Orissa

Rayagada

CC/1/2017

P. Sudhakar Patra - Complainant(s)

Versus

M/s Tulo Medicos - Opp.Party(s)

Self

27 Jun 2018

ORDER

DISTRICT   CONSUMER  DISPUTES REDRESSAL    FORUM, RAYAGADA,

STATE:  ODISHA.

C.C. Case  No. 01 / 2017.                                            Date.    27     .     6  . 2018

P R E S E N T .

Dr. Aswini  Kumar Mohapatra,                          President.

Sri  Gadadhara Sahu,                                            Member.

Smt. Padmalaya  Mishra,                                     Member.

 

Sri P.Sudhakar Patra, S/O: Late  Laxmi Narayana Patra, At/Po:Muniguda, Near M.E. School,    Dist:Rayagada  (Odisha).                         …. Complainant.

Versus.

1.The Propritor, M/S. Tulo Medicos, Main Road, Rayagada.

2. The Manager, M/S. Sun Pharma Laboratories Ltd., Plot No. 754, Nandaka Block, Po:Ranipool,  East Sikkim- 737135.                                               .…..Opp.Parties

Counsel for the parties:                         

For the complainant: - Self.

For the O.P No.1   :- Sri S. Jagadish Kumar, Advocate, Rayagada.

For the O.P. No.2:- Sri R.K.Senapati, Advocate, Rayagada.

JUDGEMENT

          The  curx of the case is that  the above named complainant alleging deficiency in service  against  afore mentioned O.Ps for   non  refund the price of the capsules  supplied  in a  damaged condition to the complainant    for which  the complainant  sought compensation  inter alia  for redressal of the grievances raised by the complainant.

        On being noticed Sri S. Jagadish Kumar, Advocate, Rayagada appeared on behalf of the   O.P No.1 inter alia   challenged  the maintainability of the  petition before the forum. The  O.P. No. 1 argued  the  averments made in the  petition are  all false, and O.Ps  deny   each and every allegation made in the petition. The O.P No.1  taking one  & other grounds and sought to dismiss the complaint as it is not maintainable  under the C.P. Act, 1986.  The O.P No.1  prays the forum to dismiss the complaint petition  for the best interest of justice.

 

On being noticed  the learned counsel for the O.P.  2  filed written version inter alia  challenged  the maintainability of the  petition before the forum. The averments made in the  petition are  all false, and O.Ps  deny   each and every allegation made in the petition. The O.Ps taking one  & other grounds in the written version   sought to dismiss the complaint as it is not maintainable  under the C.P. Act, 1986.  The O.P No.2  prays the forum to dismiss the complaint petition  for the best interest of justice.

The O.P  No.2 appeared and defend the case.  Heard arguments from the  learned counsel for  the  O.P No.2  and from the complainant.    Perused the record, documents,  written version filed by the parties. 

This forum  examined the entire material on record  and given  a thoughtful consideration  to the  arguments  advanced  before us by  the  parties touching the points both on the facts  as well as on  law                                           

 

         FINDINGS.

Undisputedly the complainant  had purchased Clopilet A 75MG tablets   two strips along with other medicines  from the Medical store of O.P. No.1  according to the prescriptions of the doctor   copies of the Doctor’s  prescription and  invoice bill  No. R-004208  Dt.20.12.2016   of the O.P. No.1 which are in the file marked   as  Annexure-I  & 2  respectively.  But to the utter surprise the capsules supplied by him   was in a liquid condition and while unpacked the strips noticed  by the complaint  damaged the capsules  it could not be  removed from the strip safely and also not in a condition to use  ( which is produced by the complainant  before the forum in a sealed  paper cover which is   marked as Annexure-3). The complainant  immediately reported the fact to the O.P. No.1 in turn  the dealer who stated that the supply condition was like this and he can not help him.  Since the complainant was a   heart patient  the consumption of the medicine  was very much necessary  important for him. But due to such defective medicine   the O.P. No.1 having refused to replace the same  the complainant  had suffered a lot causing  mental agony  and harassment caused to him. Hence the complaint petition.

The  O.P. No.2  in their written version  para No.4  contended that   all the  requisite licenses, permits and approvals  required  to be obtained by  the relevant authorities such as Drug Controller General etc. to manufacture, sell and distribute the medicine in question  since 2002. The O.P. No.2 has never received any complaint regarding the quality of the product much less than as alleged in the present complaint. The O.P nO.2  thus denies the allegation regarding the manufacturing  defects of the medicine in question.

 

                        The  O.P. No.2  in their written version  para No.5  contended that the complainant has alleged  that it has purchased the medicine from the O.P No.1. Without  admitting the said allegation for want of knowledge. It is stated that O.P. No.1  has not purchased  the said batch of medicines from the O.P. No.2’s authorised stockiest based at the  location namely M/S. Mahaveer Pharma. It is stated that under the trade practice, the manufacturer of the medicine  supplies the medicines to their authorised stockists, who in turn  supplies  the medicine to the retail medical stores.  In case any medicine is found to be distorted or with any packaging defect, if at all, it is the duty  of the authorised stockiest and/or the medical store to immediately report is to the manufacturer so that the medicine can be  replaced.  However, in the present case, since the  O.P. NO.1  has  not  brought the medicine in question from the Authorised stockiest of the    O.P. No.2, no such complaint was received by the O.P. No.1.

 

                The  O.P. No.2  in their written version  para No.6  contended that the O.P. No.2 has sold the medicine in question to M/.S. KSR Agencies who  is an authorised stockiest.  Further,  M/S. KSR Agencies has billed the same to Ms/KASHI who is a sub stockiest based at Rayagada   & no way related to O.P. NO.2. The O.P. No.2 has never  received any such complaint from either its stockists  or sub-stockists or from the  medical store, so far.  That all medicines manufactured by the O.P. No.2  whatsoever   compromise of different formulations including different drugs which are  prone to demurrage if not kept  in the recommended storage conditions  as mentioned  on the box or label  of the medicine. The medicine in question  i.e. “Clopilet-A 15” comes with a marked storage condition on its label  to be kept at room temperature (i.e. between 15  degree Celsius  to 25  degree Celsius) away from direct heat and sunlight. Thus, if a consumer of the medicine does not  store the medicine in the prescribed storage,  the medicine is probe to damage and the O.P. No.2 can not be  held responsible.

            The  O.P. No.2  in their written version  para No.7  contended that the  responsibility of the seller/ medical store  to accumulate  the products or the medicines in the recommended  conditions  and if the same is not   complied by the medical store or the seller  the default  of the same can not be attributed to the company. If at all any medicine is found to be  in a damaged condition, it is the responsibility  of the   medical store to immediately inform the  representatives  of O.P. No.2 and not to sell the said  damaged medicine to the consumers. However, in the case at hand, no such intimation was received by the O.P. No.2.

            The  O.P. No.2  in their written version  para No.8  contended that the present petition   is also not maintainable  for concealment of facts  and want of material details. The complainant has no disclosed the batch details of the product alleged to be defective as a result of which the O.P. No.2 cannot carry further investigation at their end.

            The   O.P. No.2  in  their written version  further contended that  any prudent man while purchasing the medicine  verifies  through the label  with regard to the warning and expiry of the medicine  and also the condition   of the  medicine  as to whether the seal is broken  or not or whether is it in a proper condition or not.  It is stated that  the O.P. NO.2 is a reputed company in the pharmaceutical sector  this position has been accomplished by the company by  maintaining the quality of its manufactured product. It is  reiterated that medicines  are to be kept in the prescribed storage conditions otherwise its condition  would deteriorate  and the same will not be suitable for consumption. It is apprehended that the medicines in question was  not kept in a requisite conditions either by  O.P. NO.1 or by  the complainant   which lead to such occurrence and the present complaint is just an act of arm twisting to extort illegal  monies from O.P. No.2  for the  negligence itself committed by the complainant.

            In our considered view  human life is so delicate precious.   Disease is his enemy a single dose of medicine  of Rs. One  can save the life at the time  of need with proper diagnosis and  administration of medicine  in absence of that  one can die.  As per the advise of his physician the complainant used the aforesaid medicine    regularly for treatment of his  heart disease .  With an utmost good faith  he  brought  the medicine believing  as safe. But his  utter surprise while opening the strip the capsule  was completely melted and was not fit for human consumption, though the cost of the medicine  is very negligible but very much important  and necessary for his disease to be checked by using the medicine timely  in every  night, other  wise there is much possibility of loss of life & suffering  that can not be evaluated  in terms of money so the medicos should take proper care &   precautions  while dealing with such sensitive patents &  medicines sale on  ensuring the safety  security good condition as well as veriting   the date of expiry of that medicines unless costs a life and the complainant  ought to have suffer due to the  negligence  of O.P. No. 1  being  an proprietor of medicos had acted arbitrarily in dealing  the grievances of the complainant capriciously for which the interest of  the complaint prejudicial & got health loss &   injury, equities have been  set off between  the duos.  When a fact is to the exclusive  knowledge of a particular  person  does not  disclose it on constrain it so capriciously  so as to implement so prejudicially to  the  needy  patient  and an action  for doing what  the legitimate  has authorised  causing damage  to his customer  or depriving  from his right is to  construe that he has acted maliciously and  misused his good will detrimental  to the interest of his customer  and shall be  subjected to exemplary  compensation   to indemnify   the  damage caused as  thus   in capricious manner  is  amounting to arbitrary  & un fair trade practice  which shall be  condemned and  heavily impounded  upon. A small exemplary would go  unnoticed by a rich O.Ps which even moderate award  might  cripple a poor consumer.

            So far as the negligence is concerned, we have  already  recorded the finding that  not supplying the good capsules was due to the negligence on the part of the O.P.  So far as  awarding  punitive  damages is concerned, the forums are  required to take into consideration  the conduct of a person while doing his business. In the instant case, the medicines  supplied might  not have caused a very serious  damage to the complainant.  But   instead of  giving  good capsules if O.P. had  given  any damaged capsules, it is not known what would have been  the result, in the event  if the damaged capsules was consumed  by the complainant.

            While considering the grievances of the complainant  we rely  the decision It is held and reported  in   CPJ 2006(3)  page No.  88  where in the Karnataka State Commission observed “ Consumer  Protection Act, 1986- Sections-2(1)(g) and 14(1)(d)-Drugs and cosmetics- damaged capsules  supplied by the medical store- Negligence, deficiency in service proved –O.P. liable to pay compensation- Forum having  power not only to award  compensation for negligence but also punitive  damages.

            Therefore, taking all these facts into consideration  we hold that the O.P. No.1 is liable to  pay compensation  Rs. 500.00 in favour of the  complainant. This awarding  of compensation  in our view, should be a message to other Druggists. Hence this complaint  allowed  in part.

So  to meet the  ends of justice    the following order is passed.

                                                ORDER.

            In  resultant this forum allowed the present complaint petition in part against the O.P. No.1 and dismissed against the O.P. No.2  with a direction to guide and  oppont, stockiest, dealers and sub-dealers of their company with proper instruction  to maintain business ethics ensuring their prescribed  minimum temperature   store room suitable for keeping  medicines in safest place otherwise  warn them to cancel their dealership licence.

            The O.P. No. 1 is ordered to pay  Rs.800/- to the complainant  towards cost of the medicine interalia  compensation for mental agony and litigation expenses.

            The above direction is to be complied by the O.P. No.1  within 30 days from the date of receipt of this order.

            Copies served to the parties  free of cost.

Dictated and corrected by me.  Pronounced on this     27^th.       Day of   June,  2018.

 

Member.                                                             Member.                                                             President