BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, ADDITIONAL BENCH, MANGALORE
Dated this the 24th January 2017
PRESENT
SRI VISHWESHWARA BHAT D : HON’BLE PRESIDENT
SRI T.C. RAJASHEKAR : HON’BLE MEMBER
ORDERS IN
C.C.No.7/2013
(Admitted on 09.01.2013)
Smt. Annapoorna,
W/o Krishna Rao,
Aged about 66 years,
R/at Ragavendra Kripa,
Nethaji Road, Harady,
Puttur Taluk, D.K.
….. COMPLAINANT
(Advocate for the Complainant: Sri SD)
VERSUS
1. Proprietor,
S.R. Enterprises,
GS, Ajantha Apartments,
Matadakani Cross Road, Mannagudda,
Mangalore.
2. Managing Director,
Sharma Pharmaceutical Pvt. Ltd,
103, 104, Girikandra Complex,
Near HDFC ATM, Waghodia Road,
Vadodara 390019, Gujarath.
….....OPPOSITE PARTIES
(Advocate for the Opposite Party No.1: Sri UPM)
(Advocate for the Opposite Party No.2: Sri VK)
ORDER DELIVERED BY HON’BLE PRESIDENT
SRI VISHWESHWARA BHAT D:
I. 1. The above complaint filed under Section 12 of the Consumer Protection Act by the complainant against opposite parties alleging deficiency in service claiming certain reliefs.
The brief facts of the case are as under:
The complainant claims she was admitted to Adarsha Hospital for fracture of Tibia and Fibula lower 1/4th of left leg operation by inserting Tibia Nail was done on 27.11.2011 by Dr. Bhaskar of Adarsha Hospital which was purchased from opposite party No.1 under Invoice No.136 dated 20.11.2011. Tibia Nail was inserted to give strength to the left leg which had life time guarantee from the date of purchase. The second opposite party is the manufacturer of the said Tibia Nail. There was a mistake in the registered notice issued showing the right leg was operated when in fact left leg operated of the complainant. About 7 months thereafter the complainant had a trivial fall by slipping on the ground resulting in fracture of the Tibia Nail as found and by an examination at Adarsha Hospital which was removed by surgery on 17.6.2012 and a new Tibia Nail was inserted she has spend Rs.51,856/ of the second operation. Contending that due to proper quality of manufacture of the Tibia Nail the complainant had to suffer. Opposite party did not comply even for legal notice. Hence seeks relief given in the complaint.
II. Opposite party No.1 filed written version contending that there is effort made to falsify allegations. As found out from the legal notice itself which was properly relied. Opposite party No.1 did not send Tibia Nail to complainant but it sent to Adarsha Hospital on 28.11.2011 under an invoice. Opposite party No.1 is not aware of the complainant undergoing operation by insertion of tibia nail on 28.11.2011 lower one forth facture. Opposite party No.1 is unaware as to the complainant’s cause after the 7th months of the first operation and of making of the Tibia Nail as meant to with stand 500 pounds and does not break as alleged by complainant in the Consumer Forum. Further in Adarsha Hospital and removing the broken Tibia Nail and insertion of new one and expenditure incurred by complainant of Rs.51,856/ were all denied. Alleged life time guarantee of the tibia nail has a guarantee for more than seven months. Though it is alleged that not sending notice to manufacturer i.e. opposite party No.2 in law and that the opposite party No.1 is only seller and the defective products and also contends that the complaint is filed beyond the period of the limitation. Refusing the relief claim seeks dismissal of the complaint.
2. Opposite party No.2 also appeared and filed a memo adopting written version filed by opposite party No.1.
3. In support of the above complainant Smt. Annapoorna filed affidavit evidence as CW1 and answered the interrogatories served on her and produced documents got marked at Ex.C1 to C8 and MO No.1 as detailed in the annexure here below. Dr. Bhaskar M, M.B.B.S., D. Ortho, D.N.B (Ortho) filed affidavit evidence as CW2 and answered the interrogatories served on him. On behalf of the opposite parties Mr. Raghavendra Trivikram Bhat (RW1) Proprietor, S.R. Enterprises also filed affidavit evidence and answered the interrogatories served on him and produced documents got marked at Ex.R1 to R7 as detailed in the annexure here below.
III. In view of the above said facts, the points for consideration in the case are:
- Whether the Complainant is a consumer and the dispute between the parties?
- If so, whether the Complainant is entitled for any of the reliefs claimed?
- What order?
The learned counsel for complainant sides already filed notes of arguments. We have considered entire case file on record including evidence tendered by the parties and notes of argument of both parties. Our findings on the points are as under are as follows:
Point No. (i): Negative
Point No. (ii): Negative
Point No. (iii): As per the final order.
REASONS
IV. POINTS No. (i): In this case the surgery of insertion for the fracture of the tibia nail of the lower part of leg of the complainant is performed by the Dr. Bhaskar M at Adarsha Hospital, A.P.M.C Road Puttur on 27.11.2011. The complainant alleges in the complaint and also in her affidavit evidence that the tibia nail used in the surgery was purchased from opposite party No.1 as per invoice No.136 dated 28.11.2011. In this case the documents produced by complainant 8 in nos. and the steel tibia nail broken into 2 pieces and 3 nails are not marked. Hence the documents produced are now marked at Ex.C1 to C8 and the steel tibia nail broken two pieces at M.O No.1.5.
2. At Ex.C7 copy of the legal notice in the complaint affidavit of the complainant are all relevant documents the date of surgery on complaint is mentioned as 27.11.2011. In all these documents the date of purchase of the tibia nail is shown as 28.11.2011. Ex.C1 is the tax invoice under which opposite party No.1 sold tibia nail 9mm into 32 with the 4 locking bolts on 28.11.2011. The purchaser is known as Adarsha Hospital but not the complainant. One can understand the hospital purchasing the required items for surgery and utilized in the surgery to the patient and there by showing the utilization of the product purchased by the hospital with the user the patient. Hence we can reasonably presume that the complainant is the consumer and not the hospital the purchaser.
3. In this case the complainant produced discharge card issued by Adarsha Hospital in respect of complainant. It is at Ex.C2, it shows the date of admission as on 27.11.2011 and date of discharge 11.12.2011. Ex.C4 is discharge summary pertaining to complainant issued by Adarsha Hospital with the date of admission as 17.06.2012 and the discharge on 28.6.2012. Both at Ex.C2 and at Ex.C4 no mention is made by the person who issued these two discharge summary as to the date on which the two surgeries were performed. There is no explanation tendered either by the complainant or by Dr. Bhaskar who was examined as CW2 by complainant. In the affidavit evidence he mentions about two surgeries conducted by the doctor to fix the two fracture of Fibula and he mentions he conducted the surgery on 28.11.2011 at Adarsha Hospital by fixing tibia nail and then was discharged on 11.12.2011. It also shows on 17.06.2012 the complainant was again admitted with broken tibia nail inserted on 28.11.2011 due to trivial fall by slipping on the ground on 16.06.2012. Of course Dr. Bhaskar did mention in his affidavit evidence that he had operated on complainant on 28.11.2011 at Adarsha Hospital. Of course during interrogatories Dr. Bhaskar was not asked for not mentioning the date of surgery in the discharge summary issued by him. However suffice to mention that considering the inconsistencies in the evidence of the complainant mentions in her compliant and also legal notice that the date of surgery as 27.11.2011 and the invoice bill Ex.C1 showing the purchase of the tibia nail by Adarsha Hospital where the operation was done on complainant by CW2 and fixing of the nails purchased at the CW1 was done by CW2 are most glaring inconsistence in the evidence of complainant making their version of the complaint unbelievable. If there was any error at any stage during the course of pleading and notice are issuing the two discharge summaries such inconsistency was not explained are not even tried to explain. Under the circumstance we are of the view that the complainant failed to prove consumer and service provider relationship between the complainant and opposite parties and the existence of a dispute as claimed in the complaint. It is hard to believe the inconsistency version of the compliant. Hence we answer point No. 1 in the negative.
POINTS No.(ii): In view of our answer point No.1 negative this point does not survive for consideration. Hence answer point No.2 in the negative.
POINTS No. (iii): Wherefore the following order
ORDER
The Complaint is dismissed.
Copy of this order as per statutory requirements, be forwarded to the parties free of cost and file shall be consigned to record room.
(Page No.1 to 7 directly dictated by President to computer system to the Stenographer typed by her, revised and pronounced in the open court on this the 24th January 2017)
MEMBER PRESIDENT
(SRI T.C. RAJASHEKAR) (SRI VISHWESHWARA BHAT D)
D.K. District Consumer Forum D.K. District Consumer Forum
Additional Bench, Mangalore Additional Bench, Mangalore
ANNEXURE
Witnesses examined on behalf of the Complainant:
CW1 Smt. Annapoorna
CW2 Dr. Bhaskar M, M.B.B.S., D. Ortho, D.N.B (Ortho)
Documents marked on behalf of the Complainant:
Ex.C1: 28.11.2011: Copy of the Invoice issued by 1st O.P
Ex.C2: 27.11.2011: Original discharge card of Adarsha Hospital
Ex.C3: 11.12.2011: Original bill
Ex.C4: 17.06.2012: Original discharge summary of Adarsha Hospital
Ex.C5: 28.06.2012: Original bill
Ex.C6: 27.08.2012: Original treatment certificate of Dr. Bhaskar M
Ex.C7: 13.09.2012: O/c of the regd lawyer’s notice
Ex.C8: 29.09.2012: Reply of the 1st opposite party.
MO No: 1.5: : Steel Tibia Nail broken (2 pieces) and 3 nails
Witnesses examined on behalf of the Opposite Parties:
RW1 Mr. Raghavendra Trivikram Bhat, Proprietor, S.R. Enterprises
Documents marked on behalf of the Opposite Parties:
Ex.R1: EC certificate issued to Sharma Pharmaceutical Pvt. Ltd.
Ex.R2: Quality Certificate
Ex.R3: GMP Certificate
Ex.R4: Drug Licence (form No.28)
Ex.R5: Drug Licence of opposite party No.1
Ex.R6: Trade Licence of Opposite party No.1
Ex.R7: Test Report of Tibia Nail
Dated: 24.01.2017 PRESIDENT
