State Consumer Disputes Redressal Commission
Endolite India Limited vs Reena Aggarwal, on 1 August, 2008
IN THE STATE COMMISSION : DELHI IN THE STATE COMMISSION : DELHI (Constituted under Section 9 clause (b) of the Consumer Protection Act, 1986 ) Date of Decision: 01-08-2008 Appeal No. FA-1036/2005 (Arising from the order dated 16-11-2005 passed by District Forum-VII, Sheikh Sarai, New Delhi in complaint case No.151/2005/DF VII) M/s Endolite India Limited -Appellant 4, Naraina Industrial Area, Mr. Sameer Nandwani Phase I, New Delhi. Mr. Neeraj Bhardwaj, Through its Advocates. Director (Operatin), Brig. V.K. Bajaj. Versus Smt. Reena Aggarwal, -Respondent D/o Shri Vijay Aggarwal, Through R/o Vidhayak Niwas, Mr. Kaviraj Singh, Aisbhagh Road, Advocate. Rajendra Nagar, Lucknow. CORAM: Mr. Justice J.D.Kapoor President Ms. Rumnita Mittal Member
1. Whether reporters of local newspapers be allowed to see the judgment?
2. To be referred to the Reporter or not?
JUSTICE J.D. KAPOOR, PRESIDENT (ORAL) On having supplied a highly defective artificial limb known as ESK IP + system causing mental and physical discomfort and agony to the respondent, the appellant has been held guilty for supplying defective goods and also for deficiency in service in not providing repairs to the defective limb and directed to pay Rs. 1,00,000/- as compensation for mental agony, torture and mental and physical harassment and inconvenience besides refund of Rs. 1,75,235/- towards cost of limb and Rs. 30,015/- towards its repairs.
2. Feeling aggrieved, the appellant has preferred this appeal.
3. Relevant facts leading to the impugned order, in brief, are that left foot of respondent was amputated over the knee on 25-08-1998. She consulted number of doctors/organizations for fitment of artificial leg including M/s Endolite India Ltd. through its Director Bdg. V.K. Bajaj. On their representation that the artificial leg provided by them were of highest quality and did not require replacement for life, the respondent agreed for fitment of artificial leg. Respondent visited the appellant for installation of artificial leg and after stay of about ten days at New Delhi an artificial leg was assembled and fitted on her leg on 12-05-1999 for which the appellant charged her Rs. 1,75,235/-.
Within two months she faced problem and contacted appellants who called her to New Delhi. The artificial leg earlier fitted was too big as a result of which she had to use bigger shoes than her actual size. On 17-09-1999, the appellants changed the socket and charged Rs. 8,765/- vide invoice (Ann. III) though at the time of fitment appellants had represented that no charges would be recovered for any adjustment, rectification or manufacturing defects. The new socket prepared by Dr. Gautam Jain of appellant No.1 organization had to be repaired again on 12-05-2000 as poor quality material was used. The respondent was made to pay Rs. 5,000/- for the repair. She pointed out to the appellant that the nuts were rusted and the repair carried out was of poor quality. She requested for change of rusted nuts but her request was ignored.
The artificial leg again started giving trouble for which she had to visit the appellant at New Delhi for repairing of the socket and the leg. In the month of August 2002, some defect occurred in the knee point of artificial leg as a result of which the respondent could not walk and fell down injuring herself and when she complained to the appellant she was again called to New Delhi and a new socket was prepared and artificial leg was repaired for which the respondent was asked to pay Rs. 16,000/- but she paid Rs. 10,000/-.
Within 45 days the repaired leg again started giving trouble on which she contacted the appellant and she was again called to New Delhi and informed that earlier the repairs were done manually and now the repairs would be done through machine. In the meanwhile the respondent got married and was serving as a teacher in a college at Lucknow and she could not take frequent leave to go to the office of the appellant at New Delhi for getting the defective artificial leg repaired. Since she was facing problem frequently at short intervals she requested for change of the artificial leg but she was promised that if she visits them they would carry out permanent repairs. Respondent with her husband reached New Delhi on 12-07-2004 and was made to deposit Rs. 12,000/-. In order to prepare new socket her measurement was taken on 13-07-2004 which was wrong. She had to stay at New Delhi for four days more and again her measurement was taken but Dr. Tambuk of appellant organization failed to fit the socket, on which the respondent complained to Bdg. V.K. Bajaj but Bdg. Bajaj allegedly misbehaved with her and used abusive language. The respondent returned to Lucknow without repairs of the artificial leg. Then she lodged a complaint with National Commission for Women and notice was issued to the appellant and the appellant vide its letter dated 07-12-2004 required the respondent to visit them for repairs of the artificial leg. She visited the appellants for repairs of the artificial leg but she was shocked when she was told that no repairs would be carried out unless she tendered apology for filing a complaint with National Commission for Women. She returned back without repair of the artificial leg. Alleging deficiency in service in supplying defective product, the respondent has sought refund of the cost of the artificial leg along with interest @ 18%. She has sought directions to the appellant to pay her Rs. 36,015/- which the appellant had charged for carrying out repairs. She has also sought payment of Rs.1,50,000/- the amount spent by her in visiting the office of the appellant on several occasions for repair of the defective artificial leg and Rs.11 lacs have been sought as compensation for mental and physical harassment.
4. While absolving itself from the charge of supplying defective goods, deficiency in service and disclaiming its liability to refund the cost of the limb or compensating the respondent, the appellant has come up with the version that the defect in the artificial leg occurred due to negligence of the respondent for not using the limb and further that on account of structural changes in human body, the stump size increases or decreases which require new socket. After fitment, the socket had to be repaired every time due to change in the size of the stump for which the complainant was charged.
5. All other allegations with regard to the change of stump within a month of fitting artificial limb and frequent repairs carried out by the appellants staff including Dr. Gambhir and Dr. Tambuk have been admitted except the allegation that earlier measurements were not correct and that new socket was to be prepared after taking measurements again.
6. After perusing the impugned order closely we find that the District Forum has returned the finding of fact that frequent requirement of repairs and change of socket leads to the conclusion that the artificial limb fitted to the respondent was defective which did not serve the purpose, without causing problem, even for 2-3 months and the respondent had faced hardship and mental and physical harassment and inconvenience besides suffering pecuniary loss on account of defective project supplied by the appellant. It was also observed that within 2-3 months of the fitment of the artificial limb, she had to visit the office of the appellant for repairs and change of socket and this procedure continued for the entire period the artificial limb was with the respondent. So much so during the pendency of the complaint, the respondent got another artificial limb fitted from some other agency.
7. The aforesaid findings have been assailed by the learned counsel for the appellant mainly on the premise of the report of an expert of the Deptt. of PMR, KGMC, Lucknow. The findings of the aforesaid department are to the following effect:-
This is to confirm that Mrs. Reena Aggarwal visited Deptt. of PMR, KGMC, Lucknow for her examination on 23-09-2004. She was wearing Endolite Prosthesis.
I had observed the following:-
1. Pay at distal end of socket.
2. Maintain knee friction to avoid knee bending.
3. No weight bearing at ischial tuberasity. It is placed medially.
4. Socket wall gap is present laterally. Hence it is not a total contact socket.
5. Medial ship is present.
All these problems are related to stump volume changes, as it is a natural phenomenon.
There was no problem with the fitted ESK IP + system and its components. It was in a good functional condition.
She was advised to visit Endolite Centre for a change of Socekt and/or necessary corrective actions.
8. As regards the six visits of the respondent to the clinic of the appellant during the period of three years the learned counsel for the appellant has also contented that these visits were basically for service and maintenance of the limb and do not project that the limb was defective. Such limb always requires occasional repairs because of structural changes in the human body and stump size increases and decreases which require new socket.
9. As against this the learned counsel for the respondent has averred that the artificial limb was fitted in the year 1999 and within few months she pointed out that the OPs were using inferior materials and rusted nails and the artificial limb is such which is not repaired by any other company and therefore she had to come from Lucknow to Delhi every time and incurred huge expenses.
10. Let us accept the report of the hospital relied upon by the counsel for the appellant. The quality, standard, purity and potency of any goods has to be tested on anvil of definition of word defect as provided by section 2(1)(f) of the Consumer Protection Act. According to this provision any fault, imperfection or shortcoming in the quality, quantity, potency, purity or standard which is required to be maintained by or under any law for the time being in force or under any contract, express or implied, or as is claimed by the trader in any manner whatsoever in relation to any goods renders the article or goods defective.
11. Whenever any consumer purchases any goods of the kind in question or for that purpose any goods which are brand new which was manufactured by a highly reputed company and claims to be highly technically sound product then the minimum expectation of the consumer is that he should not suffer any inconvenience or discomfort at least for few months or a year or so. But if the consumer has to get the goods repaired every second or 3rd month because of the physical discomfort being experienced by him or her, the safest inference that can be drawn is that the goods are defective.
12. It is misconceived notion that unless and until a manufacturing defect is pointed out or brought out the goods cannot be declared defective. Manufacturing defect is one thing that may persuade the consumer forum to order for replacement of the goods along with compensation or refund of the price of the defective goods. But if there are certain such defects which cause so much inconvenience and discomfort to a person that the person or the user thereof has to visit the manufacturer or dealer time and again goods have to be declared defective. In this case after every six months the stump was changed and the respondent had to visit Delhi 5-6 times to get the same repaired and every time she had to face lot of inconvenience, financial loss, emotional suffering etc., the only conclusion is that the same is a defective good. In the definition there is no provision that unless inherent defect or manufacturing defect exists the goods may not be declared as defective.
13. Whenever any manufacturing defect is pointed by a consumer the onus is heavily upon the manufacturer to show that the defect is neither manufacturing nor inherent and to ask the consumer to get expert opinion whether the goods have been manufacturing defect or inherent defect is to rub salt on the wounds as he had already suffered by purchasing a defective good and to further incur expenses for obtaining expert opinion is not justified. Mere allegation is sufficient.
14. As regards the concept of compensation as contemplated by section 14 (1)(d) of the Consumer Protection Act the Supreme Court in case after case has provided a very wide connotation by including every element of sufferings like physical, mental or even emotional suffering, insult or injury or loss. The observations of the Supreme Court in this regard are quote-worthy and are as under:-
Ghaziabad Development Authority Vs Balbir Singh-(2004) 5 Supreme court Cases 65 The word compensation is of a very wide connotation. It may constitute actual loss or expected loss and may extend to compensation for physical, mental or even emotional suffering, insult or injury or loss. The provisions of the Consumer Protection Act enable a consumer to claim and empower the Commission to redress any injustice done. The Commission or the Forum is entitled to award not only value of goods or services but also to compensate a consumer for injustice suffered by him. The Commission/ Forum must determine that such sufferance is due to malafide or capricious or oppressive act. It can then determine amount for which the authority is liable to compensate the consumer for his sufferance due to misfeasance in public office by the officers. Such compensation is for vindicating the strength of law.
15. In view of the facts and circumstances of the case, the agony, physical, mental, emotional sufferings suffered by the respondent, we do not find any infirmity in the impugned order.
16. Appeal is dismissed being devoid of merit
17. Impugned order shall be complied with, within one month from the date of receipt of this order.
18. FDR/Bank Guarantee, if any, furnished by the appellant be returned to the appellant forthwith after completion of due formalities.
19. A copy of the order as per the statutory requirements be forwarded to the parties free of charge and also to the concerned District Forum and thereafter the file be consigned to Record Room.
20. Announced on 1st August, 2008.
(Justice J.D. Kapoor) President (Rumnita Mittal) Member jj