JAMNA DEVI vs F.D.C.LTD.

THIS appeal is directed by the complainant against the order dated 30.3.1995 made by District Forum, Bikaner in Complaint Case No. 282/1994. The grievance of the appellant is that although the District Forum has accepted the case of the appellant against the respondents but awarded no compensation at all for the mental agony and physical discomfort caused to her by the use of the defective goods, sold by the respondents to her.

THIS dispute between the parties arises under the following circumstances : On having felt pain in her ear, Smt. Jamna Devi, the complainant-appellant, consulted a physician in P.B.M. (Govt.) Hospital on 4.10.1993. The doctor diagnosed her ailment as C Som Re and prescribed certain tablets and capsules for the cure of her disease. After having consumed the prescribed medicines for 15 days she again consulted the doctor who advised her to continue to consume the already prescribed medicines and also use two to three drops of "Pyricort" ear-drops twice a day. The Complainant therefore purchased the said ear-drops on 20.10.1993 for Rs. 8.50 form M/s. Agarwal Medical Stores, OP-respondent No. 4 and commenced its use, as advised by the doctor. THIS medicine "Pyricort" was duly sealed and packed in hard paper packing whereupon manufacturing date was mentioned as April, 1993 and expiry date as September, 1994. It was undisputedly manufactured by M/s. F.C.D. Ltd., Mumbai, OP - respondent Nos. 1 and 2. In the course of use of the ear-drops the husband of the appellant noticed that the liquid contents of the glass vial wre contaminated and some insects were also present therein. The complainant immediately consulted the concerned physician in the P.B.M. Hospital, who, after inspection of the ear-drops "Pyricort", advised her to stop the use thereof with immediate effect, which the appellant did. She complained of the defect in the ear-drops to respondent No. 4 who, allegedly, promised to bring the defect to the notice of respondent Nos. 1 and 2.

It was alleged by the complainant-appellant that the use of the defective "Pyricort" ear-drops had already damaged her ear and aggravated her pain. The concerned doctor advised her to get the ear operated. She had to get herself operated upon for the same by Dr. A.S. Rathore, the Senior Surgeon in the Govt. Hospital and had to remain in the Hospital for that purpose during the period from 9.2.1994 to 16.2.1994.

FOR use during the post-operation period the physician again prescribed on 19.4.1994 the same ear-drops viz. "Pyricort" for use in the ear. She, therefore, again purchased the same ear-drops on 19.4.1994 for Rs. 10.00 but this time from another dealer/stockist, M/s. Manak Medicos (respondent No. 3), which was located opposite to Government Hospital, Bikaner. The medicine was in a sealed vial, which was kept in hard-paper-packing. It pertained to Batch No. 4021 with manufacturing date mentioned as February, 1994 and expiry date as July, 1995. But on inspection of the liquid contents in the glass vial, the appellant and her husband noticed that it was quite contaminated with fungus and insects. She did not use the medicine and filed the present complaint claiming compensation and expenses at Rs. 4,18,051/-. In the joint-reply filed by respondent Nos. 1 and 2 they admitted that the medicine in question was manufactured by them. But at the same time they denied that it was "defective" or "sub-standard" or "of inferior quality" in any manner.

RESPONDENT Nos. 3 and 4, the dealers of the medicine, admitted the sale of the ear-drops but denied any liability in the matter on the ground that they had sold the ear-drops in question in fully sealed and duly packed condition. During the pendency of the complaint the appellant produced the two amber glass vials before the District Forum and requested on 11.11.1994 under Section 13(1)(c) of the C.P. Act, 1986 (The ''Act'') to get the contents thereof chemically examined by the Food Drugs Excise Laboratory, Chandigarh (Punjab) Although respondent Nos. 1 and 2 objected to the Chemical Examination of the drugs but the District Forum forward ear-drops "Pyricort", purchased by the appellant from respondent No. 3 and whose expiry date was July, 1995, to the Food Drugs Excise Laboratory, Chandigarh (Punjab) in duly sealed condition. The ear-drops were chemically examined and tested by the Government Public Analyst, Chandigarh (Punjab) who, vide his report dated 13.3.1995, reported that the sample was not of standard quality in respect of Description (Fungus growth). In the "description" the Public Analyst has mentioned as under : "Yellowish Coloured liquid having fungus growth filled in amber glass vial. Identification - Steroid - Positive - Declared Assay for - Dexamethasone - 0.0977% (0.1% w/w of Dexamethasone)"

ACCEPTING such report of the Analyst the District Forum held that the respondents sold defective goods to the appellant. It therefore directed respondent Nos. 1 to 3 to pay to the appellant the cost of medicine at Rs. 10/-, the cost of laboratory test at Rs. 55/- and litigation fee at Rs. 300/-. The respondents were not directed to pay any compensation to the appellant and such absence of direction has given rise to this appeal by her. The complaint as against respondent No. 4 was dismissed.

THE learned Counsel for the appellant urged that once it was proved on record that the medicine purchased by the appellant from M/s. Agarwal Medical Stores, Bikaner was used by the appellant and it had aggravated her disease and created fungus in her ear and thus caused mental agony and physical discomfort to her, the District Forum ought to have awarded compensation to her from the manufacturer/dealer/seller of the said medicine. It was further submitted that the Government Analyst had clearly mentioned in his report that the medicine manufactured under the name "Pyricort" by respondent Nos. 1 and 2 was not of the prescribed standard and quality and therefore it clearly fell within the definition of "defective" goods. Use of such medicine had adversely affected the health of the patient and therefore the manufacturer/seller of the medicine were liable to pay compensation to the appellant. We find force in the arguments advanced on behalf of the appellant. In so far the liability of the dealer of the medicine in question viz. M/s. Manak Medico, respondent No. 3 is concerned it is the undisputed position that the medicine sold by the said dealer had not been used by the appellant. The medicine had been sold by him in sealed condition and the same was sent by the District Forum to the Government Analyst for analysis in the same sealed condition. The said dealer therefore cannot be held liable for any compensation to the appellant on account of mental agony/or physical discomfort.

Now so far as the liability of respondent Nos. 1 and 2, who are admittedly the manufacturers of the medicine in question, is concerned we find that the Government Analyst, Punjab had, after conducting analysis of the said medicine, opined that the same was not found of standard quality in respect of "description". Since the said medicine was not found of the standard quality, the manufacturers were liable for having marketed "defective" medicine, which could have adversely affected the health of the consumers thereof. The manufacturers have not appeared before us despite service of notice to explain their position. There is clear evidence on record that the medicine sold by M/s. Agarwal Medical Stores had aggravated the disease of the appellant by creating fungus in the ear. The same drug was subsequently sold by M/s. Manak Medico and it was got analysed by the Government Analyst and found "defective". The manufacturers have not challenged the order under appeal and thus accepted the position that they had marketed "defective" goods for sale to public at large. The manufacturers are therefore liable to pay compensation to the appellant. Respondent No. 1 M/s. F.D.C. Ltd. is the manufacturer of the said medicine and respondent No. 2 the Working Joint Managing Director of the said company. The company is, therefore, liable to compensate the appellant.

HERE we could like to observe that the use of commonly used medicines by patients to cure themselves is a normal phenomena of our daily life. If manufacturers of such medicines, which are commonly purchased by the patients, with or without the advice of the professional persons, are found defective and sub-standard in quality, such defect in such commonly used goods cannot be lightly taken by Courts. Ear/eye-drops are ordinarily purchased by common man, even without consultation with medical professionals for cure of occasional infection in ears and/or eyes. It is, therefore, imperative on the part of the manufacturers of such drugs to be fully sure about their quality and purity before marketing them for sale to public at large. The very nature of such commonly used drugs has a very wide class/category of its consumers and the defect in its quality or purity is a health hazard to countless consumers. In fixing the liability of the manufacturers and in quantifying the compensation payable to the aggrieved consumers such factors are required to be taken into consideration to protect the health and interest of the consumer community. In the instant case we find that the appellant had duly consulted a qualified medical officer before use of the medicine in question. When fungus formation was noticed by her in the medicine she suspended the use thereof and consulted her physician. The physician stopped further use of the said medicines by her. But the damage had already been caused. She had to get her damaged ear operated for the same and had to suffer in health, money and time.

KEEPING in mind the area of sale and use of the defective medicine in this case by large number of consumers, the damage caused to the health, mental peace, physical comfort of the appellant by use of the "defective" medicine, the money spent by her on operation and getting redressal of her grievance through the mode of Forum, it is required of us that we should award some what exemplary compensation to the appellant in the facts and circumstances of this case. We fail to ignore that the medicine in question was so popular with the medical professionals for use by the patients of ear troubles that during the post-operation period the Senior Surgeon too had prescribed the very same medicine "Pyricort" for use by the appellant. We further note that the medicine in question was chemically examined/tested by the Govt. Public Analyst much before the expiry date mentioned on the vial/packing. The District Forum, in its letter written to the Food Drugs Excise Laboratories, Chandigarh had specifically mentioned, that the expiry date of "Pyricort" was July, 1995. The Public Analyst had tested it in the month of March, 1995 and found "defective". The manufacturers had thus marketed "defective" goods for use by the mass community of consumers. We would, therefore, direct respondent No. 1 to pay a sum of Rs. 25,000/- to the appellant as compensation for mental agony and physical discomfort and towards other expenses.

SO far as the liability of respondent No. 4 M/s. Agarwal Medical Stores is concerned we find that the goods sold by him was manufacturally defective but the said respondent did not know of such defect in the said goods. The Forum has rightly not decreed appellant''s claim against him.

IN the result, the impugned order is modified to this extent that the claim of the appellant is directed for compensation to the appellant at Rs. 25,000/- against respondent Nos. 1 and 2, M/s. F.D.C. Ltd., the manufacturer and its Joint Managing Director. The aforesaid sum, alongwith other sums as decreed by the District Forum vide its impugned order shall be payable by the said respondents to the appellant within a period of three months from today failing which the aforesaid amounts shall attract liability for paying interest @ 9% p.a. from the date of this order. A copy of this order shall be sent to the Chief Drugs Controller, Rajasthan for information and with the direction that he may take appropriate action against respondent No. 1 in the matter as per provisions of the relevant law and the terms and conditions of the licence of respondent No. 1. The appeal is partly allowed with cost on parties. Appeal partly allowed.