BEFORE THE DISTRICT CONSUMER DISPUTES

REDRESSAL COMMISSION, JALANDHAR.

Complaint No.354 of 2018

      Date of Instt. 28.08.2018

      Date of Decision: 11.03.2022

Rawal Dass aged about 78 years son of Shri Sant Dass, resident of Sahu Da Pind, P. O. Sagran, District Hoshiarpur through Jeevan Singh son of Shri Rawal Dass @ Rawal Ram, resident of Sahu Da Pind, P. O. Sagran, District Hoshiarpur being authorized signatory authorized vide authority letter dated 09.08.2018

..........Complainant

Versus

1.       S. K. S. Pharmacy, 73, Udham Singh Nagar, Jalandhar through      its authorized signatory,

2.       Bowry Medical Centre, 73, Udham Singh Nagar, Jalandhar   through its authorized signatory.

….….. Opposite Parties

Complaint Under the Consumer Protection Act.

Before:        Dr. Harveen Bhardwaj            (President)

                   Smt. Jyotsna                           (Member)

                   Sh. Jaswant Singh Dhillon      (Member)                                         

Present:       Sh. Jatinder Sharma, Adv. Counsel for the Complainant.

                   Sh. G. K. Agnihotri, Adv. Counsel for OP No.1.

                   Sh. Vikas Sood, Adv. Counsel for OP No.2.

Order

Dr. Harveen Bhardwaj(President)

1.                The instant complaint has been filed by the complainant, wherein it is alleged that the complainant is old aged person suffering from heart disease and other ailments and is taking medical assistance from OP No.2 since last more than 4 years, thus the complainant is a consumer covered within the definition of ‘Consumer’. That on 17.07.2018 the son of the complainant namely Jeevan Singh purchased medicine from OP No.1 vide invoice No.R 6006 dated 17.07.2018 and after reaching home he gave medicine to the complainant and after taking medicine the condition of the complainant started vomiting and when the son of the complainant namely Jeevan Singh checked the medicines so purchased vide bill No.R6006 on 17.07.2018, he was surprised to see that two strips of medicine mentioned at Serial No.1 PRAZOPRES X L 2.5 Tab having batch No.BD16515 was expired on 04/2018 and OP No.1 had given said expired medicine intentionally to the son of the complainant in order to get wrongful gain. The son of the complainant Jeevan Singh telephonically informed the matter to the concerned person of OP No.1, who instead of listening to the request of the son of the complainant started making lame excuses and son of the complainant was told to check the medicine thoroughly, the son of the complainant when told the concerned person regarding the batch number of the expired medicine, then concerned person of OP No.1 assured the son of the complainant to change said medicine with a new one and son of the complainant was also told by the concerned person of OP No.1 that they will provide taxi fare to the son of the complainant also. That thereafter, the son of the complainant approached the OP No.1 by hiring a taxi for the tune of Rs.5000/- and after reaching OP No.1 handed over one strip of expired medicine to the person concerned of OP No.1, who after checking the medicine told the son of the complainant that expiry is of just three months which did not cause any adverse affect over the health of anybody and when the son of the complainant requested the person concerned to change the same with a new one, the concerned person of OP No.1 took the medicine from the son of the complainant and demanded money for new medicines. The son of the complainant was shocked to hear this, when he demanded the expired strip of medicine which was handed over by him to the concerned person of OP No.1, he refused to give the same. Feeling aggrieved, the son of the complainant apprised the matter to doctors of OP No.2, who assured the son of the complainant to look into the matter, but all in vain. That thereafter, the son of the complainant purchased new medicine from outside the hospital of OP No.2. That the OP No.2 is providing medical assistance to patients and Op No.1 having DL No.20 2807NB and DL No.21 28078B, is running its Pharmacy under OP No.2, hence OPs are related to each other, hence both the OPs are liable for unfair trade practice. Moreover, the complainant is still in possession of one strip of expired medicine of same batch number. That on account of supplying/selling expired medicines to the son of the complainant, the life of the complainant was at stake after taking said expire medicine, thus, OPs are guilty of unfair trade practice. The complainant has suffered too much mental agony and anguish due to aforesaid act of selling expired medicine and there is an unfair trade practice on the part of the OPs and as such, necessity arose to file the present complaint with the prayer that the complaint of the complainant may be accepted and OPs be directed to replace the expired medicine with a new one and further OPs  be directed to pay taxi fare/charges from Hoshiarpur to Jalandhar and from Jalandhar to Hoshiarpur to the tune of Rs.5000/- and Rs.50,000/- as compensation for causing mental tension and harassment to the complainant and Rs.15,000/- as litigation expenses.

2.                Notice of the complaint was given to the OPs and accordingly, OP No.1 appeared through its counsel and filed written reply, whereby contested the complaint by taking preliminary objections that the complainant has filed the complaint against OP No.1 intentionally and deliberately and no medical certificate is attached that the medicine was consumed by the complainant and he suffered vomiting due to that medicine. That the total tablets i.e. two strips of medicines were changed at the spot and were given which were not expired. The manufacturing company used to change the strips without cost if any medicine expires so the question of giving expired medicines and for getting wrongful gain does not arise at all. It has happened due to oversight by the employees of the answering OP No.1. That sine the medicines of two strips were replaced so the question of consuming the same. Medicine from the same strip does not arise at all. Even when the medicines were replaced as it was checked by the complainant as the date was checked by the complainant and same were replaced and the bill which is alleged by the complainant was not signed by the employee of the answering OP No.1. It is further averred that the complaint has not been filed by the competent person, hence deserved dismissal. That the complainant has filed a false complaint against the answering OP No.1 with malafide intention just to harass the answering OP No.1. On merits, the factum in regard to purchasing the medicines by the complainant from OP No.1 is admitted. It is also admitted that both the strips were replaced, but the other allegations as made in the complaint are categorically denied and lastly submitted that the complaint of the complainant is without merits, the same may be dismissed.

3.                OP No.2 filed its separate written reply and contested the complaint by taking preliminary objections that the present complaint is not maintainable against the answering OP. That the present complaint is to be dismissed as there is no cause of action against the answering OP qua the matter in question. That from the pleadings of the complaint, it is clear that the complainant is not the consumer qua the answering OP as per the allegations in the complaint. That the present complaint is not filed by competent person. The complainant has not come before this Commission with clean hands, hence the present complaint is to be dismissed. On merits, it is admitted that the answering OP is running a medical centre, but the other allegations as made in the complaint are categorically denied and lastly submitted that the complaint of the complainant is without merits, the same may be dismissed.

4.                Rejoinder not filed by the complainant.

5.                In order to prove their respective versions, both the parties produced on the file their respective evidence.

6.                We have heard the argument from learned counsel for both the parties and have also gone through the case file very minutely.

7.                It is admitted and proved case of the parties that Ex.C-2, the invoice was issued by the OP No.1. It is also admitted and proved that vide this invoice the complainant purchased seven medicines from OP No.1. The complainant has proved on record the copy of the medicine PRAZOPRES X L 2.5 Tab from the OP No.1. As per Invoice Ex.C-2, this medicine has been mentioned at Sr. No.1 having batch No.BD16515. Perusal of the copy of the medicine Ex.C-3 shows that this medicine is having same batch number as BD16515 and the date of manufacturing has been mentioned as 05/2016 and date of expiry has been mentioned 04/2018. Ex.C-4 also shows the medicine given to the complainant having batch No.BD16515 and the date of manufacturing has been mentioned as 05/2016 and date of expiry has been mentioned 04/2018. As per invoice Ex.C-2, this medicine was purchased on 17.07.2018 as per the prescription given by the doctor Chander Bowry/OP No.2.

8.                The OP No.1 in his written statement has denied that the expired medicine was given to the complainant, however he has admitted that two strips of medicines were changed at the spot and were given, which were not expired. The manufacturing company used to change strips without cost, if any medicine expired. He has admitted that this has happened due to over sight by the employees of OP No.1, meaning thereby that the OP No.1 has admitted that expired medicine was given to the complainant.

9.                The contention of the complainant is that when he took the medicine, he started vomiting and when he checked, he found that the medicine was expired. Due to expired medicine given by the OP No.1, the complainant has suffered health problem, but this contention of the complainant that he suffered health problem due to consumption of this medicine, is not tenable as nothing has been filed on record to show that he started vomiting after consuming the same. No prescription of the doctor has been filed on the record. Even the OP No.1 has stated that two strips of medicine were changed, meaning thereby that no tablet from the strip was missing, which was changed by the complainant nor this is the case of the complainant that one of the tablet was used by him and the strip was having short tablets. Thus, this fact has not been proved that he had consumed the expired tablet and he suffered health problem i.e. vomiting. Even otherwise the tablet PRAZOPRES X L 2.5 Tab is the medicine to treat high Blood Pressure and lowering the risk of having a heart attack. Though this fact has not been proved by the complainant that due to taking expired medicine, he started vomiting, but the fact remain that the expired medicine was given to the complainant, which might have serious effects on the health of the complainant had he consumed the prescribed tablets. The OP No.1 has played with the life of the complainant by supplying expired medicine. Thus there is deficiency in service and unfair trade practice on the part of the OP No.1.

10.               With regard to the responsibility of OP No.2 and deficiency in service by OP No.2, it is proved on the file by the OP No.2 that OP No.1 is the tenant of OP No.2. Rent agreement has been proved as Ex.OW2/1. Ex.OW2/2 is the account statement of OP No.2 showing that Rs.36,000/- is being deposited in the account of Sh. Chander Bowry since April, 2017. The agreement is dated 01.09.2018 and as per the agreement, the premise has been taken on rent from 01.09.2018^. This is joint tenancy i.e. Sh. Pardeep Soni and Sh. Sandeep Soni have jointly taken the premises on rent @ Rs.80,000/- per month payable Rs.40,000/- to each of the landlord i.e Dr. Anoop Bowry and Dr. Chander Bowry. The statement of account Ex.OW2/2 shows that the amount of Rs.36000/- is being deposited in the account of Sh. Chander Bowry since 12.04.2017 every month not Rs.40,000/- as alleged by Sh. Chander Bowry. No account statement of Dr. Anoorp Bowry has been filed on record. The entire statement of account nowhere shows that this amount has been deposited by any of the two tenants or by OP No.1. So, the document Ex.OW1/2 and Ex.OW2/2 are of no help to the OP No.2. This tenancy has been created after the date on 01.09.2018, whereas the expired medicines were sold on 17.07.2018 by OP No.1, who is running his chemist shop in the medical centre of OP No.2. Even otherwise as per Ex.OW2/1, OP No.1 i.e.  SKS Pharmacy is not the tenant, nor it has been mentioned in Ex.OW2/1 that the premises has been taken on rent by Sandeep Soni and Pardeep Soni being partners or proprietor of SKS Pharmacy. The rent agreement seems to have been executed afterwards just to avoid the liability.

11.              Ex.C-6 is the receipt given by taxi driver. This receipt is of Rs.2500/-, whereas the complainant in his complaint has alleged that he had paid Rs.5000/- for hiring taxi to exchange the medicine. Ex.C-2 shows that the medicine was of Rs.313/- and no certificate of doctor is there to show that the father of the complainant suffered due to taking expired medicine. Moreso, the distance from Jalandhar to Dasuya is of more than one hour of one side it is unimaginable that for Rs.313/- a person would spend Rs.5000/- when no tablet was missing for the strip. Thus, the complainant has failed to prove that he spent Rs.5000/- and he had to come from Dasuya for exchange.

12.              In the light of above detailed discussion, we are of the considered opinion that the complainant is entitled for the relief as claimed and thus, the complaint of the complainant is partly allowed. The OPs are directed to pay Rs.5000/- as compensation for causing mental tension and harassment to the complainant and Rs.3000/- as litigation expenses. The entire compliance be made within 45 days from the date of receipt of the copy of order. This complaint could not be decided within stipulated time frame due to rush of work.

13.               Copies of the order be supplied to the parties free of cost, as per Rules. File be indexed and consigned to the record room.

Dated          Jaswant Singh Dhillon      Jyotsna      Dr.Harveen Bhardwaj    11.03.2022         Member                          Member           President