Orissa

Jajapur

CC/17/2016

Mrs.Smrutirekha Nayak - Complainant(s)

Versus

The Himalaya Drug Company. - Opp.Party(s)

31 May 2017

ORDER

                IN THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, JAJPUR.

                                                        Present:      1.Shri Jiban ballav Das , President

                                                                            2.Sri Pitabas Mohanty, Member,

                                                                            3.Miss Smita Ray,Lady Member.                            

                                                    Dated the  31st day of May,2017.

                                                             C.C.Case No.17 of 2016

Mrs. Smrutirekha Nayak   W/O Bibhu Prasad Prusty

Vill.-  Ambasouri  ,P.O. Balichandrapur ,

Dist.-Jajpur.

                                                                                                                       ……....Complainant .                                                                      

                   (Versus)

1.The Himalaya Drug Company ,Makali, Bangalore .

2.Arogya Ayurvedic Store, Ambasouri, Balichandrapur, Jajpur.

3.Director,Directorate of Ayush Dept.of Health & Family  Welfare Heads of Building

  3^rd floor(Annex) Unit-5,Bhubaneswar.

4.The Director, Indian System of Medicine & Homeopathy, Ayurveda Bhawan B-26,SDA Complex ,Kasumpti, Shimla ,Himachal Pradesh, India.

5.Secretary,Ministry of Ayush ,Ayush Bhawan, B-Block ,GPO-Complex, New Delhi.

6.Director General, Central Drug Standard Control Organization Director General of

Health Services, Ministry of Health & Family Welfare, Govt, of India, FDA Bhawan, ITO

Kotia Road, New Delhi.

7.Director General ,Bureau of Indian Standards, Nanaka Bhawan,9-Bahadur Shah Jafar

Marg, New Delhi.

                                                                                                                            ……………..Opp.Parties. 

                

For the Complainant:                         Sri Ananta Devadarshi.

For the OPP.Party : 1                         Sri P.K.Ray, Sri S.K.Routrary, P.K. Sahoo, P.Nayak, Advocates.

For the Opp.Party:2                           Sri Adwaitananda Prusty .

For the Opp.Party :3                          Dr.Gaurav Giri,(Basudev  Bahinipati)

For the Opp.Party:4                           Self        

For the Opp.Party :5                          Sri A.K.Panigrahi,Advocate.

For the Opp.Party :6                          None.

For the Opp.Party :7                         M/S Sangram Keshari Biswal, M/S B.K. Biswal, Advocates.         

 

                                                                                                     

                                                                                                            Date of order:  31.05.2017. 

SHRI JIBAN BALLAV DAS , PRESIDENT.                                       

            This is a peculiar complaint  filed by the petitioner alleging deficiency of service/ unfair trade practices.

            The brief facts of the petitioner’s case is that she is a married lady aged about 28 years and from her early ages,  she was using natural Neem & Haldi paste to keep her face clean and pimple free which was in vogue in her area in the Dist of Jajpur. In the year 2015 she came to know from the Internet about Himalaya Herbal Purifying Neem face wash,  also prevent pimples effectively for which she  purchased the said paste from a local store through  her husband which was in Ayurbedic medicine as declared by O.P.no.1 in its level. On 25^th  August 2015 in order to get relief from sweat,  she applied  Himalaya Face wash on upper part of her body and kept about 20 minutes for common infection . After one hour she felt severe itching on upper parts  which also continued for 2/3 days ,so she was cautioned to use the same as she was pregnant at that time. Subsequently she alleged that due to application of this harmful contains there was loss of fluid from  her body , coupled with premature delivery on 30^th August-2015. She alleged that the doctors discovered that due to use of Himalaya face wash containing Methylchloroisothiazolinone, Methylisothiazolinone, phenoxyethanol vide para-8 of the petition,  she suffered pre-matured delivery and also other infection. It is in her allegation that the O.P.no.1 in order to attract the consumers for sale of face wash containing three toxic chemicals advertised in  the internet . There was  harmful chemicals in the face wash. Thus after suffering pre matured delivery of a abnormal baby with  low weight , the petitioner ‘s husband sent a letter to the manufacturer of the Himalaya Herbal purifying Neem Face wash on 23^rd September-2015 making allegation of  serious  health problems on the persons Vide Annexture-6. The reply was sent on 6^th October-2015 vide Annexture-7. It is contended that the O.P.no.1 admitted regarding the presence of Toxic chemicals Hemalaya Herbal Neem face wash .

            The petitioner’s  main allegation is that the O.p.no.1 cheated the innocent consumers openly by false and mis-leading advertisement and also stated in her petition that the O.P.no.1 ,3,4,5,6 and 7 are also responsible for manufacture and marketing of this unsafe product putting the public health in Jeorpardy . Therefore ,the O.P.no.1 and others resorted to unfair Trade Practices by misleading advertisements tempting the innocent consumers for use of Himalaya Neem Face wash which  also transpires  from  the reply of O.P.no.1 vide Annexture-3 that the company has not issued any caution on the label regarding hazards effect of the product . The Himalaya Drug Company has clearly violated the rule 169 of Drugs and Cosmetics Rule-1945  permitted by Bureau of Indian Standards for Cosmetics vide Annexture-7 . It is also clear from the reply that the company has never observed the rules and regulations prevailing in India and violated the same with impunity .

The petitioner also challenged vide para-4 of the petition is that the product is not an Ayurvedic medicine but really a cosmetic product having side effect and there was violation of permissible limit & regulation for the three chemicals  use of preparation of  face wash vide Annexture-7 and 8 .

            For the suffering undergone by the petitioner she claimed compensation of Rs.18 lakhs from O.P.no.1 and fine of Rs. 2 lakhs from  O.P.no.1 for consumer awareness of society and also prayed for cancellation of license for manufacturing of product of O.P.no.4  and take legal action as per law for violation of Section.9 & 9A Drug & Cosmetic Act 1940 & Rule 169 of Drugs & Cosmetics Rules-1945 . It is further prayed that the O.P.no.4 to effectively control this harmful product and to direct the O.P.no.6 to be vigilant in manufacturing the  product of this harmful chemicals and to take stern measures against violation of consumer interest by selling the defective product to innocent consumers  along with the prayer to direct the O.P.no.3 to take necessary steps for effective implementation  of Drugs Act & Rules in force . Lastly the petitioner prayed O.P.no.7 be directed to take suitable action against Himalaya drug Company to safe guard the interest of the consumers.

            On the other hand O.P.no.1 entered appearance and not filed the written version. He has been set expartee vide order dt.26.04.17.

            O.P.no.2 entered appearance and filed  written  version who have sold the Himalaya Herbal Neem face wash to Mr. Bibhu Prasad Prusty  husband of Smrutirekha Nayak  who is the petitioner in this case. O.P.no.2 also admitted that after use of Himalaya face wash his wife caused premature delivery at the time of pregnant. O.P.no.2 also admitted that who have advised Bibhu Prasad Prusty husband of the petitioner contact directly to the company for their problems.

            The O.P.no.3 entered appearance and filed in its written version and stated that there was no specific allegation or role played in this case. It is contended that the O.p.no.3 that the entire allegation against the  O.P.no.1 i.e Himalaya Drug Company, Bangalore. In view of no relief or role against O.P.no.3 the case be dismissed  or the name of O.P.no.3 is deleted from the cause title of the complaint petition .

            The O.P.no.4 entered appearance and filed in its written version submitted that the O.p.no.4 granted of loan license in favour of the Himalaya Global Holdings Ltd and M/S Himalaya Drug Company Pvt. Ltd. vide letter dt.10.11.2008 on application of O.P.no.1. The Departmental Formulation Committee held on 14-15 January-2009 approved the same product  purifying Neem Face Wash with the advise to the firm to get this medicine tested from Drug Testing Laboratory

Jogindernagar, Mandi vide Anexture-1. It is also stated in the written version that the Drug Testing Laboratory Jogindenagar opened that the sample referred by the firm is of standard quality vide Annexture-11. Hence , O.P.no.4 has no  role at the relevant time with regard to the standard quality.

            The O.P.no.5 and 6 have neither appeared nor contested the case. Hence, they have been set-exparte vide order dt.26.04.17.

            The O.P.no.7 in its rejoinder inter alia  denying the maintainability of the petitioner and submitted that the BIS formulate Indian Standard in cosmetics through cosmetic sectional committee, PCD 19 Ayurvedic Medicine does not fall under its scope and Himalaya Face wash being a Ayurvedic product does not come within the purview of BIC standard.  Hence no comment. With regard vide para-6 ,O.P.no.7 submitted that Himalaya Face wash being a Ayurvedic medicine does not come within the purview of BIS. Hence, O.P.no.7 is not competent to take legal action against O.P.no.7 . Hence, O.P.no.7 having no loco-stand and it is prayed that the case against O.P.no.7 be dismissed in this case.

            On the date of hearing  we heard the arguments of the  parties and the learned counsel for the O.P no.7 at length in the matter.  Perused the pleadings and documents available on record.

On the above pleadings of the parties the points for consideration as to  whether there was unfair Trade practice by the O.Ps causing loss and suffering to the petitioner .

            The petitioner contended that the principal O.P No.1 relief against who was sought by the petitioner did not entered appearance nor contested the case in spite of notices . He was set expartee vide order dt.26.04.17. During course of arguments the petitioner produced a written argument making grave allegation against O.P.no.1 and how the O.p.no.1 be fool the Indian Consumers through  miss-leading advertisement for promotion of sale of this harmful product which  is nothing but squarely come under unfair trade practice. The petitioner also asserted the chemical use of face wash have got toxic effect which has got hazardous effect on the pregnant women, resulting in the pre-mature delivery of the petitioner . She also asserted that vide Annexture-2 the chemicals contained in Neem Face Wash without permission of Govt. of India are responsible for the damage to the complainant. The petitioner also placed reliance in a case of USA vide Annexture-3 for which the  :

“Govt. of India has ordered of caution of cancer on Tobacco packets  may be responsible for the death of cancer patient.

                        The Himalaya Drug Company in response to the letter of petitioner dt.26^th October-2015 gave reply on 5^th November-2015 vide para-2 of the letter the Himalaya Drug Company submitted that they are manufacturing the products for millions of consumers across the globe and adherse to strict guide line and refuted the allegation of the petitioner that there is no doctor’s prescription or any medical certificate to substantiate the allegation of the petitioner that the product of O.p.no.1 has caused adverse effect to the petitioner resulting in pre mature delivery. Denying  all the allegations of the petitioner the O.P no.1 stated that the product of the company toxic substances is  in violation to the Drugs and Cosmetics Act,1940. It is asserted by the Company that all the products are as per the regulations and guidelines and there was no violation of Section-9(A) of the Drugs and Cosmetics Act,1940. Denying the allegation of the petitioner with regard to BIS it is replied by the company all its products are prepared and manufactured as per the formula and indications prescribed in the traditional Ayurvedic text books which are backed by Research and Clinical Study. The Drug controller grants license to market the products after reviewing clinical  studies satisfactorily evaluating the product . It is also clarified that active ingredients in our product are Neem and Haldi and inactive ingredients in the form of preservatives which are used as per specified limitation , do not pose any health risk to any individual .

                         After careful evaluation appraisal of the company of the rival parties it is cristal clear that  the O.P no.1 against whom the petitioner sought the entire relief being the principal O.P remained absent and never contested the case. Her plea (reply to the Advocate of the complainant have been mentioned ) . As per law expartee order is to be passed in absence of the O.P basing on the substance of the allegation of the petitioner but this Forum can not close its eyes and ears and blindly accept the petitioner’s allegation which also contains latches and lacuna . In this connection we want to go reply of Himalaya Drug Company .

“With regard to point no.1 of your notice, we refute your allegation that the product has caused any side effect to your client during her pre-delivery period. The product is a rinse-off product and has no side effects. Moreover, there is no doctor’ prescription or any medical certificate to substantiate your allegation that our product has caused adverse effect to your client. The above were explained in detail to your client’s husband Mr.Bibhu Prasad Prusty vide our letter dt.6^th October-2015 . Hence, in the current notice, your contentions are totally vague and therefore unacceptable.”

                        In view of the above reply though O.p.no.1has not contested the case ,the petitioner utterly failed  to satisfy the forum that there is a direct nexus between petitioner’s use of face wash

with a pre mature delivery. In other words there is not a single scrape of paper to substantiate that by use of face wash the petitioner’s physically suffered and there was pre mature delivery and a abnormal weight child born to her . This fact has not at all been satisfactory proved by the petitioner nor  supported by  documents on record, much less to speak up scientific and medical papers.

                        No doubt now a days different companies are deceiving the innocent consumers by luring the customers through attractive advertisement both in print and electronic media. Companies are the manufacturer are also spending huge amount  to dazzle and puzzle the consumers some times  by adopting unfair means which must come under the clause unfair Trade practice.

                        But coming to the instant case we are under constraint to accept the plea of the petitioner’s that actually the petitioner suffered mentally and physically which is not based  in iota of evidence on record. So like police after investigation submitting report that facts true no clue , the petitioner may have suffered but there is no proof  that she suffered due to application of the product manufacturer /  prepared by O.P.no.1.

Order-9 Rule 6(a)  prescribes that if it is proved that the summons was duly served, the court may make an order that the suit shall be heard can exparte”.

Law is well settled exparte decree is as  effective  as a contested one, if not set aside in due process of law –AIR-1989.Orissa-260.

In view of that matter exparte order and decree being similar and as good as a contested one the same can not be lightly dealt with as both have the same  force of law.

                        As observed earlier the petitioner having been precariously and measurably failed to satisfy this Forum that she suffered pre matured delivery due to application of Himalaya Neem face wash. No cause of action is established by the petitioner to allow her prayer in order to punish the O.Ps. Therefore, in all fitness and fairness of things this is a fit case where the petitioner utterly failed to prove the  dispute for  unfair trade practice.

 Hence this order

 

                        Against this back drop we are under constraint  to accept the prayer of the petitioner which stands dismissed. No cost.

This order is pronounced in the open Forum on this the 31st day of May,2017. under my hand and seal of the Forum.