C.C.NO.192/2009

Tuesday, the 22nd day of December, 2009

M. Krishnamoorthy

65, Jai Nagar,

Kavundampalayam,

Coimbatore. --- Complainant
Vs.
1. M/s. Franco India Pharmaceuticals (P) Ltd.,

Rep. by its Managing Director,

2. M/s. The Managing Director,

Franco India Pharmaceuticals (P) Ltd.,

20, Dr. Moses Road,

Mumbai – 400 011.

3. M/s. Kurinchi Pharmacies (P) Ltd.,

Rep. by its Managing Director,

4. The Managing Director,

M/s. Kurinchi Pharmacies (P) Ltd.,

Franchises at M/s. Thulasi Pharmacies (P) Ltd.,

5/5, Gandhi Nagar, Mettupalayam Road,

Kovundampalayam, (P.O), Coimbatore. -- Opposite Parties



This case coming on for final hearing before us on 15.12.09 in the presence of , Thiru. R. Krishnamoorthy Advocate for complainant and, Thiru.M. Sanjaiyan Advocate for the 1st opposite party and Mr.A. Somasundaram, Advocate for the 2nd opposite party and upon perusing the case records and hearing the arguments and the case having stood over to this day for consideration, this Forum passed the following:

ORDER

Complaint under Section 12 of the Consumer Protection Act, 1986 seeking direction against the opposite parties to return the tablet amount a sum of Rs.31.40 with 12% interest p.a. till they settle the amount to the complainant, to pay a sum of Rs.4,00,000/- towards compensation for deficiency in service and mental agony caused to the complainant, and to pay towards cost of the proceedings.

The averments in the complaint are as follows:

1. The 1st opposite party is Pharmaceuticals Company they are manufacturing many types of tablets, they also manufacturing “GLYCIPHAGE” tablet the complainant purchased the said tablet from 3rd and 4th opposite parties shop. The 2nd opposite party is the Managing Director of the 1st opposite party company who is incharge and responsible for the 1st opposite party activity. The 3rd opposite party is retail seller of the 1st and 2nd opposite parties products. The 4th opposite party is Managing Director of the 3rd opposite party. 3rd and 4th opposite parties are Franchises of M/s. Thulasi Pharmacies (P) Ltd. The complainant on 11.11.2008 purchased the “GLYCIPHAGE Tablet” 30 Nos along with other tablets from 3rd and 4th opposite parties shop vide Bill No. is CO 1642335 dated 11.11.2008. The complainant’s wife using the said tablet regularly.



2. On 21.11.2008 when she wanted to take the above said tablet she opened the wrapper, she was surprised and stunned that there is a Stapler Pin inside the tablet which could be seen easily with bear eyes the half of the stapler pin is inside the tablet and another half is projection. The complainant rushed to the 3rd and 4th opposite parties shop along with the defective tablet, and he showed the tablet. But the 3rd and 4th opposite parties with evading attitude they told that it is not our mistake it is mistake of 1st and 2nd opposite parties and he has not taken any step to solve the problem amicably. The complainant on 22.11.2008 he sent register letter to 1st and 2nd opposite parties on 16.12.2008 the representative of the 1st and 2nd opposite parties Mr.Sivakumar met the complainant at his resident, he inspected the tablet he want the defective tablet for testing but the complainant refused to handed over the said tablet but he has given the photo of the said defective tablet.



The counter Statement filed by the 1st opposite party are as follows:

3. The complaint is false, frivolous, vexatious and it is not maintainable both in law and on the facts of the case. The cash memo bears the name of “Radha Krishnamoorthy” whereas, the complaint is preferred by one “M. Krishnamoorthy” hence complainant has no Locus-standi in the present complaint. On receipt of the letter dated 22.11.2008, regarding the allegations about their Glyciphage tablets, they immediately had deputed Mr.Sivakumar Sadaiyappan, the Regional Manager, to meet the complainant. Accordingly on 6.12.2008 evening, Mr.Sivakumar met the complainant at his residence and requested the complainant to give the tablets so that the same can be checked at their quality control laboratory or allow him to personally inspect the same. However, neither the complainant handed over the tablets, nor the complainant gave personal inspection to their representative. The photograph given by the complainant is not acceptable as a conclusive proof of the complainant’s allegations made in his letter dated 22.11.2008.

4. The opposite parties are manufacturing the range of products in the line of Glyciphage since 1985. So far the opposite parties have not received any complaint from their consumers in respect of the quality of their above said product. In tablet manufacturing department, each material is passed through sieves, hence any foreign matter if present, would be retained on the sieve. In the entire process, from manufacturing to distribution and the distribution to retail sale, there is no possibility of stapler pin entering the blister packing and hence the complainant’s claim is not acceptable at all. The opposite parties reasonably suspect that the complainant might have tampered with the tablet by inserting the alleged stapler pin by opening the blister strip with the malafide intention of getting illegal gains.



The counter Statement filed by the 2nd opposite party are as follows:



5. It is true that on 11.11.2008 the complainant’s wife purchased Glyciphage tablet 30 Nos. along with other tablets from the shop of these opposite parties and the value of the said tablet is Rs.31.40/- only. The complainant and his wife have not shown the alleged tablet containing the stapler pin to them till date. The complainant did not make any complaint directly to these opposite parties. Only after the receipt of the letter dated 22.11.2008 by the 1st and 2nd opposite parties enquired these opposite parties about the alleged allegation of the complainant. Only on such enquiry by the 1st and 2nd opposite parties came to know about the allegations of the complainant. As far as these opposite parties are concerned, they are only retail shop and they have to see only the batch No. MRP rates, Expiry date and the wrapper should be intact, which they did when they sold the tablet to the complainant’s wife.

6. When they sold the tablet, they did not see any stapler pin inside the tablet and so they did not sell the alleged tablet containing the stapler pin to the complainant. So they are not liable to pay any compensation to the complainant. In any event if there is any manufacturing defect in the tablet, it is the 1st and 2nd opposite parties who are liable to pay any compensation amount to the complainant, if the allegations of the complainant is found to be true.

7. The complainant and the opposite parties have filed Proof Affidavit along with documents Ex.A1 to A7 was marked on side of the complainant and no documents was marked on the side of the opposite parties.

The point for consideration is

Whether the opposite parties have committed deficiency in service? If so what relief the complainant is entitled to?

ISSUE 1

8. The case of the Complainant is that on 11.11.08 he purchased the GLYCIPHAGE Tablet along with other tablets from 3rd and 4th opposite parties which was manufactured by the opposite parties 1 and 2 for his wife’s use. On 21.11.08 when she wanted to take the abovesaid tablets she opened the wrapper and found that there is a stapler pin inside the tablet which could seen easily with bear eyes.

9. The contention of the opposite parties 1 and 2 is that the stapler pin could be inserted into the tablet by the complainant himself. The contention of the 3rd and 4th opposite parties is that they are only retail shop owners and they sold the tablets to the complainant’s wife, in case of manufacturing defect in the tablet it is the opposite parties 1 and 2 are liable to answer the complainant.

10. The complainant has marked 7 documents and has marked one material object on his side apart from examining himself as witness. On behalf of the opposite parties one witness was examined and they have marked 4 documents.

11. The first and 2nd opposite parties are manufacturers and the 3rd and 4th opposite parties are the sellers is not disputed.

12. Regarding the locus standi of the complainant to file the present complaint an authority 1991 CPR 633 New Delhi is submitted by the complainant. As per this decision the present complaint filed by the husband on behalf of his wife is maintainable.

13. Whether the medicines was purchased by the complainant himself or his son is not a material thing in this case, the main issue is whether there is any defect concerning the subject matter ie. the tablet manufactured by the opposite parties 1 and 2 and sold by 3rd and 4th opposite parties and such selling of defective tablet constitutes deficiency in service on their part?

14. The fact that the tablet has been manufactured by the 1st and 2nd opposite parties and sold by the 3rd and 4th opposite parties for the consumption of Mrs.Radhakrishnamurthy, w/o of the complainant on 11.11.08 is admitted by the opposite parties 3 and 4 in the written version para 2, 8 & 9. The presence of stapler pin in the tablet which is patently clear to the naked eye has been admitted by the opposite parties in the Open Forum on 20.11.2009 and this Forum has also recorded the same. The contention of the opposite parties 1 and 2 is that they reasonably suspect that the complainant might have tampered with a tablet by inserting the alleged stapler pin by opening the blister stiff with a malafide intention of getting illegal gain is unbelievable one. As it was rightly pointed out any negligence in inspecting the tablet manually or in operating the machine or in indulging in such as handling stapler pins closed to such machines activities or temporary malfunctioning of any of the machines could result in getting a stapler pin embedded in tablets. On perusal of material objects we are of the view it is impossible that a stapler pin could be inserted into the tablet without causing any damage to the tablet. It is also humanly impossible to make such insertion. The fact the stapler remains firmly embedded in the tablet proves the suspicion of insertion is out of question.

15. So we are view that the opposite parties 1 and 2 have manufactured a defective tablet and the opposite parties 3 and 4 were duty bound to sell the medicines free from defective sold the defective tablets to the complainant. Hence all the opposite parties are jointly and severally liable to compensate the complainant for manufacturing and selling the hazardous tablets.



15. In the result, we direct the opposite parties to refund Rs.31.40 being the price of tablet to the complainant, the opposite parties are also directed to pay a sum of Rs.25,000 as compensation for mental agony and to pay a sum of Rs.25,000/- to the CONSUMER LEGAL AID FUND and to pay cost of Rs.1000 to the complainant within two months from the date of this order failing which the complainant is at liberty to execute this order u/s.25 and 27 of the Consumer Protection Act, 1986.

Pronounced by us in Open Forum on this the 22nd day of December, 2009.