Goa

South Goa

CC/10/2022

Dr. D. J. De Souza - Complainant(s)

Versus

1.Manager, Weldon Biotech Pvt. Ltd., & Ors. - Opp.Party(s)

16 Mar 2023

ORDER

Complaint filed on: 28/01/2022

 Complaint disposed on: 16/03/2023

 

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, SOUTH GOA AT MARGAO

 

 

CORAM:   SHRI SANJAY MOTIRAM CHODANKAR, PRESIDENT

         SMT. NELLY PEREIRA E D’SILVA, MEMBER

         SHRI JAYSON RODRIGUES, MEMBER

 

 

Complaint No. 10/2022

 

 

Dr. Domingos  J. De Souza,

C/O Luz Lab, New Market,

Margao Goa 403 601                                          .….Complainant

 

           V/s. 

 

1. Managing Director,

Weldon Biotech P Ltd.

Mayur Vihar, New Delhi 110091                    …Opposite Party No 1

 

2. M/S Ameya Enterprises,

Anita Residency, Bldg. No.1, Flat No. 106,

Opp. Indian Oil Corporation Petrol Pump,

Khatija Khardum Road, Pune 411 046              …Opposite Party No 2

 

Complainant present in person at time of hearings and arguments and absent at the time of passing of judgment.

None present for the Opposite Parties.

 

JUDGEMENT

 

(Per Mr. Jayson Rodrigues, Member)

 

1. This Judgment and Order shall dispose of the Complaint filed under Section 35 of the Consumer Protection Act, 2019 (for short “The C.P. Act”).

 

The brief facts of the case are as under:

 

2. The present complaint has been filed by the Complainant who is the proprietor of a commercial establishment M/s. Luz Lab & Eliza Test Center, Margao, Goa alleging sale of defective TSH Eliza Kits against the Opposite Parties (OPs) Weldon Biotech India Pvt. Ltd. (hereinafter referred to as OP1) who is a well-established company in India for various diagnostics/research products and M/S Ameya Enterprises (hereinafter referred to as OP2) who is the distributor of TSH Eliza Kits based in Pune as well as dealer/supplier/stockist for various diagnostic, pathology, clinical  research organization and QC labs requirements. The TSH ELISA Kits are intended for the quantitative measurement of TSH(Thyroid Stimulating Hormone) in human serum.

From, AMEYA ENTERPRISES					To, Luz Laboratory & Eliza Test Center
			GST TAX INVOICE
Date	Invoice No	HSN No	Product Desc	Unit	Batch	Exp	Qty	NET AMT
23-11-21	AE/1082/21-22	30029010	TSH ELISA KIT	96 TEST	TSS6185	Dec-22	1	₹ 3,943.00
21-12-21	AE/1216/21-22	30029010	TSH ELISA KIT (WELDON)	96 TEST	TSS6042	Jul-23	1	₹ 2,730.00
								₹ 6,673.00

 

3. The case of the Complainant is that, The OP1 is the main agent of procuring the Eliza based Kits from the manufacturer, in USA. OP1 has a cold room which he utilizes to keep these Eliza kits of various parameters and supplies to agent like OP2 who is based in Pune Maharashtra. The Eliza based Kits are dispatched to various pathology labs in India who carries out these specialized tests like thyroid functions. The OP1 who has manufacturing facility at Haridwar, Uttarkand, India, manufactures kits such as T.S.H, P.S.A. The Complainant has previously used his P.S.A Kit for prostate gland malignancy in men which functioned satisfactorily, but did not have certificate of analysis done by quality control personnel from the quality control dept. of OP1. The T.S.H kit which was purchased from manufacturing facility at Haridwar did not have certificate of analysis; and the said kit did not show color development in the course of analysis. Also another T.S.H Kit, which was imported, from Calbiotech Inc. U.S.A did not function properly as the kit did not develop color formation during the course of analysis. The kit which was manufactured locally at Utttarkand was compensated to the Complainant by its cost, while the imported TSH kit which was defective, was not paid by the Complainant. The Complainant alleges that OP2 did not have cold room facility for preservation, but had two cold fridges for storing the test Kits ordered from the customers. The Complainant further states that since the kits received from the OP2, showed dry ice packs within the test kits the genuineness of the OP2 was accepted, and therefore no punitive damages are pressed for. The Complainant states that it is frustrating for a professional pathology lab to have such type of kits delivered  when we are dealing with human lives and improper diagnosis. At present, Luz Lab does these Eliza tests in private sector in Goa.

 

4. The Complainant has examined himself by filing Affidavit-in-evidence in support of the complaint. He has produced the following documents:

1. Xerox copy of Certificate of Analysis dated 29.12.2020 at Exhibit ‘3’
2. Xerox copy of GST Tax Invoice dated 21.12.2021 at Exhibit ‘4’
3. Xerox copy of GST Tax Invoice dated 23.11.2021 at Exhibit ‘5’.

 

5. Complainant after facing inconvenience has come forward to this District Consumer Disputes Redressal Commission with this complaint praying initially for following reliefs:
   1. OP1 when he manufactures the medical kits for laboratory use should mandatorily give certificate of analysis, after manufacturing date, within the kit itself.
   2. It is pertinent on the part of OP1 to show the storage facility cold room, and get the approval from the district administration regarding its proper climatic conditions for storage facility of 2-8 degrees centigrade to keep the imported medical kits. The approval should be renewed every 12 months.
   3. Punitive damages should be cost of 2 T.S.H kits already paid for, plus 9% interest or the cost charges from supply of these two T.S.H kits till date.
   4. Costs of Rs. 6,000/- for forcing to come to Consumer Court due to production of defective T.S.H kit and the resultant defective kit due to improper storage of the imported kit.
   5. Any other relief in the interest of justice

Later amending his prayers on 19/12/2022:

1. The OP1should mandatorily have certificate of analysis done on every batch of test kit released into the laboratory testing market, by head of quality control personnel. And since OP1 did not show any certificate of analysis in the test kits of T.S.H and P.S.A, the culpability is present and for which punitive damages of Rs.10,000/- are called for, and should be granted to the petitioner in person.
2. No kit should be released by the Indian manufacturer of test kits, as these kits are primarily used for diagnosis of diseases in humans and ultimately used for the effective treatment. This point should be enforced in the orders of this petition.
3.  The kits should be stored preferably in the cold rooms or large modern fridges with facility for recording the temperature of 2-8 degrees.
4. Any other relief in the interest of justice.

 

6. The OPs were duly served with notice of the complaint and although served with notice did not file written version and remained absent.

 

7. We have heard the Complainant and also perused the complaint and the documents. The short point for consideration first is whether the Complainant is a Consumer under the C.P. Act?

 

8. Section 2(7) defines a ‘consumer’ under C.P. Act.  A person who buys goods for resale or commercial purposes or avails services for commercial purposes is specifically excluded from definition of ‘consumer’. When the legislature having defined the term 'consumer' in broader terms, sought to exclude certain transactions from the purview of the Act what could be the meaning that would be assigned to the exclusionary clause, viz., "but does not include a person who avails of such goods for resale or for any commercial purpose". The intention appears to be that when the goods are exchanged between a buyer and the seller for commercial purpose or for resale, the object of the C.P. Act appears to be to exclude such commercial transactions from the purview of the C.P. Act. If intention is to earn substantial profit, the purchase will be treated as commercial purpose. If the Complainant cannot convince the Consumer Commissions, that the facts and allegations are more likely to be true than not, the OPs are likely to prevail even if they present no defence at all.
9. It is seen from the records/documents and the arguments advanced by the Complainant that the said bulk TSH ELISA KITs purchased by Luz Laboratory & Eliza Test Centre frequently are for conducting tests on the individuals who approach them for said tests. The Complainant in his complaint has nowhere stated that the said kit was used by him for his personal use and the same was found defective nor the name of any patient is mentioned on whom it was tested and found defective.

 

10. The said allegations mentioned in the complaint are not supported with any evidence. Therefore it is clear that the allegations cannot be considered in this present case, which forms the very basis of the complaint against the OPs. It is also to be noted that, the Complainant is a proprietor of M/s. Luz Lab & Eliza Test Center, Margao which is a commercial establishment. The Complainant gets the tests conducted for a consideration to be paid by its patients. He runs a pathological laboratory for profit for many years. Such 'business to business' disputes cannot be construed as 'consumer disputes'. The relations between the Complainant and the OPs in this matter are purely “business to business” relationship hence; the transactions would clearly come within the ambit of 'commercial purpose'. He is, therefore, not a consumer under the C.P. Act.

 

11. This Complaint deals primarily with defective Eliza Kits which are mostly imported from abroad and some of which are manufactured in India especially by OP1. The OP2 primarily deals with supplying the imported and locally made Eliza kits all over the country. The Complainant alleges that the deficiency herein lies in not proper storage of the Eliza kits at 2-8 degree C preferably in a cold room and if the storage is not proper, the Eliza kits tend to deteriorate and inaccurate results are then produced, and the whole blame lies on laboratory which gives these reports of the patients but has not placed any evidence on record to substantiate this. The Complainant has nowhere established that his lab is also following the required cooling/humidity standards or whether his lab practices proper disaster recovery management strategies especially during power failures.

 

12. The Complainant has alleged that the TSH kits purchased from the manufacturing facility of the OP at Haridwar did not function properly and did not show color development during the course of analysis. The Complainant has also alleged that an imported TSH kit from Calbiotech Inc. U.S.A. did not function properly, and the kit manufactured locally in Uttarakhand was compensated by its cost while the imported TSH kit was not paid for. The Complainant has further alleged that the OP failed to provide certificates of analysis for the PSA and TSH kits. Upon careful consideration of the complaint and evidence on record, this Commission finds that the Complainant has failed to establish the allegations made. There is no evidence on record to suggest that the Eliza test kits supplied were defective or of inferior quality. The mere allegation that some of the test kits did not function properly in a particular case does not establish a pattern of deficiency in service or unfair trade practice. Furthermore, the Complainant has not provided any evidence to show failure in providing him certificates of analysis for the PSA and TSH kits. In the absence of any evidence to the contrary, it must be assumed that the OP’s provided the necessary certificates of analysis for the kits supplied. The Certificate of Analysis at Exhibit ‘3’ of lot TSS6185 on 29/12/2020certified‘PASS’ for quality Control check suggesting no discrepancies.

 

13. The Complainant during the case stated that OP1 has stopped sending the MicroEliza kits to OP2 for supply to the various customers in India. The Complainant further stated that he now purchases the MicroEliza kits of Calbiotech (OP1 is exclusive importer) from other subagent other than the OP2 in this complaint. As per the request of the Complainant, the OP1 has co-operated and sent him photographs of their cold room as well as electricity bills while OP2 has delayed for quite long time to send the Complainant photographs of the refrigerators so the Complainant alleges that probably OP2 is at fault for not keeping the kits at desired temperature of 2-8 degree centigrade. Again, the Complainant has not produced on record any photographs, electricity bills, etc.

 

14. The Complainant is his most recent written prayer dated 11/02/2023 stated that he does not wish to press for any punitive charges, as he has singled out who is responsible for not keeping the micro Eliza kits at desired temperatures. He further alleges again without any evidence on record that probably OP2 used to change the labels and cold packs inside without keeping the kits inside the fridge and probably used to keep the thermacool box in his room and dispatch it the next day. The Complainant also rejoices that by filing this petition, he has sent a strong message to the manufacturer, importer and the subagents, that the end user is alive to the quality control and proper analysis of the specialized tests in the best possible way but further he still remains adamant in seeking further other relief in the interest and fair play of the customer.

 

15. A plain reading of Section 38 of the C.P. Act would highlight the fact that a consumer dispute under the C.P. Act can be settled by District Commission only on the basis of some evidence. This section clearly lays down that even where the OP omits or fails to take any action to represent his case before the Commission, the matter has still to be decided on the basis of evidence brought to its notice by the Complainant himself.

 

16. It is pertinent to note that in Complaint No. 28/2020 filed before this Commission, and which was disposed on 18/01/2021, against the Complainant, the Commission has in detail discussed about the Complainant and his activities, at the same time has taken a view that Complainant is not a Consumer as defined under the C.P. Act. In the instant case also the subject-matter is of similar nature as decided against the Complainant in said Complaint No. 28/2020.

 

17. In view of the above discussion, we find that the Complainant has failed to show that he is a Consumer as defined under the C.P. Act or if there is any defect in the product or any deficiency in service on the part of the OPs. We find no merit in the complaint. The Complainant has failed to establish any deficiency in services on the part of OP1 or OP2. The kits supplied by OP1 and OP2 were of a satisfactory quality and did not cause any harm to the Complainant or any patient. Furthermore, the Complainant has failed to establish any evidence to prove that OP2 did not have a proper cold room facility for preservation, as alleged. Moreover, the Complainant has accepted the genuineness of OP2 by stating that the kits received from OP2 showed dry ice packs, and therefore no punitive damages are pressed for. We are of the opinion that the complaint is frivolous and have been filed with an ulterior motive. The OPs did not appear before this Commission despite the notice served. However, the absence of the OPs does not necessarily imply an admission of the allegations made against them. The Complainant still has the burden of establishing the allegations made against the OPs by providing sufficient evidence.  In the present case, the Complainant has failed to establish the allegations made against the OPs, and therefore, the complaint is dismissed.

 

18. We are also of the opinion that the present complaint is malafide and vexatious. That merely because no court fee is payable for lodging a complaint before the Consumer Commissions, parties have a tendency to misuse the provisions of the C.P. Act, in respect of matters not falling within its purview. Although consumers have a legal right to approach a consumer Commission, Such right comes with the responsibility of exercising it in good faith and without any ulterior motives. The C.P. Act is not to be used as a tool for harassment or to extort businesses. Consumers must follow proper procedures and provide necessary evidence to support their claim. Failure to exercise the right responsibly may result in legal consequences. This tendency must be discouraged by imposing necessary cost. Consequently, after considering the Judgment passed in Complaint No. 28/2020 and considering the frivolous nature of the complaint, which is sheer abuse of process of law and same has to be dealt with heavy hand by imposing costs on him, we hereby impose exemplary cost of Rs.1000/- on the Complainant to be deposited with the Registry of this Commission immediately after the Appeal period is over, if not, the same will carry interest @ 10% per annum till final payment. That on receipt of the said amount the same to be deposited in the Consumer Welfare Fund.

 

Pronounced in open Court. Proceedings closed.

 

 

 

                                                                                                            (Mr. Sanjay Motiram Chodankar)

                                                     President

 

 

 

                                                          (Ms. Nelly H. Pereira e D’Silva)

                                                            Member

 

 

 

                                                               (Mr. Jayson Rodrigues)

                                                                                                                                        Member