 but again he was not given medicine. The complainant further stated that he made a complaint against opposite party No.2 to the authorities of opposite party No.1 but no action was taken rather it was told by executive of opposite party No.1 that the medicine was not given due to prescription slip which was older than 3 months period. On 31.08.2020, the complainant got his son checked up and again the medicine was prescribed for another 6 months period upon which the complainant approached opposite party No.2 for getting medicine but he denied to give medicine on the pretext of non-availability. On 01.09.2020, the complainant went to DMCH Pharmacy where he was given both prescribed medicines for entire period of 6 months without asking for photocopy of prescription slip and identity proof. Thus, the complainant had to purchase medicine on higher price which has caused him financial loss besides mental agony, harassment at the hands of opposite party No.2 which amounts to deficiency in service and unfair trade practice on the part of the opposite parties. In the end, the complainant prayed for issuing direction to the opposite parties to deal customers in a well, proper and fair manner by observing and obeying consumer rights etc. and to pay compensation of Rs.4,90,000/- besides litigation expenses.

2.                Upon notice to opposite party No.1, written statement has been filed by taking preliminary objections that the complaint is not maintainable, present complaint has no merit for consideration and has been filed to extort money, the complaint has been filed without any cause of action and the complainant has no locus standi to file the present complaint.

                   On merits, opposite party No.1 gave para wise reply to the complaint by claiming that the contents of complaint are matter of record and  not relate with opposite party No.1. However, opposite party No.1 stated that it only supplied medicines to its distributors and has nothing to do with sale of medicine from the shop. The other averments made in the complaint have been denied being wrong and in the end, a prayer for dismissal of the complaint has been made.

3.                Opposite party No.2 filed separate written statement by taking preliminary objections that the complaint is not maintainable; the complainant has suppressed the material facts; no cause of action has accrued to the complainant; the complainant has no locus standi to file the complaint. Opposite party No.2 averred that during lockdown i.e. on 27.06.2020 the complainant approached it and demanded medicine i.e. Tab. Frisium. The said drug is habit forming drug falling in Schedule-H and H1 of Drugs and Cosmetics Act which cannot be sold without having been prescribed by the doctor and opposite party No.2 asked the complainant to come along with prescription slip of doctor as well as Aadhar card of the patient for the purpose of identification. On 30.06.2020, the complainant came along with prescription slip of doctor dated 17.03.2020 and demanded medicine for 6 months in one time but as the medicine falls in Schedule H and H1, so for the precautionary measures,  limited stock as well as disrupted supply due to COVID period, the complainant was supplied medicine for 15 days only due to which he became infuriated and forcibly entered the shop and manhandled with opposite party No.2. During the scuffle, the face mask of opposite party No.2 removed. According to opposite party No.2, the complainant is a habitual litigant and many court cases have been filed by him against different persons.

                   On merits, opposite party No.2 denied the allegations levelled in the complaint being incorrect. Opposite party No.2 also denied any deficiency in service on its part and in the end, a prayer for dismissal of the complaint has been made.

4.                The complainant filed rejoinder in support of his complaint converting the facts mentioned in the complaint and controverting those mentioned in the written statements.

5.                In support of his claim, the complainant tendered his affidavit Ex. CA in which he reiterated the allegations and the claim of compensation as stated in the complaint as well as affidavit Ex. CC of Sh. Surjit Kumar. The complainant also tendered documents Ex. C1 is the copy of  OPD card of DMC Hospital, Ex. C2 is the copy of OPD slip of Shree Lakshmi Narayan (C) Hospital, Ex. C3 is the copy of tax invoice of DMCH Pharmacy, Ex. C4 is the copy of email dated 26.06.2020, Ex. C5 is the copy of email dated 27.06.2020, Ex. C6 are the copies of photographs, Ex. C7 is the copy of email dated 02.08.2020, Ex. C8 is the copy of photograph of Yogazam-5 tablets and closed the evidence.

6.                On the other hand, the counsel for OPs tendered affidavit Ex. DW1/A of Sh. Sanjeev Sharma, owner/occupier of Jan Aushadhi Kendra,  Ludhiana as well as affidavit Ex. DW1/B of Sh. Satyajit Ray, authorized signatory of Bureau of Pharma, New Delhi along with documents Ex. OP2/1 is the copy of  authority letter dated 01.06.2022 and closed the evidence.

6.                None has turned up for the complainant today. We have heard the arguments of the counsel for the opposite parties and also gone through the complaint, rejoinder, affidavits and annexed documents and written reply along with affidavits and documents produced on record by both the parties. We have also gone through written arguments submitted by the complainant. We proceed to decide the case on merits.

7.                The cause of action accrued to the complainant when he went to the above said Kendra on 27.06.2020 and he was refused to get the restricted medicine on foremost ground of non-availability of ID proof of the patient. The Drugs and Cosmetic Rules, 1945 allocated provisions for the classification of the drugs under various given scheduled including details regarding the storage, display, sale and prescription of an Individual Schedule. The prominent Schedules includes Schedule G, H, X, J with a view to promote safety in public health. Under the Drugs and Cosmetic Rules, drugs specified under the Schedule H and Schedule X are required to be sold by retail on the prescription of the Registered Medical Practitioner. Recently, a new scheduled has been introduced through Gazate notification of GSR 588(E) dated 30.08.2013 which contains certain 3^rd and 4^th Gen. Antibiotics certain habit forming drugs and Anti-TB drugs.

                    Those drugs are required to be sold in the country with following conditions:-

The supply of drugs specified in Scheduled H shall be

1. Recorded in a separate register at the time of supply
2. Giving the name of and address of the prescriber, the name of the patient, the name of the drug and quantity supplied
3. And such record shall be maintained for 3 years and be open for inspection.

2. The drugs specified in ScheduleH1 shall be labelled with the symbol Rx which shall be in Red and conspicuously displayed on the left top corner of the label, and shall also be labelled with the following words in a box with Red border.

“Scheduled H Drugs warning It is dangerous to take this preparation except in accordance with the Medical Advice not to be sold by retail without the prescription of a Registered Medical Practitioner.”

                   To ensure safety of a consumer, the drug regulatory body schedules the drugs according to their therapeutic effects. Hence the refusal by the vendor  to provide medicine without ID proof to the complainant on 27.06.2020 justifies the provisions of the above said Act.

8.                The complainant placed on record Ex. C1 of DMC follow up and Ex. C2 of Shree Lakshmi Narayan (C) Hospital which prescribed the medicine for 90 days and later for 6 months. On 30.06.2020, the complainant again went to Jan Aushadhi Kendra and was provided 2 strips of medicine namely Tab. Clobazam 5mg as there was shortage of supply as a result of lockdown in the nation due to COVID-19 Pandemic. Keeping in mind the imminent need and availability of such medicine the vendor needs to sell limited quantity of medicine to each and every customer so that the other needy could not suffer. Moreover, it does not mean that the said medicine has to be purchased from same stone by one time only.

9.                According to the complainant, there was denial on the part of opposite party No.2 to provide him medicine as he frequently on 14.07.2020 16.07.2020, 31.08.2020 pay visit to the same Kendra. There are several Jan Aushadhi Kendras in the city which were in operative mode at that time. In the meantime complainant never tried to get the medicine from that Kendra’s. Instead he on 01.09.2020 visited the DMCH pharmacy and purchased the said medicine on higher rate as compare to Jan Aushadhi Kendras. Later on the complainant blames the opposite parties that non-providing the medicine caused him financial loss. One who buys anything according to his free will, later on he or she cannot complain about that. The complainant acting upon his free will preferred to buy the medicine from DMCH on higher rates. In view of the above said fats and circumstances of the case, the opposite parties cannot be held guilty of deficiency in service. Moreover, the complainant has failed to discharge the initial onus of deficiency in service on the part of the opposite party. In this regard, reference can be made to SGS India Ltd. Vs Dolphin International Ltd. in Civil Appeal No.5759 of 2009 decided on 06.10.2021 (LL 2021 SC 544) by the Hon’ble Supreme Court of India whereby it has been held as under:-

’19.  The onus of proof of deficiency in service is on the complainant in the complaints under the Consumer Protection Act, 1986. It is the complainant who had approached the Commission, therefore, without any proof of deficiency, the opposite party cannot be held responsible for deficiency in service.

In the above cited case, the Hon’ble Supreme Court of India has placed reliance on its own judgment reported as Ravneet Singh Bagga v. KLM Royal Dutch Airlines & Anr. whereby it has been held that the burden of proving the deficiency in service is upon the person who alleges it. “6. The deficiency in service cannot be alleged without attributing fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be performed by a person in pursuance of a contract or otherwise in relation to any service. The burden of proving the deficiency in service is upon the person who alleges it. The complainant has, on facts, been found to have not established any wilful fault, imperfection, shortcoming or inadequacy in the service of the respondent.”

‘20. This Court in a Judgment reported as Indigo Airlines v. Kalpana Rani Debbarma & Ors. (LL 2021 SC 544) held the initial onus to substantiate the factum of deficiency in service committed by the opposite party was primarily on the complaint. This Court held as under:-

“28. In our opinion, the approach of the Consumer Fora is in complete disregard of the principles of pleadings and burden of proof. First, the material facts constituting deficiency in service are blissfully absent in the complaint as filed. Second, the initial onus to substantiate the factum of deficiency in service committed by the ground staff of the Airlines at the airport after issuing boarding passes was primarily on the respondents. That has not been discharged by them. The Consumer Fora, however, went on to unjustly shift the onus on the appellants because of their failure to produce any evidence. In law, the burden of proof would shift on the appellants only after the respondents/complainants had discharged their initial burden in establishing the factum of deficiency in service.”

In view of the law laid down in the above cited law and as per facts and circumstances of the case, the complainant has failed to prove the deficiency in service on the part of the opposite parties by any cogent and convincing evidence.

10.              As a result of above discussion, the complaint fails and the same is hereby dismissed being devoid of any merits leaving the parties to bear their own costs. Copies of order be supplied to parties free of costs as per rules. File be indexed and consigned to record room.

11.              Due to rush of work and spread of COVID-19, the case could not be decided within statutory period.

 

(Monika Bhagat)          (Jaswinder Singh)                      (Sanjeev Batra)                          Member                            Member                                     President

 

Announced in Open Commission.

Dated:06.07.2023.

Gobind Ram.

 

 

Arun Garg Vs Bureau of Pharma                                    CC/20/219

Present:       None for the complainant.

                   Sh. Gurpreet Singh, Advocate for the OPs.

 

                   Today none turned up for the complainant.

                   Arguments on behalf of the OPs heard. Vide separate detailed order of today, the complaint fails and the same is hereby dismissed being devoid of any merits leaving the parties to bear their own costs. Copies of order be supplied to parties free of costs as per rules. File be indexed and consigned to record room.

 

(Monika Bhagat)          (Jaswinder Singh)                      (Sanjeev Batra)                          Member                            Member                                     President

 

Announced in Open Commission.

Dated:06.07.2023.

Gobind Ram.