Judgment:
The Appellant as complainant filed a complaint before the District Forum against the opposite parties praying for the direction to the opposite parties to replace the medicine, alongwith compensation of Rs.50000/- and cost of Rs.3000/-. The District Forum dismissed the complaint. Against the said order, this appeal is preferred praying to set aside the order of the District Forum dt.09.03.2009 in CC.No.114/2007.
This petition coming before us for hearing finally on 2.05.2011. Upon hearing the arguments of the counsels on either side, perusing the documents, lower court records, and the order passed by the District Forum, this commission made the following order:
M. THANIKACHALAM J, PRESIDENT
1. The complainant is the appellant.
2. The facts leading to this appeal :
The complainant / appellant, who was suffering from knee problem, had purchased medicines from the 1st opposite party, and one of the medicine was Hridyavirechanam, manufactured by the 3rd opposite party, marketed through the 1st opposite party, on 14.10.2006. On opening the said medicine, it was visible that fungus was formed on the top of the medicine, when questioned, the 1st opposite party irresponsibly answered. However, in the interest of keeping good health, once again the complainant purchased the same medicine on 19.10.2006, from the 1st opposite party, bearing the same batch No. which also contained fungus on the top layer, as found in the previous bottle. Because of the formation of fungus and selling this kind of medicine, the opposite parties have committed, unfair trade practice, causing mental agony to the consumer, and therefore, the complainant issued a legal notice, claiming replacement of the medicine, as well compensation, for which there was no properly reply, resulting this consumer complaint, for the relief enumerated in paragraph 8.
3. The opposite parties, admitting that they have manufactured the medicine Hridyavirechanam, purchased by the complainant, under batch No.110, resisted the case, contending that the medicine is a potent safe, mild, laxative under strict conditions, further denying the claim, that the medicine had contained fungus, if so, they should have reported the same forthwith, and atleast they should have produced the bottle for verification, which they failed, and in the absence of the bottle, it is not possible to say that the complainant had purchased medicine, contaminated thereby praying for the dismissal of the complaint.
4. The District Forum, in the absence of sufficient materials, on the side of the complainant, deduced a conclusion, that because of fungus, on the top of the fact that the complainant had not produced bottle, which contained the medicine purchased, and in the absence of public analysis report, regarding its fungus formation, accusing the opposite party, may not be possible, and affixing deficiency is also impossible, thereby dismissed the complaint, which is challenged by the unsuccessful complainant, once again in the appeal.
5. The learned counsel for the appellant contended that the finding of the District Forum, as if the complainant failed to prove the deficiency is erroneous, in view of the documents available, which was not considered properly, and therefore the complainant is entitled to the relief, as prayed for, which is opposed.
6. The 3rd opposite party is the manufacturer of a medicine called Hridyavirechanam, is an admitted fact. The purchase of the said medicine by the complainant on 14.10.2006, or on 19.10.2006, is not under very much challenge, probably in view of the fact Ex.A1 till dt.19.10.2006. The quality of the medicine, is not challenged, as if the advertisement would come under unfair trade practice.
7. The only accusation against the opposite parties, or only deficiency said to have been committed by the opposite parties, appears to be the selling of the medicine, which contained fungus on top of the medicine. To prove that the medicine purchased by the complainant had fungus, except the dead letters in the complaint, we do not have any other materials. The averments in paragraph 4 of the complaint itself, makes it impossible to believe the case of the complainant. He had purchased the medicine on 14.10.2006, which does contain fungus, according to him. For that admittedly no action has been taken. If really the medicine manufactured by the 3rd opposite party, was not good quality or it had contained fungus, certainly the complainant would have avoided from purchasing the same medicine second time. Even assuming out of necessity he was compelled to purchase, when he noticed the fungus once again, as per averments in paragraph 5 of the complaint, then he should have detained that medicine, produced the same before the consumer forum, seeking the permission to take medicine, for public analysis report, as contemplated under Sec.13(c ), of the Consumer Protection Act, which he failed, as correctly recorded by the District Forum. In the absence of the alleged defective medicine, and in the absence of proof, it is impossible to say that the medicine produced by the 3rd opposite party, marketed through the 1st opposite party, contained fungus, that should have caused mental agony or deficiency in service, and properly analyzing this fact, and particularly taking into consideration, the non-production of the defective medicine, the District Forum properly dismissed the complaint, appropriately, which should be accepted.
8. As seen from paragraph 7 of the complaint itself, it is alleged that the bottle contained the medicine batch No., manufacturing date, MRP and nothing more, thereby probably the complainant saying, the ingredients not noted. It can be seen and ascertained on seeing the bottle alone, and even the empty bottle was not produced. Any prudent man, had noticed the fungus in the medicine, certainly would not have ventured to purchase the same, second time and applied also, for treatment, and the conduct of the complainant appears to be against natural conduct of a prudent man, which also belies the case of deficiency alleged. Despite the correct finding given, the complainant, to change the same, vexatiously preferred the appeal before us, for which the appeal deserves to be dismissed with cost of Rs.3000/-.
9. In the result, the appeal is dismissed with cost of Rs.3000/-, confirming the order of the District Forum in CC.No.114/2007 dt.9.3.2009.