Prakash Bang vs Glaxo Smithkline Pharmaceuticals Ltd. & Anr.

Court

Supreme Court of India

Date

5 September 2023

Case No.

Civil Appeal No. 6791 of 2013

Result

Dismissed

Bench

A.S. Bopanna, Prashant Kumar Mishra

Citation

[2023] 12 S.C.R. 567 : 2023 INSC 794

Issue for consideration

Whether there is sufficient evidence to establish that the complainant suffered ‘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 ‘deficiency of service’. Consumer Protection Act, 1986 – Negligence – Deficiency in service – Complainant alleging that on account of adverse reaction of the Hepatitis vaccine Engerix-B administered, he suffered 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 deficiency in service on the part of the manufacturer of the drug – Interference with:

Headnote

Held: Not called for – No case of deficiency 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 difficulty when the first 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 affidavit filed by the doctors known to the complainant, no other evidence available on record – Affidavit 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 of the product and before administering had an opportunity to advice the complainant on these aspects had not made any efforts – 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 suffered ‘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

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 PHARMACEUTICALS LTD. & ANR. [A. S. BOPANNA, J.] 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 deficiency in service on the part of the respondent who is the manufacturer of the drug. I

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