JASBIR KAUR Vs. DUCHEM LABORATORIES LIMITED

JUDGEMENT

(1.) IT is alleged in the amended complaint that the complainant after having fallen in her house on 6.5.1997, was taken to Batra Hospital, New Delhi where she was attended by OP No. 3 -Doctor. X -ray of the complainant showed that she was having fracture in bone in her left thigh. Opposite party No. 3 suggested insertion of an Inter -locking Nail' by way of operation. He procured Inter -locking Nail' manufactured by Pfizer Inc. and Howmedica International Inc. through opposite party No. 2, authorized agent of OP No. 1 who was the distributor of the manufacturer in India. The number of Inter locking Nail' was 10 -380 (H) K340690. Complainant was discharged from hospital on 11.5.1997. It was further alleged that the complainant had severe pain at the place the Inter -locking Nail was inserted. She was, therefore, taken to Lok Nayak Jaiprakash Hospital at New Delhi on 26.6.1998. Her X -ray was taken which showed that the inserted Inter -locking Nail had broken. On 13.7.1998, broken Inter -locking Nail was removed and another Inter -locking Nail manufactured by the said Company was inserted on the advice of treating Orthopaedic Surgeon. It was stated that broken Inter -locking Nail was of sub -standard quality. It had caused huge financial loss and physical torture to the complainant. OP No. 4 is a Sales Officer of OP No. 1. Complainant through Counsel sent a notice to the opposite parties. OP No. 4 was deputed by OP No. 1 to visit the place of complainant, inspect the broken Inter -locking Nail and collect X -ray, etc. Manufacturer lastly asked the complainant to supply the pre -operation and post -operation X -rays as also broken Inter -locking Nail in addition to medical reports in original complainant sent the photographs of the broken Inter -locking Nail and all other documents. Despite that the manufacturer has failed to settle the claim. Direction was sought to be given to pay compensation of Rs. 50.00 lakh with interest @ 12% p.a. to the complainant.

(2.) OPPOSITE party Nos. 1, 2 and 3 contested the complaint by filing separate written versions. Opposite party No. 4 did not file written version. It was alleged by OP No. 1 that it did not supply the Inter - locking Nail in question for consideration to the complainant and had no privity of contract with her. Inter -locking Nails are manufactured at Kiel, Germany by Howmedica International Inc. which has been deleted as a party in the amended complaint. Shanon Warehouse, Ireland is responsible for supply of the products manufactured by Howmedica International Inc. Answering opposite party is an authorized distributor of Howmedica International Inc. in India. Complainant had purchased the Inter -locking Nail from OP No. 2, dealer of the opposite party. It was stated that the products manufactured by Howmedica International Inc. meet the requirements of EN ISO 9001: 1994, EN 46001: 1996. It had been granted EC certificate No. Gl 99 0313931 017 which certifies that the products manufactured by the Company are in conformity with directive 93/42/EEC concerning medical devices. Company is also registered with Foods and Drugs Association, USA. Breaking of the Inter - locking Nail in question itself would not amount to defect therein within the meaning of Consumer Protection Act, 1986 ( for short the Act). It was further alleged that complainant had failed to disclose that Dynamisation was done by Dr. Rajiv Sharma, AIIMS. Inter -locking Nail in question would have broken due to other reasons including negligence on the part of complainant and non -union of the bone. Inter -locking Nail is merely an aid for natural fracture healing process and is meant only to maintain the anatomical position of the fractured bone. It cannot act as a substitute to the bone. Inter -locking Nail in question was of good quality as is demonstrated by the fact that it was intact for 13 months after surgery despite their being non -union of the bone. In response to the last notice dated 26.8.1998, the answering opposite party had sent letter dated 14.9.1998. By another letter dated 15.10.1998 the complainant through Counsel was informed that it was necessary for examining the claim of the complainant that Inter -locking Nail in question is sent along with X -rays and other relevant documents still the complainant failed to take the requisite steps in the matter. It was pleaded that the Inter -locking Nail in question being imported was not the goods' within the meaning of Section 2 (1) (i) of the Act. Liability to pay the amount claimed was emphatically denied.

(3.) OPPOSITE party No. 2 in its written version alleged that it was a dealer of OP No. 1 and procured the Inter -locking Nail in question from OP No. 1. It received a small commission on sale of the implant and is not responsible as regards quality of the Inter -locking Nail in question which was supplied in packed condition.