IN THE COURT OF THE LD. DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT S I L I G U R I.

CONSUMER CASE NO. : 102/S/2015.                              DATED : 17.10.2017.   

BEFORE  PRESIDENT              : SMT. KRISHNA PODDAR,

                                                              President, D.C.D.R.F., Siliguri.

                      MEMBER                : SMT. PRATITI BHATTACHARYYA.

COMPLAINANT             : MD. SHAJAHAN ALI,

  S/O Late Abdur Rouf,

  Vill. Shomari, P.O. Dhongara,

  P.S.- Chanchal, Dist.- Malda.     

O.Ps.              1.                       : Siliguri Regional Division Drugs Control Office,

   P.O.- Subhaspalli, Dist.- Darjeeling. 

   Ph-0353-2424145/2435345.

                                    2.                     : DARJEELING DISTRICT DRUGS CONTROL OFFICE,

  47 (Old 39) R. N. Sinha Road, Naspati Building,

  P.O. & Dist. – Darjeeling.

                                    3.                     : MEDIMART,  

  (A unit of Kanchanjanga Medi Pharma Pvt. Ltd.),

  CHEMIST & DRUGGIST,

  Kachari Road, Opp. Siliguri District Hospital,

  Nivedita Market Road, P.O. – Siliguri,

  Dist.- Darjeeling, Pin- 734 401.

FOR THE COMPLAINANT         : Sri Santanu Chakraborty, Advocate.

J U D G E M E N T

Smt. Krishna Poddar, Ld. President.

Consumer Case No.102/S/2015

Brief facts of the complaint case are that on 14.09.2015 the complainant purchased a medicine named as “Gluconorm PG 2” (a strip of 15 tablets) being Batch No. LQ15009, Manufactured date April, 2015, Expiry date March, 17 from the medicine shop of OP No.3 Medimart against which the OP No.3 had taken a sum of Rs.263.00 as the price of the medicine and issued a computerised cash memo to the complainant.  It appears from the strip that the maximum retail price of 15 tablets was Rs.175.00 inclusive of all taxes.  The complainant then asked the OP No.3 to take back the medicine but the OP No.3 refused to receive the medicine and said that once sold the medicine cannot be taken back and behaved roughly with the complainant. 

On enquiry the complainant came to know that the medicine shop of OP No.3 is under Drug License No.-DL DJ6767S & DJ6768SB, CIN-U24233WB 2012 PTC 184337.  The OP No.1 & 2 are the controlling authority of the medicine shop of the OP No.3 and they issued license and as such they are duty bound to see whether OP No.3 is following the norms and regulations of the license but the OP Nos.1 & 2 are found negligent on their part and OP No.3 has indulged into unfair trade practice.  Accordingly, the complainant has filed the instant case against the OPs before this Redressal Forum for proper relief. 

The OP Nos.1, 2 & 3 entered appearance and contested the case by filing two separate written versions.  It has been contended by OP Nos.1 & 2 that they are not necessary parties in the present case and they had no knowledge or relation with the alleged offence and as such the instant case is liable to be dismissed against the OP Nos.1 & 2. 

The OP No.3 has filed a separate written version wherein the material averments made in the complaint is denied and it has been contended inter alia that the instant case is not maintainable.  It has been admitted by the OP No.3 that on 14.09.2015 the complainant purchased a medicine namely “Gluconorm PG 2” (a strip of 15 tablets) bearing Batch No.-LQ15009 Vide Bill No.A44874 dated 14.09.2015 from the shop of the OP No.3.  It has been further stated by the OP No.3 that the said medicine “Gluconorm PG 2” manufactured by Lupine Company some strips come of 10 (ten) tablets and some strips come of 15 (fifteen) tablets.  In the computer system of the OP No.3 previously packing of said medicine was entered as 10 (ten) tablets for each strip but before the aforesaid cash memo being No.A-44874 dated 14.09.2015 first issued to the customer/complainant the concerned computer staff of the OP No.3 erroneously, inadvertently and unintentionally made some mistakes and consequently out of said unintentional mistake of the computer operator the MRP of the said medicine was shown as Rs.262.50 instead of Rs.175.00 only and

Contd......P/2

-:2:-

the said operator did not change the packing parameter to 15 (fifteen) tablets from 10 (ten) tablets for the said medicine of concerned Batch No.LQ15009 and said mistake was unintentionally done by the computer operator and it was nothing but a human error and due to aforesaid mistake on the part of the computer operator of the OP No.3 a wrong cash memo was printed and initially was handed over to the customer i.e., the complainant but when the said mistake was brought to the knowledge of the cashier of the OP No.3, he immediately corrected the said mistake and handed over to the complainant a new and corrected cash memo bearing same bill no. i.e., A44874 dated 14.09.2015 amounting to Rs.175.00 only for 15 tables and accordingly received Rs.175.00 only for said strip of 15 tablets given to the complainant and as such no excess money was collected from the complainant by the OP No.3, but on delivery of the said medicine by the OP No.3 to the complainant and after making the payment by the complainant of actual price of Rs.175.00 for the said strip of 15 tablets the complainant intentionally refused to return the initially wrongly issued cash memo and left the place or in other words escaped from the shop of the OP No.3 immediately without giving any scope to the OP No.3 to recover the said wrongly issued cash memo from him, as because at that particular time there were many other customers waiting in the queue to purchase medicine.  It has been further contended by the OP No.3 that the complainant is not entitled to seek any relief under Consumer Protection Act, 1986 as the complainant has filed this case with malafide intention only to achieve his legal gain by harassing and blackmailing the OP No.3 and accordingly, the instant case is liable to be dismissed.                   

To prove the case, the complainant has filed the following document:-

1.       Xerox copy of the money receipt of the medicine shop dated 14/09/2015.

          Complainant has filed evidence in-chief.

Complainant has filed written notes of argument.

OP Nos.1 & 2 have filed evidence in-chief as 3 witnesses as OP W1 to OP W3 respectively.

          OP No.3 has filed evidence in-chief.

OP Nos.1, 2 & 3 have filed Written Notes of Argument.

Points for determination

1.       Is there any deficiency in service/unfair trade practice on the part of the OPs ?

2.       Is the complainant entitled to get any relief as prayed for ?

Contd......P/3

-:3:-

Decision with reason

          Both issues are taken up together for the brevity and convenience of discussion.

It is admitted fact that on 14.09.2015 complainant purchased a medicine named as Gluconorm PG 2 (a strip of 15 tablets), bearing batch No.LQ15009 from the medicine shop of OP No.3 and OP No.3 issued a computerised cash memo to the complainant showing M.R. P of the said medicine as Rs.263.00.  It is also not disputed that the maximum retail price of the said medicine of 15 tablets was Rs.175.00 inclusive of all taxes (in this regard the complainant has submitted the disputed medicine i.e., Gluconorm PG2 containing 15 tablets in the strip and in the body of the said strip the maximum retail price has been written as Rs.175.00 inclusive of all taxes).

This is the case of the complainant that the OP has taken an excess amount than the actual price of the medicine and as such he requested the OP No.3 to take back the medicine but OP No.3 refused and said once sold the medicine cannot be taken back and behaved roughly with the complainant. 

In this regard, the complainant has submitted the original cash memo in respect of the medicine in question i.e., Gluconorm PG 2 (a strip of 15 tablets) issued by the OP No.3 wherefrom it appears that OP No.3 has taken the price of the said medicine as Rs.263.00 whereas the price shown on the body of the strip was Rs.175.00.  It is clear from the cash memo and the strip of the tablets that OP No.3 had taken an excess amount of Rs.88.00 from the complainant.  The OP No.3 claims that said medicine Gluconorm PG 2 manufactured by Lupine Company, some strips come of 10 tablets and some strips come of 15 tablets and in the computer system of the OP No.3 previously packing of said medicine was entered as 10 (ten) tablets for each strip and before the issue of aforesaid cash memo being No.A-44874 dated 14.09.2015 to the complainant the concerned computer operator staff of the OP No.3 erroneously, inadvertently and unintentionally made some mistake and consequently out of the said mistake and error he entered the MRP of the said medicine as Rs.262.50 instead of Rs.175.00 only and he did not change the packing parameter to 15 (fifteen) tablets from 10 (ten) tablets for the said medicine of concerned batch no.LQ15009 and it was nothing but a human error and due to aforesaid unintentional mistake of the computer operator a wrong cash memo was printed and initially handed over to the customer/complainant.  If we consider such submission of OP No.3 and hold that the computer operator did not change the packing parameter of the disputed medicine to 15 (fifteen) tablets from 10 (ten) tablets of concerned batch No.LQ15009 then obviously the price of 10(ten) tablets

Contd......P/4

-:4:-

Must be lesser than Rs.175.00 which was the price of 15 (fifteen) tablets as appears in the strip, but here we find that OP No.3 has taken a sum of Rs.263.00 from the complainant, so it cannot be held by any stretch of imagination that due to unintentional and bonafide mistake of the computer operator staff of OP No.3 the MRP of the said medicine was shown Rs.262.50 instead of Rs.175.00 in the disputed cash memo being No.A-44874 dated 14.09.2015.

It has been further stated by the OP No.3 that when said wrongly printed cash memo was handed over to the complainant and the complainant raised his objection regarding the said error in the cash memo and brought the matter to the knowledge of the cashier of the OP No.3 instantly, the cashier realiging the said mistake immediately corrected the said mistake in the aforesaid cash memo and handed over to the complainant a new and corrected cash memo bearing said bill no. A-44874 dated 14.09.2015 amounting to Rs.175.00 only for 15 (fifteen) tablets and accordingly received the payment of Rs.175.00 only for said 15 (fifteen) tablets given to the complainant and as such no excess money was collected from the complainant by the OP No.3.  It has been further stated by the OP No.3 that on delivery of the said medicine, and after making the payment by the complainant of the actual price of Rs.175.00 only for said strip of 15 (fifteen) tablets the complainant intentionally refused to return the initial wrongly issued cash memo and left the place and subsequently the complainant has falsely and malafidely instituted the present case before this Forum only to achieve his illegal gain.  In support of his contention the OP No.3 has cited evidence of three witnesses i.e., Uttam Saha, Pradip Kumar Paul and Biswajit Roy as OP W1, OP W2 and OP W3 respectively, but OP No.3 did not take any initiative to examine the computer operator and the cashier who could enlighten this Forum about the actual state of affairs.  OP No.3 also failed to disclose the name of the computer operator and the cashier in this case.  On perusal of the evidence of OP W Nos.1, 2 & 3 we find that they are tutored witness.  The OP No.3 tried to make out a story that as soon as the complainant raised objection in respect of taking the excess amount and the error in the cash memo the cashier of the OP No.3 issued a new cash memo of same bill no. of Rs.175.00 only for 15 (fifteen) tablets and received the payment of Rs.175.00 for said strip of 15 (fifteen) tablets from the complainant and no excess amount was taken from the complainant.  But it is the complainant who tactfully managed to keep the initially wrongly issued cash memo in his possession and subsequently with malafide intention has filed this case by using that cash memo against the OP only to achieve his illegal gain, but this cock and bull story of the OP No.3 is not at all believable as the same is far away from the truth.  There is no hesitation to hold

Contd......P/5

-:5:-

that the OP No.3 has sold the medicine Gluconorm PG 2 of 15 (fifteen) of a strip of 15 tablets to the complainant and issued a computer generated cash memo of Rs.263.00 to the complainant though it appears that the MRP of the said 15 (fifteen) tablets was Rs.175.00 and the OP No.3 has taken an excess amount of Rs.88.00 from the complainant for his illegal gain and in this manner the OP No.3 has indulged into unfair trade practice in violation of the Rules of Drugs and Cosmetic Act, 1940. 

OP Nos.1 & 2 are the licensing authority.  OP Nos.1 & 2 have stated in their examination-in-chief that after receiving summons from this Forum they sent a show cause notice to the OP No.3 on 28.12.2015 and asked him to appear for a personal hearing before the Assistant Director and LA, Darjeeling District Drugs Control Office on 05.01.2016 and on 05.01.2016 the personal hearing was heard by the Assistant Director of Drugs Control, District Drugs Control Office, Darjeeling and order was passed for suspension of drug license of the OP No.3 M/s Madimart for 3 days from the date of said order dated 06.01.2016 as per the rules.  But three days suspension of drug license is not enough the OP Nos.1 & 2 being the licensing authority are required to keep their vigil eyes over the issues so that this type of illegal and unfair trade practice should not recur in future.    

Considering the facts and circumstances of the case as well as evidence cited on the side of the parties, this Forum is of the view that the complainant has able to prove his case by adducing sufficient cogent evidence.  Accordingly, the OP No.2 is directed to refund the price of the medicine of Rs.262.00 to the complainant and he is further directed to pay compensation of Rs.10,000/- and a litigation cost of Rs.3000/- to the complainant.

Thus, the Issue Nos.1 & 2 are disposed of in favour of the complainant. 

In the result, the case succeeds on contest in part.

Hence, it is

                           O R D E R E D

that the Consumer Case No.102/S/2015 is allowed on contest in part against the OP No.3 with cost and the case is dismissed against the OP Nos.1 & 2 but without cost, since no relief was sought for against the OP Nos.1 & 2.

          The OP No.3 is directed to pay to the complainant a sum of Rs.262.00 by issuing an account payee cheque in the name of the complainant towards refund the price of the medicine within 45 days of this order.

The OP No.3 is further directed to pay to the complainant a sum of Rs.10,000/- by issuing an account payee cheque in the name of the complainant towards compensation within 45 days of this order.

The OP No.3 is further directed to pay to the complainant a sum of Rs.3,000/- by issuing an account payee cheque in the name of the complainant towards litigation cost within 45 days of this order.

Failing which the amount will carry interest @ 9% per annum on the awarded sum of Rs.10,262/- from the date of this order till full realization. 

In case of default, the complainant is at liberty to execute this order through this Forum as per law. 

Let copies of this judgment be supplied to the parties free of cost.