Seth Gordhandas Sundardas College Through Dept. Of Pharmacology vs Coulter Electronics Ltd.

THIS consumer complaint pertains to supply of defective goods purchased from opponent No.1-Coulter Electronics Ltd. which carried its business in India at the time of supply of defective equipments and filing of the consumer complaint through its Branch Office-original opponent No.2-Coulter Products Division at Mumbai and now carrying its business activities in India through a company constituted under the Indian Companies Act, namely, opponent No.2-Bechman Coulter India Pvt. Ltd..

IT is the case of the complainant-Seth Gordhandas Sundardas College Kind Edward VII Memorial Hospital (Rs.K.E.M.Rs. in short), Hospital and Medical Education Institute, run by a Local Body-Brihanmumbai Municipal Corporation, that for use in Department of Pharmacology, after considering the various offers, selected the machine manufactured and supplied by opponent No.1-Coulter Electronics Ltd., namely, Coulter Multisizer II machine for a total consideration of INR 10,91,194/-. Accepting the quotation, the order was placed on 20/03/1997 and the machine was delivered on 11/07/1997. As agreed, opponent No.1-Coulter Electronics Ltd. was also to install at the premises of the complainants and to make functional the machine and accordingly the machine was installed on 30/07/1997. However, the machine was found defective since was not giving the correct results as expected and as such it was not made really functional. The fact was brought to the notice of opponent No.1 which sent its representative in India to attend the problem from time to time, but in vain and therefore, ultimately, the consumer complaint was filed. Opponent No.1-Coulter Electronics Ltd. preferred to remain absent, failed to file any written version and proceeded ex-parte.

DURING pendency of this consumer complaint, complainant found that opponent No.1-company had changed its address and shifted to a new address in U.S.A. as well as its Branch Office in India is now changed/converted in the form of new company registered under the Indian Companies Act and started functioning under the name and style as Rs.opponent No.2-Beckman Coulter India Pvt. Ltd.. These changes were incorporated by making an application dated 17/06/2009 which was eventually allowed and name of present opponent No.2-Beckman Coulter India Pvt. Ltd. is impleaded.

OPPONENT No.2-Beckman Coulter India Pvt. Ltd appeared and resisted the consumer complaint as per their written version dated 21/07/2010. According to opponent No.2-Beckman Coulter India Pvt. Ltd. was constituted and registered under the Companies Act, 1956 on 02/11/2005. It took objection to implead it after a period of about ten years and submitted that consumer complaint is barred by limitation as against it. It also submitted that it had no contract, agreement or whatsoever connection in respect of alleged defective goods supplied and the consumer complaint as against it is bad in law. Opponent No.1-Coulter Electronics Ltd., a company initially incorporated and functioning from United Kingdom since then perhaps shifted its operation to U.S.A. and now functioning from their address which was mentioned in the amendment application dated 17/06/2009. It appears to be a multinational company carrying its business in various countries inter alia including India. When the consumer complaint was filed it had its operations in India too which were taken care through its Branch Office-Coulter Products Division situated at Mumbai. They had their representative also for that purpose stationed in India, particularly, Mumbai and Bangalore. Subsequently, instead of a Branch Office as it appears opponent No.1-Coulter Electronics Ltd. continued its business operation in India through a company registered under the Companies Act, 1956 in the name of Beckman Coulter India Pvt. Ltd. Though opponent No.2 denied on the line that they were incorporated in the year 2005 under the Indian Law, it did not explain or intentionally maintain silence on their relationship with the parent company, namely, opponent No.1-Coulter Electronics Ltd.-opponent No.1. The Website of opponent No.1-Coulter Electronics Ltd. as well as opponent No.2-Beckman Coulter India Pvt. Ltd. does reveal said inter se relationship and their business in India. Therefore, submission of opponent No.2 that it had nothing to do with opponent No.1 and they are improperly joined is a submission which cannot be accepted. Thus, considering the homogeneity of their business identities, the issue of limitation would also not survive since even though they have posed themselves as separate legal entities, in effect, they are one and the same for their business activities in India.

CONSIDERING the material placed on record and the affidavits of Dr.S.A. Dahanukar filed in support of consumer complaint as well as evidence affidavit of Dr.Nirmala N. Rege and also the correspondence initiated soon after the machine was installed on 30/07/1997 (which is not in dispute), shows that the very purpose of importing said machine for the purpose of research and proper analysis could not be started or said machine could not be made functional since machine was not giving the correct results. The machine was expected to utilize for research applications inter alia including - Animal and human hematology including differential WBCs Platelet counts of platelet rich plasma Counts of Isolated PMN, splenic cells etc. Particle size of drugs for quality control Count of Organisms However, said machine could not be made operational since it was not possible to standardize simple human hematology (WBCs, RBCs, and Platelets) let alone the other parameters and analysis were not reliable and as such the machine could not be commissioned as expected. The representative deputed by opponent No.1 to complete proper installation and standardizing the equipment failed to cure/rectify the defects and ultimately, they also admitted that the machine is a defective piece. Opponent No.2 after it was impleaded also tried to submit that the machine was defective and it is the complainantsRs. responsibility to get replaced defective machine from opponent No.1-company. It would be proper to make a usual reference to the Minutes of Meeting i.e. 29/12/1998 held at Dr.DahanukarRs.s Chamber, Department of Pharmacology of K.E.M. and which was attended amongst others by Mr.Vinay Naik of M/s.Coulter Products i.e. Branch office of opponent No.1 in India at that time. The minutes recorded, the copy of which is on record, reads as under:- "1. The meeting was held to discuss about the non-commissioning of Coulter Multisizer. 2. Mr.Vinay Naik admitted the CoulterRs.s inability to standardize Multisizer even at the final trial, as decided in the meeting held on 12th Oct.1998 at the ARC seminar room. 3. Mr.Naik sought Dr.DahanukarRs.s suggestion to find out solution for the problem. 4. Dr.Dahanukar gave two options which are as follows: 1. M/s.Coulter Electronics should procure a machine similar to Vega for the dept. of Pharmacology, the specifications of which have already been handed over to Mr.Naik on 12th Oct. 1998 during the meeting. 2. Alternatively, M/s.Coulter Electronics should deposit an equivalent amount of money with SethG.S.MedicalCollege and DEMHospital, Diamond Jubilee Society Trust to enable the Dept. of Pharmacology to procure the machine. The amount will be communicated to M/s.Coulter Electronics at an earliest. 5. The meeting ended with an assurance from Mr.Naik that he would discuss the matter with his management and the dept. of pharmacology would be informed about the decision at an earliest. "

SINCE no further satisfactorily response came from the opponent No.1- Coulter Electronics Ltd. referring to the minutes of the said meeting dated 29/12/1998, the complainants had again written a letter dated 12/02/1999, addressed to opponent No.1- Coulter Electronics Ltd. as well as to Mr.Vinay Naik, its Field Sales Manager. However, the dispute remained unsolved. This, ultimately, resulted into to file a consumer complaint. There is no rebuttal to the points referred above and thus, we find that equipments supplied by opponent No.1-Coulter Electronics Ltd. as a part of their business in India was defective. Since they have not cured the defects or replaced it or refunded the amount as promised by them, deficiency in service on their part is well established. For the reasons mentioned earlier, we find that since opponent No.1-Coulter Electronics Ltd is now carrying their business activity in India through opponent No.2-Beckman Coulter India Pvt. Ltd., opponent No.2-Beckman Coulter India Pvt. Ltd. will also be equally responsible to make good to replace the defective goods or to pay compensation in the above referred circumstances. Considering the fact that since from the year 1999 much water is flown under the bridge, it will be appropriate to ask the opponents either to replace defective equipment i.e. machine with new one or if production of said machine is now stopped, should replace the same with the machine meeting with the requirements spelt out by the complainants while purchasing defective machine in question or alternatively to refund the consideration with interest as reflected in prayer clauses (a)&(b) by way of compensation. We hold accordingly and pass the following order:- ORDER 1. Complaint is partly allowed. 2. Opponent No.1-Coulter Electronics Ltd. and opponent No.2-Beckman Coulter India Pvt. Ltd. do replace the Coulter Multisizer supplied by them to the complainants with properly functional and which should be free from any defect or another machine of same make or any other make currently manufactured but meeting the requirements placed by the complainants while purchasing defective machine in question, within a period of 120 days from today. ALTERNATIVELY Opponent No.1-Coulter Electronics Ltd. and opponent No.2-Beckman Coulter India Pvt. Ltd. shall, jointly and severally, refund the amount of Rs.11,10,341/- (Rupees Eleven Lakhs Ten Thousand Three Forty-one only) to the complainants along with interest @ 12% p.a. from the date of delivery of machine i.e. 11/07/1997 till its realization. 3. Opponent No.1-Coulter Electronics Ltd. and opponent No.2-Beckman Coulter India Pvt. Ltd. shall bear their own costs and shall together pay Rs.50,000/- as costs to the complainants. 4. Copies of the order be furnished to the parties.