State Consumer Disputes Redressal Commission
Sri Sakthi Medicals vs Prasanna Kumar, on 19 February, 2014
Daily Order
Kerala State Consumer Disputes Redressal Commission Vazhuthacaud,Thiruvananthapuram First Appeal No. A/13/153 (Arisen out of Order Dated 28/04/2012 in Case No. 26/2010 of District Idukki) 1. SRI SHAKTHI MEDICALS THE PROPRIETOR
SRI SAKTHI MEDICALS,VANDIPERIYAR,IDUKKI IDUKKI KERALA ...........Appellant(s) Versus 1. PRASANNAKUMAR VAZHAPARAMBIL HOUSE
VANDIPPERIYAR P.O IDUKKI KERALA ...........Respondent(s) BEFORE: HON'ABLE MR. SRI.K.CHANDRADAS NADAR PRESIDING MEMBER SRI. V. V. JOSE MEMBER PRESENT: ORDER
KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION SISUVIHARLANE VAZHUTHACADU THIRUVANANTHAPURAM
APPEAL NUMBERS.825/2012 & 153/2013
COMMON JUDGMENT DATED :19.02.2014
( Appeal filed against the order in CC.No.260/2010 on the file of CDRF,Idukki order dated : 28.04.2012)
PRESENT
SRI.K.CHANDRADAS NADAR : JUDICIAL MEMBER
SRI.V.V.JOSE : MEMBER APPEAL NO.825/12 The Managing Director, Sreedhareeyam Ayurvedic, Medicine (P) Ltd, Nalukettu Mana, Keezhkombu, APPELLANT Koothattukulam, Ernakulam District (By Adv.Sri.P.Rajmohan, TVPM) Vs. 1.Prasanna kumar, Vazhaparambil House, Vandipperiyar.P.O Idukki District - 685 533 2.Dr.Rakhi Chandra B.A, M.E, RESPONDENTS Research Officer, Sreedhareeyam Hospital, Koothattukulam, Ernakulam 3.The Proprietor, Sri. Sakthi Medicals, Vandiperiyar, Idukki - 685 533 4. The Managing Director, Sreedhareeyam Hospital, Nalukettu Mana, Keezhkombu, RESPONDENTS Koothattukulam, Ernakulam District (R2 by Adv.Sri.Dinesh Sajan, TVPM) APPEAL NO.153/13 The proprietor, Sri Sakthi Medicals, Vandiperiyar, Idukki - 685 533 APPELLANT M.G.Road, Cochin - 682015 (By Adv.S.Reghukumar, TVPM) VS. 1. Prasanna kumar, Vazhaparambil House, Vandipperiyar.P.O RESPONDENTS Idukki District - 685 533 2. The Managing Director, Sreedhareeyam Ayurvedic, Medicine (P) Ltd, Nalukettu Mana, Keezhkombu, Koothattukulam, Ernakulam District 3. Dr.Rakhi Chandra B.A, M.E, Research Officer, Sreedhareeyam Hospital, Koothattukulam, Ernakulam RESPONDENTS 4. The Managing Director, Sreedhareeyam Hospital, Nalukettu Mana, Keezhkombu, Koothattukulam, Ernakulam District COMMON JUDGMENT SRI.K.CHANDRADAS NADAR : JUDICIAL MEMBER
Appellants were respectively opposite parties 4 & 3 in CC.No.260/2010 in the CDRF, Idukki. The common first respondent was the complainant. He alleged in his complaint that attracted by the advertisements given by the opposite parties in leading newspapers and in TV channels about their product " Sreedhareeyam Smartlean " capsules, the daughter of the complainant purchased and used the said capsules as per direction given by the opposite parties. The daughter of the complainant was having weight of 84 kgms before using the tablets. But after consuming the capsules for one month the weight of the daughter of the complainant increased to 98 kgms. The matter was intimated to the Sreedhareeyam Hospital at Koothattukulam. As per their direction the daughter of the complainant approached the second opposite party there on 03.06.2010. After examining her the second opposite party, a doctor of the opposite parties referred her to a gynaecologist for further examination. She was examined by doctor Suresh Babu, gynaecologist of the Government Hospital, Vandiperiyar. As per his direction the daughter of the complainant was subjected to body scan at United Scan Centre, Kampam, Tamil Nadu. After examining the scan report the doctor found no other physical abnormality or disease in her. According to the complainant the ordinary public is attracted by the advertisements given by the opposite parties and they are cheating them by extracting money. Hence the complaint for a direction banning the advertisements given by the opposite parties and also for compensation for mental agony, physical inconvenience and loss of money due to treatment of the complainant's daughter.
2. Before the District Forum opposite parties 2 & 3 remained exparte. Opposite parties 1 & 4 filed separate version. The first opposite party contended that there was no such firm run by the first opposite party as alleged in the complaint. The hospital is run by Sreedhareeyam Ayurvedic Eye Hospital and Research Centre (Pvt Ltd). A unit of manufacturing medicines named Sreedhareeyam Ayurvedic Medicines Pvt Ltd is also run by them. The medicine described in the complaint is manufactured by Sreedhareeyam Ayurvedic Medicines (Pvt Ltd). So the said company is a necessary party. The first opposite party never produced the product purchased by the complainant. Sreedhareeyam Smartlean capsules are produced after long studies and experiments. All the ingredients included in the capsules enable reduction of body weight. Licence is issued to produce the capsules after examination by government agencies including experienced doctors. More over, test reports are obtained and inspections are conducted for each batch of product. So quality maintenance is strictly assured before manufacturing the product. A lot of people are using the product becasue of the high quality of the product. No complaint has been received till now. The complainant has to prove that the weight of his daughter increased from 84 kgms to 98 kgms after use of the capsules for one month as alleged. Expert opinion is also needed to prove the same. The complaint is intended to destroy the good repute of the institution of the opposite parties. None of the prayers of the complainant is sustainable.
3. Fourth opposite party adopted the contentions of the first opposite party. Before the District Forum apart from the oral evidence of the complainant and his daughter two other witnesses were examined as PWs3 & 4. Exts.P1 to P8 were marked on his side. MOs 1 & 2 were also marked on the side of the complainant. One witness was examined on the side of the opposite parties. Exts.R1 to R5 were marked on their side.
4. As per the impugned order the District Forum held that the opposite parties did not produce any scientific evidence or government order to substantiate the advertisements. Hence the Consumer Forum directed the fourth opposite party to desist from making advertisements like Ext.P6. Opposite parties 2 & 4 were also directed to pay compensation of Rs.2 lakhs to the complainant for the mental agony hardships and financial loss caused to him as a result of increase in weight caused to his daughter due to consumption of medicines manufactured by the 4th opposite party. They were also directed to pay Rs.2000/- towards cost. The correctness of the said order is under challenge in these appeals.
5. The case of the complainant is that his daughter attracted by the advertisements given by the opposite parties consumed Sreedhareeyam smartlean capsules produced by the 4th opposite party but contrary to the assurance in the advertisements, her body weight increased from 84 kgms to 98 kgms after consumption of the capsules for one month. According to the first opposite party smartlean capsules are being manufactured by Sreedhareeyam Ayurvedic Medicines pvt Ltd and the fourth opposite party is the Managing Director of the said company. According to the complainant his daughter who is examined as PW1 consumed the capsules purchased as per Ext.A1 bill issued by Sakthi Medicals on 03.05.2010. Capsules worth Rs.570/- are seen purchased as per Ext.P1. Ext.P8 dated 04.05.2011 purchasing smartlean capsules worth Rs.190/- in the name of the complainant is also produced. The complaint itself is dated 02.12.2010. In order to sustain the complaint the very first requirement is proof regarding the body weight of PW1 just prior to the use of the capsules and after use of the capsules. In this regard, the Consumer Forum mainly placed reliance on the version of PWs 1 & 2. It is seen that PW1 approached the second opposite party on 03.06.2010 as is evident from Ext.P3. She was referred to a gynaecologist for expert opinion as seen from Ext.P2. It was accordingly the complainant's daughter approached PW3 a gynaecologist. He suggested body scan and according to the complainant the doctor could not find any abnormality. Exts.P4 & P5 relate to this scan. In the scan body organs such as liver gall bladder, spleen, kidneys etc were found normal. In order to prove that the bodyweight of PW1 increased after use of the capsules reliance is placed on Exts.P5 & P7. Ext.P7 is an op ticket dated 24.04.2011 issued from the Community Health Centre, Vandiperiyar. In Ext.P7 it is recorded that her body weight is 96kgms. But ExtP7 itself was issued on 24.04.2011 nearly one year after the capsules were purchased as per Ext.P1 and apparently used by PW1. So it is not safe to rely on Ext.P7 to conclude that soon after the use of the capsules the body weight of PW1 increased to 96 kgms. There is absolutely no evidence that immediately before the use of the capsules her body weight was 84 kgms as alleged.The complainant wanted to rely on Ext.P5 certificate issued by the Deputy Director of NCC certifying that she had passed the examination held by them in September 2009 securing Grade B. The photograph of the girl is affixed in the certificate. Another photograph is attached to Ext.P5 certificate to show the gain in body weight of PW1. It is sufficient to say that the photograph affixed in Ext.P5 certificate itself shows that the girl was obese. So Ext.P5 also proves nothing.
6. It is true that both PW 3 a gynaecologist and PW4 an Ayurvedic physician deposed that there is no medicine which immediately reduce body weight. According to PW4 there are certain procedures like powder massage steam bath etc which reduce body weight. But the question is whether the said evidence alone is sufficient to justify the order passed by the District Forum. It is pertinent to notice that the Department of Factories and Boilers had issued necessary license to the opposite parties. Ext.R3 is produced to show the formula of medicines used in Sreedhareem smartlean capsules. Ext.R4 shows that licence is issued by the Drugs Controller, Government of Kerala to manufacture the medicine. Exts.R5 and P6 reveal the ingredients of the capsules which are plant parts. So the question is, when the drugs controller has issued licence to manufacture the capsules, a consumer Forum is entitled to prohibit the issue of Ext.P6 leaf let accompanying the capsules. The District Forum has assumed power to issue the order from Drugs and Magic Remedies (Objectionable Advertisements) Act, 1954 as per which prohibition of misleading advertisements is possible. But in order to do that the advertisements should give false impression regarding the true character of the drug or make false claim for the drug or is otherwise false or misleading in any material particular. So also publication of advertisements referring to any magic remedy is banned and in the schedule obesity is mentioned as one of the diseases relating to which such advertisements are prohibited. But it is doubtful whether the Consumer Forum is the appropriate authority to enforce the provisions of the above Act for the Consumer Forum lacks the expertise to decide upon a claim based on a medicine.
7. It is in this context, Section 13 (c) of the CP Act becomes relevant. When a complaint alleges defect in the goods which cannot be determined without proper analysis or test of the goods it is incumbent on the Consumer Forum to obtain a sample of the goods, seal it authenticate it and send it to the appropriate laboratory to make analysis and submit report. The District Consumer Forum failed to adopt such a procedure.
8. It may also be mentioned that during the pendency of the appeal the appellant produced a study report from Kasthurba Medical College, Mangalore which shows that the claim of the appellants regarding smartlean capsules that the capsules do reduce body weight is to some extent true. Any way, the burden of proof is on the complainant to show that in fact her body weight increased as a result of use of the smartlean capsules as against the promise that the body weight would be reduced. There is no such proof and for the other reasons elaborated earlier, the complainant could not really establish the allegations in the complaint. So the District Forum erred in allowing the complaint. Hence the both the appeals are liable to be allowed.
In the result, the appeals are allowed and in reversal of the order of the CDRF, Idukki in CC.No.260/2010 dated 28.04.2012, the complaint is dismissed. The parties shall bear their respective costs in these appeals.
K.CHANDRADAS NADAR : JUDICIAL MEMBER
V.V.JOSE : MEMBER
Be/
[HON'ABLE MR. SRI.K.CHANDRADAS NADAR] PRESIDING MEMBER
[ SRI. V. V. JOSE] MEMBER