Punjab

Moga

CC/16/114

Ajay Mittal - Complainant(s)

Versus

Mankind Pharma Ltd. - Opp.Party(s)

In person

30 Nov 2016

ORDER

THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MOGA.

 

 

                                                                                      CC No. 114 of 2016

                                                                                      Instituted on: 01.07.2016

                                                                                      Decided on: 30.11.2016

 

Ajay Mittal, aged 33 years, son of S. Kapal Mittal, resident of H. No. 15/575, St. No. 04, New Town, Moga, Punjab.

                                                                          ……… Complainant

 

Versus

1.       Mankind Pharma Ltd, Corporate Office : 236, Okhla Industrial Estate-3, New Delhi - 110020.

 

2.       Convex Latex Pvt. Ltd, Corporate Office : S. No. 228, 1 & 2 Tal Mulashi, Hinjewadi, Pune - 411057.

 

3.       Lakhan Enterprises, Fauji Market, Moga - 142001.

 

                                                                           ……….. Opposite Parties

 

 

Complaint U/s 12 of the Consumer Protection Act, 1986.

 

 

Quorum:    Sh. Ajit Aggarwal,  President,

                   Smt. Bhupinder Kaur, Member.

 

Present:       Sh. Ajay Mittal, complainant in person.

Sh. Hardeep Singh Lodhi, Advocate Cl. for opposite party no.1.

                   Opposite party no.2 ex-parte.

                   Sh. Prem Kumar, Proprietor for opposite party no.3.

 

ORDER :

(Per Ajit Aggarwal,  President)

 

1.                Complainant has filed the instant complaint under Section 12 of the Consumer Protection Act, 1986 ( hereinafter referred to as the "Act") against Mankind Pharma Ltd, Corporate Office : 236, Okhla Industrial Estate-3, New Delhi and others (hereinafter referred to as the opposite parties) directing them to pay Rs.75,000/- for causing mental tension, harassment and for supplying less material i.e. 8 Pcs instead of standard packing of 10 Pcs alongwith Rs.60/- the price of packing, cost of complaint to the complainant or any other appropriate relief which this Forum may deem fit and proper be also granted.

2.                Briefly stated the facts of the case are that the complainant purchased 10 pcs of Manforce Condoms from M/s Lakhan Enterprises i.e. opposite party no.3 vide bill no. 911 dated 20.06.2016 for Rs. 60/-. When the complainant opened the seal of box there are only 8 pcs of condoms instead of 10 pcs as mentioned on the box, whereas two empty sachets of condoms are in the box without condom inside, which shows that company has adopted unfair trade practice with his malafide intention by giving only 8 pcs of condoms instead of charging amount of 10 pcs condoms. Whereas Centre and State Governments for controlling increasing population in India and for enjoying the happy married life supplying condoms free of costs, through health departments, whereas the opposite parties after charging full amount supplying less number of condoms, which is violation of Consumer Protection Act, 1986, hence a strict action should be taken against the opposite parties. The complainant approached opposite party no.3, who told that he sold him a sealed box of 10 pcs of condoms with lamination and it is fault of manufacturer and company is fully responsible for this. The complainant contacted on customer care number of opposite party no.1, however they did not given any satisfactory reply to complainant. The aforesaid acts of opposite parties amounts to deficiency in service and trade mal practice on their part. Hence this complaint.

3.                Upon notice, opposite party no.1 appeared through counsel and filed his written reply submitting that opposite party no.1 apart from manufacturing and marketing its own products also procures drugs/medicines of the other manufacturers to market  it under its brand name through distributors/stockiest; hence for this purpose, opposite party no.1 appoints distributors/stockiest in various states across the country, who in turn sell the products to retailers. The retailers sell the products to the end consumers. The averments and contentions made in the complaint are denied in their entirety, save and except to the extent that may be specifically admitted hereinafter. The word 'The Company/ as stated by the complainant cannot be construed for opposite party no.1, as opposite party no.1 is not manufacturer of the impugned product. Opposite party no.1 only sells/markets the product across the country. Opposite party no.2 who was specialised in manufacturing the condoms and has the facilities for the same purpose, has approached opposite party no.1 with intention to manufacture the product with the brand name 'Manforce' for opposite party no.1. Opposite party no.1 agreed upon and entered in an agreement with opposite party no.2. It has been further submitted that complainant has stated that he has suffered mental agony due to deficiency in supply of quantity of product. In regard to the same, it is submitted that if at all there was any shortage of supply and the customer has paid for the full quantity then the purchaser/complainant can claim the price of the shortage of products and the same cannot be treated as deficiency of services. The complainant has nowhere stated that the goods which were purchased by him were of bad quality, therefore, the present matter does not come under the ambit of Consumer Protection Act. The complainant has nowhere stated that he came to know about the empty sachet only when he was supposed to use that product. He himself admitted that when he opens the sealed pack of the condom, he came to know that out of ten sachets, two sachets are without condom. In such a case, there was no occasion which occurred at the nick of time. Further for the sake of brevity, if it is assumed that on the occasion, when he opened the pack and the complainant came across the deficiency, he had eight other filled sachets in the box. The complainant cannot claim mental agony on the pretext of making as an issue in rem. It has been further submitted that opposite party no.1 received sealed cartons of the manufactured products from opposite party no.2 and same was further forwarded to the stockiest for the sale in the market. Being a company with high business standard, opposite party no.1 never ever have policy to cheat its customers to fill its pockets. Further without prejudice to the rights given under the law, to protect the name of the company and the brand value of the product, the opposite party no.1 was ready and willing to settle the issue mutually, but the same was declined by the complainant herein. The complainant despite all other options and other brands available in the market preferred to buy Manforce condoms, because of the immense goodwill of the product, which is a result of extreme hard work and years of diligent efforts. From the bare reading of the agreement between opposite party no.1 and opposite party no.2, it is clear that opposite party no.1 has only marketed the product in question. Opposite party no.1 also received sealed cartons of the manufactured products from opposite party no.2 and same was further forwarded to the stockiest for the sale in the market. The deficiency as enumerated by the complainant is beyond the control of opposite party no.1 herein and cannot be anticipated by anyone. The defect, if any, in the product in question will be on the part of the manufacturer and he will be held liable for the same. Further submitted that on the pack of the condom with the customer care cell no. an e-mail ID was also given as "contact@mankindpharma.com", if the complainant was not satisfied with the answer given by the customer cell personal, he should have lodged the complaint through e-mail, but he did not prefer to do so for the reasons best known to him alone. There is no negligence and deficiency on the part of opposite party no.1 herein packaging the goods in question because the same was done by opposite party no.2. All other allegations made in the complaint has been denied and a prayer for dismissal of the complaint has been made.

4.                Opposite party no.2 did not bother to appear before this Forum, despite issuing notice, as such, it was proceeded against ex-parte.

                   However, written reply on behalf of opposite party no.2 was received by post, wherein, it has been submitted that the allegations against the company stated in notice is not true; that the Deponent, Mr. Ajay Mittal till date have not communicated anything with respect to the complaint directly to them. They came to know about it through notice dated 05.07.2016 of this Forum only. The batch no. of the said lot is A 7BGM013, Manufacturing date : 07/2013 and Expiry date : 06/2016. They manufactured this lot three years ago and the same was getting expired in the month of June, 2016. The deponent Mr. Ajay Mittal, made an affidavit in this regard on 30.06.2016 and we suspect that the intention of the deponent was to harass them. The deponent purchased this product on 20.06.2016. Anybody who makes purchases shall verify the manufacturing and expiry dates. They did not understand why he purchased a product which is going to be expired within 10 days of times when the shelf life of the product is of 3 years. They manufactured 43008 packs of this batch and given to Mankind Pharma. They manufacture these condoms with utmost care and stringent quality control. There is no chance to miss any condoms in the packet, as they are weighing and cross checking each box when packed. They have quality systems to eliminate all the possible causes to miss any condoms in packs. They are packing various verities of packs every day for the last ten years and till date there are no complaints of this type. There is no merit whatsoever in the allegations sought to be raised against them.

5.                Opposite party no.3 filed written reply submitting that the complainant has purchased 10 pcs of box of Mankind Company on 20.06.2016 from him. After purchase, the complainant came back and told that the pack sold by him has 8 pcs instead of 10 pcs and two pouches are empty. Then, opposite party no.3 told that he sold sealed pack and manufacturer and selling company is responsible for the same.

6.                In order to prove the case, complainant tendered in evidence his duly sworn affidavit Ex. C-1, copy of bill Ex.C-2 and sealed box of condom Ex.C-3 and closed the evidence. 

7.                In rebuttal, opposite party no.1 tendered in evidence affidavit of Sh. Aviral Shukla, Authorized Signatory of opposite party no.1. Ex. OP-1/1 alongwith Agreement Ex.OP-1/2 and Resolution- cum - Certificate Ex.OP-1/3 and closed the evidence. Whereas, Sh. Prem Kumar, Proprietor of opposite party no.3 tendered in evidence his duly sworn affidavit Ex.OP-3/1 and closed the evidence.

8.                We have heard learned the parties and have very carefully gone through record placed on file.

9.                The complainant argued that he purchased a pack of 10 pcs Manforce condoms from opposite party no.3 vide bill no.911 dated 20.06.2016 and paid Rs.60/-, copy of the bill is Ex.C-2. The said condoms are manufactured and marketed by opposite party nos.1 & 2. When the complainant opened the seal of the box, he found that there are only 8 pcs of condoms instead of 10 pcs and whereas two sachets are empty without condom inside. As such, the opposite parties gave only 8 pcs of condoms instead of 10 pcs and charged the price for 10 pcs, which amounts to deficiency in service and trade mal practice on their part. On it, complainant approached opposite party no.3, who told that he is only the retailer and sold seal pack of condoms with lamination, as received by him and it is the fault of manufacturer and they are responsible for this. On it, the complainant contacted to the customer care of opposite parties, but it bores no fruits. All these act of opposite parties amounts to deficiency in service and trade mal practice on the part of opposite parties.

10.              Ld. Counsel for opposite party no.1 argued that opposite party no.1 apart from manufacturing and marketing its own products also procures drugs/medicines of other manufacturers to market under its brand name through distributor and stockiest. In fact, the opposite party no.1 is not the manufacturer of the product in question. The product is manufactured by opposite party no.2, who is specialized in manufacturing of condoms and had the facilities for the same purpose has approached to opposite party no.1 with intention to manufacture the product with the brand name Manforce for opposite party no.1. On it, opposite party no.1 entered into an agreement with opposite party no.2 and as per this agreement products are manufactured and packed by opposite party no.2 and opposite party no.1 only marketed the product in question. Opposite party no.1 received sealed cartons of the manufactured products from opposite party no.2 and the same was further forwarded to stockiest for the sale in the market. As such, deficiency as enumerated by the complainant is beyond the control of opposite party no.1. As such, the defect, if any, in the product in question is on the part of manufacturer and he will be liable for the same. There is no negligence and deficiency in service on the part of opposite party no.1 in packaging the goods in question, because the same was done by opposite party no.2. The present complaint against opposite party no.1 is not maintainable and may be dismissed.

11.              Opposite party no.2 did not appear before this Forum and as such, proceeded against ex-parte. However, written reply on behalf of opposite party no.2 was received by post. For the just decision of this case, it has been treated as arguments on behalf of opposite party no.2. The version of opposite party no.2 is that they manufactured 43008 packs of batch in dispute and given to Mankind Pharma. They manufacture these condoms with utmost care and stringent Quality control. There is no chance to miss any condoms in the packet as they weighed and cross checked each box when packed. They have quality systems to eliminate all the possible causes to miss any condoms in packs. They are packing various verities of packs every day for the last ten years and till date there is no complaint of this type. There is no merit in the present complaint and the same may be dismissed. The version of the opposite party no.3 is that he is mere a retailer. He sold the box in sealed condition as received by him from the manufacturer company. If there is any defect in quality or quantity of the product, then the manufacturer is liable for the same. Now, it is not disputed by the opposite parties that the product in question is manufactured and marketed by them. The only stand of opposite party no.1 is that they are not manufacturer of the product. They are only marketing the products as manufactured and packed by opposite party no.2 in sealed condition, who further sold the product in their brand name in the same condition as received by them from opposite party no.2. There is no control of opposite party no.1 on the quality and quantity of the product. In case there are any complaint regarding quality and quantity of the product  in that case, opposite party no.2 who is manufacturing and packing the products is liable for the same as per contract executed between opposite party nos.1 & 2, copy of which is Ex.OP-1/2. The version of opposite party no.2 is that they manufactured 43008 packs of batch in question and supplied to opposite party no.1. They manufactured and packed the product with utmost care and stringent quality control and there is no possibility to miss any condoms in the packet. On the other hand to prove his case that there are two condoms missing from the box in question and there are two empty sachets , the complainant produced the box of condoms before this Forum as Ex.C-3, which was sealed with the direction of this Forum. From the observation of this box, it found that there were two empty sachets in the box without condoms. From it, the case of the complainant is fully proved that two condoms are missing from the box in question and there are only empty sachets, which amounts to deficiency in service and trade mal practice on the part of opposite party nos.1 & 2, who are marketers and manufacturer of the product respectively.

12.              In view of the above discussion, the present complaint in hand is hereby allowed against opposite party nos.1 & 2. As such, opposite party nos.1 & 2 are directed to pay Rs.6000/-(Six thousand only) as compensation for causing mental tension and agony suffered by the complainant and Rs.2000/-(Two thousand only) as litigation expenses to the complainant jointly and severally. The present complaint against opposite party no.3 stands dismissed, as he is only the retailer and sold goods in sealed conditions as received by him from the manufacturer and supplier. However, the opposite party no.1 is at liberty to claim the amount as awarded, from opposite party no.2, as per law according to agreement entered between them by initiating separate proceedings. Opposite party nos.1 & 2 further directed to stop this type of trade mal practice in future. Compliance of the order be made within 30 days from the receipt of copy of this order, failing which, the complainant shall be entitled to initiate proceedings under Section 25 and 27 of the Consumer Protection Act. Copy of order be supplied to the parties free of costs. File be consigned to record room.

Announced in Open Forum.

Dated: 30.11.2016.

 

                                                 (Bhupinder Kaur)                    (Ajit Aggarwal)

                                                             Member                                    President