DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II
Udyog Sadan, C-22 & 23, Qutub Institutional Area
(Behind Qutub Hotel), New Delhi-110016.
Case No.836/2007
Sh. Jaswant Singh
S/o Sh. S.D. Sardul Singh
R/o F-703, Mayurdhwaj Apartments
60, I.P. Extension, Patparganj,
Delhi-110092 ……Complainant
Versus
1. Stryker Leibinger Inc.
4100 East Milham Avenue
Kalamazoo, MI 49001
USA
2. Stryker Leibinger GmbH & Co. KG
Botzinger Strabe 37-41
79111 Freiburg
Germany
3. M/s Stryker India (P) Ltd.
C-5, First Floor,
SDA Commercial Complex
New Delhi-110016 ……Opposite Parties
Date of Institution : 10.08.07
Date of Order : 14.01.16
Coram:
Sh. N.K. Goel, President
Ms. Naina Bakshi, Member
O R D E R
A complaint was filed by Sh. Jaswant Singh against M/s Stryker Leibinger Inc. & Ors on 17.03.07 before the State Consumer Redressal Commission, Delhi claiming a compensation of Rs.25 lakhs towards mental agony and Rs.1,50,000/- towards cost of two operations. The Hon’ble Commission touched upon the pecuniary jurisdiction and held that the compensation amount in any case would not exceed more than Rs.20 lakhs for the purpose of pecuniary jurisdiction. Accordingly, the complaint was made over to this Forum.
Briefly stated, the case of the Complainant is that he was suffering from an ailment in his knee for which he was admitted to Department of Orthopaedics, Christian Medical College, Ludhiana, Punjab on 12.11.2005 with the diagnosis “B/L Tricompartmental osteoarthritis” by Dr. M. K. Mam who suggested the Complainant to undergo B/L total knee replacement. He was operated upon for knee replacement by Dr. C. V. Anantakrishan of the aforesaid medical college who is said to be world’s one of the best known knee surgeons and performed over 5000 replacement surgeries. The operation performed on the Complainant was said to be fully successful and the Complainant had no post complications whatsoever. He was operated during November 2005 and was discharged from the hospital on 25.11.2005. He purchased Duracon Total Knee Replacement System for Rs.1,40,000/- from M/s Global Surgical, 215/1, Bharat Nagar, Opposite ESI Hospital, Ludhiana, Punjab on 16.11.2005. The aforesaid system is said to be manufactured and marketed by M/s Stryker Leibinger Inc. 4100 East Milham Avenue Kalamazoo, MI 49001USA (OP No.1) and Stryker Leibinger GmbH & Co. KG Botzinger Strabe 37-41 79111 Freiburg Germany (OP No.2) and distributed in India by its authorized distributor/agent M/s Stryker India (P) Ltd. C-5, First Floor, SDA Commercial Complex New Delhi-110016. Besides the cost of above system, he spent Rs.5 lakh on operation expenses, medicines, post operation care and travelling and special diet etc. After few days of being discharged from the hospital he started feeling severe pain in his left knee resulting into complete immovability. He consulted Doctors of Ram Lal Kundal Lal Orthopaedic Hospital, Delhi who suggested the Complainant that the only option to cure the pain is to undergo operation to replace the defective replacement system. The Complainant has stated that “after analyzing the result of examination and test conducted on the Complainant, the doctors concluded that there was no complication whatsoever in the surgery or the post operative care and that the severe pain in the left knee of the Complainant was owing to an inherent manufacturing defect in the total knee replacement system.” He again got admitted in Christian Medical College and Hospital, Ludhiana, Punjab on 31.03.2006 where he underwent another surgery on 01.04.06 on his left knee for replacement of the defective knee with a new knee replacement system. The Complainant was discharged on 10.04.06 after going through the second operation. The Complainant has alleged that after operation it was revealed that “ S.P Lipped Titrial-Medium 9MM part of the Duracon Total knee replacement System which was manufactured and marketed by OP No.1 & 2 and supplied in India by the OP No. 3 was defective and broken at the anterior lock.”. He had to undergo second surgery after incurring cost of Rs.2 lakhs. After the second operation, the S.P Lipped Titrial-Medium 9MM, broken at anterior lock was handed over to Mr. Pushpinder Garg, authorized representative of OP No.1 to 3 for which Pushpinder Garg issued a receipt dated 04.04.06 which is annexed as Annexure-D. The above broken defective component was taken by the OP No.3 under the pretext that the same will be sent to the addressee No.1 for testing and further action in this regard.
After undergoing second knee operation, the Complainant has not complained of any discomfort or pain. Complainant is said to have brought to the notice of OPs about defective knee replacement system manufactured/marketed and supplied by OPs in India resulting into second operation vide various letters and legal notice dated 13.10.06 but in vain. Hence, pleading deficiency in service on the part of OPs, the Complainant has prayed as under:-
- Direct the OPs to pay jointly and severally to the Complainant a sum of Rs.8,50,000/- alongwith pendentelite and future interest for cost of two operations/ surgeries, medical treatment, diagnostic, consultations, nursing, post operative care, medicines, transportations, special diet, telephones and communication and expenses of attendants etc.
- Direct the OPs to pay jointly and severally to the Complainant a sum of Rs.25 lakhs alongwith pendentelite and future interest as damages for loss and injury to the Complainant and for supplying defective Duracon Total Knee Replacement System, medical negligence, medical component malfunction, trauma, unbearable physical pain, mental main, torture, agony and consequential depression, harassment to the Complainant and his members etc.
OPs No.1 to 3 have jointly contested the case of the Complainant by filing their written statement. The written statement has been filed by OP No.3 on behalf of all the parties after being duly authorized by OP No.1 & 2. They have mainly contested the complaint on twin grounds on the plea of territorial jurisdiction by submitting that the OP No.1 & 2 are Companies incorporated and registered outside this Forum’s territorial jurisdiction and also on the ground that the product which is the subject matter of the complaint is neither manufactured, marketed or distributed by OP No.1 & 2. Besides, these preliminary issues, the OPs have stated that the allegations of manufacturing defect of the knee implant are unsubstantiated as the Complainant has failed to place any material on record to prove that there was defect in the component, leave alone a manufacturing defect. They have also alleged regarding mishandling of the Duracon Total Knee Replacement System which is very sensitive component, requiring expert handling by the surgeon inter-alia. It is stated that the alleged defect in the component purportedly supplied by the OPs could be due to variety of causes including negligent handling by the surgeon or failure to following the proper post-operative case. The product in question is of the highest quality having been manufactured and marketed in accordance with procedure approved by United States Federal Agency and European Communities (Medical Devices) Regulations 1994. It is not denied that the component in question was supplied to OP No.3. The component was sent for testing and the testing conducted has not revealed any manufacturing defect in the said component. The said fact has already been brought to the notice of the Complainant vide communication dated 15.02.07 (annexure-H to the complaint); that the aforesaid contents are truly reflected in reply to legal notice in Annexure-H referred above. The OPs have further stated that there is also a possibility as admitted in the complaint that the component purchased may be spurious or counterfeit, in which event any defect in such a fake component cannot be made the responsibility of the OPs. OPs have prayed for dismissal for the complaint.
The Complainant has filed rejoinder to the written statement of the OPs reiterating the averments made in the complaint. The Complainant has controverted the stand of the OPs regarding objection to the jurisdiction of this forum by relying upon the fact that the OP No.3 who is situated within the jurisdiction of this Forum is the authorized agent of OP No.1 & 2 and has also raised the question of failure of OPs in providing any test report after taking over the defective item.
Complainant has filed his own affidavit in evidence. On the other hand affidavit of Sh. Virender R. Ravi, Manager Regularity Affairs has been filed in evidence on behalf of OP No.1 to 3.
Written arguments have been filed on behalf of the parties. Oral arguments are heard.
Adverting to the crux of the matter, we are inclined to raise the twin questions whether this Forum has territorial jurisdiction to deal with the complaint as well as whether the Complainant was operated upon for the first time during November 2005 with defective Duracon Total Knee Replacement System resulting into second operation on 01.04.06 causing severe pain, mental agony, physical harassment and huge expenditure to him.
Admittedly, the Complainant was suffering from knee ailment for which he was admitted to department of Orthopaedics, Christian Medical College, Ludhiana, Punjab on 12.11.2005 with the diagnosis “B/L Tricompartmental osteoarthritis” by Dr. M. K. Mam who suggested the Complainant to undergo B/L total knee replacement. He was operated upon for knee replacement by Dr. C. V. Anantakrishan of the aforesaid medical college who is said to be world’s one of the best known knee surgeons and performed over 5000 replacement surgeries. OP No.1 & 2 are the manufacturers and sellers of the knee replacement system under the name/brand Duracon Total Knee Replacement System. The OP No.3 is the distributor of said product in India. OP No.3 is working for gain within the territorial jurisdiction of this Forum. Therefore, OP No.1 & 2 are bound by section 226 of the Indian Contract Act, 1872. Had it not been so, they would not have taken the pain of taking over the delivery of defective item to their country for testing. We therefore have indeed territorial jurisdiction to entertain the complaint and have rightly admitted the same.
The purchase of the Duracon Total Knee Replacement System for Rs.1,40,000/- vide bill No. 1437 dated 16.11.07 from Global Surgical 215/1, Bharat Nagar, Opp. ESI Hospital, Ludhiana, Punjab on 16.11.2005 is not disputed (copy annexure-A). Reputation of Dr. C. V. Anantakrishan who operated the Complainant is not disputed. Expenditure of Rs.5 lakhs for the operation and other charges have remained undisputed. After few days of discharge from hospital odyssey of pain, suffering and hardship and mental agony impelled the Complainant to have consultation and detailed examination in Ram Lal and Kundan Lal Orthopaedic Hospital, Delhi who attributed the severe pain to the defective knee replacement system necessitating into second operation. Admittedly the Complainant has not raised any complaint after second operation on 01.04.06 thereby lending credence to the efficacy of second operation. It is undisputed that after the second operation, costing Rs.2 lakhs, the defective knee replacement system was brought to the notice of Sh. Pushpinder Garg Sales Manager North, of OP No.3 and the broken “AP LIPPED Inselt Medium 9 MM broken at anterior lock” was handed over to him on 04.04.06 for which a receipt issued (copy Ex.D). The OPs have not denied the receipt of aforesaid defective knee replacement system but have further submitted that the item was sent for testing and the testing has not revealed any manufacturing defect in the said component as complained by the Complainant and Complainant was informed about this fact by OPs vide letter dated 15.02.2007 (Annexure-H). So far the OPs have not submitted the test report. Rather by taking away the defective knee replacement system from the Complainant, the OPs have deprived this Forum of its quasi-judicial power under section 13 (1) (c) of the Consumer Protection Act, 1986. From this testimony, we are inclined to draw adverse inference against the OPs to believe that the conduct of the OPs in withholding the test report is nothing but deliberate attempt to conceal and hide the defect in the aforesaid Duracon Total Knee Replacement System. On the one hand, they have alleged the system to be spurious and counterfeit and, on the other hand, they have not come forthwith with the test report after taking delivery of the item under dispute. We hold the OPs guilty of unfair trade practice and deficiency in service.
In view of above discussion, we allow the complaint and direct the OPs jointly and severally to pay an amount of Rs.10,00,000/- (Rupees ten lakhs only) in lumpsum towards cost of the system in dispute, mental agony and harassment undergone by the Complainant, cost of undergoing two operations including cost of litigation within a period of 30 days from the date of receipt of copy of this order failing which the OPs shall jointly and severally become liable to pay interest @ 9% per annum for delay beyond period of 30 days from the date of filing of complaint till realization.
Let copy of this order be sent to the parties as per regulation 21 of the Consumer Protection Regulations. Thereafter file be consigned to record room.
Announced on 14.01.2016.
(NAINA BAKSHI) (N.K. GOEL) MEMBER PRESIDENT
By D K Yadav
