IN THE CONSUMER DISPUTES REDRESSAL  COMMISSION, KOLLAM

Dated this the     11^th   Day of  February  2022

  Present: -  Sri. E.M.Muhammed Ibrahim, B.A, LL.M. President

       Smt.S.Sandhya Rani, Bsc, L.L.B,Member

      Sri.Stanly Harold, B.A.LLB, Member

                                                    CC.221/16

Rajendran.A.R                                   :         Complainant

A.R House, Kilikolloor P.O

Kollam-691004.

[By Adv.P.Shaiju Mangad]

V/s

1. The Proprietor                          :         Opposite parties

         Janatha Medicals

        Kollam District Ayurvedic Hospital

        Ashramam, Kollam.

2. The Secretary

          Bheshajam

        Kollam District Ayurvedic Oushada

        Nirmana Vyvasaya Co-operative Society Ltd.

        Mundakkal, Industrial Estate

        Kollam.

      [By Adv.P.Basanth]

FINAL   ORDER

E.M.MUHAMMED IBRAHIM , B.A, LL.M, President

          This is a case based on a complaint filed u/s 12 of the Consumer Protection Act 1986.

          The averments in the complaint in short are as follows:-

          On 04.03.14 the complainant purchased one bottle of Gandharvahastadi Kashayam of 200 ml from the 1^st opposite party.  The said Kashayam has been manufactured by the 2^nd opposite party and the bottle bears batch No.90 and date of manufacture is 10.08.2013.  After consuming medicine for a week the complainant felt unusual fatigue and other physical abnormalities.  Since the complainant was unable to understand the real cause of his fatigue and physical abnormalities and there was nothing to disbelieve the Ayurvedic medicinal preparation, the complainant continued to use the medicine further.

          Later the physical condition of the complainant became very worse and his relatives took him to SIMS Hospital, Kollam.  By that time, the body of the complainant was completely blackened, there was blurring of  vision, vomiting and he was unable to consume any food.  Various checkups were conducted at the hospital.  But they were unable to diagnose the disease.  The treating doctor had advised several tests including scanning, blood routine examination, urine routine examination, chemical examination and serology test.  The doctor asked the complainant to reveal about the food and other medicines usually consumed by the complainant.  Thereupon the complainant told about the use of Gandarvahastadi Kashayam since  the complainant was not using any other medicines.  As advised by  the doctors, Gandarvahastadi Kashayam manufactured by the 2^nd opposite party was sent to the CEPC Laboratory Technical Division on 30.08.2014.  After chemical examinations, the said laboratory had issued a test certificate dated 29.09.2014 stating that the Gandarvahastadi Kashayam is having contents of mercury and Arsenic.  The said chemicals are highly poisonous and fatal to living beings.  The complainant stopped using the use of Gandarvahastadi Kashayam  manufactured by the 2^nd opposite party by resorting to other treatments the complainant had gone to such a serious state of health by the use of Gandarvahastadi Kashayam manufactured by the 2^nd opposite party and sold by the 1^st opposite party.  The lab report is self explanatory that the medicinal preparation is highly poisonous.  The complainant had faced very serious health problem due to the use of Gandarvahastadi Kashayam and spent more than Rs.3,00,000/- for the treatment and tests.  The complainant’s life was at risk due to the consumption of the medicine prepared by the 2^nd opposite party.  The health hazard suffered by the complainant and the threat of life caused by the use of poisonous drug manufactured  by the 2^nd opposite party is very serious.  Due to the use of the said medicine the complainant was put to irreparable loss and injury which cannot be equated in terms of money.  Hence the complainant is entitled to get compensation to the tune of Rs.5,00000/- from the opposite parties apart from the amount of Rs.3,00,000/- spent by him for his treatment.  The complainant caused to sent a lawyer notice to the opposite parties.  Though the 2^nd opposite party received the notice not taken any steps to compensate the complaint.  Hence the complaint.

          Opposite party No.1 remained exparte.  2^nd opposite party resisted the complaint by filing detailed written version raising the following contentions.  The complaint is not maintainable either in law or on facts.  However the 2^nd opposite party would admit that  it is engaged in manufacturer of Ayurveda medicines.  However denied the averments that the 1^st opposite party is conducting the outlet store of the products manufactured by the 2^nd opposite party.  the 2^nd opposite party establishment Bheshajam is a well reputed and traditional institute engaged in the manufacturing  and supply of Ayurvedic medicines.  This institute  has the approval of both the Central and the State Government Departments for the manufacturing and supply of  medicines listed by the Ayush, a Department of Central government.   As per the direction of the Indian Ayurvedic Phormulari of India  governed by the Central Government each and every manufacture of medicine has to satisfy the department about the contents, quantity, ingredients etc. of each medicines intended to the supply of the same for a period of 5 years, and such listed medicines should only be manufactured and supplied.  The 2^nd opposite party had got approval for all their medicines including the medicine Gandharvahastadi Kashayam.  Besides all the medicines manufactured by the 2^nd opposite party also had gone through a quality test by a Central Government approved lab at Thrissur Kinfra Park, the one and only lab in Kerala.  This medicine had also tested there.  So all other allegations and defamatory statements stated in the complaint is denied by the 2^nd opposite party.  Gandharvahastadi Kashayam is not a regular medicine, it is prescribed for constipation or indigestion or such related problems for the use of one or two time.  So such a regulated use never make any problems to patients nor even regular use dies not create any problem as alleged in the complaint because it does not contain any Bhasmam/Choornam or such other chemical substances.  The lab test report is not reliable and the same is not an approved result.  It is misleading and unauthenticated report.  The name of the lab mentioned in the complaint is established for the quality test of exporting cashews and not for medicines.  Ayurveda is the knowledge of life and its patheyam is Naturopathy.  So if any Ayurveda medicine is used as per the prescription, every patient will get the result and will not create any side effect.  The allegation stated in the complaint felt unusual fatigue and other physical abnormalities is false, baseless, unbelievable and impossible to develop any poisonous effect in human body by use of that medicine.  If any such side effect as alleged in the complaint had seen in complainant’s body, it might not be by the use of the said medicine, but it ought to be by any other reasons.  The allegation that  in the lab test showed contents of mercury and arsenic in the kashayam is also wrong.  Under what circumstances and manner  it was sent for lab test  is seen unexplained.  The complainant is not entitled to get any damages.  The 2^nd opposite party received the notice and sent reply in time.  The complainant has no cause of action and the 2^nd opposite party further prays to dismiss the complaint with its costs.

          In view of the above pleadings the points that arise for consideration are:-

1.  Whether the complainant has purchased one bottle of 200 ML Gandharvahastadi Kashayam containing poisonous substances?
2. Whether the Gandharvahastadi Kashayam purchased from the 1^st opposite party was manufactured by the 2^nd opposite party as alleged?
3. Whether the complainant has sustained grave health problems due to the consumption of  Gandharvahastadi Kashayam as claimed in the complaint?
4. Whether there is any deficiency in service or any unfair trade practice on the part of opposite party No.1&2?
5. Whether the complainant is entitled to get relief sought for?
6. Reliefs and costs.

Evidence on the side of the complainant consists of the oral evidence of PW1 to PW4 and got marked Ext.P1 to P12 documents and MO1 empty bottle.PW4 was recalled and re-examined on 03.12.19 as per order in IA.122/19 filed by the complainant and got marked Ext.C1 series file relating to the treatment of the complainant.

Evidence on the side of the opposite party consists of the oral evidence of DW1 andExt.D1 document which has been marked subject to proof.

The counsel for the complainant and contesting 2^nd opposite party has filed notes of argument.Heard both sides.

Point No.1 to 5

For avoiding repetition of discussion of materials these 5 points are considered together.  The specific allegation against 1^st and 2^nd opposite party in the complaint and in Ext.P7 lawyer notice is  that the 2^nd opposite party has manufactured and sold defective Ayurveda medicine containing poisonous substances through 1^st opposite party outlet the consumption of which has caused grave ill health to the complainant and thereby he sustained financial loss as well as mental agony for which he seeks compensation.  Inorder to substantiate the above allegations the complainant has to prove that

1. He has purchased alleged Gandharvahastadi Kashayam manufactured by the 2^nd opposite party by paying valid consideration from the 1^st opposite party.
2. The alleged Gandharvahastadi Kashayam purchased from the 1^st opposite party was containing mercury and arsenic  in excess of the prescribed quantity which are injurious to health.
3. The complainant has consumed the Gandharvahastadi Kashayam purchased from the 1^st opposite party which resulted in grave health problems to the complainant.
4.  The complainant had undergone treatment at the hospital for the ailment caused due to the consumption of defective Ayurveduc Medical preparation manufactured by the 2^nd opposite party
5. That due to the consumption of the said Gandharvahastadi Kashayam the complainant sustained mental agony apart from financial loss.

Out of the above ingredients the first 2 ingredients are very much relevant and if those ingredients are not substantiated the  other aspects need not be considered by the Commission. The specific contention of the contesting 2^nd opposite party is that it is a well reputed manufacturer and supplier of Ayurvedic medicines having the approval of both State and Central Government Department that the 1^st opposite party is not an authorized out let of the 1^st opposite party.  The further contention of the 2^nd opposite party is that Gandharvahastadi Kashayam is an Ayurveda medicine consumed on the basis of prescription by a qualified medical practitioner.  The said kashayam is not for regular use but for a use of one or two times for constipation and indigestion and it does not contain Bhasmam/Choornam or such other chemical substances so it will not create any reaction or side effect.  The learned counsel  for the contesting 2^nd opposite party has vehemently argued that there is absolutely no evidence that any Ayurveda doctor has prescribed the said medical preparation nor there is any evidence to prove that the complainant has purchased the alleged kashayam from 1^st opposite party and consumed the said Ayurvedic medical preparation.  It is also contended that there is absolutely no connection between the kashayam consumed by the complainant and the 2^nd opposite party and that there is no chance of having any poisonous substance in the Gandharvahastadi Kashayam manufactured by the 2^nd opposite party.

It is true that the 1^st opposite party remained exparty.  There is nothing on record except the interest of testimony of the complainant and his wife to prove that  the complainant has purchased the disputed Kashayam from the 1^st opposite party  Janatha Medicals. The complainant has also no specific case that he has purchased the said Gandharvahastadi Kashayam which is an Ayurveduc Medical preparation as advised by any of the qualified Ayurvedic doctor.  He has also produced any prescription issued by any qualified Ayurveda doctor.  The complainant has not pleaded and proved for what ailment he consumed the Gandharvahastadi Kashayam.  It is further to be pointed out that the complainant has no allegation either in the complaint or in Ext.P7 lawyer notice or in the proof affidavit that he consumed the said kashayam as prescribed by any doctor as deposed by him when he was in the witness box as PW1.

Usually  when an Ayurvedic preparation is purchased from medical shop or outlet the purchaser has to pay its price and the seller medical shop or outlet used to issue receipt along with Ayurvedic medical preparation.  It is highly unfortunate to point out that the complainant has no case anywhere in the pleadings or in Ext.P7 lawyer notice or in the proof affidavit that he has paid any amount as consideration and obtained the Ayurvedic preparation from the 1^st opposite party.  Regarding payment of consideration it is brought out during cross examination that he is not remembering the quantum of amount paid for purchasing  the said Kashayam from the 1^st opposite party.  He has also not produced any bill or invoice issued by the 1^st opposite party evidencing that he purchased the alleged defective Ayurvedic Medical preparation from the 1^st opposite party.  In the circumstances it is crystal clear that evidence regarding payment of consideration is lacking in this case as the complainant has failed to produce the receipt or bill evidencing the purchase of Ayurvedic medical preparation from the 1^st opposite party. There is also no evidence to prove that the Gandharvahastadi Kashayam alleged to have been purchased from the 1^st opposite party is manufactured by the 2^nd opposite party.   In view of the non production of any bill or invoice and also in view of other facts and circumstances available on record we are inclined to hold that there is no consumer service provider relationship between the complainant and opposite parties No.1&2 to invoke the jurisdiction of this District Consumer Forum/Commission.

 It is pertinent to point out the evidence of PW1 brought out during cross examination by the learned counsel for 2^nd opposite party that…….BbpÀthZ tUmIvSÀ ]d-ª-X-\p-k-cn-¨mWv 3þmw ]mc-bn ]d-bp¶ Ijmbw Rm³ hm§n-I-gn-¨-Xv.  Sn tUmIvSÀ {]nkv{In-]vj³ X¶n-cp-¶p.  Further down PW1 would admit that he has met the doctor working at Kollam Government Ayurveda Hospital.  But he has not remembering the date of consulting the above doctor.  According to PW1 Sn tUmIvSÀ X¶ {]nkv{In-]vj³ tImS-Xn-bn lmP-cm-¡n-bn-«n-Ã.

According to the complainant he underwent a very serious health problem due to the use of  Gandharvahastadi Kashayam manufactured by the 2^nd opposite party and sold by the 1^st opposite party.  We have already found  that there is no convincing evidence such as bill etc. to prove that the complainant has purchased the said medical preparation(Kashayam) from the 1^st opposite party as alleged.  It is true that the 2^nd opposite party has admitted that they used to manufacture Gandharvahastadi Kashayam and the 1^st opposite party used to sell the Ayurveda medicine manufactured by the 2^nd opposite party though the 1^st opposite party is not an  authorized outlet of 2^nd opposite party.   However there is admittedly no documentary evidence to prove that the alleged medical preparation consumed by the complainant was from out of the medical preparation manufactured by the 2^nd opposite party.  According to PW1 out of the 200 ml Kashayam purchased from the 1^st opposite party he  consumed 15 ml  each in the morning and in evening for 3,4,5 days.  If the above evidence of PW1 is believed there is every chance of having 50 ML kashayam remaining in the bottle if the consumption on 5 days and 80 ML will be balance if the complainant consumed only for 4 days.  PW1 would admit during cross examination that Praveen Namboothiri(doctor)  _m¡n D­m-bn-cp¶ Ijmbw sSÌn\p hn«p.  AXnsâ dnt¸mÀ«v BWv P1 A¡w.  However this fact appears to be incorrect in the light of the oral evidence of PW3 who analyzed the sample of kashayam and issued Ext.P10 to P12 documents.  According to PW3 she has received Ext.P10  reference letter along with sample of 500 ml kashayam contained in a sealed bottle having label.  In this connection it is to be pointed out that PW1 and PW2 have no case that the disputed kashayam has been sold in 500 ml capacity bottle.  The definite case of the complainant and version of PW1&PW2 and Ext.P7 notice would indicate that the said kashayam is sold in 200 ml bottle.  MO1 sample bottle is also a bottle having 200 ml capacity.  In the circumstance it remains unexplained how a bottle having 500 ml capacity reached at the laboratory.    However according to PW3 what is received in the laboratory is sealed bottle containing 500 ml kashayam.  In the light of the above materials there is no guarantee that what was tested in the laboratory by PW3 and her subordinate is the sample of  Gandharvahastadi Kashayam. 

Ext.P1 is the copy and Ext.P11 is the lab copy of P1 containing the signature of the authorized signatory.  Even though it is stated in Ext.P1 as  the original test certificate it is only a photo copy of the certificate.  Any how the content of Ext.P1 and P11 are one and the same which would indicate that the type of sample and sample description analysed are “kashayam”.  The name or nature of  the kashayam or the size of the bottle or whether the bottle was in a sealed condition or not etc. are not seen stated in P1/P11 certificate. However the evidence of PW3 coupled with P11 would indicate that the bottle was having 500 ml capacity containing full of kashayam.  According to  PW3 she is a senior most scientist attached to The Cashew Export Promotion Council of India (CEPCI) which is having ISO recognition.  Apart from food items, water and medicines were being tested at the said laboratory.  She received Gandharvahastadi Kashayam from Sankar’s hospital that she tested the same in the laboratory and issued P11 certificate.  But in the said certificate it is not seen stated that the sample was Gandharvahastadi Kashayam .  But according to PW1 the condition of the sample was satisfactory.  The quantum of arsenic shown in P11 is 1.2 ml, up to 3 ml arsenic is permitted in the kashayam.  It is also brought out in evidence through witness that which type of kashayam was forwarded for analysis is neither stated in P1/P11 nor in P10 requisition/analysis.  The batch number or date of manufacture or size of the bottle or name of the Kashayam etc. are not seen stated in the reference letter/forwarding note.  PW4 who claimed to have been forwarded the Kashayam has also not deposed anything regarding the name of the kashayam or size or label of the bottle or whether the bottle was sealed or not etc. Ext.P12 is the job sheet of chemical examiner wherein also there is no mention of the name, nature of the sample or the size of the sample bottle.  The ID mark of the sample is noted  only as “kashayam” and as “Gandharvahastadi Kashayam”.  Sample number is shown as BC 28211.

It is further to be pointed out that Ext.P1, P10 to P12 document would not contain the name and description of the sample batch number, date of manufacture of the kashayam etc. Now we shall examine whether the above claim of the complainant that he caused to send the remaining Gandharvahastadi Kashayam after 3,4,5 days consumption in the very same bottle as adviced by the doctor is true and correct.  The said doctor who caused to send the sample for test is Praveen Namboothiri.  He has been examined as PW4 initially and he was examined again subsequently.  However oral evidence of PW4 would not support the above claim of PW1.   According to PW4 InUv\n-bpsS Akp-J-¯n-\mWv Rm³ tcmKnsb ]cntim[n¨-Xv.  Ext.C1 is the file containing original treatment records wherein also there is no mention that he has obtained the balance ayurvedic medical preparation kashayam from the complainant  and forwarded the same for chemical examination and obtained Ext.P1/P11result.  Ext.C1 file also would not indicate that   remaining portion of the Ayurvedic preparation(kashayam) produced by the complainant was sent for analysis.  It was also not sent  for analysis as directed by the Commission or any authority.   In the circumstances there is no guarantee that Ext.P1/P11 is the result of test or analysis of the balance of kashayam (remained in the bottle after 3,4,5 days consumption)which was purchased from 1^st opposite party and manufactured by the 2^nd opposite party.  PW1&2 have no case that they have purchased a bottle containing 500 ml Gandharvahastadi Kashayam from the shop of 1^st opposite party.  Their specific case is that the said kashayam purchased and consumed by the complainant is contained in a bottle is having 200 ml capacity and the circumstances available on record would suggest that they sent only about 50/80 ml kashayam which remained in the bottle after having consumed for 3,4,5 days by the complainant.  In the circumstances there is no  connection whatsoever regarding the sample analysed and the kashayam consumed by the complainant.

It is further to be pointed out that as per the allegations in the complaint the complainant  purchased the disputed Kashayam from the 1^st opposite party on 04.03.2014.  It is brought out in evidence during cross examination of PW1  that the kashayam was sent for chemical analysis on 30.08.2014 which is after 5 months and 26 days of consumption.  If the balance kashayam is kept there is every chance of having chemical change of the content of the bottle if it was not kept in air tight manner.  In the circumstances the result stated in Ext.P1/P11 cannot be treated  relating to the  Gandharvahastadi Kashayam manufactured by 2^nd opposite party and sold through the 1^st opposite party.

The oral evidence of DW1 would indicate that the counsel for the opposite party has argued that the opposite party has prepared not a single bottle of Gandharvahastadi Kashayam but large quantity about 60 litters are being manufactured at one time as one batch and also most all the bottles were sold also.  But  nobody except the complaint has raised the allegation that by the use of the Gandharvahastadi Kashayam manufactured by 2^nd opposite party contains poisonous substances and hence reaction has been caused.  According to the learned counsel for the opposite party no manufacturing defect can be inferred and if at all the complainant has sustained any side effect which was due to the negligent and continuous use of  any Ayurvedic preparation without the prescription of a qualified Ayurvedic doctor and no chance of causing any side effect or ill health due to the consumption of Gandharvahastadi Kashayam manufactured by the 2^nd opposite party.  In the light of the materials discussed above we find merit in the above contention of the 2^nd opposite party.

On evaluating the entire materials available on record we find no merit in the complaint and the same is only to be dismissed.   The point answered accordingly.

Point No.6

In the result complaint stands dismissed.

No costs.

Dictated to the Confidential Assistant  Smt. Deepa.S transcribed and typed by her corrected by me and pronounced in the  Open Commission this the  11^th  day of  February  2022.

E.M.Muhammed Ibrahim:Sd/-

            S.Sandhya Rani:Sd/-

           Stanly Harold: Sd/-

         Forwarded/by Order

         Senior Superintendent

INDEX  

Witnesses Examined for the Complainant:-

PW1  :         Rajendran.A.R

PW2  :         Prasannakumari

PW3  :         Prabhakumari

PW4  :         Dr.Praveen Namboothiri

Documents marked for the  complainant

Ext P1 :  Copy of test certificate dated 29.09.2014(CEPC Laboratory and Technical Division)

Ext P2:  Copy of master request for laboratory tests.

Ext.P3series :  Copy of  lab reports.

Ext.P4:   Copy of lab reports (Divya Diagnostics & Scan centre)

Ext.P5:   Copy of  test reports dated 05.09.2014(DDRC)

Ext.P6 :   Copy of test results (Desinganad MRI Scan& research Centre)

Ext.P7 :   Lawyer notice dated 31.01.15.

Ext.P8:   Unserved lawyer notice.

Ext.P9  : Reply of lawyer notice dated 02.03.15.

Ext.P10: Reference letter dated 27.08.2014.

Ext.P11: Original Test certificate dated 29.09.2014 (CEPC Laboratory&Technical Division)

Ext.P12: Job sheet of chemicals.

Witnesses Examined for the opposite party:-

DW1 :    Vijayakumar

Documents marked for opposite party:-

Ext.D1(S/P): Affidavit filed by DW1

Ext.C1 series: OP record of  Mr.Rajendran from Sankar Institute of Medical Science and Research Centre.    

E.M.Muhammed Ibrahim:Sd/-

            S.Sandhya Rani:Sd/-

           Stanly Harold: Sd/-

           Forwarded/by Order

          Senior Superintendent