BEFORE THE CONSUMER DISPUTES REDRESSAL FORUM, IDUKKI

Dated this the 30th day of January, 2010

Present:

SRI.LAIJU RAMAKRISHNAN PRESIDENT

SMT.SHEELA JACOB MEMBER

SMT.BINDU SOMAN MEMBER

C.C No.223/2006

Between

Complainants : 1. Velayudhan.S.

Kollamparambil House,

Neyyassery P.O.,

Idukki District.

2. Bincy Vineeth, W/o Vineeth,

Kollamparambil House,

Neyyassery P.O.,

Idukki District.

(Both by Adv: Chittoor Rajamannar)

And

Opposite Parties :

1. M/s. Elfin Pharma Pvt. Ltd. E-206,

Industrial Area, Phase VII-B,

S.A.S.Nagar-160055,

Chandigarh.

2. The Administrator,

M/s Chazhikkattu Hospitals Pvt. Ltd.

(Excelsior Hospital),

Thodupuzha P.O,

Idukki District.

(By Advs: T.J.Michael & V.C. Sebastain)

3. The Pharmacist,

M/s Chazhikkattu Hospitals Pvt. Ltd.

(Excelsior Hospital) Pharmacy,

Thodupuzha P.O,

Idukki District.

(By Advs. T.J.Michael & V.C. Sebastain)

4. Dr. Meena Soman, Gynaecologist,

M/s Chazhikkattu Hospitals Pvt. Ltd.

(Excelsior Hospital),

Thodupuzha P.O.,

Idukki District.

(By Advs. T.J.Michael & V.C. Sebastain)

5. M/s Prakash Pharmaceuticals,

Thodupuzh P.O.,

Idukki District.

(By Advs. S.Asokan & C.K.Babu)

6. M/s Grace Remedies,

10/625/A2, Krishna Mmorial Complex,

Kuttumukku,

Thrissur – 680 631.

(By Adv. Reji.G. Nair)
 

7. M/s Phytochem Healthcare

Pharmaceuticals,

Plot No.97, Industrial Area, Phase – 1,

Panchkula – 134 109

Haryana.

O R D E R

SRI. LAIJU RAMAKRISHNAN (PRESIDENT)
 

The complainant consulted the opposite party doctor with his daughter- in- law Mrs. Bincy Vineeth for the treatment relating to her pregnancy. On 25.10.2006 the gynaecologist of the aforesaid hospital prescribed some medicine which were purchased by the complainant from the pharmacy of the hospital. The complainant purchased the medicine-cum-food supplement by name “Effort” manufactured by the 1^st opposite party company and distributed through the opposite party pharmacy. The daughter-in-law of the complainant Bincy Vineeth had consumed the medicine-cum health supplement “effort” as guided by the gynaecologist. Then she became nauseated and started vomiting. Since the cause of the nausea was the intake of the medicine-cum food supplement “effort”, the complainant inspected the package of the “effort” to find out what was wrong with it. Upon examination of the package, it was revealed that the packet contained contaminated material with insects and worms. The complainant became panic and informed the press as well as the drug inspector on telephone. The drugs inspector telephonically instructed the complainant to forward the contaminated package of “effort” to the Assistant Drug Controller of Drugs, Kakkanad, Cochin. He had also instructed the complainant to purchase two more sealed packets of “effort” from the aforesaid pharmacy. The complainant had forwarded the contaminated packet of “effort” to the Assistant Drugs Controller, Kakkanad, Cochin. The Assistant Drug Controller, Kakkanad, had made a reply stating that the competent authority to examine the matter was the food inspector because it was a food product. On consumption of the food supplement “effort”, the daughter-in-law of the complainant sustained nervous shock as well as mental agony. The aforesaid patient sustained considerable physical pain also arising from the nausea. Due to the consumption of the obnoxious food supplement the patient developed serious fears about the well being of the uterine child. The complainant also sustained nervous shock arising from the incident since he had taken the patient to the hospital for the treatment and purchased the aforesaid food supplement. The aforesaid food supplement was contaminated, impure and hazardous to the health. The opposite party is liable to compensate the complainant for the injuries sustained by the complainant as well as his daughter in law upon the consumption of the contaminated product of the opposite party by the patient. And hence the petition is filed for compensation for the unfair trade practice of the opposite party and also for compensation.
 

2. The 1^st opposite party filed a written version stating that there is no relationship of consumer and supplier of a product, with the complainant and the respondent, and there is no privity of contract between the complainant and the respondent. The complainant does not fall within the definition of the word consumer under the Consumers Protection Act. Neither the dispensing chemist is made a party, nor any diligence is shown to have been exercised for verification of the batch number and manufacturing date of the food supplement in question, besides the basis on which, the complainant jumped to the conclusion that respondent is the actual  manufacture of the product in question. There is neither any reference to the batch number on the bill on record, nor any report of the Drug inspector mentions such as batch number, nor the retailer or chemist, nor any report of state authority is referred to in the pleadings or in the documents. The 1^st respondent is a reputed manufacturer of drugs, inter-alia, of the food supplement in the name and style of “effort”. The said food supplement was introduced in the market by the respondent after an intensive research and the said product has a large sale across the length and breadth of the country. On numerous occasions, random samples were taken by the State authorities in different states of the country and not even once, any sample of the said food supplement has failed. Laboratory tests were carried out by the manufacturer and all laboratory test reports pertaining to different batches produced in the year 2006 and 2005. Not a single instance of adverse report with regard to the said product manufactured by the respondent has been received till date from any State of the country. There is a large network distributors and retailers and no product of the respondent is sold, except on the basis of a bill, which invariably contains a batch number of the product. In the absence of any bill of the distributor and retailer mentioning the batch number, no verification of any nature is capable of being done, even the retailers are legally bound to mention the batch number. In the market across the country are also flooded with fakes and no person can be proceeded against on the basis of a fake product. The complainant is not supported by any evidence even with regard to the age of the product, the condition of packing, the conditions of storage of the product in question. The complainant has not placed on record the prescription slips of the hospital and under these circumstances the mere mention of a medicine described as “effort” in the alleged bill of a chemist, especially when such chemist is not made a party to the present proceedings and there is no mention of any batch number in the bill, has no relevance and in the absence of the same, no cogent or reasonably inference of any nature can be drawn against the opposite party or in favour of the complainant. The dispensing chemist did not mention the batch number in this bill. The food supplement 'effort' manufactured by the opposite party is medically recommended for healthy foetal growth during pregnancy period. The complainant is also failed to bring relevant documents to establish that the product allegedly consumed by the complainant is actually manufactured by the opposite party. No medical reports coupled with lab reports of the product in question have been brought by the complainant to establish any co-relation of any alleged health problem with the food supplement in question exists. Hence the complaint is not sustainable and may be dismissed.

3. As per written version of 2^nd and 3^rd opposite parties, Mrs. Bincy Vineeth had visited the opposite party hospital in connection with pregnancy care is true and they admitted the same. She had been visiting the Gynaecologist of the hospital Dr.Meena Soman from 16.8.2006. She had been properly examined and the health of the foetus and the mother had been properly evaluated. Necessary treatments and care were given. On examination of the visit on 25.10.2006, the foetus and the mother were found deficient in nutrition and needed some food supplement. So “effort” powder manufactured by 1^st opposite party Elfin Pharma was prescribed with advice to take 1 teaspoonful along with milk at breakfast and dinner. The product was supplied from the pharmacy of the hospital itself. The opposite party hospital purchased the said product from Prakash Pharmaceuticals, Thodupuzha many times under various invoices from 10.5.2006 to 24.11.2006. The validity of the product purchased was to expire in May 2007 only. The product 'effort' was packed in sealed container which was opaque and sold in the sealed condition itself. These opposite parties did not open or tamper the seal. The opposite party hospital had purchased several lots of the product during the period from 10.5.2006 to 24.11.2006 and it was supplied to a large number of patients. No other complaint had been received from any other patient. Curiously enough, Bincy Vineeth also did not make any complaint to the opposite party. The opposite party came to know about the complaint only when they received the notice from this Honourable Forum. The opposite parties do not know whether Mrs.Bincy Vineeth had consumed the product and how she had consumed it. They also do not have any information about any complications said to have caused from its consumption as they were not informed about the same. These opposite parties also do not know the truth of the allegation that the product was contaminated with body parts of insects and worms and had bad smell. Instead of informing the matter to the gynaecologist and the hospital, the complainant went to the daily press and the drug inspector first. The complainant is also silent about any medical consultation done by the patient for amelioration of the distress and sickness. The patient Mrs.Bincy Vineeth or child in womb has not sustained any substantial injury or health problem from the so called complication as is evident from the complainant itself. These opposite parties have only distributed sealed product in a sealed pack without opening seal. No complaint had been received from any patient including Mrs.Bincy Vineeth about any defect of the product. So the petition may be dismissed.

4. As per the written version of the 4^th opposite party, the facts disclosed through the averments in the complaint clearly show that the nature and ambit of the dispute is confined to the dispute between the purchaser and the manufacturer or retailer and the person who prescribed the product is neither a necessary party nor a proforma party to the proceedings. The 2^nd complainant had been consulting the 4^th opposite party from 16.8.2006 onwards in connection with her antenatal check-up. The 4^th opposite party duly examined and attended the 2^nd complainant during her visits and prescribed standard medicines, which a reasonable gynaecologist is expected to advice during antenatal period. On 4.10.2006 the weight of the 2^nd complainant was recorded as 51 Kg and on 25.10.2006 her weight was 50 Kg, and considering the loss of weight during this period, the 4^th opposite party prescribed a food supplement named “effort powder” in addition to medicines. The food supplement named “effort powder” is a food product manufactured by the 1^st opposite party to provide nutritional support to pregnant woman who are found deficient in nutrition. The effort powder is a standard food product prescribed by gynaecologist throughout India to their patients having nutritious deficiency. This food supplement is widely distributed through various medical stores and hospital pharmacies all over India. The 4^th opposite party prescribed 'effort powder' as the patient was very much in need of a protein supplement. The opposite party had occasion to prescribe 'effort powder' to her other patients having nutritional deficiency but nobody ever reported any adverse impact by its consumption. Hence there is no negligence or deficiency in the service on the part of the 4^th opposite party. The complainants did not raise any allegation against the 4^th opposite party in the complaint and they never reported the difficulties allegedly caused by the consumption of the food product to the notice of the 4^th opposite party at any point of time. It is purely a dispute between the purchaser and the manufacturer or the seller and the 4^th opposite party is an unnecessary party in the proceedings. The complainants had to invoke the provisions of Prevention of Food Adulteration Act and get the alleged product duly sampled and chemically analysed according to the Rules framed there under. The 4^th opposite party had exercised reasonable skill and care in the treatment of the 2^nd complainant and she cannot be held liable merely on the fact that she prescribed 'effort powder' to the patient. So the complainants have no cause of action against the 4^th opposite party. The 4^th opposite party is a qualified and experienced medical practitioner with an experience of 22 years service in the respective field. There is no deficiency in the part of the 4^th opposite party.

5. As per written version filed by the 5^th opposite party, who is a wholesale distributor of pharmaceutical products and other allied products manufactured and marketed by several companies and the sub-distributor of many state level wholesale distributors like Grace Remedies, Thrissur for the Idukki district in particular. There is no locus standi for the complainant to claim that they are the consumers of the opposite party. There is no relationship interalia as a consumer with the opposite party. There is no question of deficiency in service from the part of the opposite party. The complaint so indicate that there was no proper sampling and sealing of the offensive product and that the same was not subjected to timely chemical analysis. The 1^st opposite party is the manufacturer of the product by name 'effort'. M/s Grace Remedies, Thrissur is the distributor of the above said product for the state of Kerala. M/s Grace Remedies, Thrissur had supplied 76 packets of 'effort-200gm' with batch Nos: GAD-05449, GND-05252, GRD-05222, GGS-05470 and GHG-05751 to this opposite party during the period 23.2.2006 to 17.11.2006 vide invoice No.2004 dated 23.2.2006, No.300 dated 20.5.2006, No.1074 dated 13.9.2006 and No.1505 dated 17.11.2006. As per the orders placed by M/s Chazhikkattu Hospital, Thodupuzha, this opposite party had supplied few quantity of the above said product vide invoice No.2609 dated 10.9.2006, No.6134 dated 28.6.2006, No.8226 dated 28.7.2006, No.10910 dated 7.9.2006, No.11466 dated 15.9.2006, No.14548 dated 30.10.2006, No.15770 dated 17.11.2006, No.16234 dated 24.11.2006. All the packets that M/s Grace Remedies had supplied to this opposite party were intact and sealed and this opposite party had supplied the same to M/s Chazhikkattu hospitals in the very same condition. The 1^st opposite party alone is answerable for the grievances and claims, if any, arising out of the quality and quantity of the product and this opposite party is in no way liable for the same. It is further clarified that this opposite party had supplied the above said product to M/s Chazhikkattu Hospitals, Thodupuzha much before its expiry date as evident from the relevant invoices. Since the above complainant keeps conspicuous silence regarding the batch number of the offensive product, this opposite party is not aware of the fact as to whether the offensive product was one that, this opposite party had supplied to M/s Chazhikkattu Hospital or not. So the complainant is not at all entitled to get any relief as prayed for against this opposite party.
 

6. As per the written version filed by 6^th opposite party, the 1^st opposite party is the manufacturer of the offensive product namely, 'effort'. M/s Phytochem Healthcare Pharmaceuticals, Plot No.97, Industrial Area, Phase-1, Panchkula-134109, Haryana is the all India distributor of the above said product and this opposite party is the sub distributor of the same for the State of Kerala. M/s Phytochem Helthcare Pharmaceuticals had supplied 600 packets of 'effort-200gm' (Batch No.GAD-05449) manufactured by the first opposite party vide invoice No.1911 dated 9.2.2006 and No.1951 dated 14.2.2006. The 5^th additional opposite party namely, M/s Prakash Pharmaceuticals, Thodupuzha is the sub distributor of this opposite party for the Idukki district in particular. This opposite party had supplied 'effort-200gm' (Batch No.GAD-05449) to M/s Prakash Pharmaceuticals, M/s Jose Medicals, Viyyoor, Trichur Hospital Supplies, Thrissur and Neeti Medicals, Tirur and Mulankunnathukavu vide invoices No.2004 dated 23.2.2006, 2027 dated 28.2.2006, 2063 dated 4.3.2006, 2086 dated 8.3.2006, G2129 dated 12.3.2006, 2147 dated 20.3.2006 and 2182 dated 27.3.2006 respectively. Apart from batch No.GAD-05449 the first opposite party had manufactured the very same product with different batch numbers which were also distributed through M/s Phytochem Healthcare Pharmaceuticals and this opposite party in the State of Kerala. There never arose any complaints regarding the quality or quantity of the said product at any point of time. It is clarified at risk of reputation that there never was any complaint regarding the product with batch No.GAD-05449. Thus if at all there is any grievances regarding the product 'effort' with batch No.GAD-05449, this opposite party and their sub distributor for Idukki district namely, M/s Prakash Pharmaceuticals, Thodupuzha are in no way liable, especially since the product in question is supplied in packets which are intact and sealed and the first opposite party, who is the manufacturer alone is liable. In the light of the rival contentions, M/s Phytochem Healthcare Pharmaceuticals, the all India distributor of the offensive product, is also a necessary party to the proceedings and the complainants are bound to implead them in the party array. Since the alleged grievance emanates from the product in question that the complainants claim to have purchased as per the diagnosis and prescription of the gynaecologist attached to Chazhikkattu Hospital Private Ltd, Thodupuzha, from the pharmacy of the said hospital, the complainants have no locus standi to claim that they are the consumers of this opposite party. So there was no proper sampling and sealing of the offensive product and that the same was not subjected to timely chemical analysis. Besides, the complainant keeps conspicuous silence regarding the batch number of the offensive product. Thus suspicion mounts the theory of alleged deficiency of service and the very genesis of the above complaint is dubious. The complainant keeps conspicuous silence regarding the injuries if any, that the alleged victim and the foetus in her womb had sustained. Since the complainants have deceitfully suppressed the antenatal and pre-natal conditions of the child and the mother, the irrefutable presumption that follows is that there never was any injury as alleged and the petition may be dismissed.

7. The point for consideration is whether there was any deficiency in service on the part of the opposite parties, and if so, for what relief the complainant is entitled to?

8. The evidence consists of the oral testimony of PWs1 to 4 and Exts. P1 to P6 marked on the side of the complainant. The oral testimony of DWs1 to 3 and Exts.R1 to R10 marked on the side of the opposite parties. 7^th opposite party was absent and called exparte.
 

9. The POINT :- The complainant purchased “effort-200gm” food supplement from the pharmacy of the opposite party hospital as per the prescription of the gynaecologist. The 2^nd complainant, daughter-in-law of the complainant consumed the same, in the evening, she became nauseated and started vomiting. Then it was revealed that the 'effort' packet contained contaminated material with insects and worms. The complainant was examined as PW1. PW1 deposed that he and his wife approached the gynaecologist of the opposite party with his daughter-in-law, in the 2^nd opposite party hospital. The gynaecologist prescribed the nutrien powder and it was purchased from the pharmacy of this hospital. Ext.P1 is the bill for the purchase of the food supplement. In the evening she consumed the powder, diluted in milk, but after some time, the patient started vomiting. So PW1 inspected the packet of the powder carefully and insects and worms were seen in the balance of the packet. The matter was informed to the paper boy, usually came to this spot and also to the drug inspector. They informed the complainant to purchase 2 more sealed packets of the same (one packet is produced before the Forum along with the packet). The bill of purchase of 2 more packets, marked as Ext.P2. When the packet was sent for inspection to the Assistant Drugs Controller, Kakkanad, Kochi, the Assistant Drug Controller after inspection returned the product stating that the product is a food supplement and not a medicine. So he adviced to produce the product before the Food Inspector. Ext.P6 is the copy of letter issued from the Assistant Drug Controller. Ext.P3 is the Mathrubhumi Daily dated 29^th October, 2006, stating that the medicine purchased by the complainant contained insects and caused injury to the patient. As per PW1 the patient was continuously vomiting after the consumption of the food product. She was tired too much because of the continuous vomiting. She was not admitted in the hospital in the very same night because there was no facility of conveyance. The daughter-in-law wanted bed rest at home because she was tired too much and not able to travel, she needed rest, so she was not admitted in the hospital. In the very next day they consulted Dr.Mythreyi, the senior gynaecologist in the Archana Hospital and the doctor confirmed that there is no problem to the child. The doctor told that the vomiting may be caused because of the medicine consumed by the patient. The matter was not informed to the 4^th opposite party doctor because they lost faith in the doctor. The balance of the contaminated product consumed by the daughter-in-law of the complainant is marked as Ext.MO1. The same product of the same batch number purchased from the same hospital with the same manufacturing date is marked as Ext.MO2. The batch number of the product was not mentioned in the complaint because the original bill was produced with the complaint. It is revealed from the written version of the opposite party that the product was not manufactured by the 1^st opposite party and it was a fake product. There was a foul smell in the packet when carefully examined by PW1 when the vomiting started to the daughter-in-law of the complainant. The postal cover in which the notice of the Assistant Drug Controller received by complainant is marked as Ext.P5. The 2^nd complainant was examined as PW2. PW2 accompanied with the father-in-law and mother-in-law to the 4^th opposite party gynaecologist for periodical check up in the pregnancy period. 4^th opposite party told that there is a decrease in weight for the child and prescribed “effort” powder which was purchased from the 3^rd opposite party on 25.10.2006. It was purchased from the 3^rd opposite party on the same day. In the evening PW2 consumed the food product diluted in milk, but she became nauseated and started vomiting. PW2 continued vomiting about 3 times. After that PW2 consumed hot water, she became tired and took rest on that day. On the very next day PW2 consulted Dr.Mythreyi who is another gynaecologist consultant, and the doctor prescribed 2 days medicine to the complainant. The matter was not informed to the 4^th opposite party doctor because she lost faith in the doctor. The matter was described to the gynaecologist Dr.Mythreyi, the senior gynaecologist in the Archana hospital on the very next day itself. But the said gynaecologist never told any opinion about the 'effort' product to the complainant. PW3 is the mother in law of PW2. They have visited 4^th opposite party doctor 3 times at the opposite party hospital and the doctor was familiar to PW3. The “effort” powder was prescribed as a nutrient supplement. The powder was a sealed one and the seal was opened at the home in the evening. PW3 has opened the sealed cover of the 'effort' powder, PW3 herself diluted in the milk in the evening on the same day, 26.1.2006. After that the complainant started vomiting for half an hour. PW4 is the Assistant Drug Controller who examined “effort” powder in his office. PW4 deposed that on examination the label of it revealed that it is a food product from the recognized company. The batch number is also written in the packet of the product. Ext.P6 is the letter given by the PW4 to the complainant stating that it is a food product and that should be examined by a food inspector. DW1 is the pharmacist of the opposite party hospital who is the 3^rd opposite party. Ext.R1 series is the bill issued by 5^th opposite party to the 2^nd opposite party M/s Chazhikkattu Hospital for the supply of 'effort-200gm' powder manufactured by the 1^st opposite party which are 8 in numbers. No complaint was received from PW1 or PW2 to the opposite party about the product supplied by them. No investigation was done by the drug inspector or the food inspector about the product. The batch number is not written in the Ext.P1 bill but the batch number is written in the product itself. KGST number and batch numbers are written in the Ext.R1 (series) bill. The batch number was also written in the bill given by the wholesale distributor to the opposite party hospital. The batch number is GAD 05449. The 'effort' powder was purchased from 5^th opposite party, which is sold by DW1. The hospital has purchased 'effort' powder in the batch number GAD 05449 on 10.5.2006, 28.6.2006, 28.7.2006, 7.9.2006, 15.9.2006, 30.10.2006, 17.11.2006 and on 24.11.2006. There is no dealing with the 1^st opposite party by the 2^nd opposite party. The dealings of the 2^nd opposite party are with the 5^th opposite party, who is the legal wholesale distributor of the 1^st opposite party. The original bills supplied by the 5^th opposite party are produced which are Ext.R1(series). DW2 is the doctor, gynaecologist who examined the 2^nd complainant and is the 4^th opposite party. DW2 is having 23 years of experience in gynaecology as a doctor. The 2^nd complainant approached DW2 for antenatal check up and DW2 prescribed 'effort' powder to the 2^nd complainant. Never a complaint was received from the complainant or anybody else. The complainant never approached DW2 after the consumption of the powder. The vomiting can be happened if there is any taste difference in food, also if there any defect in the preparation of the milk product. The patient PW2 was having vomiting continuously in the early stage onwards. 'Effort' food product is ideal for growing children which is written in the food supplement. There was nutrien deficiency and so the powder was prescribed. The weight of PW2 was 51 which decreased to 50, so there was nutrien deficiency and so the food supplement was prescribed. DW2 is not aware whether the medicine was fake or original. The 6^th opposite party was examined as DW3. The invoice issued by the additional 7^th opposite party to the 6^th opposite party is marked as Ext.R2. The invoice issued by the 7^th opposite party to the 6^th opposite party on 14.2.2006 is marked as Ext.R3. The bill issued by 6^th opposite party to additional 5^th opposite party, Prakash Pharmaceuticals is marked as Ext.R4. The invoice for the supply for Jose Medicals is marked as Ext.R5. The invoice for the supply for Trichur Hospital Supplies is marked as Ext.R6. Another invoice issued to Trichur Hospital Supplies for 'effort' powder is marked as Ext.R7. Another invoice issued to Neethi Medicals is marked as Ext.R8 for the supply of the product. The invoice No.2182 issued to Jose Medicals is marked as Ext.R10. DW3 has purchased the disputed 'effort' powder from the 7^th opposite party and still there is transactions going on with 7^th opposite party. The invoice from the 7^th opposite party is also with DW3. The 1^st opposite party is the manufacturer of the 'effort' product and the 7^th opposite party M/s Phytochem Healthcare Pharmaceuticals is the wholesale distributor in India of the above product. DW3 is the state distributor for the same for Kerala. M/s Phytochem Healthcare supplied 500 packets of 'effort-200gm' (GAD-05449) manufactured by the 1^st opposite party vide invoice No.1911 dated 9.2.2006 and the invoice No.1951 dated 14.2.2006, Ext.R3 shows that 200 packets of 'effort' powder in batch No.GAD-05449 has been supplied and the bill is not produced. There are documents with DW3 regarding the supply of the product. C-Form for the supply of the product is also with DW3. It is also written in the office book of the 6^th opposite party. As per Ext.R4, DW3 has supplied 'effort' powder with batch No.05449 to the 5^th opposite party and the details are written in the purchase register of 5^th opposite party. The original invoices are with the distributor, 5^th opposite party. Copy of the invoice for the supply of 'effort' powder to the 5^th opposite party is also given to the Sales Tax for verification. The 1^st opposite party has supplied 'effort' powder to 7^th opposite party in Kerala. The 6^th opposite party was the only distributor of 7^th opposite party in Kerala. Now the 6^th opposite party is in direct dealing with the 1^st opposite party.

The point to be decided is that whether the disputed powder was a contaminated one and if so who is responsible for the same?
 

Whether the complainant purchased the disputed 'effort' powder from the opposite party hospital?
 

Whether the consumption of the powder caused any physical or mental harm to the complainant, if so what compensation can be granted?
 

PW1, PW2 and PW3, deposed that PW2 was under the treatment of the 4^th opposite party doctor who is a gynaecologist for the periodical antenatal check up. This was also admitted by  DW2, the doctor who examined the patient. On 25.10.2006, DW2 prescribed the disputed 'effort' powder to PW2 and it was consumed by her on the same day itself. There is no dispute about this matter. After consuming one teaspoonful of this powder, diluted with milk, PW2 became nauseated and has started vomiting. She continued vomiting for 3 times and became tired because of the same. These matters are also not disputed by anybody. The only dispute is that whether consumption of the food powder caused vomiting to PW2. As per PW1 when PW2 started vomiting, PW1 curiously examined the cover of the powder and saw that there are insects and worms inside that powder which was the reason for vomiting. The matter was reported to the Drug Inspector and also paper boy who came to their residence. The matter was reported on the 28^th October, 2006, Mathrubhumi daily. But DW2 doctor deposed vomiting can be happened with several reasons. It may caused because of difference in taste in food, can be caused because of any defect in the milk used by the patient. But PW2 was not admitted in the hospital on the very same day because there is no facility of conveyance and she was too tired to travel on that day. So she took rest at home on that day and she approached another gynaecologist on the very next day. PW2 never approached the opposite party doctor about this complaint after the incident. On the very next day when the complainant approached another gynaecologist, the gynaecologist prescribed medicine for stopping the vomiting. The complainant and his family caused sever mental pain and hardship due to the same. The complainant informed the matter to the drug inspector and the drug inspector after inspection, it is advised to produce the disputed product before the health inspector because it was a food product. But the complainant never produced this food product for chemical examination for testing the quality of the same. The same was never produced before the food inspector. As per the opposite party there is no defect in the powder supplied by them because they never received a complaint from anywhere in India and even the complainant never produced any complaint about the powder in anywhere else. As per DW1 no investigation was done by the drug inspector or the food inspector about the quality of the product, about the supply of the product. There is no evidence produced by the complainant anywhere else to show that the product consumed by them was having insects and worms. There is no chemical examination report or any expert evidence was produced by the complainant to show that the 'Effort' supplement purchased by the complainant from the opposite party hospital was not having good quality. And there is no strong evidence to show that the powder was contaminated one, insects and worms were found in that product. But the patient has started vomiting after the consumption of the powder. It was continued vomiting for 3 times after consumption of the powder, so she became very weak and took bed rest at home in the night. The matter was reported to the drug inspector and also was informed to the paper agent. So Mathrubhumi daily reported the matter and the paper was marked as Ext.P3. Mental agony caused to the complainant is not disputed by any of the opposite party. PW1 admitted that vomiting has caused because of the consumption of the medicine. She never approached any other doctor on the very same day to say that the vomiting was caused because of the consumption of this powder. Anyway, on the very next day, she met another doctor, the senior gynaecologist in Archana hospital and continued treatment there afterwards. It is only because the complainant lost her faith in the 4^th opposite party and so she never approached the 4^th opposite party again. PW3 is the mother in law of the PW2 who is familiar with 4^th opposite party doctor. There is no reasons for other enmity or any other incident, that the PW2 and her family have misjudgement with the 4^th opposite party doctor. The only reason is because the medicine prescribed by the 4^th opposite party doctor caused physical injury to PW2. For that reason they have approached another doctor on the very next day onwards. Because of non-conveyance and bad physical condition that she was not able to consult a doctor on the same day itself. The DW2  also deposed that, she is not aware whether the product was fake or not. So we think that there is no reason to disbelieve the version PW1, PW2 and PW3. The vomiting may be caused because of the consumption of the food powder prescribed by the 4^th opposite party.

The food supplement caused continuous vomiting to the patient, made very mental and physical harm to the patient and serious mental agony to the complainant and his family. The patient and her family continued serious feelings about foetus through out the night on that day. There has been nervous shock caused to PW1 because he had taken the patient for treatment to the doctor and purchased the powder. But it never affected badly to the child in womb or any other serious problem to PW2. So we think that Rs.25,000/- can be awarded for the mental agony and physical hardship suffered by PW2 and her family because of the consumption of this medicine.
 

It is admitted by DW1 that the said effort powder was purchased by them from the 5^th opposite party Prakash Pharmaceuticals who is the wholesale dealer in medicine. Ext.P1 bill is also admitted by DW1 which is the bill issued by the opposite party hospital to the complainant. Ext.R1 series are the bill issued from the 5^th opposite party to 2^nd opposite party hospital for the purchase of the disputed 'effort-200gm' powder which is having batch No.GAD-05449 which having an expiry date of May, 2007, the same was manufactured by M/s Elfin Pharma Pvt. Ltd., who is the 1^st opposite party. The Ext.R1 (series) bills shows that MO1 and MO2 were supplied by 5^th opposite party to 2^nd opposite party hospital in the same batch number and date of manufacturing. It is also admitted by DW1 that they have purchased the same from 5^th opposite party and supplied to the complainant. As per written version of the 5^th opposite party, they also admitted that the food product named 'effort-200gm' was supplied by them to 2^nd opposite party hospital, who have purchased the same from the 6^th opposite party Grace Remedies. DW3 is the proprietor of the Grace Remedies admitted that the 'effort' powder which was supplied to 5^th opposite party was by them and the batch number also admitted but the product was purchased from 7^th opposite party who is the wholesale distributor in India and 6^th opposite party is the wholesale distributor in Kerala. But the manufacturer of the medicine is Elfin Pharma and they are supplying the product to 6^th opposite party now, by directly. But there was no connection with 1^st opposite party before. So it means that the product 'effort-200gm' was manufactured by 1^st opposite party and the 7^th opposite party is the wholesale distributor of the same in all over India. The invoices and other details of 'effort' powder from 7^th opposite party, is also admitted by 6^th opposite party. The 1^st opposite party, as per written version admitted that the disputed powder was not supplied by them because they have no distributor in Kerala. But they never denied that 7^th opposite party is not a distributor of them. But the batch number of the product was not written in the complaint and the opposite party is not producing any product without batch number . But 3^rd opposite party, 2^nd opposite party, 5^th opposite party and 6^th opposite party were admitted that the same batch number of the disputed product 'effort' powder consumed by the complainant were distributed by themselves and supplied to 2^nd opposite party hospital and 6^th opposite party also purchased the same from the 7^th opposite party, 7^th opposite party is the wholesale distributor of 1^st opposite party in India.
 

So we think that the manufacturer, 1^st opposite party is responsible for any defect caused to their product. And the 7^th opposite party is the wholesale distributor in India never challenged anything about the product. So 1^st opposite party and 7^th opposite party are the manufacturer and wholesale distributor of the food product, are responsible for the defect in their product supplied in all over India. If any physical or mental injury caused in persistence of the consumption of their product, they are the only persons responsible for the same. All the others have transferred the sealed product issued by the 7^th opposite party. So the 1^st opposite party and 7^th opposite party are responsible for the negligence caused to them in manufacturing or packing of the product which caused physical or mental injury to PW2.

Hence the petition is allowed. The opposite party 1 and 7 are directed to pay Rs.25,000/- to the complainant with 9% interest from the date of this petition for the physical injury and mental hardship caused to the complainant and his family and Rs.2000/- for the cost of this petition within one month from the receipt of a copy of this order, failing which the amount shall carry 12% interest per annum from the date of default.

Pronounced in the Open Forum on this the 30^th day of January, 2010.

Sd/-

SRI. LAIJU RAMAKRISHNAN (PRESIDENT)

Sd/-

SMT. SHEELA JACOB (MEMBER)

Sd/-

SMT. BINDU SOMAN (MEMBER)

APPENDIX

Depositions :

On the side of the Complainant :

PW1 - S. Valayudhan.

PW2 - Bincy Vineeth

PW3 - Omana

PW4 - V.N.Raveendran

On the side of the Opposite party :

DW1 - Jayesh Chandran

DW2 - Dr. Meena Soman

DW3 - Biju Abraham

Exhibits :

On the side of the Complainant :

Ext.P1 - Copy of the bill for the purchase of the 'effort-200gm' powder dated 25.10.2006.

Ext.P2 - Copy of the bill for the purchase of the 'effort-200gm' powder dated 2.11.2006.

Ext.P3 - Mathrubhumi daily - newspaper dated 29^th October, 2006.

Ext.P4 - Written version with cover, sent by the opposite party.

Ext.P5 - The postal cover in which the notice of the Assistant Drug Controller received by the complainant, with official seal dated 17.11.2006.

Ext.P6 - Copy of the letter issued by the Assistant Drug Controller, dated 6.11.2006.

On the side of the Opposite party :

Ext.R1(series) - Bills issued by M/s Prakash Pharmaceuticals, Thodupuzh, towards M/s Chazhikkattu Hospitals Pvt.Ltd. (8 numbers)

Ext.R2 - Invoice No.1911, issued by M/s Phytochem Healthcare Pharmaceuticals dated 9.2.2006, to M/s Grace Remedies, Trichur.

Ext.R3 - Invoice No.1951, issued by M/s Phytochem Healthcare Pharmaceuticals dated 14.2.2006, to M/s Grace Remedies, Trichur.

Ext.R4 - The bill issued by M/s Grace Remedies, Trichur,dated 23.2.2006 to M/s Prakash Pharmaceuticals, Thodupuzha.

Ext.R5 - The bill issued by M/s Grace Remedies, Trichur, dated 28.2.2006 to M/s Jose Medicals, Viyyoor.

Ext.R6 - The bill issued by M/s Grace Remedies, Trichur, dated 4.3.2006 to Trichur Hospital Supplies, Thrissur.

Ext.R7 - The bill issued by M/s Grace Remedies, Trichur, dated 8.3.2006 to Trichur Hospital Supplies, Thrissur.

Ext.R8 - The bill issued by M/s Grace Remedies, Trichur, dated 13.3.2006 to Neethi Medical Stores, Thirur.

Ext.R9 - The bill issued by M/s Grace Remedies, Trichur, dated 20.3.2006 to Neethi Medicals, Mulankunnathukavu.

Ext.R10 - The bill issued by M/s Grace Remedies, Trichur, dated 27.3.2006 to M/s Jose Medicals, Viyyoor.