State Consumer Disputes Redressal Commission
Suresh Jain Lat. Navratan Mal Jain vs Shivam Medical And Department Store ... on 19 February, 2016
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REPORTABLE
BEFORE THE STATE CONSUMER DISPUTES
REDRESSAL COMMISSION, RAJASTHAN,
BENCH NO.3 JAIPUR
FIRST APPEAL NO : 947/2014
Suresh Jain S/o Late Mr.Navratan Mal Jain, R/o
Jawahar Nagar, Jaipur.
..........Appellant/Complainant
Vs.
1. Shivam Medical & Departmental Store, Jaipur.
2. Wockhadrt Ltd. through Managing Director,
District Salon (Himachal Pradesh).
..........Respondents/Opposite Parties
FIRST APPEAL NO : 949/2014
Shivam Medical & Departmental Store, Jaipur
..........Appellant/Opposite Party No.1
Vs.
1. Suresh Jain S/o Late Mr.Navratan Mal Jain, R/o
Jawahar Nagar, Jaipur
..........Respondent/Complainant
2. Wockhadrt Ltd. through Managing Director,
District Salon (Himachal Pradesh).
..........Respondent/Opposite Party No.2
Date of Order - 19.02.2016
Before:
Hon'ble Mr.Anil Kumar Mishra - Presiding Member
Hon'ble Mr.Kailash Soyal - Member
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Mr.Rajendra Vijay . . . . . Counsel for the
complainant.
Mr.Anuj Mathur . . . . . Counsel for the Shivam
Medical & Departmental Store (Retailer).
Ms.Geeta Hada Khanuja . . . . . Counsel for the
respondent No.2/ OP No.2/ Wockhadrt Ltd.
JUDGEMENT
PER MR.ANIL KUMAR MISHRA (PRESIDING MEMBER)
1. Both the appeals arise out of the same impugned judgment dated 29.09.2014 of learned District Consumer Redressal Forum, Jaipur-III, Jaipur (hereinafter referred to as "the DCF") in complaint No.437/2012 (Old No.489/2010) titled Suresh Jain Vs. Shivam Medicals & Ors., whereby the complaint of Mr.Suresh Jain, the complainant (hereinafter referred to as "the complainant") was allowed and Shivam Medical, the appellant - Opposite Party No.1/ retailer (hereinafter referred to as "the OP No.1") was directed to pay to the complainant Rs.11,000/- as compensation against mental agony and cost of proceedings and the complaint was dismissed against Wockhardt Ltd., the 3 respondent No.2 - Opposite Party No.2/ the manufacturer (hereinafter referred to as "the OP No.2").
2. The brief facts giving rise to the present matter are that the complainant was indisposed on 04.03.2010 and he consulted Dr.Harish Chhabaria, who advised him to take syrup Practin. The complainant purchased the syrup from the OP No.1 (retailer/ dealer) after making a payment of Rs.65.20. When the complainant saw the bottle of the syrup, he found that it contained some rubbish/ trash/ filth or some foreign material in it. He showed the bottle to the OP No.1 and asked him to replace it, but he refused to replace it. The complainant informed the OP No.2 (the manufacturer) about the foreign particles in the bottle, but it also did not resolve the problem. The act and conduct of the OPs in selling and manufacturing the medicinal syrup, which contained foreign particles/ trash/ filth amounted to unfair trade practice and deficiency in service 4 on their part in not replacing the adulterated bottle of medicine.
3. A complaint was filed by the complainant before the learned DCF, which was allowed against the OP No.1 (the retailer/ dealer), whereas it was dismissed against the manufacturer/ the OP No.2.
APPEAL NO.947/2014
4. The present appeal has been filed by the complainant on the ground that though the learned DCF allowed the complaint against the dealer/ retailer - the OP No.1, but it did not award adequate compensation. He further stated that the OP No.2, the manufacturer is also liable for the adulterated bottle of medicinal syrup and the learned DCF should have held it liable too and hence, the present appeal be allowed and adequate compensation be awarded against both the OPs.
APPEAL NO.949/2014
5. The present appeal has been filed by the OP No.1 (the retailer/ dealer) on the 5 ground that it is not the manufacturer of the medicine and it itself purchased the medicine on 03.03.2010 from Pradeep Distributor and sold the same on 04.03.2010 i.e. the very next day to the complainant. Thus, it retained the medicine hardly for 24 hours with its shop and if the bottle of the syrup contained any foreign particles/ trash/ filth in it, then it is not liable for any manufacturing defect or adulteration in it. The learned DCF erroneously held the OP No.1 liable for the adulteration and hence, the present appeal be allowed.
6. We have heard the arguments of both the parties and carefully perused the record, evidence and impugned judgment.
7. It is an admitted fact that the OP No.2 is the manufacturer of the syrup Practin and the complainant purchased it on 04.03.2010 from the OP No.1. It is also an admitted fact that the bottle of the aforesaid syrup showed the manufacturing date as September 2008 and the expiry date as August 2010. It also appears from the 6 order sheet dated 10.01.2011 of the file of the learned DCF that at the request of the OP No.2 (the manufacturer), it sent the sealed bottle of the syrup to the Medicine Testing Laboratory and the Deputy Director of the said laboratory vide its endorsement dated 11.04.2011 returned the sealed bottle of the syrup to the learned DCF informing it that the sample had expired and it was unfit for analysis. Thus, there is no confirmatory report of a testing laboratory to show that the syrup of medicine was contaminated/ adulterated or that it contained filth/ dirt/ trash or any foreign particles in it. It is an admitted fact that the complainant filed the present complaint on 09.03.2010 i.e. just five days after the purchase of the bottle and the bottle showed the expiry date as August 2010. We are in agreement with the learned counsels for the OPs that a heavy burden lay on complainant to prove that the bottle of practin syrup was contaminated or adulterated or that it had filth/ trash/ foreign particles in it. The 7 complainant did not move any application before the learned DCF for chemical analysis of the syrup before the date of expiry or within time or at the earliest opportunity. It is only the OP No.2, the manufacturer, who moved an application, on which the learned DCF sent on 10.01.2011 the sealed sample for analysis to the medicine test laboratory.
8. The learned DCF exonerated the OP No.2, the manufacturer from any liability on the ground that the complainant failed to prove that the syrup Practin was contaminated/ adulterated or it had trash/ filth/ dirt or any foreign particles in it, as there was no concluding evidence or chemical analysis report to substantiate the allegation. The findings given in this regard appear to be just and reasonable and we do not find any illegality or irregularity either of fact or evidence in it. Therefore, the learned DCF was justified in dismissing the complaint against OP No.2, the manufacturer. 8
9. As regards the liability of OP No.1, the dealer/ retailer is concerned, the learned DCF observed that it did not store the bottle of syrup Practin as per standard terms and conditions to store it i.e. the retailer did not keep/ store the bottle under proper temperature and other conditions. In this regard, it is amply clear from the record that the OP No.1, the retailer itself purchased on 03.03.2010 the syrup Practin from authorized dealer Pradeep Distributors and sold it on 04.03.2010 i.e. the very next day to the complainant. Thus, the OP No.2 hardly kept the bottle of syrup for 24 hours and by no stretch of imagination it can be concluded that within a span of 24 hours, the sealed bottle of Practin syrup got contaminated or decayed due to improper storage of the same. There is no evidence on record to show as to under what conditions, the OP No.1, the retailer stored or kept the bottle at it's shop after it's purchase on 03.03.2010 till its sale on 04.03.2010. Therefore, the 9 findings given and the conclusions arrived at by the learned DCF that the OP No.1 did not keep/ store the bottle of Practin Syrup under specified conditions are without any basis or evidence and hence, are erroneous. Thus, the findings given and conclusions arrived at by the learned DCF with regard to holding the OP No.1 liable for deficiency in service is without any evidence and are based on presumptions, surmises and conjectures. We are of the firm view that the OP No.1 is merely a retailer and is not at all associated in any way with manufacturing of the syrup and hence, it cannot be held liable for any manufacturing defect or adulteration or contamination in sealed bottle, which it itself purchased from authorized dealer of the manufacturer.
10. We have seen the sealed bottle of Practin syrup from the naked eyes. Though, the bottle is dark brown in colour, but some rubbish/ trash or dirt particles are clearly visible at the bottom of the bottle. But, as already stated, the syrup 10 had expired in the month of August 2010 and the application for chemical analysis of the same was made by OP No.2, the manufacturer on 10.01.2011 i.e. after the expiry date and the sample was sent for analysis on the same day i.e. about five months after the expiry date and so, the sample could not be analyzed as it was "found unfit for analysis". There is every possibility and likelihood, which cannot be ruled out, that the sample of syrup would have decayed in natural course during this period and developed some trash and rubbish, for which the OPs cannot be held responsible. It is amply clear that the complainant himself has been careless and negligent in not getting the sample analyzed within time and well before the expiry date and therefore, the OPs cannot be held liable for any contamination after the expiry date of the syrup.
11. For the aforesaid reasons, we are of the view that the learned DCF erred in holding the OP No.1 (the retailer) liable for 11 manufacturing defect in the bottle of medicinal syrup Practin. Therefore, the complainant desperately failed to prove any manufacturing defect, adulteration or contamination in the bottle of syrup Practin against both the OPs. Hence, the appeal No.949/2014 of the OP No.1 - Shivam Medical & Departmental Store deserves to be allowed and the impugned judgment of the learned DCF is liable to be quashed and set aside. As the complainant has failed to prove any manufacturing defect or adulteration or contamination in the medicinal syrup Practin and therefore, the appeal No.947/2014 of Suresh Jain, the complainant, for enhancement of award is also liable to be dismissed.
ORDER
12. The appeal No.947/2014 of Suresh Jain, the complainant is dismissed. The appeal No.949/2014 of Shivam Medical and Departmental store is allowed and the impugned judgment dated 29.09.2014 of the 12 learned DCF in complaint No.437/2012 (Old No.489/2010) titled Suresh Jain Vs. Shivam Medicals & Ors. is quashed and set aside. Consequently, the complaint of the complainant is dismissed.
The appellants shall be at liberty to withdraw the amount, if any, deposited by them in the present appeals before the DCF. The copy of the judgment be tagged in both the appeals.
(KAILASH SOYAL) (ANIL KUMAR MISHRA) MEMBER PRESIDING MEMBER PINKKY JAIN, UDC