IN THE COURT OF THE LD. DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT S I L I G U R I.

CONSUMER CASE NO. : 163/S/2014.                           DATED : 08.09.2017.   

BEFORE  PRESIDENT              : SMT. KRISHNA PODDAR,

                                                              President, D.C.D.R.F., Siliguri.

                      MEMBER                : SRI TAPAN KUMAR BARMAN.

COMPLAINANT    1.       : NORTH BENGAL CONSUMERs SOCIETY,

  Represented by its Working President Shri P.D. Dalmia,

  Advocate, “ALOKE’ Millanpally, Behind Somani Mill

  Compound, SILIGURI 734 005, W.B.

                                                                2.         : SHRI TARA CHAND AGARWAL, Advocate,

              Opposite Gandhi Maidan, Mangaturam Road,

  Khalpara, SILIGURI – 734 005.     

O.Ps.              1.                       : M/S  JALAN MEDI HUT,

   A Unit of K. J. Medi Pharma Pvt. Ltd., 

   Kachari Road, Opposite Siliguri District Hospital,

   Nivedita Market, SILIGURI – 734 001. 

PROFORMA O.Ps. 2.                     : THE ASSISTANT DIRECTOR OF DRUG CONTROL,

  District Drug Control Office, Govt. of West Bengal,

  39, R. N. Sinha Road, Naspati Building,

  DARJEELING – 734 101.

                                    3.                     : THE ASSISTANT DIRECTOR,  

  Consumer Affairs & Fair Business Practices,

  Government of West Bengal, Khudiram Bipanan  

  Kendra, Hill Cart Road, Opposite Hotel Mainak,  

  Pradhan Nagar,  SILIGURI – 734 003.

FOR THE COMPLAINANT         : Sri P. D. Dalmia, Advocate.

J U D G E M E N T

Smt. Krishna Poddar, Ld. President.

The brief facts of the complainant case are that the complainant no.1 is the registered society looking after the interest of the consumers.  The complainant No.2 who is a legal practitioner, for his some disease contacted Mr. Bijoy Kumar Agarwal who prescribed him some medicines i.e., a) FUSIDIN cream, b) Tab. ZEMETRIL 250 mg, c) Capsule Becosule as per prescription dated 16.08.2014.

Contd…..P/2

-:2:-

The complainant sent his representative to the shop of the OP No.1 “M/S Jalan Medi Hut”, Siliguri for purchase of the said medicines.  The OP No.1 supplied two medicines on production of the said prescription against cash payment of Rs.322/- and issued cash memo being No.B72442 dated 16.08.2014.  The complainant No.2 checked the medicines at his residence and found that OP No.1 has given wrong medicine and instead of FUSIDINE Cream he gave Fusiwal Ointment and while checking the cash memo, it was found that wrong batch number and expiry date have been given in the cash memo.  In the cash memo Batch No.F145 has been printed instead of F153 and also date of expiry has been printed as 05/2015 instead of 09/2015.  Thereafter the complainant No.2 sent his representative for exchange of Fusiwal Ointment with FUSIDINE but the OP No.1 refused to exchange and it was told that both the medicines are same and manufactured by same company Wallace. 

It has been further stated by the complainants that the OP No.1 might have valid Drug Licence issued by Proforma OP No.2 or his Superior Officer, a Government of West Bengal Department but it seems that OP No.1 violating the terms and conditions of such licence has sold substitute of a medicine prescribed by a doctor in his prescription for a patient. 

The complainant for the purpose of mediation referred the matter to the Assistant Director, Consumer Affairs & Fair Business Practices, Govt. of West Bengal, Khudiram Bipanan Kendra, Hill Cart Road, Pradhan Nagar, Siliguri who registered a case as complaint index No.48/14-15/Siliguri, but did not take any positive step in the matter rather satisfied on dropping or closing of the mediation proceeding and asking the complainant No.2 to approach before the District Forum having jurisdiction on the matter.

There is gross deficiency in service and negligence on the part of the OP No.1 and OP No.1 has adopted unfair trade practice for his illegal gain at the cost and burden of the patients at large.  Hence this case.

OP No.1 entered appearance and contested the case by filling written version wherein the material averments made in the complaint petition have been denied and it has been contended inter-alia that the instant case is not maintainable.  It has been categorically denied by the OP No.1 that on 16.08.2014 the complainant No.2 sent any of his representative at the shop of the OP No.1 but in fact it was the complainant No.2 who himself came to the shop of the OP No.1 for purchasing some of his medicines.  It has been further claimed by the OP No.1 that the complainant No.2 on production of the said alleged prescription had asked the OP No.1 to give him the medicines of same composition which is/are

Contd…..P/3

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lesser in price and accordingly the Pharmacist of the OP No.1 gave him two medicines viz. i) Tab Zemetril 250 mg. as mentioned in the said alleged prescription as there was no substitute (same composition) of similar medicine of lesser price and ii) FUSIWAL ointment instead of FUSIDINE cream which is a same composition medicine and lesser in price than that brand name mentioned in the said medical prescription and after delivering the medicines when the bill/cash memo was handed over to the complainant No.2 for payment of the price of the medicine of Rs.322/-, the complainant No.2 most unreasonably sought for some discount in the billed amount and offered to pay only Rs.300/- as round off discounted amount which the OP No.1 denied to receive and finally gave him a cash discount of Rs.2/- only by receiving from him a sum of Rs.320/- only and the complainant No.2 became furious and started to abuse the OP No.1 by saying like anything and shouted in a loud voice in front of several other people present at the shop and threatened to teach him lesson by filing a false and fictitious case against him as he is an advocate by profession and he knows the provisions of law well.  It has been further denied by the OP No.1 that he had issued cash memo being B72442 dated 16.08.2014 with wrong batch number and expiry date and it has been stated that OP No.1 has issued the said cash memo with correct and actual batch number and expiry date in accordance with medicines handed over to the complainant no.2 and as it was computer generated system output hence there is no chance of any intentional or unintentional mistake or falsification on the part of the OP No.1 either.  It has been further stated by the OP No.1 that there has not been any deficiency or negligence in service on the part of the OP out of which the complainant No.2 could suffer any financial loss or any other kind of loss or difficulty at all and in reality no cause of action ever arose at any point of time within the jurisdiction of this Forum and accordingly complainants have got no right under the law to seek for any relief or reliefs against the OP No.1 and the instant case is liable to be dismissed. 

The Proforma OP No.2 filed a separate written version and again Proforma OP No.2 & 3 jointly filed an additional written version.  The sum and substance of said written versions are that OP No.1 is a valid drug licensee and licence was issued as per conditions as laid down under rule 65 of Drugs and Cosmetics Rules, 1945 and the instant case is filed against the Proforma OP Nos.2 & 3 without any basis and suppressing the material facts by the complainants for their legal gain and the Proforma OPs are not necessary party in the present case.    

To prove the case, the complainant has filed the following documents:-

1.       Prescription dated 16.08.2014 of Dr. Bijay Kumar Agarwal for Shri Tara Chand Agarwal.

Contd…..P/4

-:4:-

2.       Cash Memo No.B-72442 dated 16.08.2014 issued by Jalan Medi Hut.

OP No.1 has filed the following documents :-

1.       Photocopy of purchase bill issued by M/S. Anjali (Wholesale Medicine dealer) vide Inv. No.10478 dated 16.11.13.

2.       Photocopy of Memorandum vide No.H/TDE/67/55-01/13 dated 18.01.2013 issued by Govt. of West Bengal Health & Family Welfare Department.

3.       Photocopy of definition relating to generic drug. 

          Complainant has not filed evidence in-chief.

Complainant has filed written notes of argument.

          OP Nos.1 & 2 have filed evidence in-chief through OPW No.1 to OPW No.4.          

Points for determination

1.       Is there any deficiency in service on the part of the OPs ?

2.       Is the complainant entitled to get any relief as prayed for ?

Decision with reason

          Both issues are taken up together for the brevity and convenience of discussion.

This is the specific case of the complainant that on 16.08.2014 he sent his representative to the shop of OP No.1 to purchase medicine i) FUSIDIN Cream, ii) Zemitril Tablet 250 mg. and iii) Capsule Becosule as per prescription of Dr. Bijoy Kumar Agarwal and the OP No.1 supplied two medicines against cash payment of Rs.322/- and cash memo being No.B72442 dated 16.08.2014.  The complainant No.2 checked the said medicines and found that OP No.1 has given wrong medicine and it was found that instead of FUSIDIN Cream OP No.1 gave Fusiwal Ointment with wrong batch number and expiry date i.e., in the cash memo batch F145 has been printed instead of F153 and the date of expiry has been printed as 05/2015 instead of 09/2015.  Complainant then sent his representative for exchange of Fusiwal Ointment with FUSIDIN but the OP No.1 refused to exchange by saying that the composition of both the medicine are same and both are manufactured by same Company Wallace. 

In this case complainant No.2 has submitted the Xerox copy of prescription dated 16.08.2014 of Dr. Bijoy Kumar Agarwal and the Xerox copy of the cash memo no.b72442 dated 16.08.2014 issued by the OP No.1 Jalan Medi Hut.  It is also pertinent to mention that complainant No.2 did not examine any witness in this case on his part. 

Contd…..P/5

                                                             -:5:-                

The OP No.1 on the other hand categorically stated in his written version as well as evidence that on 16.08.2014 the complainant No.2 did not send any representative in his shop to purchase the above mentioned medicines on the contrary it is the complainant No.2 who himself came to the medicine shop of the OP No.1 in order to purchase certain medicines as per said alleged prescription dated 16.08.2014 of Dr. Bijoy Kumar Agarwal and he asked the OP No.1 to give him the medicines of same composition which is/are lesser in price and accordingly the pharmacist of OP No.1 gave him two medicines viz. i) Tablet Zemetril 250 mg. as mentioned in the prescription as there was no substitute of the said medicine of same composition of lesser price and ii) Fusiwal ointment instead of FUSIDIN Cream which is a same composition medicine and lesser in price than the FUSIDIN Cream mentioned in the alleged medical prescription. 

Ld advocate appearing on behalf of the OP No.1 during his course of argument has submitted that both FUSIDIN Cream and Fusiwal ointment were in the stock of the OP No.1 at the relevant point of time, but in view of request of the complainant No.2 who asked the OP No.1 to supply the medicines of same composition and of lesser price, the pharmacist of the OP No.1 supplied him Fusiwal ointment of same Company Wallace which was lesser in price.

In this regard, on the side of the OP No.1 the Stock Register of medicine has been submitted wherefrom it appears that on the relevant date and time, there were both FUSIDIN and Fusiwal ointment available in the shop of the OP No.1.  Again, it appears that the price of the FUSIDIN Cream was Rs.125/- whereas the price of the Fusiwal ointment was Rs.75/-.  It is not understandable as to why the OP No.1 has sold the medicine “Fusiwal ointment” which was lesser in price to the complainant No.2 instead of ‘FUSIDIN Cream”.  Normally we find that when the medicine is available in the shop, the seller/pharmacist used to sell the said medicine to the purchaser on the basis of the doctor’s prescription placed before him.  Here it appears that FUSIDIN Cream was there in the shop of the OP No.1 and if he is not requested by the complainant No.2 for supply of an ointment of same composition and lesser in price, he could not supply the said medicine to him.  Complainant No.2 claimed that he did not visit the shop of the OP No.1 on the relevant date rather he sent his representative for purchasing the aforesaid medicine as per prescription of Dr. Agarwal 16.08.2014 whereas the OP No.1 has categorically stated in the written version as well as in evidence that it is the complainant No.2 who himself came to the shop of the OP No.1 to purchase the medicine as per said alleged prescription and no representative on the side of the complainant came to purchase the medicine.  In order to remove all doubts and to

Contd…..P/6

-:6:-

bring the actual state of affairs before this Forum complainant No.2 was required to examine the said representative who could enlighten this Forum whether he came to purchase the medicines on the relevant date as per the said prescription on behalf of the complainant and if so whether he requested the OP No.1 to supply the medicines of same composition and lesser in price, but the complainant No.2 neither disclosed the name of the said representative in the complaint petition nor he took any initiative to examine the said representative to remove all doubts. 

Again we find that complainant No.2 claimed that OP No.1 has stated wrong batch number and wrong expiry date in the cash memo and in the said cash memo Batch No.F141 has been printed instead of F153 and date of expiry has been printed as 05/2015 instead of 09/2015.  But in support of this statement, complainant has neither adduced any evidence nor filed any document.

The OP No.1 has further claimed that the complainant asked him for some discount and in place of the total price of the medicine of Rs.322/- he wanted to give Rs.300/- but the OP No.1 refused to give any discount which caused the complainant annoyed and he started to abuse the OP No.1 on the spot in presence of the other customers and public.  In this regard, OP No.1 has submitted evidence of four witnesses i.e., OPW No.1 to OPW No.4 respectively who supported these statements of the OP No.1 in their evidence.  But the complainant neither challenged or cross examined the said witnesses on this point nor he examined any witness on his part to deny the aforesaid allegations bought against him.

Considering the facts and circumstances of the case with regard to the materials and evidence on record and also in view of the submission of the ld advocates of both sides, this Forum is of the view that the complainants have failed to prove the case beyond all reasonable doubts and accordingly, they are not entitled to get any relief.   

In the result, the case fails.

Hence, it is

                           O R D E R E D

that the Consumer Case No.163/S/2014 is dismissed on contest against the OPs, but without cost.

Let copies of this judgment be supplied to the parties free of cost.