AMRUTANJAN LIMITED vs JOYPRAKASH PANIGRAHI

THE opposite party No. 1 of Co. Case No. 4 of 2003 has filed this appeal against the complainant and two other opposite parties challenging the orders dated 31.5.2004 of the District Forum, Sonepur directing him and opposite party No. 2/respondent No. 2 jointly and severally, to pay to the complainant compensation of rupees 1 (one) lakh which will carry interest @12% per annum from the date of order till realization.

THE facts in brief out of which this appeal arises is that the opposite party No. 1 / appellant is the manufacturer of pain balm in the brand name "Amrutanjan". Respondent No. 2 is the proprietor and opposite party No. 3 /respondent No. 3, is a retail dealer of Amrutanjan of appellant. THE case of the complainant is that as he was suffering from headache, he purchased two pouches of Amrutanjan each worth Rs. 2 from respondent No. 3 for use on 19.12.2002. But, unfortunately, instead of containing Amrutanjan one out of the two pouches contained two pieces of plastic. THE complainant having complained about the same, respondent No. 3 replaced the defective pouch with another pouch containing Amrutanjan. Respondent No. 3 informed the complainant that very often pouches containing no Amrutanjan are being supplied to him and there is no response from the appellant and respondent No. 2 when complained. THE complainant, who is an Advocate by profession and a social worker being a number of AYESA, suffered from mental agony and was tortured due to this. He also felt that the poor genuine consumers would have been deprived of getting such medicine due to supply of this type of fake pouches manufactured and supplied by the appellant and respondent No. 2. Hence the complaint was filed by the complainant / respondent No. 1 to prohibit opposite parties from supplying empty pouches of Amrutanjan, to pay Rupees 2.5 lakh as compensation to him for torture and harassment and Rs. 2 lakh as compensation to him and to the society and general public as a whole towards mental injury and agony. The opposite party No. 3 did not file written version and was set ex parte as he did not contest the C.D. Case. opposite party Nos.l and 2 had filed written version resisting to the allegation of unfair trade practice and deficiency in service as per the complaint petition. They denied to have manufactured and supplied empty pouches to opposite party No. 3. However, according to them, as opposite party No. 3 has replaced the empty pouch to the complainant, no deficiency in service has been caused to him.

The District Forum had examined the pouch in question opening its seal in the presence of both parties and arrived at a finding that in there look of the pouch, it was noticed that the pouch contained no Amrutanjan and only contained one or two pieces of broken plastic. This was also confirmed after the seal of the pouch was opened. Therefore, the District Forum observed that as the retailer - opposite party No. 3 of opposite party Nos. 1 and 2 has sold for price an empty Amrutanjan pouch appearing containing Amrutanjan to the complainant, the complainant is a consumer and the opposite parties are guilty for causing deficiency in service. Ultimately the District Forum directed opposite party Nos. 1 and 2 (appellant and respondent No. 2 respectively) to pay compensation and interest as stated above to the complainant due to mental agony suffered by him being deprived of getting Amrutanjan when he badly required the same. Only opposite party No. l has challenged this order of the District Forum filing this appeal.

WE have heard the learned Counsel for the appellant only as none of the respondents appeared by themselves or through their representatives or lawyers. Perused the materials on record. It is not disputed that the appellant is the manufacturer of pain balm ''Amrutanjan'' and respondent No. 2 is the proprietor of Amrutanjan and respondent No. 3 is a retailer of it. It is submitted on behalf of the appellant that as no Amrutanjan was there in the pouch in question as alleged supply of defective Amrutanjan pouch to the complainant does not arise. Further, when complainant purchased two pouches of Amrutanjan out of which inside of one pouch was visible to necked eye, doubt arises as to how opposite party No. 3 and complainant could not see when it was handed over to the complainant. However, when opposite party No. 3 replaced the empty pouch to the complainant immediate after he complained, sale of defective Amrutanjan pouches to complainant does not arise. Thus there is no cause of action to file a C.D. case. The District Forum had also turned down the prayer of opposite party Nos. 1 and 2 to send the defective pouch to any laboratory for test. Apart from this, the complainant must have been relieved from headache in using the Amrutanjan. In this end of the view, it is urged on behalf of the appellant that definitely the complainant has filed a false complaint against him in connivance with opposite party No. 3. Moreover, according to the appellant, there are no averments or materials to assess the injury and mental agony of the complainant who had been sufficiently relieved by using the Amrutanjan as the defective pouch was replaced. Therefore, the District Forum has wrongly awarded compensation which is too high in comparison to the alleged deficiency in service in the worst case without properly appreciating the object and scope of the Consumer Protection Act, 1986 in short the C.P. Act.

NOW, main points for consideration arises as to whether respondent No. 3 had sold a sealed pouch supposed to have contained Amrutanjan manufactured by the appellant for price to the complainant, respondent No. 1 which was found containing no Amrutanjan and as to whether the appellant had supplied to respondent No. 3 such pouch for sale to the consumers. There is nothing to disbelieve that opposite party No. 3 has sold two pouches each worth Rs. 2 to the respondent No. 1 supposed to have contained Amrutanjan manufactured by the appellant. The respondent No.l has filed the cash memo dated 19.12.2002 issued by opposite party No. 3 in this respect. Respondent No. 1 alleges and appellant does hot deny that one out of the said pouches did not contain Amrutanjan. No evidence is forthcoming nor the invoice is available to show that said tampered pouch was supplied by the appellant to the retailer - opposite party No. 3 for sale to the consumer. Since opposite party No. 1 neither appeared in the C.D. case nor contested the claim, it does not came to light that the spurious Amrutanjan pouch was manufactured and supplied by the appellant to opposite party No. 3 for sale to general public. In this end of the view, in the worst case, the appellant cannot be gently for deficiency in service for manufacturing defective Amrutanjan pouches. Undisputedly, opposite party No. 3 has sold such a defective pouch for price to the complainant. Therefore, in the hand case he would have been liable for selling defecting Amrutanjan pouch. But no liability has been fixed on him by the District Forum and complainant is not aggrieved with the orders of the District Forum exempting opposite party No. 3 from liability. In this end of the view, the appellant and respondent No. 2 cannot be made responsible for deficiency in service due to sale of spurious Amrutanjan pouch to the complainant by opposite party No. 3. Further, the degree of mental agony suffered by the respondent No. 1 has not been well explained so as to penalize the appellant and respondent No. 2 to the extent of rupees 1 lakh with 12% interest. Thus we find the impugned orders of the District Forum is not supported with material facts on record or evidence. In the result, the appeal is allowed without cost. The impugned orders dated 31.5.2004 of the District Forum is set aside. Appeal allowed.