KRISHAN WALIA vs DENNIS CHEM LAB. LTD.

CHALLENGING the order of the District Forum, Patiala dated 20.9.1999 against him, the complainant has filed this appeal under Section 15 of the Consumer Protection Act, 1986.

THE complaint was filed by the appellant against the respondent alleging that on 8.5.1998, he purchased three bottles of Normal Soline with plastic slings manufactured by opposite party No. 1 from opposite party No. 2, as the complainant was a patient of Cancer left Breast with Secodaries in the neck and was advised Chemotherapy by the Tata Memorial Cancer Hospital, Bombay and the Chemotherapy treatment was administered to the complainant at Rajendra Hospital, Patiala under Dr. Harjot Kaur Bagga who monitored the aforesaid treatment. THE medicine Inj. Intexal (7 Vials) was purchased from Kumar Brothers, Chandigarh for Rs. 18,392/-. On 18.5.1998, the complainant was given first pre-medication with Normal Soline Intravenous Drip for about 30/40 minutes. After that the second bottle of Normal Soline containing the drug Inj. Intexal 210 mgs. (7 Vials) was started, within seconds of the starting of drips, the neck ring of the plastic sling holding the bottle gave way and the bottle fell on the ground resulting in the spilling of the soline and the Inj. Intexal due to which the complainant suffered great physical plain and financial loss and the treatment had to be postponed to the next day and the complainant was subject to unnecessary pre-medication which produced heavy sedution. On these grounds, the complaint was filed for an award. The opposite party No. 1 in his written version resisted all the allegations. It was pleaded that the slings manufactured by the opposite party No. 1 had no manufacturing defects and the slings could have been broken by mis-handling in the hospital. However, the opposite party No. 2 admitted the sale of three bottles of Normal Soline with plastic slings manufactured by opposite party No. 1. Other pleadings of the complainant were controverted. It was, however, asserted that the opposite party No. 2 purchased the Normal Soline from M/s. S.K. Agency -opposite party No. 3. The opposite party No. 3 in its separate version pleaded that they sold two cases of 0.9% Sodium Chloride vide Bill No. 4915 dated 5.5.1998 and also asserted that the plastic slings manufactured by opposite party No. 1 were of the best quality duly tested before marketing.

The District Forum, Patiala passed the reasoned and detailed impugned order after considering the pleadings and evidence on record. The complainant asked for the relief only again in opposite party No. 1 - the manufacturer. The complainant failed to prove that the Sling Ex. C-13 was manufactured by the opposite party No. 1. The complainant also failed to prove that the sling had manufacturing defect which amounted to unfair trade practice or deficiency in service. Thus, the complaint was dismissed.

IN appeal before us the Counsel for the appellant/complainant has submitted that the complainant/appellant presented an application before the District Forum for getting the defective slings Ex. C-13 tested from some Laboratory recognised by the Government and that very application was wrongly dismissed by the District Forum. We have gone through the records. On 11.8.1999, the learned Counsel for the complainant stated that no further evidence was to be led. Thus, he concluded his evidence for the complainant. On 20.8.1999, arguments were heard and the case was adjourned to 26.8.1999 for orders. On 26.8.1999 at belated stage the complainant submitted an application that the disputed sling be sent to Laboratory for test for its quality, as this fact is very important and has to be borne in mind for the decision of this case. Reply to that application was filed by the opposite party Nos. 1 and 3 on 6.9.1999 and the case was adjourned to 14.9.1999 for consideration on that application. On 14.9.1999, none was present for the complainant. The case was adjourned to 20.9.1999 for order. The impugned order was passed on 20.9.1999. The complainant''s grouse cannot be sustained that his application that the disputed sling be sent to Laboratory for test for its quality was not given due consideration. It was the complainant who did not appear and argue on the application on 14.9.1999 which was kept for consideration. We have heard the learned Counsel for the parties, perused the material on record.

LEARNED Counsel for the respondents drawn our attention to Section 13(1)(c) of the Consumer Protection Act, 1986 in support of their contention that procedure prescribed in Section 13(1)(c) has not been satisfied. The relevant section reads as under : "Where the complaint alleges a defect in the goods which cannot be determined without proper analysis or test of the goods, the District Forum shall obtain a sample of the goods from the complainant, seal it and authenticate it in the manner prescribed and refer the sample so sealed to the appropriate Laboratory along with a direction that such Laboratory make an analysis with a view to finding out whether such goods suffer from any defect alleged in the complaint or suffer from any other defect and to report its findings thereon to the District Forum within a period of forty five days of the receipt of the reference or within such extended period as may be granted by the District Forum."

Appropriate Laboratory has been defined as under in Section 2(1)(a) : "''Appropriate Laboratory'' means a laboratory or organisation- (i) recognised by the Central Government; (ii) recognised by a State Government, subject to such guidelines as may be prescribed by the Central Government in this behalf; or (iii) any such laboratory or organisation established by or under any law for the time being in force, which is maintained, financed or aided by the Central Government or a State Government for carrying out analysis or test of any goods with a view to determining whether such goods suffer from any defect."

The Consumer Protection (Punjab) Rules, 1987 also provide procedure to be adopted by the District Forum for analysis and testing of the goods Clause (c) of Sub-section (1) of Section 13 of Consumer Protection Act, 1986, Section 13 (1)(c): "(1) Under Clause (c) of Sub-section (1) of Section 13, if considered necessary, the District Forum may direct the complainant to provide more than one sample of the goods in clean containers with stopper properly fixed on them. (2) On receiving the samples of such goods, the District Forum shall seal it and fix labels on the containers carrying following information : (i) name and address of the appropriate laboratory to whom sample will be sent for analysis and test; (ii) name and address of the District Forum; (iii) case number; (iv) seal of the District Forum. (3) The sample will be sent to the appropriate laboratory by the District Forum for sending report within 45 days or within such extended time as may be granted by the District Forum after specifying the nature of the defect alleged and date of submission of the report."

Besides above we have examined the points raised and decided by the District Forum on a perusal of the version. We are satisfied that the Ex.C-08 shows the purchase of three Normal Soline bottles manufactured by the opposite party No. 1 for the complainant by the opposite party No. 2. The broken pieces of the bottles also bear the label showing manufactured by opposite party No. 1. The plastic sling Ex. C-13 gave way while holding the bottle. The plastic sling is normally attached on the neck of bottle and it is fixed on the stand to hold the bottle. The opposite party No. 1 placed on record the slings manufactured by it to distinction from the slings Ex. C-13. The slings produced by the opposite party No. 1 bore the inscription ''NS'' which was missing on the slings Ex. C-13. In these circumstances, the possibility could not be ruled out that the staff did not use the sling attached with the bottle, but fixed the bottle with sling already used or from the stock of the hospital. It has also been discussed that the affidavit of Dr. Harjot Kaur Bagga Ex. C-3 does not specifically show that the sling was the same which was attached to the bottle. No other evidence was led to establish that sling Ex. C-13 was the same which was attached to the bottle. Thus, it cannot be concluded that sling used was the product of the opposite party No. 1. The manufacturing defect even otherwise cannot be presumed merely because the sling gave way within seconds of holding the bottle. The complainant to prove the manufacturing defect or that of inferior quality ought to have get the sling tested from the Laboratory as is required under the provisions of the Act as aforesaid. In the absence of satisfactory evidence it cannot be said that the sling used was the product of opposite party No. 1 and had manufacturing defect or was of inferior quality.

IN the wake of the above position, the conclusion arrived at by the District Forum that the complainant has failed to prove that the sling Ex. C-13 is a goods manufactured by the opposite party No. 1 and that the sling had manufacturing defect which amounted to unfair trade practice or deficiency in service.

FOR the reasons recorded above, we do not find any merits in this appeal and the same is dismissed by upholding the order of the District FORum. No order as to costs. Appeal dismissed.