CHANDER MOHAN KAURA vs MERCK (INDIA) LTD

FEELING dissatisfied with the dismissal of the complaint by District Forum, Patiala vide order dated March 18,1997, the complainant Chander Mohan Kaura is in appeal. The grouse was simple. The complainant purchased three strips containing ten capsules each for Rs. 73.75 of medicine Evion 400 from the Chemist M/s. Relu Ram & Sons, Patiala, opposite party No. 2. Later he found that one of the strips contained only 9 capsules. He came back to the shop and pointed this fact to the Chemist, who readily offered to exchange the strip. The complainant did not agree and ultimately filed the complaint before the District Forum claiming Rs. 60,000/- as compensation against the manufacturer of the medicine, opposite party No. 1 - M/s. Merck India Ltd. as well as the Chemist, opposite party No. 2. The grouse is two fold. Firstly that even if there was fault in the machine vide which strips were packed, this resulted in unlawful enrichment of the manufacturer of the medicines as thousands of strips prepared by a particular machine with such defect would have packed only nine capsules in each strip. Secondly, since there was defect in the machine, this could also result in production of spurious drug not having the requisite constituents. The complainant had been using the aforesaid medicines for so many years without any relief. Thus, he suffered loss.

THE opposite party contested the complaint. THE sale of the medicines however, was admitted by the Chemist. Both the parties produced their evidence on affidavits and documents on the basis of which the impugned order was passed. THE complainant had produced the receipt vide which the capsules were purchased. Counsel for the appellant did not put in appearance and we have heard Counsel for opposite party No. 2. We have gone through the grounds of appeal submitted by the complainant. We find no merit in this appeal. At the outset, it may be stated that when the Chemist has charged for 10 capsules in a strip in fact when 9 only were found, the Chemist was either to refund the excess amount charged or give one more capsule i.e. by replacement of the strip containing 10 capsules. This was factually done in the present case and the FORA established under the Act after finding deficiency in rendering service would have ordered one of the alternatives referred to above. It is the case of the complainant himself that the Chemist had offered to replace the strip. Thus at the most, even at this stage the only relief that can be granted to the complainant with respect to charging for a capsule, which was not supplied would be to direct the Chemist to pay Rs. 2.40 price of the capsule. No further compensation on that account is payable as such an offer was made by the Chemist on the day the medicine was purchased. In the alternative, a direction could be to give one more capsule of that very make to the complainant. Thus it is left to the complainant to either accept Rs. 2.40 or a capsule of Evion 400 from opposite party No.2.

With respect to the other grouse, no relief can be granted for the simple reason that merely on the allegation of the complainant, no finding can be arrived at that the medicine was spurious or not up to the standard. The complainant was in possession of other capsules purchased and he could get such medicine tested from the laboratory. In the absence of any such report of the Laboratory, the FORA under the Act could not record a finding that the medicine purchased was not upto the standard or that on that account there was no relief to the complainant who had been consuming such medicines for a number of years. The further question that as to whether there was no relief to the complainant even after consumption of the aforesaid medicine for a number of years, it is only the medical evidence of a doctor, which could be relevant to decide such a matter. Merely on the statement of the complainant this could not be decided. Learned Counsel for opposite party No. 2 referred to the decision of the National Commission in "P.A. Pouram v. Mc. Dowell & Co. & Anr.," I (1992) CPJ 300 (NC)=1991 (1) CPR 542. That was a case of finding some foreign solid body floating inside a Soda Water Bottle purchased from a hotel. No steps were taken to get the bottle sealed or its contents analysed by the laboratory. The grant of compensation was held to be abuse of process of the Commission. There is merit in this contention.

LEARNED Counsel for the opposite party No. 2 while referring to the decision of the National Commission in "M/s. Ganesh Felts v. New India Assurance Co. Ltd." I (1993) CPJ 20 (NC) has argued that the claim of Rs. 60,000/- was highly exaggerated and the complaint should be dismissed with exorbitant costs. The National Commission in that case held the claim to be grossly inflated and false. In that case, the National Commission did not finally decided the dispute but decided to give notice for setting aside order of granting compensation. In the present case, we find that the claim was highly exaggerated. In the absence of any Laboratory tests or medical evidence, no finding in favour of the complainant could be recorded about after effects of medicines consumed by the complainant for a number of years. While dismissing the complaint, we only direct pay of Rs. 2.40 or one capsule of Evion 400. The directions be complied within a month from the receipt of copy of the order. Complaint dismissed.