MANAGER, BRITISH BIOLOGICALS vs P.L.PRASAD

AGGRIEVED by the order of the District Forum in CDC 4/94 District Forum, Chittoor whereby it directed the Opposite Party No. 1 to pay compensation of Rs. 20,000/- to the complainant and also Rs. 500/- toward costs.

THE case of the complainant is that the Doctor prescribed on 15.11.92 B-Protein as the complainant was suffering with bodily pains etc. According to the complainant he had been taking B-Protein from that day. He purchased a bottle of B-Protein from the second Opposite Party on 6.11.93 for a consideration of Rs. 49.45 Ps. On the bottle it was mentioned that the contents were manufactured in April, 1993. It is the case of the complainant when he tried to open the bottle in order to take the B-Protein, he found insects ''Mukku Purugulu'' and the same could be seen by the naked eye through the glass of the bottle. He showed the bottle to the second Opposite Party. As there was no proper response from the second Opposite Party, he approached the Doctor and showed the bottle. THE Doctor examined the bottle and gave a certificate that the health condition of the complainant had delericted due to consuming the defective product. THE complainant therefore approached the medical representative of the first opposite party and showed the insects inside the bottle to him. But as no action was taken, the complainant gave a legal notice on 10.11.93 and filed a complaint before the District Forum claiming compensation of Rs. 2 lakhs. Notices were sent to the first Opposite Party. But they were returned with an endorsement ''door locked''. The second Opposite Party appeared in person before the District Forum. Before the District Forum, the B-Protein bottle purchased by the complainant was produced and marked as M.O.1 and Exs. A.1 to A-7 filed which are prescriptions by the Doctor and certificate issued by him and notice issued to the first Opposite Party and the returned covers.

The District Forum on a physical verification of the bottle found that the insects are visible in the bottle to the nacked eye and that the bottle was in sealed condition. It therefore, directed the Opposite Party No. 1 to pay compensation of Rs. 20,000/- and costs of Rs. 500/-.

IN this appeal preferred by the first Opposite Party, it is submitted by the learned Counsel for the appellant that the Doctor who is said to have prescribed the medicine and also issued a certificate Ex. A.3 was not examined in proof of the case of the complainant. He, therefore, submitted that there is no proof to show that the bottle contains any insects and that on account of the taking of the B-Protein with insects the complainant suffered any deterioration of his health entitling him for compensation. So far as the first contention is concerned to establish the fact that the bottle contained insects, it is not necessary to examine the Doctor. From the order of the District Forum it is clear that the" bottle was produced before the District Forum and it was in sealed condition and that the District Forum held that even to the nacked eye, the insects can be seen. We are therefore, not inclined to accept the first contention of the learned Counsel for the appellant. With regard to quantum of compensation, it was submitted that the compensation awarded by the District Forum is on the higher side. There is no material on record to show that the B-Protein bottles consumed by the complainant earlier, even assuming that the Doctor prescribed the same in the year 1992, contained insects and on account of that his health has deteriorated. If that is so the complainant would have filed a complaint then and there. It is his case, that this is the only bottle containing insects. He has not produced any bills for the purchase of the B-Protein earlier. It is therefore, submitted that the District Forum erred in holding that on account of the consuming B-Protein earlier his health had deteriorated, on the supposition that the earlier bottles contained insects. We see some force in the aforesaid contention. The Complainant did not produce any material to show that the earlier bottles contained any insects and he did not produce the bills to show that he purchased some bottles earlier and that the same was contained insects. But so far as the bottle which is the subject matter of the dispute is concerned, the District Forum having observed the bottle physically came to the conclusion that it contained insects. But the contents of the bottle were not consumed by the complainant as the District Forum found that the bottle was in sealed condition. But it cannot by gainsaid that the goods sold by the Opposite Partes i.e. B-Protein is defective as it contained insects and the complainant is entitled for payment of reasonable compensation. Since we are not inclined to accept the finding of the District Forum that the complainant''s health has deteriorated on account of the taking of the B-Protein earlier, we consider having regard to the totality of the circumstances of the case that the complainant is entitled to compensation of Rs. 7,500/- only.

WE are also not inclined to accept the direction of the District Forum that all the bottles manufactured by the Opposite Party No. 1 be seized. WE accordingly set aside that direction. But we direct that on inspection by any authorities under the Drugs or any other enactment if it was found that the goods are defective, it is open to them to take appropriate action either by way of seizure of otherwise. So far as the costs awarded by the District Forum are concerned, we are not inclined to interfere with that order. In the result, the appeal is allowed in part by reducing the compensation from Rs. 20,000/- to Rs. 7,500/- and confirming the costs of Rs. 500/-, awarded by the District Forum. There shall be no order as to costs in this appeal. Appeal Partly allowed.