State Consumer Disputes Redressal Commission
Ajay Kumar Kumawat S/O Shri Prabhu ... vs Johnson'S & Johnson'S Ltd. on 17 August, 2017
Daily Order BEFORE THE CONSUMER DISPUTES REDRESSAL COMMISSION,RAJASTHAN,JAIPUR BENCH NO.1 FIRST APPEAL NO: 1211/2016 Ajay Kumar Kumawat s/o Prabhu Narayan Kumawat r/o 16, Sarvodaya Enclave, Kalwar Road, Jaipur. Vs. 1.
Johnson & Johnson Ltd., Corporate Office, Forjeet Street, Agasta Kranti Road, Mumbai (Maharashtra)
2. Johnson & Johnson Ltd., V.P.O. Bhatoli Kalan, Nalagarh, Tehsil Solan Distt. Baddi (H.P.)
3. Ravi Medical & General Store (Chemist & Drugist) Khatipura Road, Jhotwara, Jaipur through Prop.
Date of Order 17.8.2017 Before:
Hon'ble Mrs. Justice Nisha Gupta- President Mr. R.K.Verma counsel for the appellant Mr.Manish Sharma counsel for respondent no. 1 & 2 Mr.Hemant Kumar Gupta counsel for respondent no.3 2 BY THE STATE COMMISSION ( PER HON'BLE MRS. JUSTICE NISHA GUPTA,PRESIDENT):
This appeal has been filed against the order of the learned District Forum, Jaipur 4th dated 29.8.2016 whereby the complaint of the appellant has been dismissed.
The contention of the appellant is that he purchased a Johnson Baby Collection pack on 5.10.2009 and he used the Johnson Baby massage oil on 20.10.2009 for massage of his child. She develop allergy due to the oil massage and on perusal of the bottle a house fly was found in it. Child was taken to hospital and treated. Having the fly in the bottle is deficiency on the part of the respondents and claim should have been allowed.
The contention of respondent no. 1 & 2 before the Forum below was that they are not negligent. They have offered medical help to the consumer and also assured full co-operation in testing the sample at his laboratory and possibility cannot be denied that the complainant himself has inserted the fly in the bottle as it was not sealed. Hence, the claim should have been dismissed.3
Respondent no.3 has contended that he sold the packed pack as it was delivered to him by respondent no. 1 & 2 and no deficiency could be attributed to him.
The contention of the appellant is that when a house fly is found in the oil it is ipso facto deficiency on the part of the respondents and the claim should have been allowed.
Per contra the respondents have objected the same on the above grounds.
Heard the counsel for the parties and perused the impugned judgment as well as original record of the case.
There is no dispute about the fact that the appellant complainant purchased Johnson Baby Collection pack on 5.10.2009 and baby oil was also in it. The further contention of the appellant that after applying the same for massage of the child it caused allergy and it is also evident from the prescription of Krishna Hospital which clearly states that due to oil massage allergy has caused.
The contention of the respondent is that bottle was sealed 4 one and after opening it fly could be inserted by negligence of the consumer or he himself has put fly in it. There is no evidence to the effect that the sealed bottle was sold to the consumer. Inspite of the specific direction of the Forum below affidavit of Mr. Anil V. Upadhyay Vice President Legal & Company Secretary was filed in which only this much has been said that oil bottles are packed in a transparent plastic bottle. No where in the affidavit it has been stated that the bottle was sealed one and further more the respondent has not submitted any sealed bottle of Johnson baby oil to support the contention that oil is sold in sealed bottle. Hence, it can very well be concluded that the bottle was not sold in sealed condition and further it can be noted that seal was not broken at the hands of the complainant. Report of Forensic Science Laboratory clearly shows that bottle contains house fly. The contention of the respondent that appellant himself has inserted house fly in the bottle is not acceptable as if appellant had inserted the house fly in the bottle he would not apply the oil on his daughter of 2 ½ months and prescription of the doctor clearly shows that the baby has suffered allergy due to oil massage.
It may be noted that due to delay of the system the sample of oil could not reach to the laboratory on time and it 5 was expired before reaching to the lab. The respondent had come with a case that they were ready for testing of the sample and they asked the sample from the appellant. If that may be the real situation when the appellant has filed an application before the Forum below for testing of the oil, the respondents have vehemently opposed it and even written reply has been submitted with the prayer that application be dismissed with cost which shows the hollowness of the contention of the respondents The other contention of the respondents is that they have offered medical help to the appellant. Prescription of the doctor clearly suggest that on the same day of suffering from allergy the child was taken to the doctor and treatment was started which was for only three days. Thereafter there was no occasion for the appellant to seek medical help as offered by the respondents and for the sake of arguments it could be taken true that the respondents have offered medical help but this could not condone the deficiency of the respondents. Hence, in view of the above it is more than clear that the oil bottle which has been purchased by the appellant was containing house fly in it.6
The counsel for the appellant has pointed out that the cap of the bottle is very narrow and the oil could be taken out only by lifting the flap and hole below the flap is too small to enter house fly. There is no possibility that accidentally the house fly could get in.
Hence, in view of the above the appeal is allowed against respondent no. 1 & 2 and the order of the Forum below dated 29.8.2016 is set aside and it is ordered that the respondent no. 1 & 2 would refund Rs.200/- the cost of Johnson Baby Collection pack, Rs. 2000/- for medical expenditure, Rs.50,000/- for mental agony and physical discomfort and Rs. 10,000/- as cost of proceedings. The order should be complied within one month failing which it will carry 9% interest from the date of order. Appeal stands dismissed qua respondent no.3.
(Nisha Gupta) President nm