O R D E R

A. Rajesh, President.

1. The facts of the complainant’s case leading to this complaint are as follows :

The complainant’s son Tomes Anto aged 17 years underwent surgery for brain tumour on pituitary adenoma at Indo American Brain and Spine Centre, Vaikom on 04-06-2003. Then, he was referred to the Christian Medical College, Vellore for radiotherapy and had undergone the same from 14-07-2003 to 26-08-2003. Subsequently, it was noticed that he started producing growth hormone in excess and was growing taller. On 19-04-2004, the complainant along with his son consulted the 2^nd opposite party for growth hormone excess treatment. The 2^nd opposite party suggested that the growth could be brought to a stand still if Octreotide LAR 20 mg. injection was administered on a monthly basis at a cost of Rs. 58,000/-. Accordingly, the treatment was started on 30-04-2008. On 19-08-2008 the 2^nd opposite party directed to continue with the medicine, though there was no positive response. In the meantime, the complainant contacted Dr. Mathew John working in Kerala Institute of Medical Sciences, Thiruvananthapuram. At his instance, the 1^st opposite party the manufacturer of the medicine supplied the medicine at a maximum discount upto 50% amounting to Rs. 29,000/- a month. Since the medicine was ineffective, they stopped the administration of the medicine in December 2008 after having taken 8 injections by spending Rs. 3,60,008/-. The growth of his son continues and his height is now 6 feet 11 inches. If the 2^nd opposite party had recommended for discount of price of the medicine at the outset, the complainant could have saved Rs. 1,17,872/-. The complainant is entitled to get the above amount refunded. Hence this complaint.

2. Version of the 1^st opposite party :

The 1^st opposite party has only supplied medicines as per the prescription of the 2^nd opposite party. At the request of Dr. Mathew John of KIMS Hospital, the 1^st opposite party enrolled the patient with the newly launched ’Star Sadostatin Lar Cares’ designed for the benefit of aeromegaly patients. Thereafter, the 1^st opposite party supplied medicine to the patient on discount. The 1^st opposite party requests to dismiss the complaint hence.

3. Defense of the 2^nd opposite party :

The complainant’s son was subjected to stereotactic radiotherapy in 2003 at Christian Medical College, Vellore. In the interim period, he was started on cabergoline to suppress the growth hormone levels. Despite the treatment given there was persistent linear growth along with inadequate suppression of growth hormone levels. In 2008, another medicine ’Octreotide’ was started. The 2^nd opposite party had made necessary enquiries as to whether concession was available for the patient but to no avail. The cost of the medicine supplied to the complainant’s son is within the MRP rate. The complaint is only liable to be dismissed.

4. The complainant was examined as PW1 and Exts. A1 to A8 were marked on his side. Neither oral nor documentary evidence was adduced by the opposite parties. Heard the complainant who appeared in person and the counsel for the 1^st opposite party.

5. The only point that emanated for consideration is whether the complainant is entitled to get refund of the excess price of the medicine bought at different intervals from the opposite parties?

6. Admittedly, the complainant had purchased Sadostatin Lar 20mg. which was manufactured and supplied by the 1^st opposite party. He had purchased the medicine for treatment of his son Tomes Anto on the following occasions :

Serial No.	Date	Purchased from	Evidenced by	Cost of the medicine in rupees
1	30-04-2008	Christian Medical College, Vellore.	Ext. A1	58,804
2	27-05-2008	1st opposite party	Ext. A8	56,393
3	30-06-2008	“	Ext. A7	56,393
4	01-08-2008	“	Ext. A6	56,393
5	04-09-2008	“	Ext. A5	40,238
6	07-10-2008	“	Ext. A4	34,853
7	06-11-2008	“	Ext. A3	29,468
8	10-12-2008	“	Ext. A2	29,468

7. It is pertinent to note that the maximum retail price of the medicine as per Exts. A1 to A8 is Rs. 65,499/-. At the outset, the 1^st opposite party charged Rs. 58,804/- and the price has been gradually decreased to Rs. 29,468/- from 30-04-2008 to 10-12-2008 within a period of 8 months. Though the price levied by the 1^st opposite party is below the maximum retail price, the considerable variation in price of the very same medicine on different occasions amounts to unfair trade practice on the part of the 1^st opposite party. No reason is forthcoming from the 1^st opposite party as to why, they had charged an excess amount in the first place itself and consequently when they need not have as evidenced by Exts. A1 to A8. Unfair trade practice is defined in Section 2 (1)(r)(1)(ix) of the Consumer Protection Act, which reads as under :

“(r) “unfair trade practice” means a trade practice which, for the purpose of promoting the sale, use or supply of any goods or for the provision of any service, adopts any unfair method or unfair or deceptive practice including any of the following practices, namely -

(1) the practice of making any statement, whether orally or in writing or by visible representation which -

(ix) materially misleads the public concerning the price at which a product or like products or goods or services have been or are, ordinarily sold or provided, and, for this purpose, a representation as to price shall be deemed to refer to the price at which the product or goods or services has or have been sold by sellers or provided by suppliers generally in the relevant market unless it is clearly specified to be the price at which the product has been sold or services have been provided by the person by whom or on whose behalf the representation is made.”

8. The 1^st opposite party contended that they have entrolled the patient with ’Star Sadostatin Lar Cares’ designed for the benefit of aeromegaly patients and they could provide discount on actual price of the medicine. Admittedly, they have provided 50% discount on 06-11-2008 and 10-12-2008. No sustaining reason is before us as to the inconsistency and variance in price of the very same medicine at different times. Though at common parlance this would amount to a considerate action on the part of the 1^st opposite party it affronts a consumer. In the absence of any obvious evidence to the contrary, the 1^st opposite party is accountable. Since the 1^st opposite party has provided the maximum discount of 50% on the last two purchases they are only to provide 50 % discount to the complainant for all the purchases. A contract ab-initio is ad infinitum. The gesture of goodwill shown by the 1^st opposite party, though belatedly is appreciated but then before this Forum consumer gets the preference of appreciation. The 1^st opposite party is liable to refund the excess price levied from the complainant for the purchase of medicines as per Exts. A1 and A4 to A8. The statement of account is as follows :

Serial No.	Date	Exhibits	Price levied from the complainant in rupees	Price ought to have levied in rupees	Excess price levied in rupees
	30-04-2008	Ext. A1	58,804	29,468	29,336
	27-05-2008	Ext. A8	56,393	“	26,925
	30-06-2008	Ext. A7	56,393	“	26,925
	01-08-2008	Ext. A6	56,393	“	26,925
	04-09-2008	Ext. A5	40,238	“	10,770
	07-10-2008	Ext. A4	34,853	“	5,385
	06-11-2008	Ext. A3	29,468	“	Nil
	10-12-2008	Ext. A2	29,468	“	Nil

Total 1,26,266/-

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9. In short, the 1^st opposite party is liable to refund Rs. 1,26,266/- being the excess price of the above medicine supplied to the complainant having been collected. There is nothing on record or material why the 2^nd opposite party should be a party in this case. Therefore he is exonerated since.

10. In the result, we allow this complaint and direct that the 1^st opposite party shall refund Rs. 1,26,266/- (Rupees One lakh twenty six thousand two hundred and sixty six only) to the complainant for the reasons stated above.

The order shall be complied with, within a period of one month from the date of receipt of a copy of this order, failing which the above amount shall carry interest @ 12% p.a. till realisation.

Pronounced in open Forum on this the 11^th day of July 2011.