BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, PONDICHERRY

C.C.No.49/2010

Dated this the 12^th day of April 2016

P. Gopi, son of Perumal, Hindu,

PHC Quarters,

Kamban Nagar

Reddiyarpalayam

Pondicherry.

                                       ….     Complainant

Vs.

1. Vijaya, wife of Tamil Selvan

    M/s Sri Vijaya Medicals

    No.11/30, Villianur Main Road

    Nellithope, Pondicherry – 605 005.

2. Tamil Selvan

    M/s Sri Vijaya Medicals

    No.11/30, Villianur Main Road

    Nellithope, Pondicherry – 605 005.

                    ….     Opposite Parties

BEFORE:

          THIRU.A.ASOKAN, B.A., B.L.,

          PRESIDENT 

Tmt. PVR. DHANALAKSHMI, B.A., B.L.,

MEMBER

Thiru V.V. STEEPHEN, B.A., LL.B.,

MEMBER

FOR THE COMPLAINANT      :  Thiru T. Cadiravan, Advocate

FOR THE OPPOSITE PARTY   : R. Thiroumavalavan, Advocate.

O R  D  E  R

(by Thiru V.V. Steephen, Member)

This is a complaint filed by the complainant under Consumer Protection Act, 1986  to direct the Opposite Parties to pay a sum of Rs.19,50,000/- towards compensation.

2.  The case of the complainant is as follows:

          The complainant is a Phasmasist working in Government of Puducherry.  The complainant's son by name Master G. Pradeep is a mentally retarted child and is under regular treatment with PIMS Hospital, Kalapet, Pondicherry as a result of which, he is gradually getting normal and he has been admitted in a special school by name Carunai at Reddiyarpalayam, Puducherry.  On 28.07.208 the complainant's brother  P. Ramachandran has taken the said Pradeep to PIMS, Hospital for treatment and they have prescribed 1. T. ATTETIN – 25 Mg-10 Mg-0; 2. T. SERENACE – 0.5Mg – 1-1-0 and 3. T.LONAZEP – 0.5 Mg – 0-0-1.  The first Opposite Party is the owner of Sri Vijaya Medicals and second Opposite Party is the husband of first Opposite Party and both are not having valid certificate or Diploma in Pharmacy to handle the medical shop business.  The complainant's brother Ramachandran has purchased the medicines from the Opposite Party's medical shop and the complainant is a regular customer of the Opposite Party's Medical shop.  Accordingly, on 28.07.2008 by 14.30 hrs. the brother of the complainant namely P. Ramachandran approached the Opposite Party's medical shop and purchased the second item of medicines for the said prescription dated 28.07.2008.  The dosage prescribed by the Doctor for the tablets T. Serenace is 0.5 Mg. but the Opposite Party given T. Serenace 5 Mg. The tablet was given to said Pradeep and due to over dosage, he put into dangerous condition and he was taken to various hospital and finally admitted in General Hospital to save his life.  The health condition of said Pradeep got worse and still he is under treatment.  The complainant approached the opposite parties medical shop but they have not given proper reply and hence, the complainant filed a complaint before The Commissioner, Food and Drugs Department, Government of Puducherry.  The Opposite Party No.2 along with some rowdy elements threatened the complainant to withdraw the complaint, otherwise, he will finish the life of the complainant.  The Opposite Party's medical shop is not having any qualified Pharmacist and the wrong dosage was given by some unskilled and unqualified persons engaged in their medical shop.  Thus, negligent on their part is very clear and they are liable to compensate the complainant.  The complainant further stated that he incurred around Rs.1.00 lakh towards medical expenses to save the life of his son Pradeep and also sustained mental agony, hardship and unbearable pain.  Hence, this complaint. 

3.       The reply version of the opposite party No.2 and adopted by first Opposite Party is as follows:

            Apart from denying the allegations of the complainant, the opposite party stated that a customer brought a prescription with T. Serenace of 5 mg. and after providing with the same the opposite parties Pharmacist had endorsed in the aid prescription for delivery of the medicine.  Further, when there is no strength of 0.5 mg. in T. Serenace, the Doctor prescribed such a strength is within the insight and knowledge of the complainant alone and this  opposite party is not aware of the same.  The CIMS book which contains the details of the drug, the manufacturer and the chemical cominations have categorically mentioned the strength of Serenace as 0.25 mg, 1.5 mg, 5 mg, 10 mg and so on and hence, the dosage prescribed by the Doctor for the tablets T. Serenace is 0.5 mg is without basis.  The chemical component of T. Serenace is Halopredol and the Therapeutic use of the drug is Antipsychotic with calming effect.  The complaint who knows the after effect of the drug would have taken efforts to give serious treatment than routine medical treatment to a patient as admitted by the complainant himself that his son is under treatment for hyperactivity.  The complainant has not produced any documentary evidence to prove that his son was taken to various hospitals and finally to General Hospital, Pondicherry and admitted him.  The discharge slip produced by the complainant is impassive and would not prove the author of the document.   If any patient is admitted for a particular complaint, it would contain basically two things namely the analysis report of the complication reported which would prove the after effects of the over dosage of the drug and secondly, the administration of the medicine for withdrawal of the complication with the patient.  No such analysis or test report is found in the discharge slip nor treatment given to the patient for the complication as alleged by the complainant.  The advise given by the doctor according to the discharge slip is again the administration of the drug clonazepam twice a day and another drug atomoxetine HCL once a day which is anticonvulsant with calming effect, the same therapeutic use of the antipsychotic drug T. Serenace.  The complainant  alone had brought the rowdy elements to the shop of the opposite parites and threatened him to part with huge sum of money for withdrawing the complaint given before The Commissioner, Food and Drugs, Puducherry.  The opposite party's medical shop has qualified Pharmacist.  There is no negligence on the part of the opposite parties. Hence, prayed for dismissal of the complaint. 

4.       On the side of the complainant, the complainant was examined as CW1 and Exs.C1 to C5 were marked through him, the complainant's brother Ramachandiran and Dr. Anand were examined on the complainant's side as CW2 and CW3 and on the side of the Opposite Party, the second Opposite Party was examined as RW1 and Ex.R2 was marked through him and Ex.R1 was marked through CW1 during cross examination and Dr. E. Anandakrishnan was examined as RW2.

5.       Points for determination are :

          1. Whether the complainant is a consumer?

2. Whether there is any negligence attributed by the Opposite Parties?

3. To what relief the complainant is entitled for?

            6. Point No.1:

           The complainant submitted that his son G. Pradeep is a mentally disabled child and is under the continuous treatment of PIMS Hospital, Kalapet, Pondicherry.  On 28.07.2008, the complainant's brother P. Ramachandiran, took the complainant's son for treatment to PIMS hospital, Pondicherry and the doctor at PIMS prescribed some medicines to be given to the complainant's son.  The complainant further submitted that the complainant's brother went to the OP shop and purchased one of the medicine prescribed in Ex.C1, but the OP denied that complainant's brother has purchased the medicine from Opposite Partys' shop.  Since the Opposite Parties had denied the purchase of medicine by the complainant, the right to sue by the complainant as Consumer has to be decided based on the appreciation of evidence by this Forum

           7. During the Cross Examination of RW1, he has deposed as follows: "Even though as per Ex.C1, the prescription, 0.5 mg. of dosage of SERENACE not available wih us, we have not sent back the customer.  If the dosage of medicine is not available, we will refer the patient to the doctor to correct the prescription.  I have not referred the complainant to the doctor in this case to correct in the prescription Ex.C1. "  Further, the cross examination of CW1 by the Opposite Party's Counsel is reproduced as follows: "It is true that the medical shop has given me T. Serenace tablet of 5 mg. instead of 0.5 mg. as against the prescription.  As per the CIMs copy Ex.R1 produced by the Opposite Party the tablet T-Serence does not contain 0.5 mg. it is true".  On analysis of the evidence aforementioned, it is held by the Forum that the complainant undoubtedly established the fact that the medical T. Serenace prescribed in Ex.C1 was purchased from the Opposite Partys' shop.  Further, since the complainant's son is a minor and mentally disabled and the medicine purchased is for the treatment of complainant's son, the complaint filed by the complainant is maintainable and in this context, the complainant is held to be a consumer as per Sec. 2 (1) (d) (i) of Consumer Protection Act.  This point is answered accordingly.

           8. Point No.2:

           The complainant submits that the complainant's son is mentally disabled child and is under the treatment of PIMS Hospital, Kalapet, Pondicherry.  On 28.7.2008 the complainant's brother P. Ramachandiran took the complainant's son to the PIMS Hospital, Pondicherry for treatment and the doctor prescribed three medicines in Ex.C1.  1. T. Attentin 25 mg – 10 mg – 0;'  2. T. Serenace 0.5 mg. 1-1-0; and 3. T. Lonazep 05 mg.  0-0-1.  The complainant's brother purchased only one medicine prescribed in Ex.C1 i.e. T. Serenace from the Opposite Partys' shop.  The complainant submits that the prescription of medicines T. Serenace in Ex.C1 is only 0.5 mg,  but, the OP has given 5 mg. and it was given to the complainant's son and further submits that since the medicine was given to complainant's son was over dosage, he was put to dangerous condition and was taken to various hospitals and finally admitted in G.H., Pondicherry and on treatment his life was saved, but the health condition of the complainant's son was worse and is under treatment and hence, the complaint was filed against the Opposite Parties for seeking compensation for mental agony suffered by the complainant due to the negligent act of the Opposite Parties. 

           9. The Opposite Parties filed reply version denying the purchase of the alleged medicine from them and other allegations leveled against them. 

           10. Both sides records and evidence were carefully perused and this Forum observes as follows:

           In order to ascertain whether the complainant has purchased the alleged medicine from the Opposite Partys' shop, the evidence elucidated during the cross-examination of the respective parties has to be looked into.  During the cross-examination of RW1, he has deposed as follows:

"Even though as per Ex.C1, the prescription, 0.5 mg. of dosage of SERENACE not available with us, we have not sent back the customer.  If the dosage of medicine is not available, we will refer the patient to the doctor to correct the prescription.  I have not referred the complainant to the doctor in this case to correct in the prescription Ex.C1. "

And further the cross-examination of CW1 is as follows:

          "It is true that the medical shop has given me T. Serenace tablet of 5 mg. instead of 0.5 mg. as against the prescription.  As per the CIMs copy Ex.R1 produced by the Opposite Party the tablet T-Serence does not contain 0.5 mg. it is true".

Further the Opposite Parties admits that the bill dated 28.07.2009 Ex.C1 is that of the Opposite Partys' shop.  Hence, on the analysis of the evidence aforementioned, it is held by the Forum that the complainant has proved the fact that the T-Seranace prescribed in Ex.C1 was purchased from the Opposite Partys' shop. 

           11. It is observed by the Forum that the contention of the complainant that due to the over dosage of the medicine, the complainant's son was put to dangerous condition and he was taken to various hospital for treatment and spent a lot for treatment and that the internal organs of the complainant's son got damaged resulting in permanent disablement is not supported by any documentary evidence.  The complainant relies only on Ex.C2 which is the discharge slip issued by G.H., Pondicherry to substantiate the claim for all the allegations leveled against the Opposite Parties.   But, the Ex.C2 does not speak anything about untoward consequences faced by the complainant's son due to the over dosage of the medicine and that of any casualty arose thereto.  Further, the doctor examined on the complainant's side as CW3 also has not spoken anything about the treatment taken by the complainant's son at G.H., Pondicherry due to the over dose of the medicine T-Serance of 5 mg. and about any adverse consequences faced by the complainant's son.  Further the complainant CW1 has deposed in his evidence during cross-examination that the complainant's son was given the tablet T Serance of 5 mg. instead of 0.5 mg. as against the prescription on 28.07.2008 at 6.00 p.m. and there was no report of adverse consequences till 7.00 a.m. of 29.7.2008 and it was only on 29.07.2008 after 9.00 a.m. the complainant's son was taken to the hospital.  It is pertinent to note that it was almost 13 hours after consuming the medicine, the complainant's son was taken to Hospital and this Forum is hesitant to believe that an adverse reaction of over dose of medicine had occurred after a lapse of thirteen hours and further the complainant also failed to prove that the complainant's son suffered severe health ailments due to the intake of the over dose of tablet Seranace of 5 mg. instead of 0.5 mg. as against the prescription.  Hence, in these circumstances, in the absence of any documentary evidence, the relief seeking compensation by the complainant on the grounds of medical expenses, for further treatment of complainant's son and for permanent disablement cannot be taken into consideration. 

           12. Further, regarding the negligent act of selling the medicine T. Serance 5 mg. by the Opposite Parties to the complainant's brother is proved from the evidence elucidated during the cross-examination of RW1 and CW1.  The evidence of RW1 is as follows:

           "…..In doctor's prescription (Ex.C1) it is mentioned in second item the strength of dosage is 0.5 mg. SERENACE.  It is true that Ex.C1, the VAT Tax bill dated 28.07.2008/14-30 contain 10 tablet of SERENACE of 5 mg……..  In CIMS-1-1 Aprl.2008 (Update-2) (505_ book, Ex.R1, 0.5 mg of dosage of SERENACE are not listed.  Even though as per Ex.C1, the prescription, 0.5 mg. of dosage of SERENACE not available with us, we have not sent back the customer.  If the dosage of medicine is not available, we will refer the patient to the doctor to correct the prescription.  I have not referred the complainant to the doctor in this case to correct in the prescription Ex.C1. "

           cross-examination of CW1 is as follows:

    "It is true that the medical shop has given me T. Serenace tablet of 5 mg. instead of 0.5 mg. as against the prescription.  As per the CIMs copy Ex.R1 produced by the Opposite Party the tablet T-Serence does not contain 0.5 mg. it is true".

From the above evidence, it is proved beyond doubt that the OP has sold the medicine T-SERENACE 5 mg. instead of 0.5 mg. as prescribed in Ex.C1 to the complainant's brother.  The act of the OP selling medicine of overdose than that of the dosage of the medicine prescribed in Ex.C1 is unwarranted one.  Admittedly, the Opposite Parties are not qualified pharmacists to know about the composition of drugs and its effects.  In the absence of prescribed dosage of medicine in the shop, it is the duty of the Opposite Parties to refer the customer back to the doctor for getting advise on such prescription.  The Opposite Parties being well aware of these facts knowingly and negligently sold the alleged medicine to the complainant's brother.  It is proved from the above facts that the opposite parties have committed the act of negligence.  This point is answered accordingly. 

           13. In view of the discussions held in para supra, it is held by the Forum that the complainant is entitled for a reasonable amount of compensation for mental agony suffered due to the negligent act and for Unfair Trade Practice of the Opposite Parties.  This point is answered accordingly.

           14. Point No.3:

In the result, the complaint is hereby allowed and the Opposite Parties are directed;

1. to pay the complainant a sum of Rs.25,000/- as compensation for the mental agony due to the negligent act and for Unfair Trade Practice of the Opposite Parties.

2. To pay a sum of Rs.5000/- towards the cost of this proceedings.

The orders pronounced above, should be complied by the Opposite Parties within two months from the date of receipt of this order.

Dated this the 12^th day of April 2016.

1. ASOKAN)

PRESIDENT

(PVR. DHANALAKSHMI)

    MEMBER

(V.V. STEEPHEN)

    MEMBER

COMPLAINANTS' WITNESS:

CW1           01.02.2012           P. Gopi          

CW2           28.01.2014           Ramachandran

CW3           24.02.2014           Dr. Anand

OPPOSITE PARTY'S WITNESS: 

RW.1          08.05.2014           A. Tamilselvan

RW.2          02.07.2015           Dr. E. Anandakirouchenane

COMPLAINANTS' EXHIBITS:

OPPOSITE PARTY'S EXHIBITS:   

 LIST OF MATERIAL OBJECTS:      NIL

1. ASOKAN)

PRESIDENT

(PVR. DHANALAKSHMI)

    MEMBER

(V.V. STEEPHEN)

    MEMBER