State Consumer Disputes Redressal Commission
N.Rajendran,& Anr,Kodaikanal. vs The Commissioner,Kodaikanal ... on 25 February, 2015
THE TAMILNADU STATE CONSUMER DISPUTES REDRESSAL
COMMISSION, MADURAI BENCH.
Present: Thiru.J.JAYARAM, Presiding Judicial Member
Thiru.S. SAMBANDAM, Member
C.C.No.09/2013
THE 25th DAY OF FEBRUARY 2015.
Date of Complaint filed : 08.05.2013
Date of Complaint pronounced : 25.02.2015
1 N. RAJENDRAN
Son of Mr. I. Natarajan,
15/161-B-7, Convent Road,
Naidupuram,
Kodaikanal - 624 101 1st Complainant
2 THE SOUTH INDIAN CONSUMER AND
HUMAN RIGHTSPROTECTION COUNCIL
(a registered voluntary consumer organization)
through its Managing Trustee Thiru K. Manavalan,
# 155/1, North Veli Street,
Simmakal Circle,
Madurai - 625 001. 2nd Complainant
Vs
1 M/s. SOUTH INDIA SPICES,
through its Proprietor,
Hill Farmers' Spices & Oil Marketing Centre
Shop No. 1, 4, 5 & 6,
Golden Park in Complex,
Anna Salai,
Kodaikanal - 624 101 1st Opposite Party
2 The Commissioner,
Kodaikanal Municipality,
Kodaikanal - 624 101. 2nd Opposite Party
3 The Municipal Health Officer,
Kodaikanal Municipality,
Kodaikanal - 624 101. 3rd Opposite Party
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Counsel for Complainants 1 and 2 : Mr. M. Piravi Perumal, Advocate.
Counsel for Opposite Party-1 : Mr. M. Sankar, Advocate.
Counsel for Opposite Parties 2 and 3 : Mr. P. Srinivas, Advocate.
This complaint coming before us for final hearing on 20-01-2015
and on hearing the arguments of both sides and upon perusing the material
records, this Commission made the following:
ORDER
THIRU. J. JAYARAM, PRESIDING JUDICIAL MEMBER.
1. The case of the complainants is as follows:-
Kodaikanal is a famous hill station situated in Dindigul District, Tamilnadu. The Gaulteria Wintergreen Oil is in great demand in hill stations, as tourist-consumers used to buy this oil at the hill station and as such there is a huge demand for wintergreen oil at Kodaikanal. The "Gaultheria Winter Green Oil" is widely used by consumers of all ages for muscular & rheumatic pains. It is an Analgesic, astringent, carminative, diuretic, stimulant, anodyne, anti-rheumatic, antispasmodic, antiseptic, aromatic, externally for joint pains, arthritis, strains, rheumatic and muscular pains. The pure oil of wintergreen can cause irritation and must be used cautiously and in very small amounts. Essential oil is highly toxic; absorbed through skin, harms liver and kidneys. Wintergreen should never be used during pregnancy. The 1st complainant had purchased Gaulteria Wintergreen Oil from the 1st opposite party for Rs. 90/- vide cash bill No. 2515 dated 26/1/2013. The bottle did not contain the name -3- of manufacturer, date of manufacture, batch number, precautions etc which is mandatory. About 30 ml (about 1 fl oz) of oil of wintergreen is equivalent to 55.7 g of aspirin, or about 171 adult aspirin tablets. This conversion illustrates the potency and potential toxicity of oil of wintergreen even in small quantities. Illiteracy may be a common factor in case of accidental overdoses and may cause death even in case of adults. It is pertinent to point out that the said bottle contains no precautions whatsoever in the bottle. The oil is unsafe to take by mouth. The wintergreen leaf and oil are poisonous for children. Taking 4-10 ml of wintergreen oil by mouth can be deadly. The use of wintergreen oil on the skin of children less than 2 years old can result in serious health complications. It is not safe to be used by women during pregnancy and breast-feeding. Wintergreen products might be toxic to nursing infants. Taking wintergreen by mouth might make conditions worse with a person having stomach and intestinal inflammation. Wintergreen might cause an allergic reaction in people who are allergic to aspirin or other salicylate compounds, or have asthma or nasal polyps. But, this winter green oil is being sold and distributed at Kodaikanal without any precautions thereby causes health hazards. Though there are several unknown cases of death due to over dose of winter green oil the 1st complainant took serious efforts and managed to get the medical records of one Mr. Venkatesan aged around 39 years who was admitted at the Government Hospital due to intake of winter green oil which reveals the hazardous nature of the winter green when precautions are not followed. And it is unfortunate that there is no treatment -4- facility is available at Kodaikanal for treating patients who accidentally consumes winter green oil. But this winter green oil is being sold and distributed at Kodaikanal without any precautions thereby causes health hazards. The 1st complainant had taken up the matter with the 2nd complainant - voluntary consumer organization and they in turn took up the matter with the 2nd and 3rd opposite parties to take serious action and to stop distribution of hazardous wintergreen oil packed and sold in violation of the Packaged Commodity Act and allied Rules. The Municipal Health Officer ie.
the 3rd opposite party is the overall in-charge of the Health Section of Kodaikanal Municipality. He has to take all steps to preserve public safety within the limits of Kodaikanal Municipality. According to Weights and Measures (Packaged Commodities) Rules and Rule 6 of the Legal Metrology (Packaged Commodities) Rules - 2011, all packed goods should carry certain essential information on the contents of the package, such as its weight or volume, the name and address of the manufacturer, the date of manufacture, and in case of food packages, the best before date and, of course, the maximum retail price (MRP). But the said oil is sold in violation of the same. They have remained mute spectators to the sale of winter green oil in violation of rule of law which may cause health hazards under their very nose for obvious reasons. The complainants have alleged deficiency in service, and unfair trade practice and has lodged this complaint.
2. The 1st opposite party filed version stating as follows:- -5-
The 1st opposite party has contended that the documents 1 to 6 submitted and mentioned in the complaint are publicity mongering. The Wikeapedia Report can be easily derived or downloaded in the network system even by lay man. The receipt dated 26-01-2013 is highly fabricated and concocted and fully based on fraud and manipulation and is a forged document. The signee/employee has been working in the concern of the 1 st opposite party is not related in any way and the signature contained in the forged cash receipt as alleged by the complainant. The seizure process was conducted surprisingly and clandestinely without giving prior notice to anybody in Kodaikanal in particular the 1st opposite party. The complainants have tried to stage their drama and fraud before this Hon'ble Commission in the garb of social and public responsibility. Hence prayed for dismissal of the complaint.
3. The opposite parties 2 and 3 filed version stating that in response to the direction of this Commission dated 10.05.2013 in C.M.P.No.19/2013 they seized the said WINTER GREEN OIL and the samples were sent to the "INDIAN DRUG TESTING LABORATORY, ARUMBAKKAM, CHENNAI through the District Medical Officer (SIDDHA), DINDIGUL DISTRICT, on 24.06.2013 and Certificate of analysis dated 02.07.2013 which was received by the opposite parties.
4. The points for consideration are :-
(1) Whether the complaint is maintainable before this Commission under the Consumer Protection Act?-6-
(2) Whether there is negligence or deficiency in service on the part of the opposite party as alleged in the complaint?
(3) If so to what relief the complainant is entitled?
5.POINT NO:1 The complainant filed proof affidavit reiterating the allegations and the averments in the complaint and has filed Exhibits A1 to A5 and Gautheria Winter Green Oil has been marked as Material Object M.O.1. The 1st opposite party has filed proof affidavit reiterating the averments in his written version and filed Exhibit B1 on his side which is the cash receipt. The 2nd and 3rd opposite parties have filed proof affidavit. The seizure particulars filed by the opposite parties 2 and 3 is marked as Exhibit C1 series and the laboratory report obtained and produced by the 2nd and 3rd opposite party is filed and marked as Exhibit C2.
6. Exhibit A1 the cash receipt issued by the 1st opposite party establishes that the 1st complainant has purchased the "Gaultheria Winter Green Oil" for consideration at Kodaikanal, Dindigul District and as such he is a consumer under the provisos of the Consumer Protection Act. The complainant No. 2 as a registered voluntary consumer organization is entitled to maintain a complaint under Section 2 (b) and 12 of the Consumer Protection Act - 1986. At the outset it is clear that a person who can be termed as a consumer under the Act can make a complaint. To be specific on this account, following are the persons who can file a complaint under the Act:
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(a) A consumer; or
(b) Any voluntary consumer association registered under the Companies Act, 1956 or under any other law for the time being in force, or
(c) The Central Government or any State Government,
(d) One or more consumers, where there are numerous consumers having the same interest.
The Hon'ble National Commission Full Bench consisting of Hon'ble Mr. Justice D.P.Wadhwa, President, Hon'ble Mr. Justice J.K. Mehra, Member, Mrs. Rajyalakshmi Rao, Member, Mr. B.K.Taimni, Member in the case of Voluntary Organisation in Interest of Consumer Education (VOICE) Vs. The Registrar Tamil Nadu State Consumer Disputes Redressal Commission in Revision Petition No. 1017/2001 in its order dated 02-01-2003 held that consumer organizations are entitled to file and maintain complaint on behalf of aggrieved consumer/complainant and they have right of audience before the District Fora, State Commission and National Commission set up under the Act. Thus the Consumer Protection Act - 1986 has empowered the voluntary consumer organizations to file the complaint. Hence the present -8- complaint filed by the complainants before us is perfectly maintainable and the point is answered accordingly.
7. POINT No: 2 The complainants contended that Kodaikanal is a famous hill station situated in Dindigul District, Tamilnadu and the Gaulteria Wintergreen Oil is in huge demand at Kodaikanal. Further complainants contended "
Gaultheria Winter Green Oil " is widely used by consumers of all ages for muscular & rheumatic pains and it is an Analgesic, astringent, carminative, diuretic, stimulant, anodyne, anti-rheumatic, antispasmodic, antiseptic, aromatic, externally for joint pains, arthritis, strains, rheumatic and muscular pains. Further it was contended by the complainants that pure oil of wintergreen can cause irritation and must be used cautiously and in very small amounts. The said oil is sold/distributed by the 1st opposite party and numerous traders by false representations and without any precautions resulting in health hazard to the 1st complainant and other unidentifiable numerous consumers.
8. The 1st complainant had purchased Gaulteria Wintergreen Oil from the 1st opposite party for Rs. 90/- vide cash bill No. 2515 dated 26/1/2013 and in support of the same the complainants have marked the cash bill as Exhibit A1. Per contra the 1st opposite party contended that the said receipt has not been issued by them and it is pertaining to the year 2013 and it is a fabricated document and that the signature contained in the cash receipt is not of his employee. If at all the entire bill book has been placed -9- before us we would have been in a position to verify the above contentions of the 1st opposite party but only a single bill alone has been produced and marked as Exhibit B1 on the side of the 1st opposite party and therefore we are of the opinion that the 1st opposite party has not established their contention. In these circumstances we are not inclined to accept the contentions of the 1st opposite party. Obviously, we are of the opinion that the 1st complainant had purchased the winter green oil bottle as per Exhibit A1.
9. The other contention of the complainant is that the said winter green oil bottle did not contain the name of manufacturer, date of manufacture, batch number, precautions etc which is mandatory. The purchased winter green oil bottle has been marked as M.O.1. On perusal of the bottle we do not find any details about the manufacturer, date of manufacture and expiry, how to be used, precautions etc. and we are of the opinion that it is gross violation of the Legal Metrology (Packaged Commodities) Rules - 2011
10. Further the complainants have forcefully contended that about 30 ml (about 1 fl oz) of oil of wintergreen is equivalent to 55.7 g of aspirin, or about 171 adult aspirin tablets and rely on the medical literature produced and marked as Exhibit A4 and strenuously pointed out that this conversion demonstrates the potency and potential toxicity of oil of wintergreen even in small quantities. The 1st opposite party has contended that the literature to the effect produced is mere extracts from website and has to be brushed
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aside. But, the 1st opposite party has not produced any literature to counter blast the literature placed by the complainants before this Commission. In these circumstances we are not inclined to accept the contentions of the 1st opposite party.
11. For effective adjudication of the complaint by us the complainants during the pendency of the complaint moved an application M.P. No. 19/2013 to direct the 2nd and 3rd opposite parties to seize the winter green oil sold within the limits of Kodaikanal Municipality and to send the same to the appropriate laboratory for testing and the said petition was allowed by this Commission and accordingly, the 2nd and 3rd opposite parties seized the winter green oil sold within the limits of Kodaikanal and has sent the samples to Drug Testing Laboratory (IM), Chennai for testing and the seizure. The samples were sent for testing to the laboratory as per the orders of this Hon'ble Commission and there is no necessity for giving notice as contended by the 1st opposite party, as any such prior notice is issued it will defeat the very purpose of ordering seizure of winter green oil. The report of the Drug Testing Laboratory, Chennai obtained by the 2nd and 3rd opposite parties and submitted to this Commission is Exhibit C2. On scrutiny of the report of the Drug Testing Laboratory, Chennai it would clearly establish that the bottle does not contain manufacturing date, expiry date. In the said report it is categorically stated that the sample tested by them contains 96.57 of methyl salicylate. A combined reading of the medical literature Exhibit A2 and C1 proves the toxic nature of the content of the winter green oil. Further
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the Exhibit A3 and A4 establish the terrible consequences of intake of winter green oil. We are shocked that such an toxic oil is being displayed and freely sold without adhering to the Legal Metrology (Packaged Commodities) Rules - 2011 which mandates that the packaged commodity should contain the name of the manufacturer, their address, contents of the bottle, precautions, date of manufacture, date of expiry etc. and it is shocking that no action has been taken on this count by the 2nd and 3rd opposite parties in spite of bringing to their notice vide Exhibit A5 and A6. The 2nd and 3rd opposite parties acted and seized the winter green oil bottled which are sold in contravention of the rules only after the directions of this Commission. The said gautheria winter green oil sold in contravention of packaged commodity rules is hazardous in nature and has to be withdrawn with immediate effect and such sale of oil by opposite party would have resulted in loss and injury to large number of consumers who are not identifiable.
12. The Consumer Protection Act was enacted to provide for better protection of the interests of consumers, such as the right to be protected against marketing of goods which are hazardous to the life and property ; the right to be informed about the quality, quantity, potency, purity, standard and price of goods, to protect the consumer against unfair trade practices; and prices of goods, to protect the consumer against unfair trade practices and right to seek redressal against unscrupulous exploitation of consumers, etc. as is evident from the statement of object and reasons of the Act. The consumers have to be protected against the marketing of goods, which are
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hazardous to their life. We have no hesitation to hold that the sale of winter green oil, which is toxic in nature in gross violation of Packaged Commodity Rules and Legal Metrology (Packaged Commodities) Rules-2011 to gullible consumers and the same, has to be curbed with iron hands. The Consumer Protection Act is a social piece of legislation to provide a forum to the consumers who are taken for ride by the suppliers of goods. The redressal is provided to consumers against any deficiency in service as well as against any loss or injury arising out of unfair trade practice. A bare perusal of the proviso relating to unfair trade practice would clearly indicate that the following ingredients (1) There must be a trade practice (2) The trade practice must be employed for the purpose of promoting the sale (3) The trade practice should cause loss or injury to the consumers of goods or services. The toxic/hazardous Gaultheria Winter Green Oil packed in 60 ml bottle is being distributed throughout Kodaikanal which does not have the name and address of the manufacturer, date of manufacture, batch number, date of expiry and precautions/warning as to how to store and use the said product etc as evidenced from M.O.1. But, the 1st opposite party had sold the said oil to the 1st complainant and other numerous unidentifiable consumers in gross violation by falsely representing as if it is the same as original winter green. In view of the above discussion we are inclined to accept the contentions of the complainant that the act of the opposite parties amounts to gross deficiency in service coupled with unfair trade practice and the point is answered accordingly.
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13.POINT No: 3 As discussed above the sale of winter green oil has been sold by the 1st opposite party to the 1st complainant has been established by Exhibit A1. Further it has also been established by M.O.1 that the winter green oil sold by the 1st opposite party does not have the name of manufacturer, contents of the liquid in the bottle, batch number, date of manufacture, expiry date, precautions etc. The contentions of the 1st opposite party that the winter green oil was not sold by them to the 1st complainant and no seizure was made from them by the 2nd and 3rd opposite party are not acceptable. Further the 1st opposite party has not placed before us the entire bill book which would definitely reveal the quantity of winter green oil sold by them. Therefore we are of the view that the 1st opposite party would have unquestionably sold the toxic winter green oil to numerous unidentifiable consumers. This Commission is of the view that no leniency should be shown to the 1st opposite party who had sold the toxic winter green oil. Equity demands that such unscrupulous traders, who are playing with the life of the gullible consumers, must be dealt with a heavy hand. A strong message is required to be sent to the opposite parties that this Commission is not helpless in such type of matters. Therefore it is a fit case where punitive damages under Section 14 should be imposed upon the 1st opposite party. We hereby impose punitive damages amounting to Rs. 20,000/- to be deposited in the Consumer Legal Aid Account of this Commission.
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The 1st complainant had not sought any compensation and reiterated that he has come forward with this complaint in the interest of other gullible consumers and hence there is no question granting any compensation to the complainants.
13. In the result, the complaint is allowed in part and the 1st opposite party is directed to withdraw the hazardous Gaultheria Winter Green Oil from sale and to discontinue this type of unfair trade practice in future and to pay a sum of Rs. 10,000/- (Rupees ten thousand) as punitive damages in the Consumer Legal Aid Account of this Commission. The 2nd and 3rd opposite parties are directed to take suitable action with the help of appropriate authorities and to ensure that no hazardous Gaultheria Winter Green Oil is offered for sale in violation of Packaged Commodities Act within its territorial limits. Further the 1st opposite party is directed to pay costs of Rs.10,000/- (Rupees ten thousand) to the complainants.
Time for compliance two months from the date of this order.
Sd/-xxxxxxx Sd/-xxxxxxx
S.SAMBANDAM, J.JAYARAM,
Member. Presiding Judicial Member.
ANNEXURE
List of Complainant Documents
Ex.A1 26.01.2013 Cash receipt.
Ex.A2 10.03.2013 Medical Record.
Ex.A3 08.11.2013 Opinion of Assistant Civil Surgeon.
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Ex.A4 ---- Literature of Wintergreen Oil.
Ex.A5 22.03.2013 Representation to the 2nd Opposite
Party officials with AD.
M.O.1 ---- Material Object - Winter Green Oil Bottle.
List of Opposite Parties Documents
Ex.B1 02.05.2013 Copy of Cash Receipt bearing No.2515.
Court Documents:
Ex.C1 30.05.2013 Seizure particulars filed by the series
Series Opposite parties 2 and 3.
Ex.C2 02.07.2013 Copy of report of Drugs Testing Laboratory
(I.M.) Chennai-106. - Form 13A.
Sd/-xxxxxxx Sd/-xxxxxxx
S.SAMBANDAM, J.JAYARAM,
Member. Presiding Judicial Member.
INDEX:YES/NO
AMS/Mdu.Bench/Orders-2015/Feb.
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