Delhi

North

CC/326/2013

HIMANSHU - Complainant(s)

Versus

SHREE BAIDYANATH AYURVED BHAWAN LTD. - Opp.Party(s)

05 Jan 2023

ORDER

Consumer Complaint No. CC/326/2013

In the matter of

1. Himanshu

S/o Sh. Kamal Kumar Sharma

R/o H. No. 77, Ward No. 10

Barh Mohalla

Old Faridabad..........Complainant

                                                                    Vs

1. Shree Baidyanath Ayurved Bhawan Ltd.

Gwalior Road Jhansi, U.P.- 284003

(Through its Managing Director)....Opposite party

 

2. Amar Chand Sharma

M/s Shyam Ayurved Store

248, Chandani Chowk

•  

Through its Proprietor....Opposite party

                                               

ORDER

05.01.2023
 

Ms. Harpreet Kaur Charya, Member

          This complaint has been filed under Section 12, of the Consumer Protection Act of 1986, by Sh. Himanshu, the Complainant, against                Sh. Baidyanath Ayurved Bhawan Ltd., the manufacturer OP-1 and Sh. Amar Chand Sharma, proprietor of M/s Shyam Ayurved Store, the seller as OP-2 with the allegations of deficiency in services and sale of adulterous product.

          Briefly stated the facts of the present complaint are, that on 12.03.2013, the Complainant purchased a bottle of “Badam Rogan” 100 ml vide Cash memo No. 112, Book No. 1 for Rs. 285/- from OP-2. It has been stated that though, the said bottle was sealed but it was infested with insects, thus, making it unfit for human consumption. It has been alleged by the Complainant that had the Complainant consumed the Badam Rogan, it could have proved to be fatal to him and his family. Immediately, OP-2 was informed, but the grievance of the Complainant was not addressed on the pretext that they were not the manufacturer and it was OP-1, who was solely liable for any negligence, act/ omission and consequences. Even OP-1 was contacted telephonically but of no avail.

          The Complainant has stated that the act/ conduct of OPs amounts to deficiency in service and unfair trade practice and violation of provisions of Food Safety and Standard Act, 2006, Food and Adulteration Act, Drugs and Cosmetics Act, 1940 and Rules 1945.

          The Complainant has further stated that the loss which might have been caused to the Complainant in the event he would have consumed the product manufactured by OP-1 cannot be computed. Legal Notice dated 15.04.2013 was issued to OPs which was replied by OP-1. The Complainant has also submitted that initially a consumer complaint bearing CC No.294/2013, was filed before Consumer Disputes Redressal Forum, Faridabad which was dismissed vide order dated 08.08.2013 on the ground of jurisdiction.

          The Complainant has prayed for directions to Opposite Parties to pay    Rs.4,00,000/- jointly and severly as compensation on account of mental and physical pain, harassment, deficiency in services and unfair trade practices; future interest @ 24% per annum on the amount awarded till actual realisation; OP-2 to refund Rs. 285/- being the cost of the bottle of Badam Rogan and      Rs. 200/- towards the court fees and Rs. 55,000/- as cost of litigation.

          The Complainant has annexed the copy of the invoice issued by OP-1 as Annexure-A, Legal notice dated 15.04.2013 as Annexure-B, with the complaint.

          Notice of the present complaint was issued to OP-1 and OP-2.

          Written Statement was filed on behalf of OP-1, where they have taken several pleas in their defence such as; the complaint was devoid of merits, the Complainant has suppressed material fact, Complainant was not a consumer; the Complainant had failed to place any material on record to substantiate that the product allegedly purchased by him was manufactured by them; complaint was filed beyond the period of limitation.

 It was submitted that the products manufactured by them passed through stringent quality control and confirms to all prescribed standards of manufacturing and packaging as per relevant laws. The products are manufactured on fully automated machines and are free from human touch. The product sold by OP-1 are duly sealed through standardised packaging equipment and there was no possibility of a sealed bottle containing anything.

          They further submitted that when the Complainant had purchased the product the cap of bottle might have been opened or tampered with, as if the cap was tampered because of the loosening of the cap by the Complainant. Further, they have also denied that any complaint was ever made to them and that OP-2 was their authorised dealer. Rest of the contents of the complaint have been denied with the prayer for dismissal of the complaint with heavy cost.

          OP-2 has also filed their written statement. They have stated that they are the authorised seller of the products manufactured by OP-1 and are neither engaged directly or indirectly in the production/ manufacturing of the alleged bottle of Badan Rogan. If there was any manufacturing or quality defect in the product it was the sole liability of OP-1, the manufacturer. It was admitted that the OP-1 is the manufacturer of Ayurvedic medicines.

          They have further submitted that there was no deficiency of services in their part and prayed for dismissal of the complaint qua them and deletion of their name from the memo of the parties.

          Initially, Complainant had filed evidence by way of Affidavit on 17.04.2014 but vide order dated 27.02.2015, the Complainant was given opportunity to file additional Affidavit. The Complainant has repeated the contents of his complaint and has got exhibited the copy of invoice as Ex.CW-1/A, copy of legal notice, postal receipts and reply as Ex.CW-1/B (colly). The Complainant has also relied on the images of the bottle of Badam Rogan to show that the seal was not tampered and has got them exhibited as Ex.CW-1/C (colly). It has also been stated by the Complainant in his Affidavit that due to security reason as far as the original bottle in dispute is concerned he would get it exhibited as Ex.CW-1/D (OSR)

          During the proceedings an application was filed by Complainant seeking directions to seal the original bottle and sending the same to Forensic Science Laboratory for expert opinion.

 

          Evidence by way of Affidavit was filed on behalf of OP-1 where they have got examined Sh. Yogendra Pal Sharman, General Manager and Authorised Representative, of Sh. Baidyanath Ayurved Bhawan Pvt. Ltd. They have got exhibited the general power of Attorney as RW-1/1. They have stated that it was totally wrong and false to state that a cockroach was found inside the bottle manufactured by them. One of the possibilities might have been that it was a spurious product. It was only the Complainant who had made a complaint amongst the thousands of customers. They have also reiterated the contents of their written statement. Reply dated 15.05.2013 to the legal notice issued by Complainant has also been relied upon.

          We have perused the material placed on record as none has appeared on behalf of the parties to argue.

          The present complaint has been filed with the allegations that the product manufactured by OP-1 was infested with insects thus making it unfit for consumption. It is important to go through the relevant ordersheet dated 3/12/2013:

Present :      Complainant in person

The complainant has produced bottle No. M.L.A.1800/89 Batch No.1, P/D  01/12, Exp.12/14.  The seal is intact. Bottle is returned for prejudication.  The seal intact.  Issue notice to the OPs for 7-1-14.  Notice be given to the complainant for sending through speed post.

 

As per order dated 27.05.2016 which is being reproduced as under:-

          Present: Counsels for the parties.

          The matter could not be resolved.

Counsel for Complainant seeks time to get the bottle involved in the case for inspection on the laboratory for which he will move an application. Put up on 26.08.2016 for F.P.

          On subsequent dates i.e. 26.08.2016, 03.10.2016, 09.01.2017, 22.03.2017, 31.03.2017 the Complainant did not take appropriate steps for sending the bottle of “Badam Rogan” to laboratory for expert opinion, and further as per order sheet dated 17/04/2017

17.04.17

          Present:       Raj Jaiswal, Counsel for complainant.

                             Ms. Babita, Counsel for OP.

The previous order sheet demonstrate that the complainant directed to get the bottle in question inspected from authorized laboratory through which Counsel for complainant declined. Put for W. Subs if any on 31.05.2017.

It is seen that the complainant has declined to get the bottle of Badam Rogan inspected from the authorise laboratory despite, the fact that it was in his possession and even as per order dated 03.12.2013, the bottle was returned for production. Since, the Complainant did not produce the bottle, this bench did not have opportunity to verify whether it was the same bottle in dispute. Even from the photographs which have been exhibited as Ex.CW-1/C (colly) the details such as M.L.A. No., batch no. date of production and expiry date are not visible.

As the Complainant chose not to produce the bottle in dispute, an adverse inference is to be drawn against the Complainant. Hence, the Complainant has failed to prove his allegations against OP-1 and OP-2.

 In the facts and circumstances, this complaint is being dismissed as devoid of merit without orders to cost.

Office is directed to supply the copy of this order to the parties as per rules.  Order be uploaded on the website also. 

Thereafter, file be consigned to the record room.