Orissa

Cuttak

CC/103/2018

Reshma Behera - Complainant(s)

Versus

The New Ausadhalaya - Opp.Party(s)

Self

18 Jun 2019

ORDER

IN THE COURT OF THE DIST. CONSUMER DISPUTES REDRESSAL FORUM,CUTTACK.

C.C No.103 of 2018

 

Reshma Behera,

Res. at: Dagarpada,PO:Chandini Chowk,

PS:Lalbag,Dist:Cuttack..                                                                  … Complainant.

 

 

                Vrs.

 

1.        The New Ausadhalaya,Chemist & Druggist,

Chandini Chwok,Cuttack-2,

 

2.        The Manager,

HEGDE & HEGDE PHARMACEUTICA LLP,301,

Om Chambers,123 August Kranti Marg,

Kemps Corner,Mumbai-400036.`                                                              … Opp. Parties.

 

Present:               Sri Dhruba Charan Barik,LL.B. President.

Smt. Sarmistha Nath, Member (W).

 

Date of filing:   18.09.2018

Date of Order:  18.06.2019

 

For the complainant        :       Self

For the O.P No.1              :        Mr. P.Sinha,Adv. & Associates.

For the O.P No.2              :        Mr. P.P.Behera,Adv. & Associates.   

 

 

Sri Dhruba Charan Barik,President.

 

               The complainant having attributed deficiency in service to the O.Ps has filed this case seeking appropriate relief against the O.Ps in terms of his prayer in the complaint petition.

1. The factual matrix of the case of the complainant is that on 17.4.18 he purchased the medicine ‘D.K. gel’  prescribed by the concerned doctor of S.C.B.Medical College and Hospital,Cuttack from the medicine store named and styled as ‘New Aushadhalaya’ owned by the O.P No.1 which is situated in front of Lalbag Police Station,Chandinichowk,Cuttack.  That was a medicine for skin disease and meant for external use.  The price of the said medicine was Rs.132/- and when the complainant demanded money receipt, the O.P.1 did not give it to him.  He came to his house with the said medicine since payment had already been made.  On opening the medicine cover he noticed that its manufacturing date was 12/2016 and its expiry date was 11/2018. But more astonishingly it was found that the condition of the said medicine has already been deteriorated and water was coming from it.  It was also found completely unfit for use.  The complainant immediately rushed to the medicine store of the O.P.1 and intimated this fact to him.  It is stated that the complainant has already applied that cream on the affected portion of his body and it was found that the said part of his body got more affected.

The complainant then requested the O.P. No.1 to replace that medicine by a new and good one but the latter did not agree.There was altercation between them and O.P No.1 then took shelter of falsehood stating that the said medicine was never sold by him.In due course the place was crowded by public and having no other alternative, O.P.1 issued the medicine bill to the complainant on back date i.e. the date of purchase.Annexdure-1 is the copy of the said medicine bill dt.17.4.18 issued by O.P No.1.

The apathy shown in this case by O.P No.1 has caused serious mental agony and harassment to the complainant.Having attributed deficiency in service to the O.Ps, the complainant was constrained to file this case against them with a prayer to direct them to refund Rs.132/- towards cost of the medicine, to pay Rs.20,000/- on each count for causing frustration and mental agony to him respectively (altogether Rs.40,132/-) in the interest of justice.

2. Both the O.Ps 1 & 2 entered appearance and filed written version of their case.  Both of them have traversed the material averments on the complaint.  They have also questioned the maintainability of this case on the ground that there was no cause of action to file this case  and no material was forth coming to prove deficiency in service on their part in any manner.  Added to it, O.P No.1 has stated that he refused to exchange the medicine for the simple reason that the medicine packet was empty and the medicine was not produced before him by the complainant so as to facilitate him to send that cream to O.P No.2 for taking appropriate action.  That apart, it is stated that there was a clear warraning on the medicine bill Annexure-1 that goods once sold cannot be returned.  In absence of any incriminating material it is prayed by the O.Ps that the case is devoid of merit and may be dismissed.
3. We have heard the learned counsels from both the sides and gone through the case record.  At the outset it is just not acceptable that the said medicine was sold after its expiry date.  It is apparent on the face of the case record and admitted by the complainant himself that its manufacturing date was 12/2016 and expiry date was 11/2018.  The medicine was sold on 17.4.18 as per the medicine bill vide Annexure-1.  In that view of the matter it is held that sale of the medicine was well within the date of its expiry.
4. To substantiate his stand, the complainant has further stated that the condition of the medicine D.K. Gel has completely been deteriorated so as to make it unfit for use.  It is stated that water was coming from the said medicine.  In spite of it he applied that medicine on the affected part of his body and it got more affected.  The complainant has also demanded that the defective medicine should be replaced immediately by a new and good one but such request was not accepted by O.P No.1.  On this point O.P. No.1 in his written version has categorically stated that the complainant did not bring and produce that gel said to have been damaged for replacement by sending the same to O.P No.2 for analysis.  On this point, there is no satisfactory reply given by the complainant except taking a plea of denial.  The condition of the medicine cannot be properly assessed in absence of the prescribed mode of analysis.  When it has not been so done it cannot be held on the basis of mere oral statement of the complainant that condition of the medicine has been deteriorated.  That apart, the complainant has failed to produce the prescription of the concerned doctor before O.P No.1 despite opportunities provided to him.  There is a statutory warning as fairly submitted by the learned counsel for O.P No.1 that the medicine can be used on the advice of a registered medical practitioner which has not been done in the instant case.  It is held that there is suppression of material fact made by the complainant.
5. There is no incriminating material against O.P No.2 which is the manufacturing company of the said medicine.  From the discussions made above, it is found that the complainant has failed to satisfactorily prove that there was deficiency in service on the part of both the O.Ps 1 & 2.  Hence ordered;

                                                                                ORDER

The consumer complaint be and the same is dismissed on contest against the O.P No.1 & 2.

                Typed to dictation, corrected and pronounced by the Hon’ble President in the Open Court on this the 18^th day of June,2019  under the seal and signature of this Forum.

                                                                                                                                                  

    (   Sri D.C.Barik )

                                                                                                                    President.

                                                                                                                                           

                                                                                                                (Smt. Sarmistha Nath)

                        Member(W)