PRITPAL SINGH vs ARYA MUNI

SHRI Pritpal Singh s/o SHRI Joginder Singh, has filed this appeal against the order dated 13.2.1997, passed by the District Forum, Amritsar, praying to set aside the impugned order and to allow complaint. Evidently the complaint was dismissed leaving to bear their own costs.

THE brief facts of the case are that the complainant/appellant met with an accident in 1995, as a result of which both of his legs were badly fractured. THE complainant was hospitalised in Shri Guru Teg Bahadur Hospital, Amritsar. THE Orthopaedic Surgeon advised operation by way of affixing Titanium plates for refixing the fractured bones of the legs. THE complainant purchased the Titanium plates from the opposite party for Rs. 42,323.20. Three Titanium plates were affixed in the legs of the appellant-complainant by the treating Surgeon. It is alleged that the treating doctors were fully satisfied after affixing plates, with healing process and the complainant was discharged from the hospital on 18.9.1995. It so happened that on 23.9.1996, the complainant felt pain in his left leg and went to Shri Guru Teg Bahadur Hospital, where the doctor on duty diagnosed "Broken plates in the left leg" and advised X-ray. A clear crack in the plates was seen in the X-ray (Skiagram). It is alleged that the plates had broken due to its inferior quality and again advised fresh operation by affixing fresh Titanium plates. THE grouse of the complainant is that the Titanium plates sold to him by the opposite party were of inferior quality. At the time of purchase of the aforesaid Titanium plates, the opposite party assured the complainant that the goods were of genuine titanium imported goods made of best quality of steel having unlimited life and strength as the opposite party was the authorised dealer/ distributor for the goods supplied. It is alleged by the complainant that he has spent more than Rs. 70,000/- on the purchase of the Titanium plates and operations, he suffered the risk of second operation for no fault of his but due to the deficiency of service by supplying the defective goods of inferior quality on part of the opposite party. Hence, he filed the complaint before the District Forum to get his grievance redressed.

On being noticed, the opposite party filed its written version wherein the.maintainability of the complaint was disputed. It was stated that the manufacturer of the plates are Mathys AG Bettlach (Switzerland) and the Distributors of Synthes in India is Mathys Medical Pvt. Ltd. (Subsidiary of Mathys Medical Ltd., Switzerland), 282-A, Defence Colony, New Delhi- 24. It was stated that no Company in the world has ever guaranteed/warranted regarding the breakage of the plates in any manner whatsoever. According to the opposite party, the reason for breakage of the plate in question is the excess weight and not the quality. The sale of the plates was, however, admitted. He furthermore stated that he was only the authorised dealer of the Company. Therefore, it was prayed that the complaint be dismissed with costs.

THE District Forum after going through the record, observed that the broken plate, Exs. P-2 and P-3 are of superior quality and was broken on account of pressure put by the patient on it in the absence of union of the bone. Thus, finding no merit in the complaint, it was dismissed. In appeal, the appellant maintained that the decision of the District Forum was not correct as the complainant had moved an application dated 24.1.1997, praying before the District Forum to direct the opposite party to disclose the standardisation of the aforesaid Titanium plates as well as qualitative and quantitative description of the defective goods and also to fix the amount to be deposited for its laboratory test etc. but the District Forum did not specify the amount to be deposited by the purpose of the testing of the aforesaid defective plates.

THE question involved in this appeal is about the defective rods supplied by the opposite party to the complainant for fixation in his leg. Perusal of the impugned order shows that time was allowed to the complainant more than once to deposit the requisite fees for sending the said rod/plate to the competent laboratory for test. The Counsel for the appellant/ complainant stated that the complainant was willing to bear the expenses of getting the rods tested as the particulars of the laboratory competent to tesl the same was known to them now. Accordingly, after hearing the Counsels of both the parties, we, vide our order dated 27.10.1998, asked the District Forum to send the rods/plates and report of the District Forum was also called in this matter before the next date of hearing. On 21.12.1998, the Counsel for the appellant showed willingness for getting the same tested by the Central Scientific Instrument Organisation, Sector 30, Chandigarh. We considered it appropriate for just decision of the case that such rod/plates be tested from the said laboratory. For the report of the institute, the case was adjourned to 8.3.1999, vide our order dated 21.12.1998. 8th March, 1999 was declared holiday and the case was taken up on 9th March, 1999. It was stated that Central Scientific Instruments Organisation, Sector 30, Chandigarh did not accept the sample and fees for the analysis for the reasons best known to them. In such situation, parties were asked to suggest some other laboratory. Counsel for the appellant stated that the sample would be get tested from Central Tool Room, Ludhiana. We ordered accordingly vide our order dated 9.3.1999 and the case was adjourned to 5.5.1999. On 5.5.1999, the Counsel for the appellant Mr. S.R. Kanwar stated the complete facilities for the test are not available at Ludhiana but at Patiala, the same are available. Accordingly the appellant had already deposited the requisite fee of Rs. 1,200/- with Thapar Centre for Industrial Research and Development, Patiala. Vide our order dated 5.5.1999, a special messenger was deputed to submit the rods/ plates to the Centre at Patiala for laboratory test, with a note that the following tests were required to be carried out by the Centre : 1. Tensile Strength. 2. Hardness Test. 3. Composition Test. 4. Micro Structure. Vide letter dated 10.6.1999, by which the plates, were sent to the Centre for Laboratory Analysis and Test, the remarks of the Head of the Materials Science Division Thapar Corporate R & D Centre, Patiala, Mr. R. Sidhu were received in form of a hand written noting which read as following : "Received broken plate and screw. Since the quantity of the material is insufficient, tensile strength cannot be determined. However, hardness can be determined, if some reference or specified hardness value is available."

IN the meantime, the report about the Composition Test and Micro Structure mentioned at Sr. Nos. 3 and 4 could be received before 1.7.1999. The Counsel for the appellant wanted specification of hardness and tensile strength of the plates in question. Counsel for the respondent produced copy of a letter giving standard strength and hardness H.V.O. 3.

A detailed Test/Analysis Report No. 14010, dated June 18, 1999 related to the composition Testing and Micro-testing of the said plate, signed by Dr. Amitabh Verma, with the remarks reads as under : "The composition of the plate was analyzed by Energy Dispersive Spectrometer (E.D.S.). The plate was found to be made up of pure Titanium. The E.D.S. Spectrum showing two characteristic peaks (Ka and Kb) of Titanium. The micro structure of the sample was observed under Scanning Electron Micro Scope (S.E.M.) after polishing and etching. The S.E.M. micrographs showing the grains in the longitudinal section at low and high magnification are displayed in figures 2 and 3. The micrographs show the elongated a-grains which result from unidirectional working of the metal during manufacturing and are commonly found in longitudinal sections of rolled or extruded alloys."

Another report dated 3.2.2000 related to the Vicker''s hardness, signed by Head. D.A.S. reads as under : Vicker''s Hardness, H.V.O. 3 = 262 18.

The above hardness of the metal was tested after specified hardness value was given Ca 240 - 270 by the respondent Company.

THE case of the appellant was that he wanted to know the standard of the aforesaid Titanium plates alongwith the qualitative and quantitative description. Ir. Thapar Centre all the tests as desired by the appellant were carried out. Only Tensile Strength Test could not be carried out as the material supplied was insufficient as per the observations of Shri R. Sidhu, Head of the Material Science Division. Other remaining tests were carried out. THE reports suggest that the plate used by the Surgeon to join the bones were of standard quality. THE appellant was given opportunity under Section 13(c) to (g) of the Consumer Protection Act. but inspite of marathon effort, time and money spent, the appellant failed to establish that the plates used during his operation to give support to the bones, were of sub-standard or of inferior quality. In the facts and circumstances of the case, we are of the considered view that the order dated 13.2.1997 of the District Forum, Amritsar does not suffer from any legal infirmity. Therefore, the same is upheld and the appeal is dismissed, However, without any costs. Appeal dismissed.