Judicial Analysis Court Copy Headnote Facts Arguments Court observation

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION, NEW DELHI
J.M. Malik, Presiding Member and Dr. S.M. Kantikar, Member
Novartis India Limited —Petitioner
versus
J. Anto & Anr. —Respondents
Revision Petition No. 3092 of 2013
(From order dated 29.06.2013 in First Appeal No. 213 of 2012 of the
Kerala State Consumer Disputes Redressal Commission, Thiruvananthapuram)
WITH
I.A. No. 5409 of 2013 (Stay)
Decided on 4.8.2014

Counsel for the Parties:
For the Petitioner:Mr. Manoj, Advocate with Ms. Aparna Sinha, Advocate.
For the Respondent No. 1:Mr. Jogy Scaria, Advocate.
For the Respondent No. 2:Mr. Y. Aruna Giri & Mr. P. Ramesh, Advocates.

IMPORTANT POINT
Selling of product below MRP does not amount to unfair trade practice.

Headnote:Consumer Protection Act, 1986—Sections 15, 17, 19 and 21—Pharmaceuticals—Unfair trade practice—Nobody can charge amount more than M.R.P. but it can be sold at lower rate than M.R.P.—Petitioner gave subsequent injections at concessional rate and that concessional rate is below M.R.P.—It cannot be said to be unfair trade practice—There lies no impediment in giving medicine on below rate than M.R.P.—Orders of Fora below set aside and complaint dismissed. (Paras 7 to 10)
Result: Revision Petition allowed.

ORDER

J.M. Malik, Presiding Member—The main question is, “whether the Opposite Party-Novartis India Limited can sell the medicine below the M.R.P.? Is it unfair trade practice? Whether it is a policy of pick and choose and if it is so, what is its effect?

2. The Opposite Party-Novartis India Limited has lost the case before both the Fora below. Aggrieved by the order of the State Commission, he has filed the present Revision Petition. The complainant J. Anto’s son Tomes Anto, aged about 17 years, underwent surgery for brain tumour. He remained sick for a considerable period. Thereafter, Tomes started growing taller and taller due to excess production of growth hormone. They consulted Dr. Nihal Thomas, Professor, Department of Endocrinology, Christian Medical College, Vellore, who prescribed a medicine named as octreotide LAR 20mg. This was to be given on monthly basis. Its price was Rs. 58,000/-. The treatment was started on 30.04.2008. It did not give the desired result. But the Opposite Party No.2 suggested to continue it.

3. In the meantime, the patient was examined by Dr. Mathew John of Kerala Institute of Medical Sciences, Thiruvananthapuram. The petitioner –Novatris India Limited supplied the same at the maximum discount upto 50% amounting to Rs. 29,000/- per month. Ultimately, the said medicine was stopped. The complainant had to purchase eight injections amounting to Rs. 3,60,008/-. It was submitted that had discount been given for the earlier purchase, the complainant could have saved Rs. 1,17,872/-. The complainant asked for refund of the said amount. Both the Fora gave the concurrent finding and his claim was allowed. The case of the petitioner is that at the request of Dr. Mathew John, the OP-1 enrolled the patient with the newly launched STAR Sandostatin Lar Cares designed to benefits the patient of acromegaly. Thereafter, the petitioner supplied the medicine to the patient on discount.

4. We have heard the counsel for the parties. Learned counsel for the petitioner has invited our attention towards a few documents. He has invited our attention towards letter dated 13.08.2008 issued by the petitioner. The entire letter runs as follows:-

“To

All Oncology C & Fs

Copy to : J.Malhotra, S.Swaminathan, A.Sawant, P.Malgaonkar, Rajesh P. Haldipur, N. Joyce D

All Oncology TBEs

Date 13.08.2008

Concerning

Price discount – Sandostatin LAR through STAR program.

We take pleasure in sharing the launch of a new “STAR-SANDOSTATIN LAR CARES”, a person designed to benefit patients of acromegaly.

The consultants will be enrolling their patients in to this program with the help of a STAR enrolment form- a sample copy of the same has been enclosed.

Once the patient submits the prescription and the completed STAR enrolment form, signed by the doctor, they will be eligible for the following benefits.

Sandostatin O.1. mg – 21 ampoules free

30% price discount on 1st vial of Sandostatin LAR.

2nd vial of Sandostatin LAR at a 40% discount.

The 3rd, 4th, 5th, 6th vials of Sandostatin LAR at a 50% discount.

This discount option is available only for patients who are submitting the completed STAR enrolment form only.

You will be sent a STAR enrolment passbook for handing over to patients to maintain the purchase records.

STAR enrolment forms brought by the patients need to be attached to the first invoice and retained by you for records.

Please feel free to contact us for any clarifications.”

5. Counsel for the petitioner has also invited our attention towards the list of medicines purchased by the complainant, which is reproduced as follows:-

Sl. No. Date Exhibits Price Levied Price ought Excess

from the to have price levied

complainant in levied in in rupees

rupees rupees

1. 30.04.2008 Ex.A1 58,804 29,468 29,336

2. 27.05.2008 Ex.A8 56,393 “ 26,925

3. 30.06.2008 Ex.A7 56,393 “ 26,925

4. 01.08.2008 Ex.A6 56,393 “ 26,925

5. 04.09.2008 Ex.A5 40,238 “ 10,770

6. 07.10.2008 Ex.A4 34,853 “ 5,385

7. 06.11.2008 Ex.A3 29,468 “ Nil