Complainant present in person
Advocate S.K. Sharma for the Opponent
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Per Shri. V. P. Utpat, Hon’ble President-
:- JUDGMENT :-
Dated 16/02/2013
This complaint is filed by the aggrieved patient u/s 12 of the Consumer Protection Act, 1986 against the Chemist who has supplied him wrong drugs. Brief facts are as follows-
[1] The complainant is senior citizen of 72 years old residing at Kolhapur. He was suffering from urine infection. Hence, he took medical treatment from Dr. S. S. Bapat at Pune. In the year 1985 he was operated by Dr. S. S. Bapat for Kidney stone. In the year 2008 again he visited Dr. S. S. Bapat for the treatment for Prostate enlargement. He was operated by Dr. S. S. Bapat again and Dr. S. S. Bapat prescribed him a drug named as DUTAS. The shop of the Opponent is adjacent to the clinic of Dr. S. S. Bapat. The complainant has presented the prescription and demanded 120 tablets. But there was no sufficient stock in the shop of the opponent and hence opponent supplied him 49 tablets on 16/4/2010 for Rs. 1009/-. Thereafter the complainant has purchased remaining 71 tablets at Kolhapur from different chemist. The said tablets were consumed by the complainant for about 130 days continuously. But the pain and sufferings as well as urinary problems which were experienced by the complainant remained as it is. On the contrary some more problems have been started on 26/08/2010. At that time it was disclosed that the medicine which was supplied by the opponent was totally different than which was prescribed by Dr. S. S. Bapat. It was disclosed that the opponent has supplied the drug DICARIS in place of DUTAS. Due to consumption of wrong drug the health of the complainant was deteriorated. There was whole body burning, vomiting, temperature, loss of weight, appetite and sleeplessness. He had suffered due to consumption of wrong drug for the period of three months. He took medical treatment from other doctors for recovery.
He had claimed compensation of Rs.10,00,000/- as opponent has supplied different medicine and there was deficiency in service as well as defect in goods. He had claimed compensation on various grounds such as mental agony, loss of physical health and monetary loss.
[2] Opponent appeared and resisted the complaint by filing the written statement. According to the opponent the drug was supplied to the complainant was as per the prescription. The Opponent has admitted that he had sold out 49 DICARIS tablets to the complainant as per the prescription of Dr. S. S. Bapat on 16/04/2010. The complainant had also purchased 60 tablets of DUTAS on the same day as per the prescription given by Dr. S. S. Bapat. It is also contended by the opponent that the complainant had continued the same drug by purchasing the same from the chemist of Kolhapur. It is not disputed by the opponent that the drug DICARIS and DUTAS are scheduled H medicine and it can be sold only on presentation of prescription of registered medical practitioner. It is further contended that there is instruction given on the reverse side of the bill that patient should consult the Doctor before using the medicine. Eventhough the complainant is highly qualified he did not take care of the said instruction. There was no fault of the opponent. Opponent has prayed for dismissal of the complaint and also asked compensatory costs of Rs.50,000/-.
[3] The complainant has filed affidavit in support of his complaint and also produced voluminous documents along with list.
[4] Opponent has also filed affidavit and produced cash memo dated 16/04/2010 disclosing that he has sold drug DUTAS to the complainant as well as reply to the notice.
[5] After considering the documentary evidence on record as well as affidavits of both parties following points arise for my determination –
POINTS FINDINGS
1. Whether the complainant has
Proved that there was deficiency
in service due to wrong supply of
Drugs ? Affirmative
2. Whether the complainant is entitled
for compensation and what would be
the quantum ? As per final order.
3. What order ? Complaint is partly allowed
REASONS-
[6] Admitted facts in this proceeding are that the complainant has presented prescription before the opponent on 16/04/2010 and opponent has sold out 49 tablets of DICARIS for Rs.1009/-. This contention is supported by the prescription and bill which are produced by the complainant along with list at Sr.1 and 2. It is the case of the opponent that on the same day the complainant has presented prescription given by the same doctor as regards drug DUTAS and he sold out the same drug on 16/04/2010. The sale-memo is produced by the complainant along with list dated 5/4/2011 vide annexure 1. It is significant to note that the bill of DICARIS is having Sr.No. CA 499 and as per the contents that bill was prepared on 16/04/2010 at about 17.50 min. The bill which is produced by the opponent disclosing memo CA 496 dated 16/04/2010 at about 17.44 min. That means just 5 minutes before disputed bill was prepared. It is the case of the opponent that the complainant had presented two prescriptions one is for DUTAS and another for DICARIS. But it is very difficult to accept this contention as in ordinary course it is not necessary to doctor to give two separate prescriptions to the same patient twice at the same time for different drugs. Moreover it is not explained by the opponent as to why two separate bills were prepared on the same day within fraction of five minutes for the same patient. Hence it appears that the opponent has prepared the bill CA 496 afterthought for the sake of defence. Then it is crystal clear that the opponent has wrongly supplied drug DICARIS in place of DUTAS.
[7] According to the complainant he has suffered from the side effects due to consumption of DICARIS which was wrongly supplied by the opponent. In order to support this contention the complainant has placed reliance upon the information which is collected from the internet as regards side effect for consumption of DICARIS which is produced at page no. 43. It reveals from the say that if the said drug is consumed the patient has caused side effect such as nausea, vomiting, stomach pain, loss of appetite, diarrhea, mouth sores, change in test or smell, fatigue or muscle aches, headaches, rash and itching and serious side effects such as flu symptoms such as fever, chills, weakness or sore throat, allergic reaction symptoms, such as rashes, itching, hives, swelling, infection, extreme fatigue, memory loss, weakness etc.
[8] It is the case of the complainant that he had consumed the said drug continuously for 130 days. Initially he had purchased tablets from the opponent and subsequently he had purchased the same tablets from another chemist at Kolhapur. It is significant to note that opponent cannot be blamed for the tablets which were purchased by the complainant from the chemist at Kolhapur. According to the complainant due to continuous consumption of the said tablets his health was deteriorated and at Chennai he was hospitalized and operated. Complainant has produced voluminous documents as regards his medical treatment which was taken at Chennai. It reveals from the same that he was operated at Chennai for bypass surgery. But he has not produced any authentic expert opinion to show that his health was so deteriorated due to consumption of DICARIS alone as it is not in dispute that the patient was previously operated by Dr. S. S. Bapat for other purposes and he had other ailments since prior to consumption of DICARIS. It is also significant to note that after facing serious side effects due to consumption for DICARIS the complainant should have been approached Dr. S. S. Bapat or any other medical officer and obtained opinion as regards the side effects. On the contrary he continuously consumed the same drug for 130 days. In such circumstances it cannot be said that due to consumption of DICARIS alone his health was deteriorated and he was hospitalized and compelled to spend huge medical expenses.
[9] Even though it is not proved with cogent and reliable evidence that, due to consumption of DICARIS alone, the complainant has sustained huge monetary loss. It has come on record that the opponent has supplied wrong drug to the complainant. According to the opponent the instructions are given on the reverse of the cash memo that purchaser has to consult with his doctor by showing the medicines which were purchased. Complainant did not take precaution by showing the same drug to his doctor then there is negligence on the part of the complainant alone. But this argument cannot be accepted on the ground that it is presumed that the chemist is qualified and has obtained license for selling drugs from the competent authority when he had make believe the competent authority that he is competent to sell the drugs as per the prescription. In the present proceeding it has been established that even though the prescription of DUTAS has been presented the opponent has sold out DICARIS to the complainant and on believing the knowledge of such the complainant has purchased the same drug at Kolhapur from other chemist. No doubt the complainant has not produced expert opinion to establish that he was hospitalized and spent huge expenses only due to consumption of wrong drug DICARIS which is supplied by the opponent. The opponent cannot be exonerated from liability. Definitely any person can suffer who has consumed wrong drug which has side effect as shown in the material which is provided by the complainant. As such I held that the opponent is negligent of providing deficiency in service and supply of defective goods.
[10] The learned Advocate for the opponent argued before me that the complainant has not proved that he had suffered due to wrong supply of drug hence he is not entitled for any relief. In that context he has placed his reliance upon the judgment of Hon. Harayana State Consumer Disputes Redressal Commission, Chandigarh reported in Consumer Protection Judgments III (1993) CPJ page 1398 in case of R. K. Chadha v/s. Dr. A. K. Gupta. In that judgment it has been observed that the complainant has sought relief on hypothetical ground and asked compensation for death due to wrong treatment. The facts and circumstances of both proceedings are totally different and the ratio in that ruling is not helpful to adjudicate the dispute between the parties
The learned Advocate for the opponent also place reliance upon ruling of Hon. National Consumer Disputes Redressal Commission, New Delhi reported in I (1993) CPJ 45 (NC) in case of Anup Kumar @ Kailash Sharma v/s. S. M. Kanwar & Ors. As per the facts of the said ruling the complainant had purchased syrup from the opponent which was contaminated. Opponent did not stop sale of the same as consumption of the contents of other bottle was likely to cause disease as her daughter fell victim to other diseases after consumption of the contaminated syrup. In that ruling it has been observed that there was no evidence to show that the child was suffering due to direct consequence of the defective syrup. In that proceeding there was no supply of wrong drug. But in the present proceeding it has been established that the opponent has supplied wrong drug and it is also admitted at bar by the opponent that the drug DUTAS is corresponding to urine infection. Dr. S. S. Bapat is an Urologist. The drug which was supplied to the complainant i.e. DICARIS is not related with urine infection. If any drug which is not relating with treatment of any disease definitely that would cause side effect to the person who has consumed the same. The facts of the present proceeding are totally different from the ruling which is sited by the learned Advocate for the opponent. Hence this ruling is also not helpful to adjudicate the dispute between the parties.
The next ruling on which the learned Advocate for the opponent has placed reliance upon is of Hon. National Consumer Disputes Redressal Commission, New Delhi reported in II (1995) CPJ 234 (NC) in case of Ramji Lal v/s. M/s. Sarvodaya Medical. The said ruling is relating to the negligence by the doctor and the present proceeding is relating to the negligence by the chemist. Hence this ruling is not applicable in the present proceeding.
The last ruling on which the learned Advocate for the opponent has placed reliance upon is unreported Judgment of Hon. Tamilnadu State Consumer Disputes Redressal Commission, Chennai in case of Jayashanthi v/s. Dr. Geetha Haripriya. The said proceeding is relating to the defective treating given by the doctor and not between the patient and the chemist. It is not the case of the complainant in that proceeding that he has suffered due to wrong supply of the drug. Hence I held that this ruling is also not applicable in the present proceeding.
In the light of the above discussion I held that the complainant is entitled for the compensation.
[11] The complainant has claimed compensation of Rs.10,00,000/- in absence of evidence of expert. I have already observed the expenses which were incurred by the complainant for the medical treatment can not be considered for awarding compensation as claimed by him which is exorbitant. In may opinion the complainant is entitled for compensation of Rs.5,000/- by way of physical and economical loss which he has sustained. He is also entitled for Rs.3,000/- for sufferings, pains and mental agony. He is also entitled for Rs.2,000/- by way of costs of this proceeding. In all the complainant is entitled to get Rs.10,000/-. I answer points accordingly and pass the following order-
:- ORDER :-
1. The complaint is partly allowed.
2. It is hereby declared that the opponent has caused deficiency in service and also supply of defective goods.
3. The complainant is entitled to get Rs.10,000/- in lump-sum by way of compensation for physical and mental agony, economical loss and costs of the proceeding from the opponent within a period of one month from the date of receipt of copy of order.
4. If the amount is not paid or deposited within one month from the date of receipt of copy of order the complainant is entitled to get interest @ 9 % p.a. from the date of order till its realization.
Copy of order be supplied to both the parties free of cost.
Place-Pune
Date -16/02/2013
