By Sri. Chandran Alachery, Member:

The complaint filed under section 12 of the Consumer Protection Act for an order directing the Opposite Parties to pay Rs.50,000/- as compensation for the mental agony and financial loss sustained to the Complainant due to the negligence act of Opposite Parties.

2. Complaint in brief:- The Complainant went to the 1^st Opposite party's hospital with his child aged 3 years for treatment of child suffering from fever on 15.05.2013. The Complainant's child was consulted by Dr. Ani Thomas and the doctor after examination prescribed medicine. The Doctor prescribed the medicine 'DOLO'. The Complainant approached the hospital's own medical shop and the hospital medical shop pharmacist gave biomol forte instead of dolo without the knowledge of the Complainant. The Complainant's wife gave some medicine to the child and when trying to close the bottle, the Complainant's wife found some black spot inside the cap and the colour change to the medicine. The Complainant's wife telephoned to the Complainant and informed the matter. The Complainant when reached the house also found the some defect. The child when applied the medicine showed some discomfort. So the complaint on the same day night took the medicine and went to the 1^st Opposite Party's hospital and consulted the doctor. The doctor examined the medicine and informed the Complainant that the medicine is damaged . The other bottle of the same batch kept in the hospital is also damaged. Then the doctor prescribed medicine and directed the Complainant to purchase it from outside. The batch number of Biomol Forte given to the Complainant is BNF 1217 MOV.14. The Complainant contacted the sales representative of the Biomol Forte medicine in Mobile No.9961147770 and the sales representative informed the Complainant that the same batch medicine have complaints. The 1^st Opposite party gave the medicine to the Complainant by knowing well that it is damaged one and substituted the prescribed medicine without the knowledge of the Complainant. Thereby, the Complainant and his wife and child had severe mental agony and sufferings. Aggrieved by this, the complaint is filed

3. On receipt of complaint, notices were issued to Opposite Parties and Opposite parties appeared before the Forum and filed version. In the version of 1^st Opposite party, the 1^st Opposite party denied all material allegation in the complaint. The 1^st Opposite party submitted that the hospital pharmacy is having a valid drug license and proper bills are being issued to customers with necessary particulars of the medicine sold. The medicine sold is not damaged and normally when a bottle of the medicine syrup is opened, there will be some concentration inside the cap. There is no unfair trade practice from the part of 1^st Opposite party. In the version of 2^nd Opposite Party, the 2^nd Opposite party admitted that the 2^nd Opposite Party distributed Biomol Forte having batch No.1217 to the 1^st Opposite party's hospital. The same batch of medicine is supplied all over Kerala and there was no room for any complaint what so ever from any of the customers. The medicines are supplied by 4^th Opposite party are distributed by this 2^nd Opposite party in the same form and conditions to the customers and there was no damage or defect to the bottles or medicines containing Biomol Forte when the same was supplied to the 1^st Opposite Party's hospital. The Complainant has not taken any effective steps to prove that the drug is defective or substandard . There is no deficiency of service from the part of 2^nd Opposite Party. In the version of 3^rd and 4^th Opposite Parties, it is contended that the allegation that the medicine is contaminated and not having the required standard is utter falsehood. There is no deficiency of service from the part of 3^rd and 4^th Opposite parties.

4. On perusal of complaint, version and documents, the Forum raised the following points for considerations.

1. Whether there is deficiency of service from the part of Opposite parties?

2. Relief and cost.

5. Point No.1:- The Complainant filed proof affidavit and is examined as PW1 and documents are marked as Exts.A1 to A5 and MO1 is also marked. The 1^st Opposite party's witness is examined as OPW1. The 2^nd and 4^th Opposite Parties witness is examined as OPW2 and Ext.B1 is marked. Ext.A1 is the Bill issued by the 1^st Opposite party to the Complainant on 15.05.2013. Ext.A4 is the reply given by the Drug Inspector, Wayanad to the Complainant. Ext.A5(2) is the Inspection Report of Drug Inspector. In the report, it is stated that the inspection conducted at 1^st Opposite party's Hospital, colour change (black colour) obsered in Biomol Forte (paracetamol oral suspension) 60 ml batch No.BMF 1217. So instructed to stop the supply of Biomol Forte and return the stock to supplier. Ext.A5(4) is the test analysis report by Government Analyst in a sample taken from My precious pharma, Rice Bazar, Trissur. In the report, it is stated that the sample referred above is of standard quality as defined in the drugs and Cosmetics Act 1940. The case of Complainant is that the doctor prescribed Dolo to the child. But the 1^st Opposite party's pharmacist gave Biomol Forte without the knowledge of doctor and the Complainant. In Ext.A3 document, it is seen that “Syp Paracetamol)” is prescribed. The Complainant did not produce any document to show that the doctor prescribed 'Dolo' to the child. But the OPW1 doctor who prescribed medicine to the child deposed before the Forum that she prescribed 'Dolo' to the child and when 'Dolo' is not available in the hospital, with her permission the pharmacist gave Biomol Forte to the Complainant. In the cross examination, the OPW1 doctor deposed that on 15.05.2013, she did not prescribe Biomol Forte to the child. On that day, she prescribed only 'Dolo' to all children came with fever. The doctor again deposed that on 15.05.2013 at night, she examined the bottle brought by the Complainant and found that black spots inside the bottle. The witness of PW2 who is the Drug Inspector of Wayanad deposed before the Forum that he had inspected the bottle brought by the Complainant and found black spots inside the bottle. On examination of documents and evidences, the Forum found that there is no analysis report showing that the 'Biomol Forte' sold by the 1^st Opposite party is damaged. OPW1 doctor deposed that when the pharmacist telephoned to her and informed that 'Dolo' is not in stock, she asked the pharmacist to give Biomol Forte. Here it is pertinent to note that the Doctor prescribed 'Dolo'. The pharmacist gave Biomol Forte. Regarding the consent of doctor to give Biomol Forte, absolutely there is no recordical evidence produced by 1^st Opposite party. The OPW1 doctor who is working under 1^st Opposite Party is an interested witness of 1^st Opposite party according to the Forum. She will never speak anything against the 1^st Opposite Party. On analysing the entire evidences, the Forum is of the view that giving 'Biomol Forte' instead of 'Dolo' by the pharmacist of 1^st Opposite Party without the knowledge of Complainant is a deficiency of service and unfair trade practice from the part of 1^st Opposite party. Whether the Biomol Forte medicine is damaged or not, substituting a prescribed medicine with another medicine by the pharmacist is a deficiency of service from the part of 1^st Opposite Party. Point No.1 is found accordingly.

6. Point No.2- Since point No.1 is found in favour of Complainant, the Complainant is entitled to get cost and compensation.

In the result, the complaint is partly allowed and the 1^st Opposite Party is directed to pay Rs.5,000/- (Rupees Five thousand) only as compensation for the mental agony sustained to the Complainant and the 1^st Opposite Party is also directed to pay Rs.3,000/- (Rupees Three thousand) only as cost of the proceedings. The 1^st Opposite Party shall comply the order within 30 days from the date of receipt of this order failing which the Complainant is entitled to get 12% interest for the whole sum.

Dictated to the Confidential Assistant, transcribed by him and corrected by me and Pronounced in the Open Forum on this the 8^th day of October 2015.

Date of Filing:20.05.2013.

PRESIDENT :Sd/-

MEMBER :Sd/-

MEMBER :Sd/-

/True Copy/

PRESIDENT, CDRF, WAYANAD.

APPENDIX.

Witness for the complainant:

PW1. T.K. Manojan. Complainant.

PW2. Noufal. C.V. Drug Inspector, Meenangadi.

Witness for the Opposite Parties:

OPW1. Dr. Sr. Annie Thomas. Pediatrician, St. Joseph's Hospital,

Mananthavady.

OPW2. Ajmal. Competent Person, Resort Medicals, Kalpetta.

Exhibits for the complainant:

A1. Bill. dt:15.05.2013.

A2. Card. dt:15.05.2013.

A3. Prescription.

A4. Letter. dt:18.06.2013.

A5(1) Letter. dt:05.06.2014.

A5(2) Inspection Report. dt:18.05.2013.

A5(3) Copy of Letter. dt:18.05.2013.

A5(4) Copy of Certificate. dt:30.10.2013.

A5(5) Copy of Laboratory Protocol.

MO1. Medicine.

Exhibits for the opposite Parties.

B1(1) Bill. dt:14.03.2013.

B1(2) Bill. dt:15.03.2013.

B1(3) Bill. dt:14.03.2013.