MANAGING DIRECTOR, M/S. HAMDARD WAKF LABORATORIES (INDIA) vs VIJAY KUMAR

BY this Revision Petition, Hamdard Wakf Laboratory (India) and Hamdard Dawakhana (Wakf) who were the Opposite Parties in the complaint filed by the present Respondent, Shri Vijay Kumar has challenged the order passed by the State Commission of Haryana at Chandigarh. In this order the parties will be referred to as they were arrayed in the complaint.

THE Complainant, Shri Vijay Kumar had filed a complaint before the District Consumer Disputes Redressal Forum, Ambala City alleging that he had purchased two bottles of Roohafza Sherbet at the rate of Rs. 27/- per bottle from M/s. Hakin Dhari Shah Di Hatti, Sadar Bazar, Ambala Cantt. (who had been arrayed as O.P. No. 4 in the complaint and who is Respondent No. 2 herein) on 7th May, 1991 against a cash memo for Rs. 54/-. Those bottles have been manufactured by the present Revision Petitioners. Both the bottles bear batch No. 9416 and the date of packing was mentioned as April, 1991. It is alleged that as soon as the Complainant used one bottle of Sherbet Roohafza he fell ill. THE Complainant got himself checked up from a Doctor who opined that the use of Sherbet Roohafza was not quite fit for health. THE Complainant saw something in the other sealed bottle of the Sherbet. It was some lizard type animal which had died and had emerged on the surface of the Sherbet. THE Complainant reported the matter to the stockist from whom he had purchased the said bottle but he referred him to the agent. THE agent asked the Complainant to wait for two-three days but till the filing of the complaint no response was received from the Manufacturers of the Sherbet. According to the Complainant, the Opposite Parties were making false advertisement and by their negligence were risking the lives of millions of Indian citizens who believe in their false publicity and daily consume lakhs of bottles of Sherbet Roohafza. THE Complainant further alleged that he and his family members have suffered from skin disease by the use of the contaminated Sherbet and he had to spend a lot of money for the treatment of the disease. Opposite Parties contested the complaint and pleaded that it was impossible that after using Sherbet Roohafza a person can fall ill. One batch consists of 3000 bottles and there had been absolutely no complaint from any of the consumers of the bottles of any batch. No bottle of Roohafza Sherbet which is once used is reused in any form. In a vain attempt to give some credence to a false story, the Complainant might have done some mischief by opening the bottle and inserting some object in the same and then sealing it. There is no possibility of some object getting into the bottle at the time of manufacturing or sealing it as the plant of Roohafza Sherbet is quite sophisticated having the most modern mechanism. The Sherbet is filtered thoroughtly at least through six thin filters before its being automatically packed in new and fresh bottles which are pre-washed and steamed. Filled bottles are checked again and then only final packing is done. The whole process is automatic and it is supervised so that the chances of contamination of the final product are negligible. Sherbet Roohafza is harmless and is free from any side effects. Other allegations of the Complainant were also denied.

The order of the District Forum is not on the file. However, from the order of the State Commission, it appears that the Complainant had succeeded before the District Forum which held that the bottle of Sherbet Roohafza did contain a lizard type animal. It was further held by it that the Complainant had failed to produce cogent evidence about the alleged ill effects by the consumption of the first bottle of the Sherbet and therefore, no compensation on that ground was granted. However, it further opined that such type of Sherbet if used, could be a hazard to the health of the public and the manufacturer should not have released such a product in the market and the dealer should not have retailed the same. The District Forum therefore, held that the Opposite Party No. 4 i.e. retailer should replace the contaminated bottle with three good ones and the manufacturers were burdened with liability for payment of a compensation of Rs. 500/- and the alleged contaminated bottle directed to be destroyed.

FEELING aggrieved of that order, the Complainant filed an appeal praying for enhancement of compensation. It was accepted by the State Commission and the compensation awarded to the Complainant by the District Forum was enhanced to Rs. 5,000/-. Aggrieved of that order, the Manufacturers of the Sherbet have come before this Commission by way of this revision petition.

BEFORE we proceed further we may take up one objection raised on behalf of the Complainant. It was urged that the manufacturers of the Sherbet had not filed any appeal before the State Commission against the order of the District Forum and therefore, were not entitled to challenge the finding that the second bottle of Sherbet Roohafza purchased by the complainant was contaminated. In reply to this objection it was argued on behalf of the Petitioners that the District Forum awarded only a small compensation and therefore, they did not think it fit to file an appeal against that order. We are of the opinion that the finding of the District Forum could be challenged by the Opposite Party while contesting the appeal filed by the Complainant for enhancement of compensation and since the said finding was confirmed by the State Commission it can be challenged before this Commission also on the ground that it is based upon no evidence. Therefore, the objection raised on behalf of the Complainant is overruled. The alleged sealed bottle of the Sherbet was produced by the Complainant before the District Forum. In his cross-examination the Complainant has admitted that the lizard like thing which he had alleged to exist was not visible in the bottle. Therefore, when there was no foreign article in the sealed bottle brought by the Complainant before the Forum, we fail to understand how the District Forum and the State Commission came to the opinion that the bottles of Sherbet Roohafza were contaminated. The learned Counsel also brought to our notice that in the complaint the complainant has alleged that on account of the use and the alleged contamination of the Sherbet Roohafza he and his family members suffered from skin disease but surprisingly, no evidence was produced in support of that allegation and the Complainant who appeared in the witness box totally changed his version. In the witness box he has stated : "After consuming the contents of first bottle I alongwith my family fell sick and we started vomiting and I was down with food poisoning. And it has effected my and my wife''s eyes also. I remained under the treatments of Doctor and the Doctor told us that this had happened because of consumption of some poisonous substance then I noted the contents of second bottle and then I came to know that a lizard lying in the second bottle that has led to all these problems and disease".

Thus the story pleaded by the Complainant at the evidence stage was entirely different. No Doctor was examined to show that the Complainant and his family members ever suffered from any vomiting or any Doctor advised that it was due to food poisoning . Hence the story of the Complainant that the bottles of Sherbet purchased by him were contaminated appears to be false.

THE conduct of the Complainant also appears very suspicious. He has stated : "I have not brought the second bottle which was purchased by me alongwith this bottle. I was not aware as to how much contents was left after consuming the first bottle. I had thrown out the remaining contents of the bottle consumed. No chemical examination was conducted by me through any laboratory."

THE Complainant appears to be conscious of his rights. If the Doctor opined that he and his family members started vomiting on account of the use of some poisonous matter, the Complainant ought not to have thrown the remaining contents of the other bottle and ought to have preserved them for chemical examination in some laboratory. In the absence of any such examination, there is no basis to hold that the Sherbet said to have been consumed by the Complainant''s family members was in any way harmful to the health of the Complainant or the public. THE Complainant has admitted that there was no lizard like thing in the bottle which he and his family members had consumed. We have gone through the statement of the Complainant and find that the findings of the District Forum, and the State Commission are vitiated by the fact that they are not based upon any evidence. Consequently, we accept the present revision petition and set aside the orders passed by the District Forum and the State Commission and dismiss the complaint. Revision Petition allowed.