LexPRAKASH BANG versus GLAXO SMITHKLINE PHARMACEUTICALS LTD. & ANR.
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[2023] 12 S.C.R. 567 : 2023 INSC 794 567 CASE DETAILS PRAKASH BANG v. GLAXO SMITHKLINE PHARMACEUTICALS LTD. & ANR. (Civil Appeal No. 6791 of 2013) SEPTEMBER 05, 2023 [A. S. BOPANNA AND PRASHANT KUMAR MISHRA, JJ.] HEADNOTES Issue for consideration: Whether there is suffi cient evidence to establish that the complainant suff ered ‘myositis’ on administration of the vaccine Engerix-B; and whether even if ‘myositis’ being a minimal cause is accepted, the non-mentioning of the same as an ‘adverse reaction’ in the literature or ‘vial’, could be considered as ‘defi ciency of service’. Consumer Protection Act, 1986 – Negligence – Defi ciency in service – Complainant alleging that on account of adverse reaction of the Hepatitis vaccine Engerix-B administered, he suff ered myositis and permanent disability in his shoulder – Natiownal Commission held that the complainant failed to establish either any defect in the drug or any negligence amounting to defi ciency in service on the part of the manufacturer of the drug – Interference with: Held: Not called for – No case of defi ciency in service or negligence on the part of the manufacturer of the drug made out – On facts, when all the family members had got administered the same vaccination from the same source and the complainant himself did not undergo any diffi culty when the fi rst two doses were administered, the onus to discharge the initial burden was heavy on the complainant to establish his case, which he failed to do so – Except for the affi davit fi led by the doctors known to the complainant, no other evidence available on record – Affi davit of doctors not of any evidentiary value – In the absence of medical evidence, the Courts on their own lack the expertise to come to a conclusion – Furthermore, no documentary evidence to indicate the purchase of the vaccine and the same being administered – Medical professional who ought to have knowledge SUPREME COURT REPORTS [2023] 12 S.C.R. 568 of the product and before administering had an opportunity to advice the complainant on these aspects had not made any eff orts – He cannot claim to become wise in hindsight – In any event, the instance of ‘myositis’ being minimal to the extent of 0.02 in a million, case of negligence on the part of the manufacturer not made out – Except for the complainant assuming that he suff ered ‘myositis’ and the cause for the same was the Engerix-B vaccine being administered, the same not established with the minimal required evidence to conclude even on preponderance of probability. [Paras 9, 12-17] LIST OF CITATIONS AND OTHER REFERENCES Malay Kumar Ganguly v. Dr. Sukumar Mukherjee & Ors. (2009) 9 SCC 221; Jacob Punnen and Another v. United India Insurance Company Limited (2022) 3 SCC 655; Chanda Rani Akhouri and Ors. v. M.A. Methusethupathi and Ors. (2022) SCC Online SC 481 – referred to. OTHER CASE DETAILS INCLUDING IMPUGNED ORDER AND APPEARANCES CIVIL APPELLATE JURISDICTION: Civil Appeal No. 6791 of 2013. From the Judgment and Order dated 25.04.2012 of the National Consumer Disputes Redressal Commission, New Delhi in Original Petition No.178 of 1999. Appearances: Mrs. Anitha Shenoy, Sr. Adv., Shantanu M. Adkar, Ms. Ayushma Awasthi, Ms. Namrata Caleb, Ms. Pariksha, Ms. Aparna Jha, Advs. for the Appellant. M/s. Gagrat and Co., Ujjwal A. Rana, Himanshu Mehta, Advs. for the Respondents. JUDGMENT / ORDER OF THE SUPREME COURT JUDGMENT A. S. BOPANNA, J. 1. The appellant is before this Court assailing the order dated 25.04.2012 passed by the National Consumer Disputes Redressal Commission, New 569 Delhi (‘NCDRC’ for short) in Consumer Case No.178 of 1999. Through the said order the NCDRC has held that the complainant has miserably failed to establish his case in regard to either any defect in the drug in question or any negligence amounting to defi ciency in service on the part of the respondent who is the manufacturer of the drug. In that view, the complaint fi led by the appellant was dismissed by the NCDRC. 2. The brief facts leading to the complaint is that the appellant in order to achieve immunity against contracting Hepatitis B, on 10.08.1998 approached his family physician Dr. Satyajit Pathak for administering the repeat dose of the vaccine Engerix-B, along with his family members. The appellant contended that he had purchased four single dose vaccines which were administered by Dr. Satyajit Pathak, one each to him, his wife and two sons. The family member
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