State Consumer Disputes Redressal Commission
Sri Somnath Khatik vs Bennet Pharmaceuticals on 22 February, 2013
DRAFT State Consumer Disputes Redressal Commission West Bengal BHABANI BHAVAN (GROUND FLOOR) 31, BELVEDERE ROAD, ALIPORE KOLKATA 700 027 S.C. CASE NO.FA/103/2012 (Arising out of order dated 17/11/11 in Case No.51/2007 of District Consumer Disputes Redressal Forum, Hooghly) DATE OF FILING:13/03/12 DATE OF FINAL ORDER:22/02/13 APPELLANT : Sri Somnath Khatik P.O. & P.S. Arambag District-Hooghly RESPONDENTS : 1) Bennet Pharmaceuticals St. No.524, Nanjusar Dist. Baroda, Gujrat 2) Lakshminarayan Pharmacy Taltala Bazar P.O. & P.S. Arambag District-Hooghly 3) Deys Medico (P) Ltd. P.C. Sen Road Near Arambag Boys High School P.O. & P.S. Arambag District-Hooghly 4) Dr. Gautam Ganguly Nibedita Nursing Home P.O. & P.S. Arambag District-Hooghly BEFORE : HONBLE JUSTICE : Sri Kalidas Mukherjee President HONBLE MEMBER : Smt. M. Roy FOR THE APPELLANT : Mr. Barun Prasad Ld. Advocate FOR THE RESPONDENTS : Ms. Madhupurna Ghosh Ld. Advocate : O R D E R :
HONBLE JUSTICE SRI KALIDAS MUKHERJEE, PRESIDENT This appeal is directed against the judgment and order passed by Learned District Forum, Hooghly in case no.51 of 2007 dismissing thereby the complaint.
The case of the complainant/appellant, in short, is that the baby of the complainant was under the treatment of the Proforma OP since 30/07/06. On 14/03/07 the baby was suffering from fever with pain in the stomach and, as such, he was taken to the Proforma OP at night who prescribed certain medicines. On 15/03/07 the complainant purchased the said medicines including the medicine namely Anset from the shop of OP No.2 of which OP No.3 is the distributor and OP No.1 is the manufacturer. The complainant found the existence of some foreign body inside the sealed bottle of the said medicine Anset. Being worried and perplexed the complainant abstained from opening the sealed bottle of the scheduled medicine. It has been alleged that there was deficiency in service and unfair trade practice on the part of the OPs and the complaint was filed before the Learned District Forum praying for compensation of Rs.5,00,000/-.
The Learned Counsel for the appellant/complainant has submitted that the report was obtained by the Learned District Forum from the State Drugs Control & Research Laboratory vide no.SDCRL/Non-statutory/511 dated 22/10/08. It is contended that the Learned District Forum did not discuss about the said report submitted by the State Drugs Control & Research Laboratory and, on the contrary, the Learned District Forum relied on the report submitted by the OP and came to the finding that the allegation was raised against the OP No.1 on the basis of presumption. It is submitted that since the Learned District Forum referred the sample bottle to the State Drugs Control & Research Laboratory, reliance ought to have been placed upon the report submitted by that authority which has specifically mentioned that the sample was not recommended for human use. It is submitted that no objection was raised by the respondents before the Learned District Forum against the report submitted by the State Drugs Control & Research Laboratory and the Learned District Forum was not justified in dismissing the complaint.
The Learned Counsel for the respondent no.1/manufacturer has submitted that the respondent no.1 supplied the bottles of medicine to the dealer/distributor and the case of the complainant is based on presumption only. It is contended that the date of testing was not mentioned in the report. It is contended that the report of Choksi Laboratory is acceptable throughout India and the Learned District Forum was justified in dismissing the complaint. The Learned Counsel for the respondents has referred to the decision reported in 1989 STPL (CL) 50 NC [P.A. Pouran Vs. Mcdowell & Co. & Ors.].
We have heard the submission made by both sides and perused the papers on record. It appears that the Director, State Drugs Control & Research Laboratory, West Bengal submitted report on examination of the sample bottle to the President of the Learned District Forum with reference to the letter no.118 dated 13/08/08 of the Learned District Forum. It shows that the report was called for by the Learned District Forum from the Director of the said laboratory. In the report dated 03/10/08 it has been clearly mentioned that the sample was tested before the expiry date and as the sample contained suspended matter, it was not recommended for human use. It has further been mentioned therein that the sample referred to was not of acceptable quality. It has been mentioned in the report that before opening the seal of the sample it was observed that there was heavy black colour suspended matter floating inside the liquid. The Learned Counsel has also drawn our attention to the fact that the respondents did not file any written objection against such report of the laboratory and under such circumstances the report should be treated as unchallenged testimony.
The Learned District Forum did not consider that report submitted by the said laboratory.
The complainant has filed the copy of the prescription of the doctor where Anset has been prescribed. The complainant has also filed purchase receipt issued by the respondent no.2. The decisions cited by the Learned Counsel for the respondent is not applicable in the facts of the instant case, in as much as, in the aforesaid case the purchase could not be proved. But here in the instant case, the complainant has filed by the xerox copies of the prescription issued by the doctor and also the purchase receipt. The complainant also wrote a letter to the Secretary of the Bengal Chemist and Druggist Association, Arambagh, Hooghly, but to no effect. In such view of the matter, we are of the considered view that the Learned District Forum was not justified in dismissing the complaint. In view of the specific report of the State Drugs Control & Research Laboratory, we are of the considered view that since the sample was not recommended for human use, it could have been fatal if administered to the baby. The respondent no.1, 2 and 3 are liable to pay compensation of Rs.1 lakh to the complainant/respondent for the harassment and mental agony he has suffered.
In the result, the appeal succeeds and the same stands allowed in part. We set aside the impugned judgment and order. The petition of complaint is allowed in part. The respondent no.1, 2 and 3 are jointly and severally directed to pay compensation of Rs.1 lakh to the appellant/complainant within 45 days from the date of passing this order failing which the amount shall carry interest @ 9% petitioner annum till realization. Since there is no prayer against respondent no.4 (Proforma OP of the complaint) the complaint stands dismissed against him.
MEMBER(L) PRESIDENT