DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION-II
Udyog Sadan, C-22 & 23, Qutub Institutional Area
(Behind Qutub Hotel), New Delhi- 110016
Case No.373/2013
Iqbal Ahmad
S/o Late. Sh. Md. Sabir Ansari
R/o H.No. 51, Mohalla Amurtani,
T.A. Belthara Road,
Post Belthara Road,
Distt, Ballia, U.P.-221715
….Complainant
Versus
- M/s Premier Surgical Company
Through its Director/
Authorized Representative
Situated at: Shop No.2, Basement
944, Laxmi Complex, Nehru Road,
Arjun Nagar, Kotla Mubarkpur,
New Delhi-110003.
Also at:
South Extn., Part-I,
Market, New Delhi-110049.
- The Director,
All India Institute of Medical Sciences (AIIMS),
Ansari Nagar, New Delhi-110049.
- Dr. S Rastogi
(Professor)
Deptt. of Orthopaedics,
All India Institute of Medical Sciences (AIIMS),
Ansari Nagar, New Delhi-110049.
- Johnson & Johnson Pvt Ltd.
Through its Vice President Law
Arena Space, Behind Majas Depot,
Off JVLR, Jogeshwari (East)
Mumbai 400060
….Opposite Parties
Date of Institution : 24.06.2013
Date of Order : 27.12.2022
Coram:
Ms. Monika A Srivastava, President
Ms. Kiran Kaushal, Member
Sh. U.K. Tyagi, Member
ORDER
President: Ms. Monika A Srivastava
The Complainant has filed the present complaint seeking Rs.6,00,000/- i.e the amount incurred in his treatment and Rs.8,00,000/- for the loss of job and work as the Complainant has been on bed rest for 4 years and Rs. 5,00,000/- for harassment and mental torture suffered by the Complainant by undergoing the treatment/operations till date. OP No.1 is M/s Premier Surgical Co., OP 2 is the director, AIIMS, OP3 is Dr. S Rastogi and OP 4 is M/s Synthes Medical Pvt. Ltd. in whose place M/s Johnson & Johnson was substituted vide order dated 25.08.2015.
- It is stated by the Complainant that he belongs to an economically weak background and visits AIIMS for his treatment as he cannot afford the expenses of private hospitals. It is stated by him that he was having some problem in his left leg near knee which started swelling and paining and because of which he was not able to walk properly.
- The Complainant was diagnosed of a tumor which was not cancerous in nature and was advised to undergo the tumour operation. It is stated by the Complainant that after the operation, the Complainants pain in leg and suffering remain the same and the leg started swelling again.
- The tests conducted at AIIMS revealed that another tumor has developed on the same knee and on the advice of OP-3 knee had to be removed and plates had to be inserted in place of knee.
- It is the case of the Complainant that OP-3 further advised the Complainant to get the plates from the hospital itself as they would supply imported plates of best quality which will last long and will not break. On the assurance of OP-3 the Complainant agreed to have the plates arranged and pay the bill accordingly.
- It is stated by the Complainant that order for plates was placed through OP-2 with OP-1 which were manufactured by OP- 4 to get the plates. The Complainant paid as per the bill to the hospital and the operation was conducted through which knee of left leg was removed and instead in its place, plates were inserted. The Complainant was discharged from the hospital on 11.11.2009 who then went to his hometown.
- It is stated by the Complainant that on 01.01.2011, the plates broke down due to which Complainant faced severe pain and great difficulties. The Complainant somehow reached Delhi and consulted AIIMS where it was confirmed that the plates in the leg are broken.
- The Complainant was again advised to undergo an operation for change of plates and was told that only imported plates of best quality would be supplied to which the Complainant agreed.
- It is stated by the Complainant that he had to seek monetary help from the ministers fund and received the help of Rs.25,000/- from that fund which was directly transferred to the hospital and the remaining expense was born by the Complainant himself.
- The Complainant was operated on 01.09.2011 and was discharged from the hospital on 06.09.2011 however, on 24.05.2012 the plates manufactured by OP- 4, supplied by OP-1, ordered by OP-2 and replaced by OP-3 again broke which left the Complainant in severe pain and suffering.
- It is stated by the Complainant that he has been on continuous bed rest for around 4 years on account of the deficient products manufactured by OP-4 marketed and supplied by OP-1 on the wrong advice of OP-2 and OP-3 on account of which he has not been able to take on the responsibilities of his family.
- It is stated by the Complainant that the OP-4 wilfully and intentionally have manufactured defective plates of inferior quality marketed by OP-1 and OP-2 and OP-3 out of their greed or ill will, have given wrong advice to the Complainant causing emotional, monetary, physical loss, harassment, torture, pain and loss of income which cannot be compensated in terms of money.
- OP-1 in its reply, has stated that there is no allegation of deficiency in service against OP-1 and therefore the complaint is liable to be rejected at the threshold itself.
- It is stated by OP-1 that the Complainant himself has stated that the said plate was manufactured by OP-4 and inserted by OP-3 while performing its duties and OP-2 whereas OP-1 was only the carrier/supplier of the said surgical plate. It is stated that the surgical plate was as per specifications and in accordance with the demand, an order placed upon by the OP-1.
- It is stated that the surgical plate was not of a different specification than the one ordered by OP-2 and OP-3. It is further stated by the OP that the said steel plates were purchased from the concerned manufacturers and were supplied on demand. It is stated that OPno. 4 is the manufacturer of the product supplied to OP- 2 and OP- 3 and OP-1 deals with such appliances.
- It is further submitted that imported plate/appliance was of the best quality and was supplied as per the directions of the OP- 2 and OP-3.It is also stated that even on the second occasion the very same plate/ appliance was ordered to be supplied and the same was supplied for use of the Complainant.
- It is further stated by the OP that the appliance was supplied by OP-1 on 07.11.2009 therefore, the date of insertion stated in the complaint as 01.09.2011 seems to be incorrect.
- It is stated by the OP that the failure of the appliances with respect to the adaptability of the appliances in the body of the Complainant cannot be attributed to OP-1. It is totally denied by the OP-1 that the plate supplied were of inferior quality.
- In their reply, OP-4 have stated that the present complaint is liable to be dismissed as there is no cause of action as the plate supplied by OP-1 to the Complainant are not defective. It is stated that the complaint is merely a deploy to exploit OP-4 to extort illegal and unlawful claims on the pretext of alleged deficiency of service and defective products.
- It is stated by the OP- 4 that the treatment of the Complainant or his operation cannot be said to be caused because of the deficiency of service or false assurance on the part of OP- 4.
- It is stated by the OP-4 that there could be manifold reasons for the breakage of such plates which includes osteoporosis (which leads to insecure fixation) bone loss, unstable fracture patterns leading to cyclical loading resulting in implants failure. It may also be due to wrong selection of implant for the indication (fracture pattern).
- It is stated that failure of the surgeon to adhere to the sound surgical technique of internal fixation also leads to implant failure. It is also stated that patient attendant may not respond in the desired way to the implant (foreign body) inserted in his body. It is stated that out of multiple reasons for failure of implants only one reason can be attributed to the quality of implant.
- It is stated that to ascertain the actual reasons for the breakage of the implant, it is imperative that re surgery and post-surgery, X rays and the broken implant is to be checked by the experts. In the present complaint, the Complainant has not annexed any X rays and opinion of experts with the complaint.
- It is further stated that wrong usage of implant which may be incorrect size, improper bearing of patient, lack of supervision and further trauma suffered by the patient are the reasons attributable for the failure of the implant. It is stated that the main reason behind the breakage of the implant can only be disclosed after conducting a proper investigation.
- It is further stated that the complaint has never approached or informed OP-4 about the alleged breakage of any plate manufactured by him. OP-4 has vehemently denied that there was any manufacturing defect in the products as alleged.
- In their reply, OP 2 and OP-3 have stated that the complaint is false frivolous, vexatious and is a gross abuse of the process of law and therefore liable to be dismissed.
- It is stated that the complaint is barred by time as the negligence alleged by the Complainant, if any, pertain to 07.11.2009 however, the present complaint was filed on or after March 2013.
- It is further stated that the Complainant has not paid any consideration for the services availed by him and therefore the Complainant is not a consumer within the meaning of the Consumer Protection Act. It is further stated that without prejudice, there has been no negligence as alleged by the Complainant on the part of OP-2 and OP-3.
- It is further stated that when the Complainant approached OP-3, he was suffering from giant cell tumour of lower end of left femur for which he was operated on 14.08.2008. It is stated that the surgery was conducted as per the accepted norms and procedure by the competent and qualified doctors.
- It is stated that the Complainant developed the recurrence of tumor for which he was again admitted on 31.10.2009 and the surgery was done after taking due consent from the Complainant. It is further stated that the plates which were used in the surgery of the Complainant were of international standard and were manufactured by a credible company that is OP-4.
- OP-2 and OP-3 have denied that Complainant was advised by OP-3 to get the plates from the hospital. It is stated that consumables required in the surgery are to be supplied by the Patient/ Complainant.
- It is further denied by the OP that there has been any irresponsible behaviour or malafide conduct on their part. It is also denied that the complaint had incurred any amount much less an amount of Rs. 6,00,000/- as alleged.
- It is further stated that there is no negligence or deficiency in the surgery conducted by the OPs.
Right of OP-2 and OP-3 to file evidence was closed. The Complainant, OP-1 and 4 have filed their respective evidence affidavits as well as written arguments. Oral arguments were also heard. The Commission has gone through the entire material on record.It is seen that the nature of complaint filed by the Complainant does not state anything about the professional services provided by OP-3 and the main grievance of the Complainant against OP-2 and OP-3 relate only to the issue of purchase of plates through them. As far as OP-1 and OP-4 are concerned, OP-4 is the manufacturer whereas OP-1 is the supplier of plates.
It is also seen from the reply of OP-4 that they have listed various causes for the failure of the plates including osteoporosis (which leads to insecure fixation) bone loss, unstable fracture patterns leading to cyclical loading resulting in implants failure. It may also be due to wrong selection of implant for the indication(fracture pattern), failure of the surgeon to adhere to the sound surgical technique of internal fixation, patient attendant may not respond in the desired way to the implant(foreign body) inserted in his body, wrong usage of implant which may be incorrect size, improper bearing of patient, lack of supervision and further trauma suffered by the patient.
It is seen that OP-3 being the doctor who treated the Complainant second time have not attributed any such causes as listed by OP-4 being the probable causes for breakage of the plates. It is not stated by OP -3 that the Complainant’s body had rejected the implants or osteoporosis, bone loss, unstable fracture patterns leading to cyclical loading caused the breaking of plates. This Commission is of the view that since the plates broke twice over in a spam of three years something was definitely wrong with the plates. Therefore OP-2 being the entity in whose name the cheque was issued by the Complainant and plates were delivered and OP-4 being the manufacturer are jointly directed to compensate the Complainant with a sum of Rs.1,25,000/- with OP-1 being liable to pay Rs. 25,000/- and OP 4 to pay Rs. 1,00,000/- within two months from the date of receipt of this order failing which the OPs shall be liable to pay the said sum with interest @ 6% p.a till realization.
File be consigned to the record room and order be uploaded on the website.
