IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, KOTTAYAM

Dated, the 22^nd day of July, 2024

Present: Sri. Manulal V.S. President

  Smt. Bindhu R.  Member

C C No. 114/2022 (Filed on 26.05.2022)

O R D E R

Sri. Manulal V.S. President

The complaint is filed under Section 35 of the Consumer Protection Act 2019.

The complainant is the wife of Gireesh K.M., who is a known case of traumatic quadriplegia patient. On 5th October 2018, after consulting with several doctors, the complainant purchased a machine named ASTRAL 150 APAC WITH S/n 22181176084, which is manufactured by the second opposite party, for an amount of ₹ 4,80,000/- (Rupees four lakhs eighty thousand only) for the use of her husband. The said machine functions as a ventilator system. The first opposite party is the dealer of the second opposite party.

The husband of the complainant needs pressure support ventilation during the night times and sometimes during day time also. Ventilator support was given to him by qualified nurses appointed personally by the complainant after consultation with many doctors regularly and maintained the machine under supervised by doctors with qualified nurses for the entire period.

The complainant strictly followed the proper guidelines of the said machine, including changing the HME filter daily, even though many studies recommended using an HME filter for patients up to 1 week for a single patient. HME filter is a system attached to the machine's tubings, but the first opposite party hasn't given any proper or specific instructions regarding the same. The complainant was not given any option for any extended warranty at the time of purchase of the said machine or at any point of time.

During the first two years, the machine functioned properly and didn't have any complaints. Usually, surgical equipment providers visit for regular services for such machines. However, the service persons of the first opposite party company had not even visited for any regular service or any service enquiries. The company did not give them any instructions regarding the CMC or AMC of the machine, even at the time of purchase or during the warranty period. After two months of the warranty period, the machine started showing multiple complaints, such as an expiratory flow sensor, pneumatic block assay, astral oxygen sensory, and inlet filter pack, and the ventilator was not delivering the gas. So the complainant has complained the same to the service teams of the first opposite party. But the service teams of the first opposite party did not turn up.

Due to the delay in response of the service teams of the first opposite party, the complainant admitted her husband to the hospital due to inadequate ventilatory support and the complainant had to spend around ₹ 13,00,000/- (Rupees thirteen lakhs only) of money in two hospitals named Mar Sleeva Medicity and Aster Medcity including ambulance charge.

It took 2 to 3 weeks for the service teams of the first opposite party to attend to the complaint of the machine and thereafter the patient was given a spare machine on a rent basis for an amount of ₹1,000/-(Rupees thousand only) per day instead of the above said defective machine. Even though the machine was returned to the complainant after paying an amount of ₹1,36,000/- (Rupees one lakh thirty six thousand only), it was not delivering the gas properly. The same issue was raised to the service teams of the first opposite party after two or three visits on subsequent days. The service teams of the first opposite party again charged an amount of ₹ 14,000/- (Rupees fourteen thousand only) for replacing the flow sensor of the machine for the second time as they had said the problem was with the sensor. Because of the same complaints, the company took back the machine after one week, and then the first opposite party informed the complainant that they had to spend an amount of around ₹ 1,65,000/- (Rupees one lakh sixty five thousand only) again to resolve the same issues. Over two months, the petitioner had spent a total amount of ₹ 1,50,000/-(Rupees one lakh fifty thousand only) apart from the initial buying cost of ₹ 4,80,000/- (Rupees four lakhs eighty thousand only) just after the 2 years of warranty period. The complainant purchased another ventilator machine for her husband from Kerala Biomedical Services Cochin on 02.05.2022.

For any ASTRAL 150 APAC WITH S/n 22181176084 ventilator system during the warranty period, the company has to do regular service checks of 3-4 visits per year. However, during service times, the service agents of the first opposite party did not even attend to the machine for a single time during the initial two years. Immediately after the warranty period with improper and unattended services, the complainant had to spend an amount of ₹ 1,50,000/- (Rupees one lakh fifty thousand only). This indicated that the machine had a major complaint and points out the poor quality of the above said machine too.

The complainant had to spend a huge amount of money, around                 ₹ 13,00,000/- (Rupees thirteen lakhs only) due to improper working of the machine, delayed attending phone calls from the service teams of the first opposite party and for the hospital expenses. The husband of the complainant died on 04.11.2022 and the same has been communicated with the lawyer only in the second week of January 2023.

Even after this much harm is done to the traumatic quadriplegic poor patient the first opposite party is again charging ₹ 1,65,000/- (Rupees one lakhs sixty five thousand only) to the complainant for resolving the complaint of a portable ventilator. Still, the company has not resolved the machine's complaint, and the machine is still in the possession/custody of the first opposite party. Now, the complainant had received a lawyer notice dated 02.02.2023 from the first opposite party, stating that they resolved the complaint of the said machine and no one informed the same except through the lawyer notice.

The quality of the product and the approach towards the customer from the opposite party's side give the complainant a bad impression of the opposite party. The first and second opposite parties are jointly and severally liable to compensate the complainant. The machine is defective and the dealer of the said machine, the first opposite party, never resolved the problem/defects of the machine at the proper and correct time. The said machine has manufacturing defects.

There is a gross deficiency in service and unfair trade practices on the part of the opposite party. The complainant has suffered huge mental agony, hardship, and loss. The act of the opposite party has thus resulted in much mental pain and agony to the complainant. Therefore, the opposite party is liable to compensate the complainant for the suffering caused to the complainant.

Hence, this complaint is filed by the complainant praying for an order to direct the opposite party to refund the entire amount, i.e., ₹ 4,80,000/- (Rupees four lakhs eighty thousand only) paid to him and to direct the opposite party to refund an amount of ₹ 1,50,000/- (Rupees one lakh fifty thousand only) expended by the complainant as service charges for repairing the machine. It is further prayed to direct the opposite party to pay an amount of ₹ 13,00,000/-(Rupees thirteen lakhs only) which was expended by this complainant as hospital expenses due to the negligence of the opposite party and to pay              ₹ 5,00,000/- (Rupees five lakhs only) as compensation for the loss, injury, mental agony, and hardship caused to the complainant.

Upon notice from this commission, opposite parties appeared before this commission and filed separate version.

The first opposite party filed version contending as follows:

The complaint is not maintainable either by law or on facts. The complainant is not a consumer of the first opposite party since, as per the tax invoice bill issued by the first opposite party, KM Gireesh is the purchaser of Astral 150 APAC. There is no consumer relationship between the complainant and the opposite parties and she has no locus standi to file the complainant against the opposite parties.

The first opposite party is a distributor for ResMed India Pvt. Ltd operates from Cochin and deals in sales and service of Cpap BI pap & Accessories of ResMed India in this region with a renowned service record and goodwill. ResMed India Pvt. Ltd is a global leading manufacturer whose products are used to diagnose and treat sleep and respiratory ailments of people with various devices used by all hospitals and millions of people in India and internationally. ResMed Astral 150 ventilators are portable ventilators with battery backup, which are provided mostly at hospitals to step down patients from the conventional ventilators and shift the patient out from the intensive care unit to the room or ward of respective hospitals. In exceptional cases when a patient's stay at the hospital is prolonged with escalating IP bills, the opposite parties provide these Astral ventilators at home to reduce the hospital charges in rare and inevitable situations on request from bystanders and doctors with strict terms and conditions.

Resmed Astral 150 has been provided to the patient by the first opposite party only as an equipment provider and the bystanders should completely handle the patient's support and services as the seller could take care of its basic supports like filter changing on customer's request and support them on certain clinical needs time to time. The device being a ventilator, all the parameters required to run the device comfortably for the patient should be set by the doctors/hospital and the first opposite party has limited permission to modify it. If any services on the hardware of the device on warranty are required, the available service modality followed is to shift the patient immediately to the hospital and then the company personnel would inspect the device and provide a standby if required within 48 to 72 hours as this ventilator is not a very easily available option.

In the year 2018, when the device was purchased, there were very less options available to manage a patient with an 8-hour battery backup device and on compulsive request of the doctors and bystanders the first opposite party sold this device for home care with specific conditions inter alia that a trained person should be appointed to run the device and all required HME filters to be used every single day. The complainant admits that the device functioned properly for two years without any complaints or defects. As and when a complaint was reported, the first opposite party had deputed service personnel and visited several times and guided the bystanders in the best possible way. It is not the prerogative of the dealer to provide an extended warranty, CMC, or AMC of the machine, and the complainant did not make any complaint within the warranty period.

During the warranty period, the complainant did not have any complaints about the service expected from the company. Being a device used 24 x 7 nonstop, it is quite usual that some complaints may naturally occur mostly because of improper handling, but during the warranty period, there were no complaints, and the first opposite party has no liability for the complaints that arise after the warranty period. Even then, the first opposite party had changed some small spares, and with further complaints about the device, the first opposite party had provided a standby device from the dealership side and sent the original device to the ResMed service center since the company alone could do the calibrations and service of this product. It is learned from the service center that the first time, the defective parts were found to be PB Assembly, Expiratory Flow Sensor, Oxygen Sensor, Double Limb adapter and Internal battery pack. The main issue at that time was that the device was full of dust even inside the PB assembly, the filter was clogged completely and secretions were found inside the expiratory adapter. Except the internal battery, the rest parts have been replaced, and the same has been communicated with photographic evidence to the customer and told them to take proper care and change the air inlet filter at regular intervals.

On inspection of the device, ResMed found some major issues inside the device, which required some of the components to be changed. For that, they have issued a proforma invoice, and only upon the customer's approval could the service be completed and the device returned. ResMed has pointed out that the patient's secretions and some moisture contents have gone inside, resulting in the spare change of spares, and instructed them to be careful while using the device.

The first opposite party did not charge any service fees for the service even though the device was out of warranty. After the device was repaired, they reported one complaint unrelated to the previous issue within a month, which was addressed in a timely manner and solved. The staff of the first opposite party went to the customer's residence many times and gave instructions since the patient had been using the device for a long time.

In another six months, when they complained further about flow and some noise on ventilation therapy, the first opposite party's staff went there and gave them a standby device on mutually agreed terms on a rent basis. The device was again sent to the ResMed service center the company had identified its major parts had been damaged due to patients' secretions due to improper handling and lack of care on the part of the bystanders.

The complainant has refused to pay the amount required to be paid to the ResMed service center for curing the complaints of the device and hence, it is kept there at the service center. Even if the device was out of warranty period, the first opposite party made an effort to support the patient by providing a standby device, which cost ₹ 30,000/- (Rupees thirty thousand only) per month and even now, the patient is using the same without paying the rent agreed by them. The first opposite party is entitled to get rental charges for the use of the device given as standby and since the device is getting depreciated and wear and tear the first opposite party has to suffer significant loss as well. In between, the complainant had many times discussed the service person of the second opposite party and their Sales Manager in charge of Kerala, but they could not come to a consensus. The first opposite party, the dealer, has provided its best service and support to the patient and provided a standby device in use for the last 8 to 9 months without paying the monthly rent agreed by him. The patient is legally bound to pay service charges fixed by the ResMed service center after the expiry of the warranty period agreed between the parties and the first opposite party, being a dealer is unnecessarily dragged into litigation without any substance or merit.

Every life-supporting device has its expenses compared to normal medical equipment and an international product will have its own expenses for managing it. With this device, the patient is able to live his life at home with near and dear ones and it is a priceless situation enjoyed with the help of the device. The first opposite party had always been supportive of the patient, attended the complainant's calls and given proper instructions and support from the dealer's part in providing service to a customer.

The machine does not have any manufacturing defect as alleged by the complainant since it functioned normally over more than two years without any complaints, and the first opposite party, as a dealer, is not liable to pay compensation to the complainant. The first opposite party had always been keen and attentive towards the complainant's concern and supported them to the best of his maximum even by providing a standby device by suffering a considerable loss. There has been no unfair trade practice or deficiency of service on the part of the first opposite party, as alleged by the complainant. The first opposite party filed an additional version contending as follows:

The amended statement in Para 6 of the complaint regarding the purchase of another ventilator by the complainant for her husband does not pertain to the knowledge of the first opposite party and is hence denied.

A version of the second opposite party is as follows:

The second  Opposite Party is a Company incorporated under the Provisions of the Companies Act, 1956 (and engaged in the business of distributing and marketing medical products for the treatment and management of respiratory and sleep disorders and has been in business for several years, hence, it commands an impeccable reputation in the market).

The complaint is not maintainable against the Opposite Parties since the complainant is neither covered within the scope of the Definition of Consumer nor can she be a Complainant as prescribed under the Consumer Protection Act 2019.

The contents and averments made in Para 1 of the complaint are admitted only up to the extent that the first opposite party is the dealer of the second opposite party. However, it is denied that the second opposite party is the manufacturer of the said machine instead, it is submitted in the version that the second opposite party is the distributor of the said machine.

The complainant raised no complaint about any defect in the machine in the initial two years from purchasing the said machine. However, the standard warranty for two years was provided to the patient at the time of purchasing the said machine, which the patient availed without any occasion of complaint. However, after about four years from the date of purchase of the said machine, i.e., 05.10.2018, the complainant has preferred the present complaint wherein she is claiming a relief based upon the absence of an extended warranty period with the said machine to mislead this  Commission which is otherwise not maintainable being time-barred.

The second opposite party received the machine for the first time in mid-February 2021 from the first opposite party for servicing, wherein certain issues were found on the PB Assembly, Expiratory flow sensor, oxygen sensor, double Limb adapter, and internal battery pack. Upon inspection, it was found that the machine was clogged with dust, even inside the machine's internal parts, such as the PB assembly and filter. Moreover, the patient's secretions were found inside the expiratory adapter. All these indicated that the complainant did not properly maintain the machine with the aid of a medical professional. It is submitted that the machine was found improperly handled without any assistance from any medical professional, which was conveyed to the first opposite party with photographic evidence. The second opposite party conducted the required repairs and duly replaced all parts except the internal battery pack, thereby ensuring that the said machine was working satisfactorily, for which the patient paid the consideration amount. The same was then returned to the first  opposite party  with advice to take proper care and regularly change the air inlet filter.

Thereafter again, the said machine was received at the service center of the second  opposite party on 29.11.2021 with multiple problems, such as faulty PB Assembly with liquid stains, Astral battery issues, fully clogged Filter pack, physical damage to the Expiratory Adapter Cover, patient secretions on DBl Lmb Expiraory Adapter and patient secretions on the Expiratory Flow Sensor. The damages were again reported to be caused by improper handling by the by standards of the patient. The machine required proper repairs and in lieu thereof, the second opposite party quoted the price for conducting repairs for the machine and conveyed the same to the first opposite party. However, the first opposite party stated that the patient did not respond to conducting necessary repairs and hence, the second opposite party returned the said machine to the first opposite party on 28.01.2022. Neither the first nor second opposite parties had any obligation to rectify the issues on the device free of cost, which cropped up after the expiry of the warranty period.

The patient had earlier availed the services for repairs and paid a consideration amount in lieu thereof. However, since the said machine required repairs, which accrued due to improper handling, it appears that the complainant is evading conducting those necessary repairs and rather preferred the present complaint with an ill-motive under the garb to extort money from the opposite party.

The said machine being a highly technical product, therefore, required to be operated under the supervision of an expert medical professional with the utmost care, but upon inspection of the said machine, it was revealed that it was not properly handled by any medical professional due to which such complaints accrued and now the complainant with her intention to extort money from the opposite Parties has levelled baseless allegation without any proof of the same. The complainant never raised any dispute regarding manufacturing defects before filing the instant complaint.

The complainant filed a proof affidavit in lieu of chief examination and marked exhibits A1 to A10. Umnikrishnan PS, who is the first opposite party, filed proof affidavit in lieu of chief examination. Ashish Kumar Matta, who is the director of the second opposite party, filed proof affidavit in lieu of chief examination and marked exhibits B1to B4 from the side of the opposite parties.

In the light of the complaint, version and the evidence on record, we would like to consider the following points:

1. Whether the complaint is maintainable or not?
2. Whether the complainant has succeeded in proving any deficiency in service or unfair trade practice on the part of the opposite parties.?
3. If so, what are the reliefs and cost?

Point Nos. 1 to 3

The specific case of the complainant is that she is the wife of Girish K.M., who is a known case of traumatic quadriplegia patient after consulting several doctors on 05.10.2018. She purchased an ASTRAL 150 APAC WITH S/n 22181176084 machine from the first opposite party, which was manufactured by the second opposite party, for an amount of ₹ 4,80,000/- (Rupees four lakhs eighty thousand only) for the use of her husband, Girish. She purchased the said machine as her husband needs pressure support ventilation during the night times and sometimes during the daytime.

The opposite parties resisted the complaint, contending that the complainant is not a consumer under the purview of Consumer Protection Act 2019. According to the opposite parties, the complainant did not purchase the machine in dispute from the opposite parties. On going through Exhibit A1, which is the tax invoice issued by the first opposite party, we can see that an astral 150 apac machine was purchased by KM Girish, Kaipuram House Kumarakam, Kottayam, for an amount of ₹ 4,80,000/- (Rupees four lakhs eighty thousand only). On a close reading of the complaint, we can see that there is no pleading that the complainant files the complaint as neither an agent nor in the representative capacity of the machine purchaser.

Section 2(7 )of the Consumer Protection Act  2019  defines consumer as follows.

(7) “Consumer” means any person who-

(i) buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment, when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose; or

(ii) hires or avails of any service for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such service other than the person who hires or avails of the service for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person, but does not include a person who avails of such service for any commercial purpose.

Explanation.-For the purposes of this clause, -

(a) the expression "commercial purpose" does not include use by a person of goods bought and used by him exclusively for the purpose of earning his livelihood, by means of self-employment;

(b) the expressions "buys any goods" and "hires or avails any services" includes offline or online transactions through electronic means or by teleshopping or direct selling or multi-level marketing;]        

According to section 2(5) of the Consumer Protection Act 2019, a complainant means a consumer or a voluntary consumer association registered under any law for the time being in force or the central government or state government or the central authority or anyone or more consumers, where there are numerous consumers having the same interest or in case of death of a consumer, his legal heir or legal representative or in case of a consumer, being a minor, his parent or legal guardian.

In the complaint and proof affidavit, the complainant asserted that she purchased the machine in dispute from the first opposite party for a consideration of ₹ 4,80,000/- (Rupees four lakhs eighty thousand only). The person in whose name the Exhibit A1 tax invoice is issued is not a party to the complaint. However, in the proof affidavit, the complainant deposed that she filed this complaint as an agent of the husband.

Here, in the case on hand, the person who filed this complaint would not have come under the definition of the consumer or complainant as defined under the provisions of the Consumer Protection Act 2019. Therefore, we are of the opinion that the complaint is not maintainable before this commission and the complaint is dismissed.

Pronounced in the Open Commission on this the 22^nd day of July, 202

 Sri. Manulal V.S, President   Sd/-

       Smt. Bindhu R.  Member       Sd/-

APPENDIX :

Exhibits from the side of the Complainant :

A1        Copy of the invoice dated 05.10.2018.

A2        Copy of the discharge bill summery dated 18.02.2021.

A3        Copy of the advance receipt dated 15.03.2021.

A4        Copy of the cash bill dated 10.03.2020.

A5        Copy of the patient bill dated 02.03.2021.

A6        Copy of the bill No. 8391 dated 20.03.2021.

A7        Copy of the service bill dated 22.02.2021

A8         Copy of the tax invoice dated 04.08.2021.

A9         Copy of the goods and service tax bill dated 02.05.2022.

A10        Copy of the e-mail sent by the complainant  to the official address  

              dated 13.03.2022

Exhibits from the side of the Opposite Parties :

B1            Copy of the Board Resolution dated 23.01.2018.

B2            Copy of the Warrenty Card.

B3            Copy of the photos of the machine (5 nos.)

B4            Copy of the service bill dated 22.02.2021.

By Order,

    sd/-

                                                                                                   Assistant Registrar