Punjab

StateCommission

A/11/1014

Fastway Transmission Pvt. Ltd. - Complainant(s)

Versus

Santokh Singh - Opp.Party(s)

Pradeep Bedi

16 Feb 2015

ORDER

                                                               FIRST ADDITIONAL BENCH

 

STATE  CONSUMER  DISPUTES  REDRESSAL  COMMISSION,  PUNJAB

          SECTOR 37-A, DAKSHIN MARG, CHANDIGARH.

                                     

                             First Appeal No.1014 of 2011

 

                                                          Date of Institution: 01.07.2011  

                                                          Date of Decision : 16.02.2015

 

Fastway Transmission Pvt.Ltd., Lajjya Tower, Near P.F Building, Sham Nagar, Ludhiana, through its Proprietor.

 

                                                                                                                            …..Appellant/Opposite Party No.2

         

                                      Versus

 

1.       Santokh Singh, resident of House No.3036, Sector 71, SAS Nagar,      Mohali.

                                                                                                                             …….Respondent/Complainant           

2.       Kaushal Enterprises, Sant Ishar Singh Nagar Flats, Ludhiana,    Logistic Partner of M/s Best Tele Shopping India

 

                                                                                                                                  ….Respondents/OP No.1

 

         

First Appeal against order dated 03.06.2011 passed by the District Consumer Disputes Redressal Forum, SAS Nagar (Mohali).

 

Quorum:-

          Shri J. S. Klar, Presiding Judicial Member.

          Shri Vinod Kumar Gupta, Member.  

 

Present:-

 

          For the appellants            :         Sh.Munish Goel, Advocate

          For the respondent No.1  :         Sh.Somesh Gupta, Advocate

          For the respondent No.2 :          Ex-parte.

 

          . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

                 

J. S. KLAR, PRESIDING JUDICIAL MEMBER:-

                            

           The appellant (the OP No.2 in the complaint) has directed this appeal against respondent No.1 of this appeal (the complainant and respondent no.2 of this appeal being OP no.2 in the complaint) challenging the order dated 03.06.2011 of District Consumer Disputes Redressal Forum SAS Nagar (Mohali) accepting the complaint of complainant Santokh Singh and directing the appellant to pay compensation of Rs.25,000/- to the complainant for mental harassment and to stop issuing such advertisements in future before verifying the antecedents and credentials of the same besides directing the OPs to pay Rs.3,000/- as cost of litigation. The instant appeal has been preferred by the OP now appellant against the same.

2.      The complainant Santokh Singh has filed this complaint U/s 12 of the Consumer Protection Act, 1986 (in short, "the Act") against the OPs on the allegations that the advertisement of DIABO 100 Capsules was repeatedly telecast on TV Channels 'Josh Ka Tadka' and 'F/W Fastway' by the Best Tele Shopping, showing numerous benefits of the medicine. That advertisement was shown on these channels continuously without any statutory warning thereto.  That complainant being a diabetic patient applied for the above-referred DIABO 100 Capsules for curing his diabetes by contacting OP No.1 on mobile phone no.9478338449 by representative of OP No.1, who repeatedly assured the complainant regarding the benefits of DIABO 100 Capsule for treating diabetes and assured 100% care therefrom. The first package of 100 Capsules was received by the complainant from OP No.1, vide bill no.435 dated 4th January 2010 against the price of Rs.1390/- including delivery charges.  The complainant started using these capsules as per instructions for five weeks and he was asked not to take other medicines by the OPs. After five weeks period therefrom, the complainant also got delivery of another 100 Capsules, vide bill No. 616 dated 22.02.2010 for price of Rs.1390/- from OP No.1. That the complainant faced some diabetic complications despite using these DIABO 100 Capsules. The glycemic level of the complainant rose to 356 against the normal value of 70-110 mg and his post pradial sugar level was 439 against normal value of 110-160 mg. The complainant contacted OP No.1 on the above-referred mobile phone, but it went unattended. The complainant also served a legal notice upon OP No.1 in this regard but to no effect. That OP No.2 repeatedly telecast the advertisement of benefits of DIABO 100 Capsule in curing the diabetes without any statutory warning thereto.  The complainant, has, thus filed this complaint against the OPs directing to refund the price of Rs.2780/- paid by him besides penalty of Rs.75,000/- for deficiency in service against the OPs.

3.      Upon notice, OP No.1 /Kaushal Enterprises filed written reply through Jatin Sharma raising preliminary objections that the complaint is not maintainable against the OP No.1. That OP No.1 is not is not having any concern with the firm M/s Kaushal Enterprises nor he has been doing any such business of sale of the medicines. He disclaimed his concern with OP No.1 in any manner. He denied rest of the averments in the complaint by challenging his concern with OP No.1 and hence, prayed for dismissal of the present complaint against him.

4.      OP No.2 has filed its separate written reply raising preliminary objections that complaint is not maintainable. That there is no deficiency in service or unfair trade practice on the part of OP No.2. That the instant complaint has been filed on the basis of false and baseless facts. It was also alleged that correct facts are that as and when any advertisement of any kind is aired on any TV Channel, the same is aired telecast under the standard statutory warnings/advice of disclaimer guidelines, which are only meant for viewer's interest. It averred that the allegations of the complainant are baseless. It further pleaded that complaint of the complainant is without any cause of action. On merits, it was averred that telecast of above advertisements by OP no.2 is matter of record but it controverted the other averments in the complaint and thus, prayed for dismissal of the present complaint.

5.      The complainant tendered in evidence affidavit Ex.CW-1/1 of Santokh Singh complainant, original bill No.435 dated 04.01.2010 Ex.C-2, test reports Ex.C-3 to Ex.C-17, legal notice dated 02.04.2010 sent to OP No.1 Ex.C-18, the envelope of returned legal notice Ex.C-18/1, legal notice dated 15.05.2010 sent to OP No.2 Ex.C-19, postal receipt Ex.C-19/1, reply to legal notice sent by OP No.2 dated 1.6.2010 Ex.C-20, photographs of the advertisement made by OP No.2  on the video media taken by complainant through mobile Ex.C-21/1 to Ex.C-21/4, report of Command Hospital dated 12.5.2010 Ex.C-22, certificate of medical expenses issued by the Government Medical College and Hospital Sector 32, Chandigarh Ex.C-23 As against it, OPs tendered in evidence affidavit of Jatin Sharma Ex.RW-1/1 and affidavit of Rakesh Kumar Ex.RW-2/1 of Op no.2. On conclusion of evidence and arguments, the District Forum, Mohali accepted the complaint of the complainant by virtue of order dated 03.06.2011 under challenge in this case. Dissatisfied with the order of the District Forum, OP No.2 now appellant has preferred this instant appeal against the same.

6.      We have heard Ld.Counsel for the parties as respondent no.1 exparte in this appeal.

7.      The submission of counsel for the appellant is that there is no laboratory test regarding fake nature of the capsules and hence the complaint is untenable. It was further submitted by OP No.2 now appellant that the order of the District Forum is unsustainable directing the destruction of the DIABO 100 Capsule and to stop its manufacturing and to issue the corrected advertisement therefrom and to pay Rs.25,000/- as compensation to the complainant. Evidence is required to be adverted to on the record by us to determine this controversy in this appeal. Affidavit of Santokh Singh, complainant Ex.CW-1/1 is on the record. This affidavit is verbatim statement of the complainant and his version of the complainant on oath before the District Forum.  Ex.C-1 is bill dated 04.01.2010 , vide which the complainant purchased the DIABO 100 Capsule from OP No.1 for total price of Rs.1390/-. Ex.C-2 is bill dated 22.2.2010, vide which the complainant purchased the another DIABO 100 Capsule for Rs. 1390/-, Ex.C-3 to Ex.C-6 are ECHS Poly Clinic, Chandimandir, recording the blood sugar level of the complainant. From perusal of the above laboratory reports Ex.C-3 to Ex.C-6, we find that blood sugar level of the complainant was not alarming on the above document Ex.C-6. Ex.C-7 is laboratory report of SAS Nagar, Mohali dated 15.3.2010. After taking these DIABO 100 Capsules vide, which glycemic level of the complainant  suddenly rose to 356 for fasting blood sugar and 439 for post prandial sugar. The level of the sugar of the complainant became alarming after taking these DIABO 100 Capsules. Even from the reports of the laboratory Ex.C-7 to Ex.C-15, we find that earlier the blood sugar level of the complainant was not alarming. It is a pointed to this fact that these were fake capsules and they were marketed by OP No.1 without any laboratory test or authenticity thereof just to play with the health of the patients. Ex.C-18 legal notice was issued to OP by the complainant  and Ex.C-18/1 is registered cover. Ex.C-19 is postal receipt. Ex.C-20 is reply to legal notice. Ex.C-21/1 to Ex.C-21/4 photographs of the DIABO 100 Capsules for price of Rs.1290/-. Sh.Jatin Sharma filed affidavit Ex.RW-1/1, vide which, he claimed that he has not concern with OP No.1 whatsoever. Sh.Rakesh Kumar of OP No.2 now appellant has filed affidavit Ex.RW-2/1 on the record that they telecast the advertisements with statutory warnings but here in this case, no such statutory warnings is established on the record, which was issued at the time of the telecasting this advertisement by this OP.

8.      In view of our above discussion, we have come to this conclusion that fake advertisement was issued through the instrumentality of OP  No.2 by OP No.1 regarding efficacy of this capsules, which were not tested in any laboratory for human consumption. There is no report of any laboratory as proved by the OPs that they were fit for diabetic patient. Consequently, it is case where by means of fake medicines, the lives of diabetic patients were put in jeopardy and even pancrea of the diabetic patient could be further damaged by means of these sub-standard and fake medicines. Thereby, causing incalculable damage thereto, which would be almost irreversible , we have , thus, come to this conclusion that findings of the District Forum to this effect is sustained in this appeal that fake capsules for diabetes were telecast to play with the lives of people. That complainant purchased fake medicines, which were not fit for diabetic patients and advertisement regarding purchase of the medicines was issued through agency of OP No.2. OP No.2 has not issued any statutory warning to educate the people about it. Consequently, the District Forum awarded the compensation for Rs.25,000/- against the OP No.2 now appellant to the complainant and cost of litigation of Rs.3000/-. The District Forum also directed the OP No.1 to refund the price of Rs.2780/- for purchase of these fake medicines by the complainant from OP No.1 and OP No.1 was further imposed the compensation of Rs.25,000/- payable by it to the complainant. The District Forum also issued direction to stop the advertisements of these fake medicines and to issue corrective advertisements on the channel by OP No.2 now appellant to neutralize the effect of misleading of public. The dispute is with regard to the award of compensation of Rs.1,50,000/- for unidentified class of patients. This order of the District Forum cannot be sustained in the appeal. Instead this order is substituted in this appeal by directing that OP No.1 shall deposit the amount of Rs.30,000/- in the Consumer Legal Aid Fund of District Forum, SAS Nagar (Mohali). With this modification in this part of the order of the District Forum as discussed above, there is no other ground to interfere with the order of the District Forum under appeal in this case.

9.      As a result of our above discussion, the order of the District Forum is modified in this appeal to this extent that OP No.1 would deposit Rs.30,000/- in the District Forum in Legal Aid Fund instead of deposit of the amount of Rs.1,50,000/- to be paid to the unidentified customers, whereas, rest of the order of the District Forum is affirmed in this appeal and appeal is dismissed except the modification therein in the order of the District Forum, as referred to above.

10.    The appellant had deposited an amount of Rs.14000/- at the time of filing the appeal. This amount with interest, if any, accrued thereon be refunded by the registry to the complainant along with interest which accrued thereon by way of crossed cheque/demand draft after  45 days from receipt of copy of this order. Rest of the amount be deposited in the District Forum concerned within 45 days from the receipt of certified copy of the order by the OPs.

11.     Arguments in this appeal were heard on 13.02.2015 and the order was reserved. Now the order be communicated to the parties.

12.    The appeal could not be decided within the statutory period due to heavy pendency of court cases.

 

                                                                          (J. S. KLAR)

                                                             PRESIDING JUDICIAL MEMBER

                       

                                                                   (VINOD KUMAR GUPTA)

                                                                          MEMBER

February, 16    2015.                                                               

(ravi)