State Consumer Disputes Redressal Commission
M.S.Subramaniam, President, Hindu ... vs The Managing Director, M/S.Ttk Pharma, ... on 30 August, 2011
Date of filing : 10.06.2008
Date of order: 30.08.2011
BEFORE THE TAMILNADU
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI
(BENCH
II)
Present: Thiru.A.K.Annamalai, M.A., M.L., M.Phil., Presiding Member Judicial
Thiru.S.Sambandam,
B.Sc., Member
C.C.No.31/2008
TUESDAY, THE 30th DAY OF AUGUST 2011.
M.S.Subramaniam, President, Hindu Journalists and Human Rights Federation, Flat-1, 9 Park Avenue, Kesavperumalpuram, Greenways Road, Chennai-28. . Complainant Vs. The Managing Director, M/s.TTK Pharma, 6, Cathedral Road, Chennai 600 086.
..
Opposite party This complaint coming on before us for hearing finally on 05.08.2011, upon perusing the material documents, and upon hearing the arguments of both sides and having stood over till this day for consideration, this Commission made the following order.
For the Complainant : Party in person (Mr.M.S.Subramaniam,) Counsel for the Opposite party :
M/s.Sivakumar & Suresh, Advocates.
A.K.ANNAMALAI, PRESIDING MEMBER JUDICIAL The complaint filed under Section 12 & 17 of the Consumer Protection Act- 1986
1. The details of complaint in brief as follows :
Complainant being the Journalist, RTI activist, Consumer Protection Activist & Social worker, filed this complaint against the opposite party manufacturers and suppliers of the Kohinoor Brand of Condoms, for not providing the right specification and indication of the same on the covers of condoms sold which is a branded item where basic facts have been suppressed the specification applicable to Indian have not been adhere. Selling of uniform size with other countries specifications to all the consumers in India is most dangerous matter causing Aids, dissatisfaction, wrong matching and sexual dissatisfaction, unwanted pregnancy, psychological disorder, Family disharmony and other related problems and thereby directing the opposite parties to desist from such activity of deceiving public hence fort declaration of the suppliers as on date filing the complaint not fit for consumption/usage in India and its Indian customers and make a large scale advertisement to the effect and suitability with any applicable to a particular segment to whom the said specification is applicable and to award Rs.90 lakhs as costs and interest from the date of filing the complaint and direct the company to mention the specification according to preference of the consumers.
2. The opposite party filed the written version denying the allegations of the complainant and in the written version it is stated that the complaint is not maintainable and the complainant is not a consumer. The opposite party is not the manufacturers of Kohinoor condoms and the opposite party neither now as TTK Health Care Ltd is only a distributor of the products manufactured by TTK-LIG Ltd., which is a different legal entity.
The complainant has not stated what is the standard of manufacturing required for the product and no proof is so that the product is defective and it for the defective products complainant should follow the procedure prescribed under the Act. The opposite party being the distributor has no particular knowledge about standard specifications and the process of manufacture of the product and is not competent to specify the same. However regarding the details of manufacturer TTK LIG Ltd., has given the affidavit giving all the details which is filed along with the version. The report filed by the complainant are nothing to do with the product manufactured by TTK LIG. TTK LIG or the opposite party is not deceiving the public as stated by the complainant since there is no manufacturing defect. Opposite party is not liable to pay any amount towards the imaginary figures of damages claimed by the complainant and the complaint to be dismissed with heavy cost under Section 26 of the Act for frivolous and vexatious complaint and thereby the complaint to be dismissed.
3. The complainant filed proof affidavit and his side documents Exhibit A1 to A4 are marked. For opposite party proof affidavit along with the documents Exhibits B1 to B7 are marked.
4. Points for determination are :-
1) Whether the complaint is a consumer under Consumer Protection Act ?
2) Whether there is any defective sale of product by the opposite party and thereby any direction in this regard to be given ?
3) To what relief ?
5. Point No.1 : The complainant is a member of Internal Audit Institute being the Journalist, RTI activist, Consumer Protection Activist & Social worker filed this complaint in a way seems to be as public interest litigation. Regarding the complaint against the opposite party for manufacture of defective product and suppliers of the Kohinoor brand of condom being used in India as per provision under the Consumer Protection Act 1986 under section 2(d)(ii) any voluntary consumer association registered under the Companies Act or under any other law for the time being in force, under this category the complainant being the residence India Journalist and Members of Human Rights Federation filed the complaint by filing necessary proof of registration of copy of the trust deed and thereby it can be presumed that he is the complainant under the Act and regarding the explanation under clause 2(c) complaint in Sub Clause (i) to (v), it is stated as follows :-
( c ) complaint means any allegation in writing made by a complainant that
(i) an unfair trade practice or a restrictive trade practice has been adopted by any trader or service provider ;
(ii) the goods bought by him or agreed to be bought by him suffer from one or more defects ;
(iii) the services hired or availed of or agreed to be hired or availed of by him suffer from deficiency in any respect ;
(iv) a trader or the service provider, as the case may be, has charged for the goods or for the services mentioned in the complaint, a price in excess of the price
(a) fixed by or under any law for the time being in force ;
(b) displayed on the goods or any package containing such goods ;
(c) displayed on the price list exhibited by him by or under any law for the time being in force ;
(d) agreed between the parties ;
(v) goods which will be hazardous to life and safety when used are being offered for sale to the public (A) in contravention of any standards relating to safety of such goods as required to be complied with, by or under any law for the time being in force ;
(B) if the trader could have known with due diligence that the goods so offered are unsafe to the public ;
Regarding the definition under Clause 2(d) Consumer means any person who
(i) buys any goods for a consideration which has to be paid or promised or partly paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose ; or
(ii) hires or avails of any services for consideration which has been paid or promised or partly paid or partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who hires or avails of the services for consideration paid or promised, or partly paid or partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person but does not include a person who avails of such services for any commercial purpose and the above said provisions in any one of the provisions the complainant have not come to the picture as he has not purchased any goods from the opposite party as a purchaser of alleged defective condom or availed the service of the opposite party in using such condoms by himself or by proving they were used by others and thereby the alleged defects to be established. The complainant failed to prove the relationship of consumer and service provider under the Consumer Protection Act. The opposite party has stated that they are not the manufacturer of the goods alleged but only distributors of the condoms manufactured by TTK LIG and the complainant has not impleaded the manufacturers TTK LIG Limited in this complaint. In those circumstances since the complainant is not a consumer the complaint cannot be filed by him before this Forum.
6. The complainant has marked the documents Exhibit A1 to A4 and on perusal of those documents Exhibits A1 is the notice sent to the opposite party regarding the deficiency in product supply of condoms and praying for expression of views relating to the alleged causes caused due to use of defective product. Exhibit A2 is the report of the newspaper relating to the sex improves immunity in old age and Exhibit A3 is the hand drawn sketch relating to the size of the condoms and in Exhibit A4 literature to show essential elements of condoms quality assurance relating to the specifications in which in column in sl.No.1.2 the details of specifications to be provided in ISO 4074; 2002 the modern specification. The opposite party has filed documents Exhibits B1 to B7 regarding the certificates of merit issued by various authorities and certificate of expert recognition etc., as Exhibit B1 to B3 and membership certificate as Exhibit B5 and policy environmental health policy details as Exhibit B6 Certificate relating to the state export award issued by Industries of Commerce Department as Exhibit B7 and manufacturing technical note as Exhibit B4. Regarding Exhibit B2 TTK LIG Limited, Chennai it was awarded expert award in respect of rubber contraceptives. Exhibit B3 is the certificate of miscellaneous rubber manufacturing products from the latex rubber relating to the process of manufacturing and those documents have filed by the opposite parties would go to establish that their products were being manufactured distributed and exported with all quality, care, control and within the statutory obligation the preference to their products etc. The complainant has not come forward what is the specific specification for the alleged details relating to the size of condoms in Indian Companies with reference to any other conditions of other countries except to produce some details from the Internet collections and failed to prove in what way the products are affected by using the any specified nature of uses and without filing their details and obtain any specific complaint or comments from those alleged affected persons he cannot say that he had established that the opposite parties have dumped their products of condoms in India as they are illegal and not practically entitled to do the trade business in rubber products including distribution of condoms in India and to export the same to other countries in which the complainant cannot question their activities through this Forum and the Consumer Forum is not a proper Forum for his alleged reliefs sought for.
7. Further the opposite party has contended that they are not the manufacturers of Kohinoor and allied condoms and they are only the distributors for the same and one TTK LIG Limited is the proper company for manufacturing the same which was not added as a party and even though they are not the party, they have come forward with the affidavit stating the details relating to the specifications regarding the manufacture of condoms and the rules and regulations to be followed under the Cosmetics and Drugs Act and in para 16 of the affidavit it is stated the company sells two sizes of condoms as per specifications mentioned under schedule or Drugs and Cosmetics Rules and under the Act, it allowed only two sizes of condoms to be manufactured for Indian domestic market. Unless the specifications of Drugs and Cosmetics are amended the condoms cannot be randemly manufactured. Against this averments the complainant has not come forward with any material to disprove the same. In those circumstances the complainants complaint seems to be a vexatious and frivolous one against the opposite parties and in the guise of public activist. Further the complainant claimed Rs.90,00,000/- (Rupess Ninety lakhs) as award with interest to be utilized or donated for senior citizens well being, AIDs awareness program and for other public cause. He has not proved how that he could claim such huge amounts and how it estimated etc., which goes only to show that he filed complaint which cannot be considered as bonafide one. The complainant cannot drag the parties unnecessarily to the litigation and thereby we are of the view that this complaint to be dismissed with costs.
8. In the result, the complaint is dismissed as not maintainable. The complainant is directed to pay a sum of Rs. 5,000/- as exemplary costs under Sec.26 of the Consumer Protection Act 1986 to the opposite party. The amount shall be payable within 3 month from the date of this order. Further the complainant is directed to pay a sum of Rs.2,000/- as costs to the opposite party.
S.SAMBANDAM A.K.ANNAMALAI, MEMBER PRESIDING MEMBER JUDICIAL LIST OF DOCUMENTS Exhibits of the complainant Exhibit A1 Xerox copy of Legal Notice.
Exhibit A2 Xerox copy of Deccan Chronic Article-by Expert.
Exhibit A3 Xerox copy of Size Sketch.
Exhibit A4 Xerox copy of World Health Literature.
Exhibits of the opposite party Exhibit B1 1995-96 Xerox copy of Certificate of Merit issued by Ministry of Commerce, Govt. of India.
Exhibit B2 27.09.97 Xerox copy of Certificate Top Export Award issued by all India Rubber Industries Association.
Exhibit B3 10.11.08 Xerox copy of Certificate of Export Recognition issued by CAPEXIL Exhibit B4 07.02.06 Xerox copy of Manufacturing Technical Note.
Exhibit B5 15.07.08 Xerox copy of Membership Certificate issued by CAPEXIL.
Exhibit B6 09.04.07 Xerox copy of Safety, Health, Environmental Policy & TPM Quality Policy.
Exhibit B7 21.12.90 Xerox copy of State Export Award issued by Dept. of Industries & Commerce.
S.SAMBANDAM A.K.ANNAMALAI, MEMBER PRESIDING MEMBER JUDICIAL INDEX : YES / NO sg/B-II/aka/ TTK Pharma