National Consumer Disputes Redressal
Shri Pesi Dady Shroff vs Boehringer Ingelheim, Denmark & Anr. on 10 July, 2013
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI CONSUMER COMPLAINT NO. 164 OF 2013 Shri Pesi Dady Shroff 51, Goolestan, 34, Bhulabhai Desai Road Mumbai 400 026 Complainant Versus 1. Boehringer Ingelheim Denmark A/s Strodamvej 52, DK-2100 Kobenhavn Denmark 2. Boehringer Ingelheim India Pvt. Ltd. 1102, 11th Floor, Hallmark Business Plaza Near Guru Nanak Hospital, Bandra (East) Mumbai 400 051 Opposite Parties BEFORE: HONBLE MR. JUSTICE J. M. MALIK, PRESIDING MEMBER HONBLE DR. S. M. KANTIKAR, MEMBER For the Complainant : Mr. Rajiv Virmani, Sr. Advocate Along with Mr. Sidharth Sethi & Ms. Smita Bhargava, Advocates PRONOUNCED ON _10.07.2013 O R D E R JUSTICE J.M. MALIK 1. Shri Pesi Dady Shroff, the complainant is a licensed Race Horse Trainer who earns his livelihood by training race horses. The complainant purchased nutrition feed supplements from Royal Western India Turf Club Limited (in short RWITC). The complainant purchased the products, namely (i) Equiptop Myoplast (ii) Equitop Pronutrin and (iii) Equitop Gones which were manufactured by Boehringer Ingelheim Denmark A/s, Opposite party No.1, in Denmark and distributed by Boehringer Ingelheim India Pvt. Ltd., Opposite party No.2, in India. As a standard procedure, RWITC took urine samples of the horses which were placed 1st, 2nd, 3rd and 4th position in the 1000 Guineas (Gr.I) held on 12th December, 2010 and sent the same to accredited laboratories out of India for testing. RWITC addressed a letter dated 12.01.2011 to the complainant informing that HFL Sports Science (HFL), a UK based Laboratory, had confirmed the presence of boldenone (a Class Three, prohibited substance), in urine sample of the complainant trained horse called Elosie, placed third in the race. On 14.01.2011, the complainant addressed a letter to the RWITC requesting them to furnish certain material required by the Experts who were consulted by the complainant to carry out the test. 2. On 18.02.2011, LCH France, a Laboratory confirmed the presence of Boldenone ( 2-3 ng. per ml.) in the urine of sample of the horse, Eloise. The complainant addressed a letter to RWITC dated 31.01.2011 informing that two other horses in Grade One race (held after the race) also tested positive for Boldenone. The complainant also requested RWITC to provide him the list of products along with batch numbers which were sold to RWITC during October, November and December, 2010. The complainant had sent the samples of the goods along with feed mixture of the oats used by him in his stable for testing to a reputed Laboratory, Bhagavathi Ana Labs Ltd (Bhagavathi), in January, 2011. 3. On 28.01.2011, Bhagavathi issued a test report confirming the presence of Boldenone in Equitop Myoplast pearl granules and confirming the absence of Boldenone in feed mixture of oats, corn and other seeds. 4. Opposite party No.2 addressed a letter, dated 17.11.2011 to the Trainers, including the complainant, claiming that the goods were certified by the World Anti-Doping Agency (WADA) as being free from any doping substance. The complainant addressed a letter dated 12.02.2011 to RWITC informing that he had handed over 12 sealed boxes of Equitop Myoplast and Equitop Pronutrin to RWITC and that the same should be tested as the highest level of sensitivity. On 16.02.2011, RWITC certified the complainant the date of supply, quantity and batch number of the goods. Opposite party No.2 addressed another letter dated 16.02.2011 to RWITC informing that they have recently submitted their products for testing once again to a WADA Certified Laboratory in Cologne and Germany and would share the results as soon as available. 5. In the meanwhile, the stewards of the RWITC interviewed the complainant at length about the concerned episode. On 02.03.2011, Bhagavathi tested the goods and certified that the goods contained Boldenone, vide its report dated 14.03.2011. The complainant corresponded with WADA to ascertain whether the goods were indeed certified as being free from any doping substance. On 06.04.2011, opposite party addressed an e-mail to RWITC wherein they stated that they have not received the analytical results from WADA. On 18.05.2011, WADA addressed an e-mail to the complainant stating that WADA does not endorse any products and thus the claim of the opposite party No.2 was false. On 05.07.2011, complainant addressed a letter to RWITC explaining RWITC as to how the claim of opposite parties that the goods were certified by WADA to be free from any doping substance, was false. On 28.07.2011, Opposite party No.2 addressed a letter to RWITC continuing to falsely claim that the goods were free from any contamination. RWITC continued to insist that they would have the goods tested only at HFL, UK., despite HFL, UK, having expressed its inability to test the goods at the sensitivity level of 0.01 ng/g. The complainant addressed a letter dated 06.08.2011 to the RWITC stating that if testing cannot be done at the sensitivity level of 0.01 ng/g but only at 10 ng/g, the same would be mockery of the testing process. 6. RWITC proceeded with the enquiry against the Trainers, including the complainant, without having the goods tested. Stewards of RWITC addressed a letter of suspension to the Trainers, including the complainant and suspended the three Trainers, including the complainant, on the grounds of vicarious liability. The letter also stated that since it was the Complainants first offence, his suspension was limited to thirty (30) days. On 03.09.2011, the complainant appealed against the order of suspension. On 30.09.2011, the Board of Appeal, by a majority decision, rejected the complainants appeal. Accordingly, the complainant underwent suspension w.e.f. 03.10.2011 to 01.11.2011. Thereafter, the Western India Race Horse Owners Association Limited, an independent body of race horse owners, addressed a letter dated 26.11.2011 to RWITC stating that the goods ought to be tested at zero tolerance level, in order to ascertain truth. The complainant requested the laboratory at Cologne, Germany to confirm whether their Laboratory, as claimed by the opposite parties, had ever tested the goods as being dope free. On 18.11.2011, the said Laboratory at Cologne, Germany sent e-mail to the complainant confirming that their Laboratory had never stated that the goods were free from any doping substance and that the laboratory was not accredited to WADA as WADA did not accredit any Laboratory which analysed nutritional supplements. 7. The Food & Drug Administration, (FDA) Government of India, raided the premises of RWITC and the stables of the Trainers, including that of the complainant and took away sealed jars of the goods, on 13/14/02/2011. The FDA declared that the goods were not of standard quality as they contained Boldenone. FDA banned the sale of the goods. All these issues were brought to the notice of RWITC. RWITC, in its turn, addressed a notice to all Trainers to immediately stop using the said goods. FDA asked the complainant to file copies of Indent Forms submitted by him to RWITC for the goods and the same were produced vide letters dated 4/5/5/2012. 8. The Board of Appeal of RWITC remanded back the matter to the Stewards of the RWITC. The matter was reconsidered and it was decided on 04.08.2012, as conditionally and for the present, not to enter the suspension of the complainant in his record and to refund the fine of Rs.10,000/- to the complainant. The complainant filed an Appeal against that order with the prayer that Board of Appeal should unconditionally cancel his suspension. On 07.08.2012, the Board of Appeal allowed the appeal of the complainant and removed the conditions placed by the Stewards. On 09.08.2012, the complainant addressed a legal notice to the Opposite parties stating that as is evident from the FDA reports, the opposite parties have deliberately supplied defective goods to the complainant, knowing fully well that it was hazardous for the horses and could also result in breach of racing rules. However, the Opposite parties continued to maintain that the goods were not defective vide its letter dated 18.08.2011. The Opposite parties also denied their liability to pay damages to the complainant, vide their letter dated 22.08.2012. Consequently, this complaint was filed before this Commission on 24.05.2013, with the following prayers :- a) that this Honble Commission be pleased to order and direct the opposite parties to pay compensation to the complainant aggregating to Rs.73.35 crores or such other amount as the Honble Commission deems fit; b) that this Honble Commission be pleased to order and direct the opposite parties to publish a public apology to the complainant stating that Boldenone was present in the goods manufactured and sold by the opposite parties in leading Newspaper in India, including the Times of India and leading racing publications. c) for costs of the proceedings; and d) for such other reliefs as the nature and circumstances of the case may require and this Honble Commission deems fit and proper to grant. 9. In the whole of the complaint, the complainant did not write down the price for which the above nutrition feed supplements from Royal Western India Turf Club Limited was purchased. Attention of the learned Counsel for the complainant was invited to this fact. Learned counsel stated that he would file an affidavit in this regard, within two days. In the affidavit, the complainant explained the said fact as follows, in para Nos. 5 & 6 of the affidavit, which are reproduced here, as under :- 5. The complainant placed orders on RWTC for supply on the aforesaid products, which are manufactured by the Opposite party No.1 in Denmark and sold and distributed by the opposite party No.2 in India, through their distributor Helpro Health Products. RWITC supplied the aforesaid products procured by it from the opposite parties to the complainant for his stable, by debiting the accounts of the respective horse-owners. Details of the aforesaid products procured by the complainant during the period October, 2010, till 12th December, 2010 and the price thereof are as under. For an easy reference, the complainant is also giving in the table reference to the reports of the Food & Drugs Administration, State of Maharashtra, in respect of each of the said products, confirming presence of Boldenone therein. Sl.No. Name of the product Date of supply Quantity Batch No. Price (in Rs.) per jar Report of Food & Drug Administration 1. Equitop Gonex 09.10.2010 73 jars @ 0.750kg/jar 100477 3,06,600/ @ 4,200/- Report dated 05.03.2012 @ Pg.219 of the paper-book 2. Equitop Myoplast 02.11.2010 40 jars @ 1.5 kg/jar 100529 1,52,000/ @ Rs.3800/- Report dated 05.03.2012 @ pg.204 of the paper-book 6. Apart from the aforesaid supplies, the complainant received certain supplies subsequent to 12.10.2010. I say that vide letter dated 16.02.2011, RWITC has confirmed supply of the aforesaid products to the complainant. Copy of the aforesaid letter is annexed to the paper-book @ Pg.101 and marked as Annexure-I. 10. For purchase price of about Rs.4-5 lakhs, the complainant has claimed a sum of Rs.73.35 crores. Now, the question arises Whether this case falls within the jurisdiction of this Commission or not?. Whether the amount has not been inflated?. 11. However, the main point which falls for consideration is, Whether the complainant is a consumer?. One can see with half-an-eye that this is a commercial transaction. This Commission has no jurisdiction to try such like cases, in view of section 2(1)(d)(ii), which is reproduced below, as under :- (ii) hires or avails of any services for a consideration which has been paid or promised or partly paid and 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 and 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; Explanation:--- For the purposes of this clause, commercial purpose does not include use by a person of goods bought and used by him and services availed by him exclusively for the purposes of earning his livelihood by means of self-employment. 12. The complainant has averred in his complaint that he is a self-employed, licensed race horse trainer, who earns his livelihood by training race horses. It is further averred that the complainant is licensed to function as a Trainer for thoroughbred horses in racing by the RWITC, which, in turn, has a monopoly license from the State Government of Maharashtra, under the Bombay Racing Act to run a race-course and conduct horse racing, in Maharashtra. 13. The mere writing that he is self-employed, earning his livelihood by training race horses is not enough. In that eventuality, every business man will make such like statements, and try to cover his case under Section 2(1)(d)(ii). He has not explained, how many horses are trained by him. He was giving the said substance so that he may win the race horse prize. This is a sheer business transaction and the complainant does not come within the four corners of the definition consumer. Lotteries and race horse prize, do not come within the purview of consumers. 14. The complainant is not the direct buyer. He has not claimed anything from RWITC. 15. We find no merit in the complaint and is, therefore, dismissed, with no order as to costs. However, liberty is given to the complainant to approach the appropriate Forum for redressal of his grievance, as per law. ...
(J. M. MALIK, J.) PRESIDING MEMBER ...
(DR.S. M.KANTIKAR) MEMBER dd/12