Indian Kanoon - Search engine for Indian Law

2. The brief facts giving rise to the present matter are that the complainant was indisposed on 04.03.2010 and he consulted Dr.Harish Chhabaria, who advised him to take syrup Practin. The complainant purchased the syrup from the OP No.1 (retailer/ dealer) after making a payment of Rs.65.20. When the complainant saw the bottle of the syrup, he found that it contained some rubbish/ trash/ filth or some foreign material in it. He showed the bottle to the OP No.1 and asked him to replace it, but he refused to replace it. The complainant informed the OP No.2 (the manufacturer) about the foreign particles in the bottle, but it also did not resolve the problem. The act and conduct of the OPs in selling and manufacturing the medicinal syrup, which contained foreign particles/ trash/ filth amounted to unfair trade practice and deficiency in service on their part in not replacing the adulterated bottle of medicine.

5. The present appeal has been filed by the OP No.1 (the retailer/ dealer) on the ground that it is not the manufacturer of the medicine and it itself purchased the medicine on 03.03.2010 from Pradeep Distributor and sold the same on 04.03.2010 i.e. the very next day to the complainant. Thus, it retained the medicine hardly for 24 hours with its shop and if the bottle of the syrup contained any foreign particles/ trash/ filth in it, then it is not liable for any manufacturing defect or adulteration in it. The learned DCF erroneously held the OP No.1 liable for the adulteration and hence, the present appeal be allowed.

6. We have heard the arguments of both the parties and carefully perused the record, evidence and impugned judgment.

7. It is an admitted fact that the OP No.2 is the manufacturer of the syrup Practin and the complainant purchased it on 04.03.2010 from the OP No.1. It is also an admitted fact that the bottle of the aforesaid syrup showed the manufacturing date as September 2008 and the expiry date as August 2010. It also appears from the order sheet dated 10.01.2011 of the file of the learned DCF that at the request of the OP No.2 (the manufacturer), it sent the sealed bottle of the syrup to the Medicine Testing Laboratory and the Deputy Director of the said laboratory vide its endorsement dated 11.04.2011 returned the sealed bottle of the syrup to the learned DCF informing it that the sample had expired and it was unfit for analysis. Thus, there is no confirmatory report of a testing laboratory to show that the syrup of medicine was contaminated/ adulterated or that it contained filth/ dirt/ trash or any foreign particles in it. It is an admitted fact that the complainant filed the present complaint on 09.03.2010 i.e. just five days after the purchase of the bottle and the bottle showed the expiry date as August 2010. We are in agreement with the learned counsels for the OPs that a heavy burden lay on complainant to prove that the bottle of practin syrup was contaminated or adulterated or that it had filth/ trash/ foreign particles in it. The complainant did not move any application before the learned DCF for chemical analysis of the syrup before the date of expiry or within time or at the earliest opportunity. It is only the OP No.2, the manufacturer, who moved an application, on which the learned DCF sent on 10.01.2011 the sealed sample for analysis to the medicine test laboratory.

8. The learned DCF exonerated the OP No.2, the manufacturer from any liability on the ground that the complainant failed to prove that the syrup Practin was contaminated/ adulterated or it had trash/ filth/ dirt or any foreign particles in it, as there was no concluding evidence or chemical analysis report to substantiate the allegation. The findings given in this regard appear to be just and reasonable and we do not find any illegality or irregularity either of fact or evidence in it. Therefore, the learned DCF was justified in dismissing the complaint against OP No.2, the manufacturer.