CENTER PVT. LTD. vs E. MERCKINDIA LTD.

THE complainant has filed this complaint directing the O.Ps. to pay back the cost of the analyzer with interest at 18% and for compensation and costs.

THE facts in this case are as follows: THE complainant is a Diagnostic, Medicare and Research Centre working at Hubli. On the assurance given by the representatives of O.P. No. 1, the complainant has purchased a Cell Analyzer from the O.P. in the month of October, 1998 by paying a sum of Rs. 5,39,215.69 as found in the copy of the invoice produced along with the complaint. After purchasing the said analyzer it was installed in the diagnostic centre of the complainant, in the month of February, 1999. After installation it was found that this instrument was not giving a correct reading, that is to say, that there are errors in the reading. THE purpose of purchasing the said machine is to analyze the blood for the purpose of diagnose since the treatment depends upon the reading given by the analyzer. On several times the O.Ps. have attended to the defect pointed out by the complainant. THErefore, the complainant has filed this complaint for recovery of money paid for purpose of purchase of the said analyzer as the machine is of a sub-standard one. The O.Ps. filed their version. In their version the O.Ps. have admitted the fact of attending to the defects whenever there is a call from complainant. According to the O.Ps. the problem in the machine is due to the mishandling of the analyzer. The further case of the O.Ps. is that since the purchase of the analyzer is for commercial purpose the complaint is not maintainable under the C.P. Act. The further contention of the O.P. is that the complaint is barred by limitation.

On the above pleadings, the only question that arose for our consideration is: Whether the complainant has proved that the analyzer purchased by the complainant is of sub-standard one and entitled for refund of the money paid by it after taking back the machinery?

THE complainant has filed his affidavit apart from producing certain documents and also the affidavit of Sri V.V. Yenni by way of evidence in his favour. THE O.Ps. have also filed the version disputing the claim but they have not filed any affidavit by way of evidence in support of their case. In order to show the cell analyzer was giving defective result as there is an error in the reading, the complainant has produced several documents. n Ex. C. 3 is dated 20.2.1999 disclose ''SE'', ''DE'' errors on WBC and differential count, also all WBC readings coming wrong. n Ex. C. 4 is dated 14.4.1999 disclose ERROR "114" occurring. n Ex. C. 5 is dated 20.4.1999 points out ERROR ''114'' occurring. n Ex. C. 6 is dated 29.6.1999 complaint relates to PLT values low. n Ex. C. 7 is dated 9.9.1999 complaint is occasionally PLT count is low. n Ex. C. 8 is dated 22.1.2000 complaint is platelet values low. n Ex. C. 10 is dated 2.2.2000 complaint is platelet value high. n Ex. C. 12 is dated 17.3.2000 complaint is platelet and HB values are low. n Ex. C. 16 is dated 1.6.2000 complaint is PLT values are low, WBC count are erratic.

FROM these documents it is seen that the machine has been giving erratic result and the same was attended to by the O.Ps. The analyzer was purchased in the month of October 1998. It appears after installation, in all probability it commenced working from beginning of the year 1999. In the month of February, 1999 itself the said analyzer started giving erratic results. As stated earlier the very purpose of purchasing machinery is to test the blood at a shortest time and pass on the same for purpose of the diagnosis and thereafter, on the basis of diagnosis the treatment will be given by the doctor. If there is any error in the result of the blood test, ultimately the whole process of treatment will not give any god result to a patient. The complainant has also filed the affidavit of Dr. V.V. Yenni who is a consulting pathologist. In the said affidavit he has stated as follows: "The analyzer did not work properly even for a single day. The readings were erratic. Hence, the complainant could not make any prescriptions based on such erratic readings since, the diagnosis based on such readings had bearing on the life of patients and any erroneous report from complainant laboratory would only mean end of business for them"... "I submit that respondents have manufactured and supplied an inherently defective cell analyzer. The defects in the analyzer could not be rectified despite several repairs. I am also convinced that the analyzer is beyond repairs."

From the documents produced by the complainant regarding the repairs of the said machine on several occasions and the affidavit of Dr. V.V. Yenni, we find that there is inherent defect in the said analyzer purchased by the complainant. The O.Ps. have not disputed or denied the fact of attending to the repairs as found in the Exs.C. 3, C. 4, C. 5, C. 7, C. 8, C. 10, C. 12 and C. 16. If the machine purchased by the complainant were to come for repairs from the very beginning on several occasions, the presumption would be that the said machine is of a substandard one. In the absence of any denial of the said exhibits by the O.Ps., we are of the view, that the machine sold by the O.P. to the complainant is of a sub-standard one and there is an inherent manufacturing defect in the same. When the said machine were to be used and ultimately were to produce irregular results recording the blood, it would harm the patients who ultimately take treatment on the basis of the blood result given by the above said cell analyzer. Therefore, we hold that the O.Ps. are liable to refund the amount which they have collected after taking back the cell analyzer sold in favour of the complainant.

THE O.Ps. in their version have taken up the contention that the complaint is barred by time. THE complaint has been filed on 25.5.2001. THE machinery was purchased in the month of October 1998. THEreafter, the said machinery was subjected to severals repairs till 2.2.2000. From these facts it is seen that it is a requiring cause of action. If the last date of repair is taken as the date of cause of action, the complaint filed by the complainant is well within the period of limitation. O.Ps. have also taken up the contention that the complaint is not maintainable on the ground that the purchase of the cell analyzer is for a commercial purpose. In the instant case the complainant is a diagnostic medi-care research centre. It has purchased the said machine for the purpose of blood analyzer and to get the result so as to pass on the same for diagnosis and not for sale of the instrument. From this, it is seen that the purchase of the machinery is by way of self employment for livelihood. THErefore, if the machinery sold by the O.Ps is not up to the mark and if it were to be a sub-standard one then it would be a case of deficiency in service and in such an event the complainant can maintain the complaint under the C.P. Act before this Commission.

THE very purchase of the cell analyzer by the complainant is to get the result of analyzing the blood. If the results were to be erratic and it would ultimately affect the patients then the complainant will be answerable to the affected patients. THErefore, keeping in view the hardship caused to the complainant, we are of the view that the O.Ps. are also liable to pay compensation in a sum of Rs. 25,000. In the result we pass the following: ORDER THE complaint is allowed. THE direction is issued to the O.Ps. to pay a sum of Rs. 5,39,215.69 to the complainant with interest at 12% p.a. from the date of the filing of the complaint till realization. THE O.Ps. are also directed to pay a sum of Rs. 25,000 towards compensation to the complainant for the hardship suffered by him. THE O.Ps. are also directed to pay a sum of Rs. 2,000 to the complainant towards the costs of the proceedings. THE complainant is directed to return the cell analyzer purchased by it to the O.Ps. on receipt of the amount as directed above. Complaint allowed.