BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, BHIWANI.
Complaint No.: 116 of 2017.
Date of Institution: 31.8.2017.
Date of Order: 18.3.2019.
Sandeep @ Sandeep Kumar son of Shri Sher Singh, C/O M. C. Colony, Ward No. 19, Saheed Bhagat Singh Chowk, Charkhi Dadri, District Charkhi Dadri, the then segment of District Bhiwani.
…..Complainant.
Versus
1. M/s Cipla Limited through its Chairman/Managing Director Cipla House, Peninsula Business Mark, Ganpatrao Kadam Mar Lower Parel, Mumbai-400013.
2. M/s Rajesh Medical Hall through its proprietor/incharge B.T.M. Chowk, Bhiwani-127021.
3. M/s Life Care Medicos, Incharge Dr. Rajesh Jale, I 2nd Floor, Land Mark Complex, Medical Mor, Rohtak (Haryana).
4. Indian Pharmacopoeia Commission through its Chairman Sector-23, Raj Nagar, Noida, Ghaziabad (U. P.)-201002.
5. Union Ministry of Health and Family Welfare through its Secretary to Government of India Cabinet Secretariat, Raisina Hill, New Delhi.
6. The Civil Surgeon, CBL Civil Hospital, Bhiwani.
…...Opposite Parties.
COMPLAINT UNDER SECTIONS 12 AND 13 OF
THE CONSUMER PROTECTION ACT, 1986.
Before: - Hon’ble Mr. Manjit Singh Naryal, President.
Hon’ble Mr. Parmod Kumar, Member.
Hon’ble Mrs. Saroj Bala Bohra, Member.
Present: Shri M. C. Sharma, Advocate for the complainant.
Shri S. Ghanghash, Proxy Advocate for Shri Avinash
Sardana, Advocate for the OPs No. 1.
OPs No. 2 & 4 to 6 already exparte.
None for the OP No. 3.
ORDER: -
PER MANJIT SINGH NARYAL, PRESIDENT
Case of the complainant in brief, is that he has purchased some items of medicines from OP No. 3 by paying Rs.250/- vide memo No.001340 dated 4.5.2017. It is alleged that the above items includes the medicines for tuberculosis prescribed by doctor on 7.4.2017 and include 2 sachets of ORS powder manufactured by OP No. 1, charged Rs. 31.30P of two sachets @ Rs.15.65P per sachet in the case memo. It is further alleged the other retailer Chemists & Druggist M/s Khalsa Medical Hall, Bhiwani has sold the ORS powder manufactured by OP No. 1 @ Rs.10/- per sachet to complainant vide receipt No.5280 dated 29.8.2017 and it is being sold by OP No. 2 M/s Rajesh Medical Hall, Bhiwani @ Rs.240/- of 30 sachets in whole sale @ Rs.8/- per sachet. It is further alleged that the OP No. 3 has excessively and unreasonably charged Rs. 15.65P per ORS sachet, thus indulging in unfair trade practice. It is further alleged that complainant is a patient of tuber-culosis and when he suffered from many vomiting and felt nausea and himself started preparing the solution by mixing ORS power in water and poured the ORS powder in the utensil containing water and he was stunned to see a winged insect floating on the surface of the solution and he did not consume it and put it into the same empty sachet and safely kept with him. It is further alleged that the complainant had another sachet of ORS powder and he immediately dissolved it into water and consumed the solution and felt a sigh of relief and if he had not consumed the solution made from another sachet of ORS powder, he would have fallen down on the earth unconscious due to dehydration. It is further alleged that the OP No. 1 has indulged in gross negligence by manufacturing contaminated ORS powder violating the terms & conditions necessary for preparing the medicines and other Health Care items imposed by Indian Pharmacopodoeia Commission and Union Ministry of Health & Family Welfare, Govt. of India. It is further alleged that OPs No. 1 & 3 have not replaced the ORS powder sachet despite request made through notice dated 30.5.2017. It is further alleged that a legal notice has also been got served upon the OPs No. 1 & 2 on 30.5.2015 through his counsel, but to no effect. It is further alleged that the complainant has sent a letter dated 3.7.2017 alongwith copy of legal notice to OPs No. 4 and 5, but they did not taken it seriously and did not bother to reply. It is further alleged that the complainant has also requested OP No. 6 vide letter dated 24.7.2017 to get the ORS solution tested in the laboratory, but to no effect. Hence, it amounts to deficiency in service on the part of Opposite Parties, and as such, she has to file the present complaint.
2. Opposite Party No. 1 on appearance filed the contested written statement denying the allegations of the complainant. It is alleged that this Forum has no territorial jurisdiction to entertain and decide the present complaint, as the complainant has purchased the ORS powder from the OP No. 3. It is further alleged that the answering OP is not manufacturer of the ORS power, but only the marketer of the same, whereas the Halewood Laboratories Pvt. Ltd. is the manufacturer of the same. It is further alleged that the complainant has concocted a story forward by the complainant to cause undue harassment to the answering OP and extort money. It is further alleged that complainant in Para No. 3 of his complaint mentioned that he poured the ORS power in utensil containing water and he was stunned to see a winged insect floating on the surface of the solution, which means that the insect was not found in the sachet, but the same was seen by the complainant floating in the water in a utensil. It is further alleged that there is no deficiency in service on the part of the answering OP and the complaint of the complainant is liable to be dismissed with costs.
3. On notice, no one appeared on behalf of the OP No. 2 & 4 to 6 despite service through registered post and the OPs No. 2 & 4 to 6 were proceeded as exparte by this Forum vide order dated 17.10.2017.
4. On notice, Shri Manoj Sharma, Advocate appeared on behalf of the OP No. 3, but failed in filing the written statement despite availing several opportunities, including several last opportunities and the defense of the OP No. 3 has been struck off by this Forum vide its order dated 22.10.2018.
5. Ld. Counsel for the complainant to prove his case placed on record the documents Annexure C1 to C3 and closed the evidence.
6. Ld. Counsel for the OP No. 1 has placed on record duly sworn affidavit as Annexure RW1/A and documents annexure R1 to R8 and closed the evidence of the OP No. 1.
7. We have heard ld. counsel for both the parties at length and gone through the case file very carefully.
8. Ld. Counsel for the complainant contended that the Forum at Bhiwani has territorial jurisdiction in view of the Section 11, Clause-2 Sub Clause C of the Consumer Protection Act, as the complainant uses the pouch at Bhiwani, which was purchased from Rohtak. He has further argued that anyone had purchased any item from anywhere and consumed the same at Bhiwani, the District Forum at Bhiwani has the jurisdiction to try, entertain and decide the complaint. Ld. counsel for the complainant has placed his reliance upon case titled as Mangal Chand Pawan Kumar Vs OIC & Ors., Revision Petition No.2234 of 2006, decided on 28.1.2010, National Commission, New Delhi.
9. Ld. Counsel for the OP No. 1 has contended that District Forum, Bhiwani has no jurisdiction to try, entertain and decided the present complaint, as the complainant has purchased the ORS powder from the OP No. 3 at Rohtak. He placed his reliance upon judgment of the Hon’ble Supreme Court of India, Sonic Surgical Vs NIC, Civil Appeal No. 1560 of 2004, decided on 20.10.2009 and judgment of Hon’ble National Commission, Alok Sinha Vs Mahindra & Mahindra and others, First Appeal No. 1367 of 2017, decided on 26.7.2017.
10. In our view arguments of ld. Counsel for the complainant has no merit at all, because the complainant has only pleaded in the complaint in Para No. 17 that OP No. 2 is the agent & dealer of OP No. 1 and the complainant is resident of Charkhi Dadri, hence, this Forum has jurisdiction to entertain, try and decide the present complaint. It is admitted fact that the pouch of ORS power in question has been purchased by the complainant from OP No. 3 at Rohtak, then as to how the cause of action arose to him at Bhiwani. By consuming the pouch of ORS powder at Bhiwani does not amounts to cause of action at Bhiwani. The pouch of ORS powder is a consumable item and no one can allow claiming cause of action just on the basis of consuming any consumable item at the place of consumption. Moreover, the plea taken by complainant that the OP No. 2 is the agent & dealer of the OP No. 1 is also not tenable, because the pouch of ORS powder in question has been purchased by the complainant from OP No. 3 at Rohtak. It is well settled that the expression ‘cause of action’ means that bundle of facts which give rise to a right or liability, because each & every fact pleaded by the complainant does not ipso facto lead to the conclusion that those facts give rise to a cause of action within Forum’s territorial jurisdiction unless those facts pleaded are such which have a nexus or relevance with the lis that is involved in the case. Facts which have no bearing with the lis of the dispute involved in the case do not give rise to a cause of action so as to confer territorial jurisdiction on the Forum concerned. Section 11 deals with territorial jurisdiction as under: -
“(1) Subject to the other provisions of this Act, the District Forum shall have jurisdiction to entertain complaints where the value of the goods or services and the compensation, if any, claimed [does not exceed rupees twenty lakhs]
(2) A complaint shall be instituted in a District Forum within the local limits of whose jurisdiction,
(a) the opposite party or each of the opposite parties, where there are more than one, at the time of the institution of the complaint, actually and voluntarily resides or [carries on business or has a branch office of] personally works for gain, or
(b) any of the opposite parties, where there are more than one, at the time of the institution of the complaint, actually and voluntarily resides, or [carries on business or has a branch office], or personally works for gain, provided that in such case either the permission of the District Forum is given, or the opposite parties who do not reside, or [carry on business or have a branch office], or personally work for gain, as the case may be, acquiesce in such institution; or
(c) the cause of action, wholly or in part, arises.”
11. Section 11 of the Consumer Protection Act lays down about the local limits of District Forum within whose jurisdiction a complaint can be instituted. It does not lay down that the complainant can file a complaint at the place where he is residing.
12. From the perusal of above Sub-Section, it is clear that this Forum has no territorial jurisdiction to try the present complaint, as the complainant had purchased the pouch of ORS powder from OP No. 2 at Rohtak. It appears that the complainant has filed the present complaint mainly on the ground that he is residing at Charkhi Dadri, whereas section 11 does not lay down that complainant can file the complaint at a place where he resides. Therefore, in view of the above circumstances, this Forum has no territorial jurisdiction to try and entertain the present complaint because no cause of action has arisen in District Bhiwani. The case law cited by the ld. counsel for the complainant is not applicable to the facts of the present case. Moreover, ld. counsel for the OP No. 1 has also produced the judgment of the Hon’ble Supreme Court of India and also latest decision dated 26.7.2017 of the Hon’ble National Commission on the point of the Jurisdiction, whereas the ld. counsel for the complainant has produced decision dated 28.1.2010.
13. Moreover, after hearing learned counsel for both the parties and having gone through the material available on the records, we are of the considered view that the complaint of the complainant also deserves dismissal on merits, as there is no deficiency in service on the part of OPs. From the perusal of the complaint itself, it is clear that complainant has opened the ORS powder sachet in question and thus now it cannot be said that the pouch contains any winged insect in it. Complainant has miserably failed to produce on record some cogent and convincing documentary evidence to prove any deficiency in service on the part of the OPs.
14. So, in view of the facts & circumstances mentioned above, there is no deficiency in service on the part of the OPs. Hence, the complaint is dismissed with no order of costs. Certified copies of the order be sent to parties free of costs. File be consigned to the record room, after due compliance
Announced in open Forum.
Dated: - 18.03.2019.
(Saroj Bala Bohra) (Parmod Kumar) (Manjit Singh Naryal)
Member. Member. President,
District Consumer Disputes
Redressal Forum, Bhiwani.
