Tamil Nadu

StateCommission

CC/2/2014

SHANTHI RAJMOHAN - Complainant(s)

Versus

BAXTER INDIA PRIVATE LIMITED - Opp.Party(s)

SUCHINDRAN B.N.

10 Dec 2015

ORDER

BEFORE THE TAMIL NADU STATE CONSUMER DISPUTES  REDRESSAL COMMISSION, CHENNAI

PRESENT: THIRU  J. JAYARAM            PRESIDING JUDICIAL MEMBER

                                                                TMT. P. BAKIYAVATHI        MEMBER

 

C.C.  NO.  2   OF  2014

DATED THIS THE 10^th DAY OF DECEMBER, 2015

Mrs. Shanthi Rajmohan,

Wife of Mr. Rajmohan

C-13, Rail Nagar,

Koyambedu,

Chennai – 600 107                                                             ..        Complainant

 

- Vs -

 

1.  M/s. Baxter (India) Private Limited,

     Represented by its authorized signatory,

     having its registered office at,

     2^nd Floor, Tower-C, Building No. 8,

     DLF Cyber City, DLF Phase – II,

     Gurgaon – 122 002,

     Haryana, India.

 

2.  M/s. Baxter US

Represented by its authorized signatory,

     Having its registered office at,

     One Baxter Parkway,

     Deerfield,

     IL 60015-4625

 

3.  The Business Centre,

     Represented by its authorized signatory

     Having its office at No. 44/3, 10 2^nd Street,

     14^th Sector,

     K.K. Nagar,

     Chennai – 600 078                                                ..      Opposite parties

Counsel for Complainant                   :     M/s. Suchindran B.N

Counsel for Opposite Parties 1 & 2   :      M/s  K. Gunasekaran                Counsel for 3^rd opposite party            :     M/s   P. Kavundrayan

 

J. JAYARAM, PRESIDING JUDICIAL MEMBER

         This case coming before us for final hearing on 13-08-2015 and on hearing the arguments of both sides and upon perusing the material records, this Commission made the following

ORDER

1.       The case of the complainant is as follows : -

      The complainant is a chronic renal failure patient suffering from the said condition for the past 10 years.  She has been undertaking peritoneal dialysis and for this purpose she has been and still purchasing the peritoneal dialysis solution manufactured by the opposite parties.  She had many problems with the peritoneal dialysis solution supplied by the oppose te parties from the very beginning when she started to use their product.  She diligently voiced her concerns to the Clinical Coordinator of the opposite party during the year 2004. On 18-06-2011 the complainant sent an email detailing that on that day in spite of doing all the procedures perfectly her attire was getting wet and she found leak in the “Y” junction and that this is due to the faulty bag which could have ended up fatally. The complainant has listed out various other deficiencies she encountered in the peritoneal dialysis solution supplied to her namely, presence of fungi in the outer bag, presence of fungi in the liquid, presence of fluid in the drain bag despite the green lock being intact, broken green lock, leak in the drain bag, sweating and droplets inside the bag.  On 28-06-2011 the coordinator of the opposite parties informed the complainant that investigation will be carried out by them.  Again 0n 02-09-2011 the complainant’s husband sent a mail to the opposite parties regarding the leak from the tube. On 07-09-2011 there was a leak in the solution bag and in response the quality manager of the opposite parties confirmed the leakage and promised that no such incidents will occur in future.  On not receiving any reply from the opposite parties on 15-09-2011 the complainant has registered a complaint with the State Drug Controller regarding the regular supply of faulty dialysis fluid by the opposite parties. On 14-05-2012 the opposite parties stated that the root cause could not be determined as the sample was not available to them. Since no action was taken on her complaints she issued a legal notice on 28-06-2013 and the 1^st opposite party vide reply notice dated 18-07-2013 has denied all the allegations.  The complainant has alleged that the opposite parties have supplied faulty and substandard bags and have adopted unfair trade practice, and to direct the opposite parties to pay Rs. 5,00,000/- paid by the complainant in respect of faulty and substandard product, and to pay Rs. 50 lakhs as compensation for mental agony, and to pay costs of Rs.50,000/-.

2.       The contentions of the opposite parties in the version are: -                                                                      

       The written version was filed by the 1^st and 2^nd opposite parties which was adopted by the 3^rd opposite party.  The answering opposite parties has denied all the averments in the complaint and contended that for more than a decade the complainant is using their product peritoneal dialysis solution which itself shows the quality commitment and values practiced by the opposite parties and which had motivated the complainant to remain a loyal customer of them despite having options available in the market.  The alleged complaints made by the complainant with regard to the quality of the product are not backed by any evidence.  The complainant has not taken any steps to send the alleged defective bags to the appropriate laboratory for testing and analysis in accordance with Section 13 of the Consumer Protection Act.  It may be pertinent to point out that by the nature of the product it is nearly impossible to find out the defects of the nature alleged by the complainant. In all bags and leaflet instructions are issued as to how to use the product.  The relief sought by the complainant is not as per the terms of Section 14 (b) and the compensation sought is fanciful.

3.    The complainant has filed proof affidavit and has filed 29 documents and marked as Ex. A1 to A 29.  The opposite parties have filed proof affidavit along with 10 documents and the same has been marked as Exhibit B-1 to B-10.  .

4.       The points for consideration are : -

(1). Whether the opposite parties have supplied faulty and defective peritoneal dialysis solution to the complainant and thereby committed deficiency in service/unfair trade practice ?

(2)  Whether the complainant is entitled to claim compensation from the opposite parties?

(3)  If so, to what relief the complainant is entitled ?

5.       POINTS – 1, 2 & 3

         According to the complainant, she is a chronic renal failure patient suffering from the said condition for the past 10 years and that she has been undertaking peritoneal dialysis and for this purpose she has been purchasing the peritoneal dialysis solution manufactured by the opposite parties. However the complainant has not produced and placed before us any bill for the purchase of the opposite parties’ peritoneal dialysis solution. The complainant had many problems with the peritoneal dialysis solution supplied by the opposite parties from the very beginning when she started to use their product as early as from 2004. Though the complainant has averred that she is facing problems with the opposite parties product right from 2004 but in contra on perusal of the documents produced and placed before us it is evidenced that the complainant has communicated with the opposite party vide Ex. A-1 only on 19-06-2011. The complainant has listed out various alleged deficiencies she encountered in the peritoneal dialysis solution supplied to her by the opposite parties namely, presence of fungi in the outer bag, presence of fungi in the liquid, presence of fluid in the drain bag despite the green lock being intact, broken green lock, leak in the drain bag, sweating and droplets inside the bag.  When the complainant makes an allegation regarding sub-standard and defective product the onus rests upon her to prove and establish that the products supplied by the opposite parties are sub-standard and defective. On perusal of the material records there is absolutely no evidence on record adduced by the complainant to establish the supply of sub-standard and defective peritoneal dialysis solution by the opposite parties. This complex nature of the allegations made in the complaint can be can be determined only through laboratory tests as envisaged in Section 13 (1) (c) of the Consumer Protection Act – 1986 which reads as follows: -

13.  (1) (c)     where the complainant alleges a defect in the goods which cannot be determined without proper analysis or test of the goods, the District Forum shall obtain a sample of the goods from the complainant, seal it and authenticate it in the manner prescribed and refer the sample so sealed to the appropriate laboratory along with a direction that such laboratory make an analysis or test, whichever may be necessary, with a view to finding out whether such goods suffer from any defect alleged in the complaint or from any other defect and to report its findings thereon to the District Forum within a period of forty-five days of the receipt of the reference or within such extended period as may be granted by the District Forum;

6.       The above proviso contemplates, where the complainant alleges a defect in the goods, which cannot be determined without proper analysis or test of the goods, the same has to be ascertained by sending the goods to the appropriate laboratory. Thus from this provision it is clear that if complainant alleges defects in the goods which have been bought by her from the opposite parties then such defects cannot be established unless there is examination of the defective product by some expert. If the alleged sub-standard defective peritoneal dialysis solution is not sent for analysis or test to the appropriate laboratory, the best evidence regarding the defect in the goods would not be available and no amount of oral evidence could prove the defect in the goods in the absence of such report.. Admittedly, the complainant has not moved any application to test the alleged defective and substandard peritoneal dialysis solution by an appropriate laboratory nor has produced and placed before us any evidence to establish and prove her case that the product of the opposite parties is sub-standard and defective. Thus, it is clear that as per settled law to establish allegation of manufacturing defects, it is necessary to get the goods examined by some independent expert, but in the present case this exercise has not been done.  When the allegation of defective and substandard goods is not proved, the case of the complainant fails. For the aforesaid reasons, we are of the considered opinion that the complainant has not made out her case of deficiency in service or unfair  trade practice against the opposite parties.

7.       Therefore, we hold that the allegations of deficiency in service and unfair trade practice against the opposite parties have not been established, and consequently the complainant is not entitled to claim compensation from the opposite parties, and the complainant is not entitled to any relief in the complaint, and the points are answered accordingly.

 

8.       In the result, the complaint is dismissed. No order as to costs.

       

P. BAKIYAVATHY                                     J. JAYARAM                                        

       MEMBER                           PRESIDING JUDICIAL MEMBER

 LIST OF DOCUMENTS FILED BY THE COMPLAINANT :

Sl.No	Date	Description
Ex.A1	19.06.2011	Copy of Email by Complainant to opposite party
Ex.A2	23.06.2011	Copy of letter by opposite party to complainant
Ex.A3	28.06.2011	Copy of letter by opposite party to complainant
Ex.A4	25.08.2011	Copy of letter by complainant to the state Drug Controller
Ex.A5	02.09.2011 – 05.09.2011	Copy of Chain of Emails between complainant and opposite party
Ex.A6	08.09.2011	Copy of Email by opposite party to complainant’s husband
Ex.A7	13.09.2011	Copy of Email by complainant to opposite party
Ex.A8	16.09.2011-18.09.2011	Copy of Chain of Emails between complainant and opposite party
Ex.A9	23.09.2011	Copy of letter of Clarification sent on behalf of the complainant to State Drug controller
Ex.A10	23.09.2011	Copy of Legal Notice by CAG to opposite parties
Ex.A11	24.09.2011	Copy of Email by opposite party to complainant in response to the Legal notice by CAG
Ex.A12	10.05.2012	Copy of Email by complainant to opposite party
Ex.A13	14.05.2012	Copy of Acknowledgement form and Feedback Assessment Report by opposite party to complainant
Ex.A14	23.06.2012	Copy of complaint by complainant to opposite party
Ex.A15	24.06.2012	Copy of Email by complainant to opposite party
Ex.A16	26.06.2012	Copy of Acknowledgement form by opposite party to complainant
Ex.A17	30.06.2012	Copy of letter by Senior Clinical Team Leader of opposite party to complainant
Ex.A18	18.04.2013	Copy of complaint by complainant to opposite party
Ex.A19	25.04.2013 – 29.04.2013	Copy of Chain of Emails between complainant and opposite party
Ex.A20	01.05.2013 – 07.05.2013	Copy of Chain of Emails between complainant and opposite party
Ex.A21	10.05.2013 – 14.05.2013	Copy of Chain of Emails between complainant and opposite party
Ex.A22	18.05.2013 – 22.05.2013	Copy of Chain of Emails between complainant and opposite party
Ex. A23	28.06.2013	Copy of Legal Notice by complainant
Ex.A24	12.05.2014	Copy of Email by complainant to the 1st Respondent
Ex.A25	14.05.2014	Copy of Email by complainant to the 1st Respondent
Ex.A26	08.07.2014	Copy of Email by complainant to the 1st Respondent
Ex.A27		Copy of Sample Bills from 2005 – till date
Ex.A28		Copy of Photo
Ex.A29		Copy of Sample insurance policy along with reimbursement policy

 

LIST OF DOCUMENTS FILED BY THE OPPOSITE PARTIES                            

Sl.No	Date	Description
Ex.B1	19.06.2011	Copy of the complaint filed by the Complainant
Ex.B2	28.06.2011	Copy of the Feedback of the complainant to the opposite parties
Ex.B3	29.07.2011	Copy of the Feedback Assessment Report
Ex.B4	08.09.2011	Copy of the email communication of the opposite party No.1
Ex.B5	14.05.2012	Copy of the Product Complaint Notification
Ex.B6	26.06.2012	Copy of the Feedback Assessment Report
Ex.B7	28.06.2012	Copy of email communication dated 30.06.2012 by which the opposite parties supplied the replacement peritoneal Dialysis Solution bags
Ex.B8	12.06.2013	Copy of the email communication dated 4.5.2013 alongwith the investigation report of the plant
Ex.B9		Copy of the various emails communication exchanged by the opposite parties with the complainant assuring prompt action and informing of the action taken
Ex.B10	16.07.2013	Copy of the reply of the opposite parties to the legal notice of the complainant.

 

 

 P. BAKIYAVATHY                                     J. JAYARAM                                        

       MEMBER                           PRESIDING JUDICIAL MEMBER

 

INDEX; YES/NO