ANUP KUMAR ALIAS KAILASH SHARMA vs S.M.KANWAR

THIS is an appeal against the Order dated 28th September, 1991 of the State Commission of Rajasthan in Complaint Case No. 23 of 1990. On 18th April, 1989 the Appellant - Complainant purchased a bottle of Osto-calcium B-12 syrup of batch No. 561 manufactured by Glaxo India Ltd. According to him a fly was found floating in the bottle. He filed a complaint about the defective goods having been supplied by the Respondent No. 4 on 18.4.1989. According to the Complainant the sale of the bottles of Osto-calcium B-12 Syrup belonging to batch No. 561 was not stopped even after the fact of contamination was brought to the notice of the Respondents as the consumption of the contents of the other bottles of this batch was likely to cause diseases and deformity among children. In fact, the Appellant - Complainant had complained that as a result of using the contaminated Osto-calcium B-12 syrup his daughter suffered from Measles and fell victim to other diseases and developed deformity. He also apprehended that she may develop deformity in future. Originally before the State Commission, he claimed compensation of Rs. 6.00 lakhs which he raised to Rs. 20.75 lakhs in his written arguments : Rs. 18.36 lakhs for loss of earnings over a period of 34 years, loss of marriage prospects Rs. 2.00 lakhs and also for expenditure on treatment and diet and mental agony of the parents. Eventually, however, he prayed for compensation amounting to Rs. 3.00 lakhs only.

THE State Commission after detailed examination of the evidence and the averments of the parties came to the finding that the contents of bottle in question manufactured by the Glaxo India Ltd. and which was sold to the Complainant did suffer from defect as envisaged in Section 2(1)(f) of the Consumer Protection Act, 1986. Thereafter it proceeded to examine the relief to which the Complainant was entitled. The State Commission pointed out that the expiry date of the medicine on the bottle was December, 1989 and it had expired or practically expired when the Complaint was lodged in the State Commission. Consequently it was not possible to give relief by way of removal of the defect or replacement of the bottle. It, therefore, awarded the refund of the price of the bottle purchased on 18.4.1989 viz. Rs. 7.40 plus compensation of Rs. 500/-.

THE State Commission also examined whether the Complainant has suffered any loss or injury on account of negligence of the manufacturer of the medicine viz. Glaxo India Ltd. It took note of the averment of the Complainant that the daughter of the Complainant consumed other bottles of Osto-calcium B-12 Syrup and in consequence she suffered from measles, other diseases and that the Complainant''s daughter''s future was dark. The State Commission pointed out that this averment does not relate to the consumption of the contents of the bottle in question and there is no material that the contents of the three-four bottles of Osto-calcium B-12 which were consumed were also defective. The State Commission observed that the contents of the bottle in question were not at all administered to the daughter of the Complainant for whom the bottle was purchased. Further that the other bottles which were said to have been consumed by the Complainant''s daughter were purchased from other shopkeepers of different batches regarding which no material was produced before the State Commission. In fact, the State Commission observed "he (complainant) has improved the version which he gave in the beginning regarding number of bottles purchased by him".

THE State Commission also observed that initially he had claimed a compensation of Rs. 6 lakhs and subsequently on 21st March, 1991 he raised it to Rs. 20.75 lakhs and eventually reduced it to Rs. 3 lakhs. The State Commission observed that the Complainant has inflated the claim perhaps because no court fee is payable in the proceedings instituted before the Consumer Forums. In the appeal before the Commission he had maintained that he was entitled to get compensation claimed in his application on 2.1.1989 and 21.3.1991 (Rs. 20.75 lakhs). At the hearing the appellant complainant could not explain as to how his daughter suffered if the contents of the contaminated bottle from batch No. 561 were not consumed at all.

AS already observed by the State Commission he failed to produce any evidence of his having purchased other bottles from the same batch which could, according to him, possibly have been contaminated, though this has not been positively established.

HE was unable to produce any evidence which established any nexus between the ailments from which the child suffered viz. Measles, diphtheria, diarrhoea, stammering and idiocy and fits, lack of physical and mental capacity etc., the havoc to the physical and mental health of the child and the incalculable damage done to her and the alleged contaminated syrup. The minimum that the Consumer Forums could expect was for the Complainant to produce evidence from a medical expert indicating that the diseases from which the child suffered were the consequences of her having been administered Osto-calcium B-12 syrup from bottles of batch 561 other than the bottle which was found to be actually contaminated. We, therefore, uphold the Order of the State Commission in toto and dismiss the appeal as being devoid of any merit. We share the observations made by the State Commission that the Appellant Complainant had grossly inflated his claim for compensation viz. Rs. 20.75 lakhs which he reduced to Rs. 3 lakhs before the State Commission and this was patently an abuse of the machinery provided under the Consumer Protection Act for redressal of bona fide consumer complaints regarding defective goods or deficient services. As the contents of the contaminated bottle were not administered to the child, it became all the more essential for the appellant complainant to prove that the other bottles of the same batch were also contaminated. Such proof cannot be based on mere inference from the fact that a fly was found in one bottle of batch 561 purchased on 18th April, 1989. More importantly it was also essential for him to lead the evidence to show that the diseases from which the child suffered and has been suffering are the direct consequence of the defective Osto-calcium B-12 Syrup in the bottles of batch 561 purchased, if any, by him. The appellant complainant has miserably failed to do so and has persisted in vexatious litigation. In the circumstance we are constrained to order that the appellant shall pay Rs. 5,000/- as costs of this appeal to the Respondent.