Decided on January 31,2003

Instruments Orthopaedics Appellant


MAMATA LAKSHMANNA,MEMBER - (1.) THIS appeal is filed by opposite party No. 1 (C.D. No. 1433/1993, District Forum, Hyderabad) C.D. No. 178/1997 on the file of District Forum, Rangareddy District.
(2.) THE complainant, who is a lecturer, in Government College met with an accident and was admitted in Vijaya Hospital, Dilsukhnagar, Hyderabad. He was treated by Dr. Ramu, Orthopaedic Surgeon who after X -ray advised an operation for which the complainant purchased nail and plate from opposite party No. 2 on 21.1.1993 for Rs. 805.45 from sales executive of opposite party No. 1. The surgery was performed on 21.1.1993, nail and plate were fixed and he was advised to take bed rest for three months but within a week, he developed severe pain in the fractured leg and Dr. Ramu advised him to take another X -ray. The problem was diagnosed as loose nail, hence he was operated again on 23.2.1993 at Apex Hospital, Malakpet by the same doctor and the screw was tightened. However, he developed severe pain after a week and got admitted in Apollo Hospital under the treatment of Dr. Jairam Pingali, Orthopaedic Surgeon. After investigations, it was found that the œscrew was broken due to defect in casting of the plate and nails of the material  and therefore, he was reoperated on 16.3.1993. Dr. Jairam Pingali removed the broken S.P. nail and the plate and fixed the œdynamic hip screw, DHS imported  and he had to stay for a week in the hospital. The complainant, therefore, alleged that due to the defective material of the first opposite party sold by the second opposite party, he had to suffer and also incurred heavy loss and go through mental agony. He had to be on leave from 21.1.1993 to 30.3.1993 and hence suffered loss of Rs. 19,980. Dr. Ramu issued a certificate dated 23.3.1993 where he opined that the screw was broken due to casting defect in the material and the same thing was opined by Dr. Jairam Pingali. The complainant, therefore, contacted opposite party No. 2 who assured that damages would be awarded. However, since nothing came out of it, he issued notice on 20.4.1993 for which a reply dated 7.5.1993 was issued denying any manufacturing defect and asked the complainant to send the defective implant along with X -ray for investigation in first opposite partys factory. The complainant however did not comply as he was afraid that evidence would be destroyed and gave reply to opposite party No. 1 on 18.5.1993 and filed the complaint for recovery of Rs. 93,629/ - with interest at 18 per cent per annum.
(3.) OPPOSITE party No. 1 in its counter contended that the implant was used as an alternative to a plaster cast to keep the broken bone motionless and neutralising the deforming forces acting on the fracture site during action, hence bed rest is required for joining the bone. Hence implant is not intended to bear any weight or strain of normal working conditions. It also contended that there could be other reasons for the problem, such as, that the implant should be used with extreme caution and no undue weight or strain should be put on cast otherwise there is a chance of breakage or failure. Secondly the plate and the screw have to be mated perfectly with the bone, since different bones have different sizes, curvatures and shapes and the standard plate must then be bent during the operation by means of a special bending machine so as to fit rigidly into the bone into which it is screwed. In the present case the fracture was a complicated one and there were small broken pieces of bone. In such cases usually the Dynamic Hip Screw (DHS) is used and not the M.C. Laughlin plate with S.P. Pin as was used in the case of the complainant which was finally done by Dr. Jairam Pingali. It also alleged that in the ordinary course once the implant is fixed into the bone, it would not become loose, unless it has been wrongly fitted or there is excess strain put on it, as in the present case the pin had to be tightened a second time and after that it was found to be broken. The pin is made of high quality AISI 316 stainless steel and hence there was no question of breakage due to casting defect as no part of implant is cast and hence there is no deficiency of service. Opposite party No. 2 filed its counter that he was not a necessary party as he was only a Sales Executive. On behalf of the complainant, Dr. Ramu, filed his affidavit, for which a counter affidavit is filed by Mythili Iyer, Marketing Manager of the first opposite party. ;

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