State Consumer Disputes Redressal Commission
M/S Tridoss Laboratories Pvt. Ltd. vs Mukesh Kumar & Another on 23 October, 2013
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, UTTARAKHAND, DEHRADUN
FIRST APPEAL NO. 20/2012
M/s Tridoss Laboratories Pvt. Ltd.
Regd. Office: 167, Readymoney Terrace
2nd Floor, Dr. A.B. Road, Worli, Mumbai - 400 018
......Appellant / Opposite Party No. 1
Versus
1. Sh. Mukesh Kumar S/o Sh. R.S. Sharma
R/o C-12, Shiv Vihar, Arya Nagar
Near Red Temple, Jwalapur, Haridwar
......Respondent No. 1 / Complainant
2. M/s Kanha Biogenetic Laboratories
B.E.P.PIP. Phase-1, Jhaj Manjhari, Badi
District Solan, Himachal Pradesh
......Respondent No. 2 / Opposite Party No. 2
Mrs. Geeta Handa Khanuja, Learned Counsel for the Appellant
Mr. Shailendra Pundir, Learned Counsel for the Respondent No. 2
None for Respondent No. 1
Coram: Hon'ble Mr. Justice B.C. Kandpal, President
Mr. C.C. Pant, Member
Dated: 23/10/2013
ORDER
(Per: Mr. C.C. Pant, Member):
This appeal is directed against the judgment and order dated 07.02.2012 passed by the District Forum, Haridwar in consumer complaint No. 294 of 2008, whereby the District Forum has allowed the consumer complaint against the opposite party No. 1 and has directed it to pay to the complainant a sum of Rs. 5,000/- and to deposit Rs. 2 lacs in the Forum as compensation.
2. The facts of the case, in brief, are that one Sh. Mukesh Kumar - complainant had purchased a medicine named "Aceten 25 mg" from M/s New Janta Medical Store, Haridwar - opposite party No. 3 for Rs. 37.50 vide cash memo No. 3010 dated 19.07.2008. After purchasing the said 2 medicine, the complainant came to know that the selling price of the said medicine is Rs. 2.16 per 10 tablets. Thus, the opposite party No. 3 had sold it to the complainant at a much higher price. The said medicine is manufactured by M/s Kanha Biogenetic Laboratories, District Solan (H.P.)
- opposite party No. 2 and is marketed by M/s Tridoss Laboratories Private Limited, Mumbai - opposite party No. 1. The complainant has alleged that the said drug is based on bulk drug named "Captopril", which is included in first schedule of Drug Price Control Order, 1995. When this fact was brought to the notice of opposite party No. 3, it told that the M.R.P. printed on the packing is Rs. 37.50 per 10 tablets and the drug is available on that price. The complainant reported the matter to the National Pharmaceutic Pricing Authority (or NPPA) of Government of India and also sent notices to the opposite parties, but to no avail. Thereafter, he filed a consumer complaint before the District Forum, Haridwar on 21.10.2008 alleging therein that the opposite parties are selling the said drug at a much higher price and, thus, adopting unfair trade practice. The District Forum, after an appreciation of the facts of the case, allowed the consumer complaint against the opposite party Nos. 1 and 2 and dismissed it against the opposite party No. 3, vide its order dated 14.10.2009. The said judgment was rendered ex-parte against the opposite party Nos. 1 & 2. The opposite party Nos. 1 & 2 filed First Appeal Nos. 11 of 2010 and 47 of 2010 respectively against the said order. This Commission, vide its judgment and order dated 23.05.2011 passed in First Appeal No. 11 of 2010 and First Appeal No. 47 of 2010, allowed the appeals and remanded the case back to the District Forum with the direction that the case be decided afresh in accordance with law. In compliance of the directions given by this Commission, the District Forum, Haridwar has decided the consumer complaint vide its order dated 07.02.2012 in the above terms. Aggrieved by the said order, the opposite party No. 1 - M/s Tridoss Laboratories Pvt. Ltd. has preferred this appeal, impleading the complainant as respondent No. 1 and opposite party No. 2 as respondent No. 2.
33. None appeared on behalf of the respondent no. 1-complainant. We have heard the learned counsel for the appellant-opposite party No. 1 and respondent No. 2-opposite party No. 2 and perused the material placed on record.
4. The learned counsel for the appellant submitted that the appellant is a company registered under the provisions of the Companies Act, 1956 carrying on business interalia of the distribution and the sale of products and pharmaceuticals including the formulation of Aceten 25 mg, which is a dispersible tablet based on the bulk drug Captopril. The appellant is the only manufacturer in the country of the said Captopril dispersible tablets. Other companies manufacture plain Captopril tablets. She also submitted that the appellant is a small scale industry registered with the Government of Maharashtra. The Aceten 25 mg tablet is manufactured by respondent No. 2 for the appellant. The learned counsel argued that the District Forum has ignored the guidelines of the State Commission in its order dated 23.05.2011 and submitted that the District Forum did not take into consideration that the jurisdiction of the District Forum was barred due to the principle of Res Judicata. The dispute is with regard to pricing of the tablet Aceten 25 mg and the Hon'ble High Court of Judicature at Bombay had heard the parties in Writ Petition No. 2711/2002 and 2590/2009 on the same cause of action. Therefore, in the light of Section (11) of the Code of Civil Procedure, 1908, the District Forum ought to have dismissed the consumer complaint in limine.
5. The learned counsel for the appellant further submitted that the dispute with regard to the pricing of the Aceten 25 mg was also involved in Writ Petition No. 2711/2002 and 2590/2009 and the Hon'ble High Court of Judicature at Bombay has decided these two writ petitions, vide its order dated 06.08.2010 and 06.08.2010 respectively and the matter has been remanded back to the Authority for de novo consideration and decision in accordance with law. The learned counsel for the appellant argued that the 4 District Forum has made a gross legal error by holding that the subject matter of the writ petitions and the consumer complaint are different and, therefore, the principle of res judicata does not apply to the instant case. Further, the District Forum has also erred by holding that the decisions of Hon'ble High Court do not affect the instant case because the dispute is between the seller and purchaser. The learned counsel also argued that the pricing disputes cannot be adjudicated by the Consumer Fora and in this regard, she pressed into service the following decisions:-
1) Hon'ble National Commission's decision dated 21.09.2006 in the case of Capt. Vidya Vinod Prasad vs. Managing Director, Bihar State Housing Board and Others; 2006 INDLAW NCDRC 184.
2) Hon'ble National Commission's decision dated 19.01.2010 in the case of Jagdish Gurnani vs. Lucknow Development Authority; 2010 INDLAW NCDRC 49.
6. Citing these decisions, the learned counsel submitted that pricing cannot become a matter of consumer dispute. Similarly, the learned counsel argued that there should not be multiplicity of litigation for the same cause of action and in support of this contention, she referred to a decision of the Hon'ble National Commission in the case of G. Rajitha vs. Devi Constructions & Anr.; 2011 INDLAW NCDRC 124 wherein the Hon'ble National Commission has observed that:-
"It is a settled law that no person can agitate similar disputes concurrently before two separate Forums with distinct legal jurisdictions"
7. Thus, the learned counsel argued that the District Forum, while deciding the case afresh, has not complied with the directions given the State Commission and the impugned judgment and order has not been passed in accordance with law. Therefore, the same is liable to be set aside.
8. The learned counsel for respondent No. 2 reiterated the facts of the case and submitted that it manufactures the drug for the appellant and, as such, the District Forum has rightly exonerated respondent No. 2.
59. We considered the submissions raised by the learned counsel for the appellant and respondent No. 2. Before taking a view in this matter, we would like to say at the very outset that the decisions cited by the learned counsel for the appellant in support of her arguments on the points of pricing and multiplicity of litigation cannot be applied to the instant case. In the case of "Capt. Vidya Vinod Prasad" (supra) and "Jagdish Gurnani", the dispute was with regard to cost of house/flat and there was an agreement between the consumer and the service provider, while in the instant case, there is no such agreement between the consumer/complainant and opposite parties. In the instant case, the grievance of the consumer is that he was overcharged for a medicine, whose price is fixed by the NPPA at Rs. 2.16 per 10 tablets. Similarly, the facts of the case of "G. Rajitha"
(supra) are also different, because in this case, the Hon'ble National Commission found that the complainant had already filed a civil suit.
Therefore, the Hon'ble National Commission observed in the said case that no person can agitate similar disputes concurrently before two separate Forums with distinct legal jurisdiction. In the instant case, the record does not reveal that the complainant - respondent No. 1 has filed some other case for the same dispute of overcharging of price before some other court. However, after going through the record carefully, we are of the view that a case of unfair trade practice cannot be made out from the fact that Aceten 25 mg is being sold at Rs. 37.50 for 10 tablets. This fact is not in dispute that this is the M.R.P. printed on the packing and the retailer, opposite party No. 3 before the District Forum, was not selling it on a price more than the printed price. The District Forum has also observed in its order that the decisions of the Hon'ble High Court of Judicature at Bombay in Writ Petition No. 2711/2002 and 2590/2009 cannot bar the jurisdiction of the District Forum on the principle of res judicata, because the dispute is between the purchaser and seller. The District Forum has exonerated opposite party No. 3 from the allegation of overcharging the price and adopting unfair trade practice. So the consumer dispute, if it is confined to 6 purchaser and seller, must end here, but District Forum has held that the appellant has adopted unfair trade practice by charging Rs. 37.50 for 10 tablets instead of Rs. 2.16 for 10 tablets, as fixed by the Government of India. Here, the District Forum has erred legally because as soon as it comes to fixing the M.R.P. of Aceten 25 mg by the appellant, the District Forum ought to have kept in mind that the appellant has challenged the Government of India's notification dated 09.03.1998 (Paper No. 56 of Vol. III) in Writ Petition No. 2711/2002. Similarly, on the same point that the appellant has been overcharging the price of medicine, the NPPA has passed an order dated 01.05.2009 (Paper No. 259 of Vol. III) directing the appellant to deposit the overcharged amount. The Hon'ble High Court of Judicature at Bombay has decided these writ petitions vide its order dated 06.08.2010 and 06.08.2010 respectively read with order dated 28.07.2010 and has remanded back the matter to NPPA. Therefore, the District Forum cannot take a view in the matter of pricing. The observation made by the District Forum that if the price is fixed by the competent authority at Rs. 2.16 for 10 tablets, then it will not take retrospective effect and, thus, the complainant will suffer a loss because the amount overcharged shall not be refundable to him and if the price is fixed at Rs. 37.50 for 10 tablets, the consumer complaint is allowable, because it would pertain to a prior date, is quite confusing, misleading and against the settled principles of law and such an observation make neither head nor tail. Therefore, the impugned order is not sustainable and is liable to be set aside. Considering all the facts and circumstances of the case and in the light of the order passed by the Hon'ble High Court of Judicature of Bombay, the appeal deserves to be allowed.
10. The appeal is allowed. The impugned judgment and order dated 07.02.2012 passed by the District Forum, Haridwar is set aside and the consumer complaint No. 294 of 2008 is dismissed. No order as to costs.
(C.C. PANT) (JUSTICE B.C. KANDPAL)