Case nº Original Petition No. 237 of 1999 of National Consumer Disputes Redressal Commission, April 29, 2009 (case Jasbir Kaur Vs Duchem Laboratories Limited and Others)
| Judge | R. K. Vashisht, Aditya Narain, Subrotto Dev, Rajesheshwari, Kamal Ch., G. S. Narula |
| President | K. S. Gupta (Presiding Member) & Rajyalakshmi Rao (Member) |
| Resolution Date | April 29, 2009 |
Judgment:
K. S. Gupta (Presiding Member), (New Delhi)
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It is alleged in the amended complaint that the complainant after having fallen in her house on 6.5.1997, was taken to Batra Hospital, New Delhi where she was attended by OP No. 3- Doctor. X-ray of the complainant showed that she was having fracture in bone in her left thigh. Opposite party No. 3 suggested insertion of an 'Inter-locking Nail' by way of operation. He procured 'Inter-locking Nail' manufactured by Pfizer Inc. and Howmedica International Inc. through opposite party No. 2, authorized agent of OP No. 1 who was the distributor of the manufacture in India. The number of 'Interlocking Nail' was 10-380 (H) K340690. Complainant was discharged from hospital on 11.5.1997. It was further alleged that the complainant had severe pain at the place the Inter-locking Nail was inserted. She was, therefore, taken to Lok Naya Jaiprakash Hospital at New Delhi on 26.6.1998. Her X- ray was taken which showed that the inserted Inter-locking Nail had broken. On 13.7.1998, broken Inter-locking Nail was removed and another Inter-locking Nail manufactured by the said Company was inserted on the advise of treating Orthopaedic Surgeon. It was stated that broken Inter-locking Nail was of substandard quality. It had caused huge financial loss and physical torture to the complainant. OP No. 4 is a Sales Officer of OP No. 1. Complainant through counsel sent a notice to the opposite parties. OP No. 4 was deputed by OP No. 1 to visit the place of complainant, inspect the broken Inter-locking Nail and collect X-ray etc. Manufacturer lastly asked the complainant to supply the pre-operation and post-operation X-rays as also broken Interlocking Nail in addition to medical reports in original. Complainant sent the photographs of the broken Inter-locking Nail and all other documents. Despite that the manufacturer has failed to settle the claim. Direction was sought to be given to pay compensation of Rs. 50.00 lakhs with interest @ 12% p.a. to the complainant.
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Opposite Party Nos. 1, 2 & 3 contested the complaint by filing separate written versions. Opposite Party No. 4 did not file written version. It was alleged by OP No. 1 that it did not supply the Inter-locking Nail in question for consideration to the complainant and had no privity of contract with her. Interlocking Nails are manufactured at Kiel, Germany by Howmedica International Inc. which has been deleted as a party in the amended complaint. Shanon Warehouse, Ireland is responsible for supply of the products manufactured by Howmedica International Inc. Answering opposite party is an authorized distributor of Howmedica International Inc. in India. Complainant had purchased the Inter-locking Nail from OP No. 2, dealer of the opposite party. It was stated that the products manufactured by Howmedica International Inc. meet the requirements of En ISO 9001:1994, EN 46001:1996. It had been granted EC certificate No. GI 99 0313931 017 which certifies that the products manufactured by the Co. are in conformity with directive 93/42/EEC concerning medical devices. Company is also registered with Foods and Drugs Association, USA. Breaking of the Inter-locking Nail in question itself would not amount to defect therein within the meaning of Consumer Protection Act, 1986 (for short the Act). It was further alleged that complainant had failed to disclose that Dynamisation was done by Dr. Rajiv Sharma, AIIMS. Inter-locking Nail in question would have broken due to other reasons including negligence on the part of complainant and non-union of the bone. Inter-locking Nail is merely on aid for natural fracture healing process and is meant only to maintain the anatomical position of the...
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