Case No. CC/50/2022
COMPLAINANT :1. Dilip Kumar Dutta,
S/O. Lt. Birendra Nath Dutta,
Resident of –Gabarkuli 9 no. Camp,
P.O. +P.S Dhubulia, Nadia,
Pin-741139.
V-E-R-S-U-S
OPPOSITE PARTIES / 1.The Office-in-charge,
Flipkart Health Ltd.,
Registered office at Innovation Tower,
Premises No.DH6/32, Action Area-1D,
New town, Rajarhart, Kolkata-700156,
West Bengal, India.
2.The Office-in-Charge,
Healthbuddy Dhubulia Pharmacy,
Address- Dhubulia Bidhan Pally,
Dhubulia, Nadia, Pin-741139.
3.The Office-in-Charge,
Arkray Health Care Pvt. Ltd.,
Address- 701/702, Opulence, 6th Road, TPS III,
Santacruz (east), Mumbai, Pin-400055.
Ld. Advocate(s)
For Complainant: Debraj Das
For OP/OPs : Subhasish Roy
Date of filing of the case :12.05.2022
Date of Disposal of the case :30.10.2023
Final Order / Judgment dtd.30.10.2023
The alleged cheating by the opposite party by selling one machine to the complainant is the bone of contention for the present case. The complainant made out a brief case against the opposite parties to the effect that the
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complainant Dilip Kumar Dutta is a patient of diabetes as well as suffering from Kidney disease.
The complainant placed an order with the OP namely Sasta Sundar now Flipkart health+ for one Glucocard 01 Mini (Max) Blood Glucose Monitoring machine along with testing strips for Rs.943/- vide order no.2832023098 on 28.01.2022 and paid the said money which was delivered on 29.01.2022 by the opposite party. After getting the machine the complainant made several tests at a time and in every test, the report was shown different at a time and same test report of some other persons had already been saved in the memory of the said machine. So the complainant requested to the company through helpline for changing the said machine. The said machine was very old being manufactured in 2018 and strips for test was expired in December, 2019 that is before purchase. Selling of life saving equipments by medical store is illegal and harmful for the life of a consumer. The complainant lodged complaint against the said used and old glucose monitoring machine and expired strips through the helpline no. vide complain I.D Number 1097225 dated 29.01.2022 but the OP did not return back the said machine. So the complainant again lodged another complain vide I.D Number 1123128 dated 11.03.2022 through the helpline number but to no use. Neither did they return back the defective cost nor did they take any steps. But the complainant also lodged a complaint to OP No.2 on 16.03.2022 who is the local supplier but no step was taken. Now the said machine is lying in an useless condition at the house of the complainant. The said Sasta Sundar Health Buddy where from the complainant purchased the machine, was acquired by Flipkart Health Limited is made party to this case. OP No.1 and OP NO.2 are jointly liable for the deficiency in service and unfair trade practice. Complainant made several complaints and request but the OP did not respond. The cause of action for the present case arose on 16.03.2022 and thereafter everyday till the filing of this case. The complainant prayed for an award against the OPs to return back the said machine along with strips and refund the price of the goods, Rs.50,000/- for harassment, pain and agony unfair trade practice together with litigation cost of Rs.25,000/-. As per order no.4 dated 21.07.2022 the case was directed to be heard ex-parte against OP NO.1 & 2.
OP No.3 contested the case by filing W/V wherein they denied which and every allegation. The positive defence case of OP No.3 Arkray Healthcare Pvt. Ltd. in brief is that the case is not maintainable in its present form and prayer. The positive defence case of the OP NO.3 is that Arkray Healthcare Pvt. Ltd. is a wholly owned subsidiary of Arkray Inc. – Japan leading manufacturer of In-vitro diagnostic (IVD) tests and healthcare equipment and instruments. It is fact that the complainant had purchased one Blood Glucose Monitoring Kit and strips (Product) of his own choice as per his requirement from OP No.2 for a consideration of Rs.943/-. After a few days the complainant lodged a complaint for sale of
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expired strips and used machine to OP No.2 by its letter dated 16.03.2022. OP No.3 checked its record and found that it has sold Blood Glucose Monitoring kit of said batch number (lot 680402) to OP No.1 & 2. OP No.2 purchased the said kit from open market and sold it to the complainant through OP NO.1 upon details of the list of retailer to whom the kit of that batch number was sold, it is evident that all the Gluco meters from the said batch were sold by OP NO.3 in 2018. OP No.3 has attached an invoice of Gluco meter of same batch number sold to one of its retailer. As per the said reference the Max Glucocard 01 mini instrument had expiry date till 31.03.2031 whereas the strips has expiry date till 29.02.2020. OP No.3 usually sales the product to the retailer in new, good, usable condition and within the expiry period. The OP No.2 sold the instrument to the complainant. So the OP No.1 & 2 can say about the of uses and expired product to the complainant. OP NO.3 is choice manufacturer of the product has been unnecessarily involved in this case. The complainant never conducted with OP No.3. So the OP No.3 prayed for rejection of the complaint and dismissal of the same.
Having considered the another of the dispute and the manner in which the OP No.3 presented the case, the following points emerged to be determined.
Points for determination
Point No.1
Whether the case is maintainable in its present form and prayer.
Point No.2
Whether the complainant is entitled to get the relief prayed for.
Point No.3
What other relief if any the complainant is entitled to get.
Decision with Reasons
Point No.1
The complainant filed this case against all the three parties of which OP No.1 & 2 preferred not to contest the case but the OP No.3 being the manufacturer of the disputed machine contest the case by filing W/V. It is admitted position that the complainant purchased the Glucocard 01 Mini (Max) Blood Glucose Monitoring machine for a sum of Rs.943/- on 29.01.2022. OP No.3 confirmed the said purchase, OP No.1 & 2 did not dispute the grievance raised and the facts of the case. It clearly proves that the complainant is a consumer and the OP No.2 is the seller and OP No.3 being a manufacturer also involved with the dispute. The amount of relief claimed is well within the pecuniary jurisdiction of this Commission.
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There is nothing to show about any defect regarding territorial jurisdiction.
Accordingly the case is well maintainable in its present form and prayer.
Point no.1 is answered in affirmative in favour of the complainant.
Point No.2 &3
Both the points are very closely interlinked with each other and as such these are taken up together for brevity and convenience of discussion.
Complainant claimed that he purchased the aforesaid defective machine on 29.01.2022 for Rs.943/- which ultimately did not come to his use since after different tests the report has been shown different at a time and some tests report of some other persons have already been saved in the memory of the said machine.
OP No.1 & 2 did not dispute and challenge the allegation of the complainant in as much as the case has been heard ex-parte against OP NO.1 & 2.
The allegation of the complainant also stands supported by the OP No.3 as it is disclosed in para 6 of the W/V that the complainant purchased Blood Monitoring Kit from OP No.2. Few days later the complainant lodged a complaint for a sale of expired strips and used machine to OP No.2 by its letter dated 16.03.2022.
It is the settled position of law that admitted facts need not be proved. OP No.3 admitted about the said purchase and the defect in the machine. OP No.1 & 2 did not contest the case. So the allegation stands proved against them.
In addition to the said allegation the complainant strengthened the case by proving the original documents like the packing slip of the said product.
In annexure-A packing slip of the said machine the expiry date is not mentioned. Only item name and price is written , so it is deficiency in service on the part of the opposite parties .
Annexure-B is the original sensor test strips in which no date of expiry is written. The allegation of the complainant stands unchallenged. It is clearly alleged that the month of manufacture is May, 2018 and the strips for test sent by the OP was expired in December, 2019 before his purchase. In the sensor card the date of "use by" remains blank. OP NO.3 also did not challenge the said allegation that the said strips were expired before its purchase by the complainant.
Annexure-C is the packet of purchasing the said Blood Glucose Monitoring Kit.
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Annexure-D is the prescription Register sent by the OP No.2.
The Grievance of the OP therefore duly raised to the OP No.2 as it is depicted in Annexure-E. The complainant lodged the complaint against the said defective old machine to change the said old machine by a new one. The said complaint dated 16.03.2022 to the OP No.2 stands duly proved and could not be discarded. None of the opposite parties cross examined the complainant relating to the said allegation to testify the veracity. However, OP No.3 made a defence case to the effect that all the Gluco meter of batch number 680402 were sold by OP No.3 in the year 2018. As per the said invoice batch the Max Gluecocard 01 Mini instrument has expiry date till 31.03.2031. But the OP NO.3 cannot avoid its liability as a manufacturer of the said defective machine. Since the product relates the Healthcare of a patient , so it is the primary duty of the manufacturing company to direct the retailer to return the machine of which the expiry date is over.
So all the OPs have a nexus in the misdeeds done towards the complainant in selling the expired machine and medical strips.
Ld. Defence Counsel for OP No.3 argued that the OP No.3 did not supply to Flipkart. OP No.3 produced in 2018 but the complainant purchased in 2022 from one party to whom the OP No.3 did not sale.
Ld. Defence Counsel further argued that whether it is a defective goods or not was not confirmed or supported by any expert opinion.
The said argument has no force in as much as the OP NO.3 in course of trial of this case never filed any petition that the product should be tested by an ex-pert or it should be sent for expert opinion. In its W/V the OP No.3 also did not make out any defence case that expert opinion for the said machine should be sought for.
Ld. Advocate for the complainant rightly argued that from the main document of the invoice it is established that OP No.2 supplied the machine and the strips of Arkray Healthcare. There is no dispute that the complainant purchased the said defective machine and the strips were sold when the date of its validity has already expired.
Thus having assessed the entire evidence in the case record and the specific averment in the complaint and unchallenged evidence against OP No.1 & 2 clearly supports the case of the complainant. Its stand well proved that the opposite party No.1 & 2 & 3 are jointly and severally responsible for supplying defective machine and medical slips after its expiry to the complainant.
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All the OPs have thus acted in a manner with the complainant by unfair selling of the goods which tantamount to deficiency in service and unfair trade practice.
Accordingly point no.2 & 3 are decided in favour of the complainant. Consequently the complaint case succeeds ex-parte against OP No.1 & 2 and on contest against OP No.3.
Hence,
It is
Ordered
that the complaint Case No.CC/50/2022 be and the same is allowed ex-parte against OP No.1 & 2 and on contest against the OP No.3 with cost of Rs.10,000/- (Rupees ten thousand) against all the OPs. The complainant do get an award for changing the said Gluecocard 01 Mini (Max) Blood Glucose Monitoring machine along with strips by a new one, Rs.20,000/-(Rupees twenty thousand) towards harassment, mental pain and agony, deficiency in service and unfair trade practice. The OP No.2 is directed to replace the said Gluecocard Machine to the complainant by a new acting machine with manufacturing date of 2023 along with strips within 30 days from the date of final order all the OPs are further directed to pay Rs.30,000/-(Rupees thirty thousand) to the complainant within 30 days from the date of passing the order failing which the award money shall carry an interest at the rate of 8% per annum. All the OPs are jointly and severally liable for compliance of the aforesaid order within 30 days from the date of the final order.
D.A. to note in the trial register.
The case is accordingly disposed of.
Let a copy of this final order be supplied to both the parties as free of costs.
Dictated & corrected by me
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PRESIDENT
(Shri HARADHAN MUKHOPADHYAY,) ................ ..........................................
PRESIDENT
(Shri HARADHAN MUKHOPADHYAY,)
I concur,
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MEMBER
(NIROD BARAN ROY CHOWDHURY)
