Orissa

Cuttak

CC/144/2017

Rebati Kanta Panda - Complainant(s)

Versus

M/s Cure Point - Opp.Party(s)

Self

22 May 2019

ORDER

IN THE COURT OF THE DIST. CONSUMER DISPUTES REDRESSAL FORUM,CUTTACK.

C.C No.144/2017

 

Rebati Kanta Panda,

S/O:Late Nityananda Panda,

Plot No.D/984,Sector-6,PO:Abhinav Bidanasi,

PS:Markatnagar,Dist:Cuttack.                                                         … Complainant.

 

                Vrs.

 

                                                                                      

 

1.        M/s. Cure Point,

Proprietor,Mr. Patitapaban Nanda,

Plot No.D/111.Sector-7,CDA,

PO:Abhinav Bidanasi,PS:Markagnagar,

Dist:Cuttack.

 

2.        M/s. Nov Nordisk India Pvt. Ltd.,

Plot No.32,47-50,560066E P IP Area,Whitefield,

Bangaluru,Karnatak-560066..                                                                      … Opp. Parties.

 

Present:               Sri Dhruba Charan Barik,LL.B. President.

Smt. Sarmistha Nath, Member(W).

 

Date of filing:   08.01.2017

Date of Order: 22.5.2019

 

For the complainant        :        Self

For the O.P.No.1.             :        Sri R.K.Pattnaik,Adv. & Associates.

For the O.P No.2:                      Sri A.Pattnaik,Adv. & Associates.

 

 

Sri Dhruba Charan Barik,President.

               Being aggrieved by the action of O.Ps 1 & 2, the complainant has filed this complaint before this Forum alleging deficiency in service against them and seeking appropriate relief in terms of his prayer in the complaint petition.

1. The fact of the complainant’s case in short is that the complainant is a regular user of NovoMix30 insulin and he  used to purchase the same brand of medicine from the O.P No.1.  He purchased 5 nos. of pen-fill insulin of the same brand along with other medicines from O.P.1 vide cash memo No.27248 dt.6.6.2017 for Rs.5,032.48p.  The insulin so purchased was of Batch no.FR71174 manufactured by M/s. Novo Nordisk India Pvt. Ltd., the O.P No.2.  Copy of the said cash memo has been filed and marked as Annexiure-1.

It is stated that the complainant has almost used 3 pen-fills successfully.While using the fourth one, the complainant noticed on fourth day of its use that the colour of the insulin has been changed from its normal light white colour to red.The photographs of the normal pen-fills and defective pen-fill insulins are filed in this case and marked as Annexure-2 series.The complainant could learn that the fourth pen-fill was defective and not fit for human consumption.He even apprehended some danger to his life had the spurious insulin been used by him.He produced that defective insulin cartridge before O.P.1 and approached him on 25.7.17 either to exchange the defective insulin cartridge or to refund the cost of it.But the request of the complainant was not acceeded to.

On 28.7.17 the complainant requested the O.P.1 for this purpose and his letter to this effect has been acknowledged by the O.P No.1.Annexure-3 and 4 are respectively the copy of the said letter of request of the complainant and the postal receipt.On 20.8.17 the O.P.1 responded to the complainant and requested him to return the defective pen-fill for taking appropriate action by the distributor or the manufacturer.Copy of the said letter dt.20.8.17 of O.P., 1 has been marked as Annexure-5.But the complainant did not accept the request of O.P.1.It was communicated to him vide complainant‘s letter dt.25.8.17.Annexure-6 & 7 are respectively the copy of the said letter dt.25.8.17 and the postal acknowledgement made by O.P.1.

After lapse of a long period when no action was taken by O.P.1, he was constrained to file this case since it has caused serious mental tension and undue harassment to him.As such the complainant has prayed that the O.Ps be directed to pay Rs.530/- towards cost of one defective pen-fill insulin, Rs.50,000/- towards compensation and Rs.2000/- towards legal and incidental expenses in the interest of justice.

2. Both the O.Ps entered appearance and filed written version of their case.  It is evident from the written version of O.P.1 that the case is not maintainable and there is no cause of action to file the case.  It is further submitted that he being a seller of the product, is not at all liable for any manufacturing defect .  As such it is stated that he has neither a necessary nor a proper party to this complaint.

It is further stated that the complainant for the reasons best known to him did not produce the defective pen-fill insulin for necessary action at his end despite his sincere request.In this connection he has referred to the letter dt.20.8.17 of O.P.1 which has been marked as Annexure-A.In that view of the matter, the O.P.1 has reasonably apprehended that the complainant himself might have put some spurious substances in the said defective pen-fill insulin in order to file the present case for illegal gain.Other material averments in the complaint having not been admitted by the O.P.1, it is prayed that the case may be dismissed in limini.

3. The O.P.2 is an affiliate of M/s. Novo Nordisk A/S, Denmark which is a global health care company.  The O.P.2 is represented by the Director- Legal and Compliance of the said Company who has filed written version on behalf of it.  Material assertions in the complaint have been clearly denied by O.P.2 except cases which are specifically and expressly admitted.

It is stated that when insulin cartridges are purchased in batch, it is intended to have uniform character and quality.As such defects, if any, can be in the whole batch and not in any single pen-fill, that too when the single insulin cartridge (the fourth one) has already been opened and used by the complainant.It is also stated that the complainant for the reasons best known to him did not cooperate with the O.P.1 for laboratory test or analysis of the said defective insulin cartridge although opportunity was afforded to him.It is therefore stated that the possibility of the said insulin being mishandled by the complainant himself cannot be ruled out.

In view of the above, it is stated that there is no deficiency in service on the part of O.P.2 in any manner and the consumer complaint being devoid of merit may be dismissed in limini.

4. We have heard the learned counsels from both the sides and gone through the case records.  The short question that falls for consideration is whether the defect in the insulin cartridge (the 4^th one) used by the complainant has some manufacturing defect so as to attract liability against the O.Ps for deficiency in service.  The complainant has simply assumed as revealed from his averments that the insulin in the 4^th cartridge used by the complainant was  spurious as the colour of the said insulin was changed from light white to red.  It is a mere presumption without any legal basis.  It is also clear that when O.P.1 requested the complainant to hand over the said defective insulin cartridge to him for the purpose of raising the issue before O.P.2 for analysis, the request of the O.P.1 was turned down for the reasons best known to the complainant .  This has become crystal clear from Annexure-5 which is a letter of request made by O.P.1 to the complainant.  Rather the complainant has taken a clear stand in para-10 of his complaint that he is no way concerned with the distributor or manufacturer of the said insulin and it is only O.P.1 who is liable for the case.  Law is well settled that manufacturing defect must be proved by expert evidence which has been held in a decision of the Hon’ble National Commission reported in 2017(3) CPR-35(NC) (Mahindra Kumar Vrs. Hero Honda Motors Ltd. and another).  In absence of any such expert opinion it is not possible to hold that there was some manufacturing defect in the 4^th cartridge of the insulin used by the complainant merely on the basis of presumption of the complainant.
5. The learned advocate for the complainant has also submitted that O.P.1 who is the dealer of the medicine can be held liable for deficiency in service.  His submission was resisted by the learned advocate for the O.P.1.  The law is crystal clear that the dealer of the goods cannot be held liable for manufacturing defects.  This view has been taken by the Hon’ble National Commission in a decision reported in 2017(2) CPR-524(NC) (Manager, Jaika Automobiles Pvt., Ltd. Vrs. Leela Sahu and others).

                     In view of the above, it is held that the complainant has failed to prove that there    was deficiency in service on the part of the O.Ps in any manner.  Hence ordered;

                                                                     ORDER

                  The case be and the same is dismissed on contest against O.Ps 1 & 2.

    Typed to dictation, corrected and pronounced by the Hon’ble President in the Open Court on this the 22^nd day of May,2019  under the seal and signature of this Forum.

                                                                                                                                                  

    (   Sri D.C.Barik )

                                                                                                                         President.

                                                             

                                                                                                             (Smt. Sarmistha Nath)

                           Member(W)