KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION VAZHUTHACAUD, THIRUVANANTHAPURAM.

APPEAL No. 675/2003

JUDGMENT DATED:  12-01-2010

PRESENT:

SHRI. M.K. ABDULLA SONA                           :  MEMBER

APPELLANT

T.A. Majeed,

Fair Pharma, Broadway,

Ernakulam, Kochi – 682 031.

          (Rep. by Adv. M/s V & K Associates.)

                   Vs

RESPONDENT

Karthikeyan, S/o Damodaran,

Kandasseril South,

Paravoor, Udayamperoor.

(Rep. by Adv. Smt. Rathi. K.A)

JUDGMENT

SHRI. M.K. ABDULLA SONA:    MEMBER

          This appeal prefers from the order passed by the CDRF, Ernakulam in the file of OP No. 647/01 order dated 08-07-2003.  The appellant is the opposite party in the above OP who preferred this appeal.

          2.  In short, the complainant is a heart patient having block in the artery.  He seen an advertisement of the opposite party in the T.V and Crime Monthly, that the medicine used by him would cure the disease without operation, if taken for 100 days.  The complainant purchased the medicines for 100 days, but there was no relief and there is no change in the above disease.  There was deficiency in service and unfair trade practice on the side of the opposite party.  Hence this complaint.

          3.      The opposite party appeared and filed version and contended that he is the manufacturer of an Ayurvedic medicine called Cholesterol OR, having manufacturing licence.  The complainant had purchased the drug from the opposite party.  Admittedly the complainant is a heart patient with blocks in the arteries.  The complainant had not shown any records regarding the same to the opposite party.  If the complainant had taken the drug regularly there would be sure improvement to his conditions.  The second angiogram will show the difference.  That there is no improvement to his condition is incorrect.  The opposite party’s medicine cholesterol OR is used by thousands of people and all of them have reported absolute satisfaction as to the result.  There is no deficiency of service and the complaint may be dismissed.  It was the stand taken by the opposite party.  Later the complainant filed a rejoinder petition with an affidavit on which he was examined as PW1 and marked Exts. A1 to A4.  No oral evidence was adduced by the opposite parties, but Ext.B1 was marked by him.  The Forum below raised one issue, that is whether there was any deficiency in service/defective trade practice on the side of the opposite party and the other reliefs and costs.  The Forum below analyzed all the evidence available in the case and found that the opposite party committed deficiency in service and unfair trade practice in accordance with provisions of CP Act and ordered to pay by the opposite party Rs. 7,920/- with 10% interest from 19-07-2001, the date of filing of this complaint, till payment and costs of Rs. 1,000/- to the complainant.  The opposite party who is the appellant who prefers this appeal from the above impugned order passed by the Forum below.

4.      The Counsel for the appellant argued on the grounds of appeal memorandum that the Forum ought to have found that the complainant was using the drugs of the appellant as simultaneously taking two other medicines not intimated by him.  This is admitted by the complainant.  In such a case, the Forum should not have definitely came to the conclusion that there was deficiency of service.  The Counsel for the appellant submitted that there is only hearsay evidence as far as the fact that the complainant is still have the blocks as alleged by him.  The Forum relied on the said illegal evidence which the evidence had says that hearsay evidence is no evidence at all.  The Counsel for the appellant also submitted that the Forum should not have brushed aide the document Ext.B1 which was marked on consent.  The complainant did not seriously disputed the fact that the drugs in question is a licenced drug.  For getting licence the manufacturer should apply for licence under Rule 154 of the Drugs and Cosmetic Rules.  Before giving licence the Drugs Department should examine the drugs by a Government approved expert.  It is only thereafter licence is granted and in the approval the use is also specifically mentioned that the drug is useful for reducing fat from arteries as well as in blood.  When a Government approved medicine is sold for the uses it is highly improper to say that it had not the desired effect on a particular person, ofcourse in this case there is no legal evidence to that effect.  In the instant case it admitted that the complainant had taken two other unnamed medicines also.  The Counsel for the appellant submitted that the order passed by the Forum below is illegal and not accordance with the law and evidence and is liable to be set aside.  There is no representation for the respondent/complainant.

          5.      This Commission heard the Counsel for the appellant and perused entire case records.  It is revealed that Ext.A4 is a newspaper report and it was marked and in the Forum below the appellant/opposite party has not raised any objection to mark this paper as Ext.A4.  As per Ext.A4 (it is a front page news of the Mathrubhoomi daily) the Hon’ble High Court had stayed the production and distribution of medicines of the opposite party made for aids.  The Ext.B1 is the photocopy of a document relied on by the opposite party and it is contending that ingredients of Cholesterol OR is seen that that document is not complete because it seems that it had continue on another page.  It is nothing but a defense for defense sake.  The Counsel for the appellant explained that Ext.B1 would show that the Cholesterol OR is approved by the Government but Ext.B1 does not show that medicines has been approved by the Government.  The appellant/opposite party has not produced any other documents to support his claim before this Commission. In other words it is a falsity of defense.   This Commission is not seeing any reason to interfere in the finding of the Forum below that the medicine of the appellant/opposite party could not create the offered effect.  Anyway this Commission is appreciating the media like Mathrubhoomi daily, they flash such news in front page of their Cochin edition on 22-12-2001 and it is marked as Ext.A4 in great extent.  It is having high value for the orientation to the public about using such a harmful and worthless drugs and food stuffs.  A mere lawn licence issued by the Drugs Controller is not a blanked licence to produce any type of food stuffs or production of any harmful drugs.  Each and every goods including drugs belongings to modern or ayurvedic or unani if any.  The quality and after effects of such medicine and food stuffs depends its ingredients and contents. The appellant/opposite party did not produce any documents to show the ingredients or contents of their disputed drug.  In this circumstance this Commission is not seeing that the argument of the appellant is nothing but an arrow against moon. It is an argument for argument sake.  Anyway our State is becoming a hell of this antisocial and unscrupulous drug and food stuffs manufacturers and quacks.  The poor consumers are the only gini pigs in this unfair business.  All the government agencies including Drugs Controller and his subordinates and Food Inspectors are keeping mum about this illegal activities, going everything openly in their presence in our state everyday.  Now also such manufacturers are advertising their magic remedy medicines in almost all the newspapers and visual medias.  Nobody is not coming forward to prevent it.  It is a highly sympathetic condition of this State even though our State is having high literary rate and having high rate of orientation.  This Commission is not seeing any reason to interfere in the order passed by the Forum below.  This order passed by the Forum below is strictly in accordance with the law and evidence.  This Commission uphold the view taken by the Forum below.  In this circumstance we appreciate the Mathrubhoomi daily.  At least they published this news in the front page of their News Paper.  It is also the duty of all other newspapers and visual media to publish such socially benefited news in their media.  The media can easily prevent it.  In this case the respondent/complainant (consumer) is absent.  But it is the duty of this Commission to protect the right of consumers.  The Consumer Protection Act is passed by the Parliament to ensure speedy and cost free Consumer Justice.

 In the result, this appeal is dismissed and confirmed the order passed by the Forum below.

          The Registrar of this Commission is directed to send copies of this Judgment to the Secretary of Health Department, The Food Safety Commissioner, The Drugs Controller, Government of Kerala and hereby direct them to issue direction to the subordinates for taking samples of above suspected medicines and suspected adulterated food stuffs selling throughout the State by antisocial elements and unauthorized vendors.  It is also directed the concerned Food Inspectors, Drug Inspectors, Health Inspectors of local bodies to sent the samples to the approved analysis laboratories and send the reports to the Head of Departments.  The Head of Departments are also directed to file such reports before this Commission within 3 months after receipt of the judgment.  This is highly necessary for the interest of the general public.  As per the 2002 amendment of the Consumer Protection Act, this Commission is also a Judicial First Class Magistrate.  As per the Section 27 of C.P. Act, the disobedience of the order of the Commission is punishable for 3 years imprisonment and fine Rs. 10,000/- .  This appeal is disposed according to above directions.  Both parties are directed to suffer their own respective costs.  The points of appeal answered accordingly.

                                                      M.K.ABDULLA SONA : MEMBER