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Hazardous products' sale conforming to law cannot be disputed

Jehangir Gai 

Deepak Kumar, a retired government official, claimed he was addicted to cigarettes since he was 16. He quit smoking in April 2006, when he was 56. Around August 2008, he was detected to be suffering from larynx cancer.

Kumar's grievance was that ITC's Wills Navy Cut, Wills King Size and State Express-555 were marketed without an appropriate warning that cigarettes were unsafe for consumption. He alleged the failure to disclose this was an act of negligence on the part of the manufacturer, which caused him throat cancer and loss of voice. Attributing the cancer to smoking, he filed a consumer complaint in 2009 against ITC before the Maharashtra State Commission. He contended that if ITC had carried a proper warning regarding the health hazards of smoking, such as lung and oral cancer, he would not have taken to smoking. He sought a compensation of Rs 1 crore, and a direction to ITC to carry a detailed warning on its cigarette packets or to put a package insert that cigarettes contained Group 'I' carcinogen.

ITC raised various objections on the issue of limitation, maintainability and jurisdiction to decide the complaint. ITC pointed out that it had stopped manufacturing Wills King Size cigarettes in November 1995, while State Express-555 was introduced in June 1998. Though Kumar was a smoker till 2006, his complaint was silent about the brand he was smoking between November 1995 and June 1998. Apart from that, since he claimed that he had given up smoking since April 2006, there was no question of his having purchased any cigarettes for his own consumption thereafter. So, at the time of filing the complaint in December 2009, there was no subsisting relationship under which Kumar could claim to be a consumer.

To overcome the hurdle of limitation, Kumar claimed while he had been smoking for decades, his complaint was in time as the cancer was detected in the year 2008. He also stated that he could not produce any bills for the purchase of cigarettes as these were purchased from roadside vendors.

The Commission noted the Cigarettes and other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and supply and Distribution) Act, 2003, considers tobacco hazardous, and mandates a warning to be exhibited but does not ban its sale. For a complaint to be maintainable under the Consumer Protection Act, it would be necessary to show that hazardous goods are being sold in contravention of any legal standards prescribed. In the case of sale of cigarettes, there was no such contravention. Kumar's complaint did not allege any defect in the cigarettes. On the contrary, there was no dispute about the cigarettes conforming to the measure laid down by the Bureau of Indian Standards of the Government of India.

The Commission concluded that since there was no defect in the cigarettes, a consumer dispute would not be maintainable. Consumer fora cannot order printing of any additional warnings beyond what has been prescribed by law and was being followed by ITC.

The Commission observed the statutory warning appeared on cigarette packs in 2004 while Kumar was still a smoker. It, therefore, disbelieved Kumar's claim to be unaware of the dangers of smoking till he suffered throat and mouth cancer. Observing that the cause of action commenced when Kumar started smoking, and could at the maximum be considered to extend till April 2006 when he gave up smoking, the Commission held that the complaint filed in 2009 was time barred.

Accordingly, the bench of Justice S B Mhase, S R Khanzode and J D Yengal dismissed the complaint. Consumers must realise that consumer fora are not to be used as an opportunistic mechanism for making baseless and exaggerated claims.

The writer is a consumer activist

First Published: Mon, November 25 2013. 00:15 IST