JUSTICE SUDIP AHLUWALIA, MEMBER

2. The factual background, in brief, is that the Complainants/ Respondent Nos. 1 and 2 were expecting their first child (Respondent No. 3 )  in  September  2014.    During this  time,  the Complainant No. 1 

 

was under regular medical care at Kamla Nehru Hospital, Shimla. During one of these visits, the Complainants were approached by the Agent (Opposite Party No. 2/Respondent No. 5), representing Life Cell International (Opposite Party No. 1/Respondent No. 4), a company specializing in the preservation of stem cells from new-borns. The Agent presented the benefits of storing stem cells, emphasizing their potential to treat life-threatening diseases for the child, and other blood relatives. The service involved collecting umbilical cord blood and tissue at birth, processing the samples to extract stem cells, and storing them under optimal conditions for future medical use.

4. The Agent assured the Complainants that the collection, transportation, and preservation of the stem cells would be carried out with precision, ensuring that the sample would reach their processing facility in Chennai within 16-18 hours. This was crucial because the timely processing of these delicate samples was presented as essential for their viability. A presentation at the Complainants’ home on August 24, 2014, was done, which detailed the process, including the role of a specialist paramedic for collection and a dedicated courier service for transportation to Chennai.

5. Convinced by these assurances, the Complainants entered into an Agreement on August 27, 2014, with Life Cell International, agreeing to pay Rs. 20,743/- in instalments. Their child was born on September 1, 2014, and the stem cell samples were collected and handed over to a representative of Life Cell International. The Complainants were reassured that the samples were of good quality and would be processed without delay.

6. However, despite the assurances, the samples were not transported to the Chennai lab within the promised time frame. The delay extended over several days, with the sample being sent to Chandigarh and then to Delhi before reaching Chennai on September 5, 2014. This exceeded the stipulated 16-18 hours, leading to contamination of the samples, making them unsuitable for processing.

7. The Complainants allege that they were misled by the Agent, who initially assured them that the samples had been dispatched to Chennai on time. However, when the Complainants sought updates from the company, they faced evasiveness and a lack of transparency. Eventually, they learnt that the samples had not reached the lab as promised, leading to their deterioration.

8. On September 25, 2014, the Complainants received a communication from the lab in Chennai indicating that the stem cells did not meet the acceptance criteria due to low viability, directly contradicting earlier claims that the samples had been successfully stored. Despite this, the Opposite Parties continued to claim that the samples were being processed, which further misled the Complainants.

9. In April 2015, the Opposite Parties acknowledged that the mesenchymal stem cells could not be isolated due to the sample’s poor condition, a result of the delayed processing. The delays and mishandling of the sample directly deprived the Complainants and their child of the potential benefits of stem cell preservation, which had been the basis for entering into the Agreement. 

10. The Complainants got issued a Legal Notice on October 1, 2015, highlighting the Opposite Parties’ negligence. In response, the Opposite Parties admitted the lapses and even offered compensation of Rs. 1 lakh, acknowledging their failure to maintain the promised standards.

Despite the admission of fault, the Opposite Parties proceeded to terminate the agreement without addressing the core issue of their negligence in transporting the sample. Aggrieved with the deficiency in service on the part of the Opposite Parties, the Complainants filed their Complaint filed before the Ld. State Commission, Himachal Pradesh praying for a compensation of Rs. 75,00,000/- along with other ancillary reliefs.

11. Following the arguments before it, the Ld. State Commission vide the impugned Order dated 20.08.2018 directing impleadment of the Appellant/Sequel Logistics Company as Opposite Party No. 3. The Appellant was further directed to file its Written Version on or before 20.09.2018. Aggrieved by such Order, the Appellant has filed the present Appeal.

12. Ld. Counsel for Appellant/Sequel Logistics Company has argued that it is an admitted position that the Complainants did not avail any services from it, thus making it clear that the Complainants are not “consumers” as defined under Section 2(d) of the Consumer Protection Act, insofar as the Appellant is concerned. Therefore, it is beyond the jurisdiction of the State Commission to implead a party against whom a Complaint is not maintainable in law. He further argued that the Appellant’s only connection to this matter is through a Logistics Agreement dated 03.05.2012 with the Respondent No. 4/Life Cell International, under which the Appellant was contracted to provide logistics and transportation services to the Respondent No. 4. Clause 4 of this Agreement limits any liability of the Appellant regarding loss, delay, or damage exclusively to Respondent No. 4. Furthermore, Clause 9(d) specifically precludes the Respondent No. 4 from making any commitments on behalf of the Appellant, with any such commitments not being binding on the Appellant. This Agreement is a commercial contract and falls outside the purview of Section 2(1)(d) of the Act, which pertains to services provided to consumers.

 

 

13. Ld. Counsel for Appellant/Sequel Logistics Company has further contended that the Complainants did not seek any relief against the Appellant. It is a well-established legal principle that the Complainants, as the dominus litis, have the discretion to decide whom to pursue their claims against. This principle implies that no party should be forced into litigation against their wishes, especially when no grievances have been raised against them. Additionally, the Complainants filed an Appeal, FA No. 552 of 2018, before this Commission challenging the order dated 19.12.2017 passed by the State Commission, where the Appellant was initially impleaded. This Commission, through its Order dated 04.04.2018, directed the State Commission to reconsider the decision to issue a notice to the Appellant. Despite this direction, the State Commission re-heard the matter but passed the same order, almost identical to the earlier one, without addressing the new arguments presented, or showing proper application of mind.

14. Ld. Counsel for Respondent No. 4/Life Cell International has argued that the issue of the Appellant's impleadment as an Opposite Party has already been thoroughly adjudicated on three occasions. This includes two orders by the State Commission dated 27.02.2018 and 20.08.2018, as well as an Order by this Commission dated 04.04.2018. Each of these decisions involved detailed consideration and application of judicial mind. Substantial time has already been devoted to this matter by both this Commission and the State Commission, and there is no justifiable reason to re-examine the issue at this stage. He further argued that the Respondent No. 4 is involved in the business of preserving, processing, and storing stem cells. For this purpose, the transportation services of the Appellant were engaged. Given that the core issue raised by the Complainants revolves around the alleged delay in transporting the stem cell samples, which was the responsibility of the Appellant, it is essential for the Appellant to be a party in this case. Its inclusion is necessary to allow for an effective adjudication of the matter and to enable the Appellant to present evidence regarding any deficiency in service on their part. As the Respondent No. 4 was not directly responsible for the transportation services, it cannot fully address these allegations without the Appellant’s participation.

15. The Ld. Counsel for Respondent No. 4/Life Cell International additionally argued that the Appellant’s contention regarding the principle of dominus litis lacks weight. The law is well-settled on this point, that while a plaintiff may have the initial discretion to choose their defendants, the court retains the authority to add parties if it believes their presence is necessary for a just adjudication of the case. This principle was clearly articulated by the Hon’ble Apex Court in “Ramesh Hirachand Kundanmal vs. Municipal Corporation of Greater Bombay and Ors., (1992) 2 SCC 524”, wherein it was held that the plaintiff is not obliged to proceed against every potential adverse party, but that the Court can exercise its discretion to include necessary parties to ensure a complete resolution of the matter. 

16. This Commission has heard the Ld. Counsel for the Appellant and Respondents, and perused the material available on record. 

17. Reliance of Respondent No.4, which was Opposite Party No. 1 in the Consumer Complaint is on Clause 10.2 of the informed consent Agreement entered into between the Complainants and itself, which is set down as below –

“Material Blood and Umbilical cord stem cell testing, processing, storage, retrieval, expansion and informed consent agreement 27.08.2014 between the Original Complaints and Respondent No. 4 [2Pgs. 68-80|FA]

- Clause 10.2 [@Pg.73|FA]

“LifeCell disclaims any responsibility to provide any other services (except those specified in this Agreement) and third party service providers like Phlebotomist, Transporter etc., shall have the respective responsibility for their services including loss, damages, delay in delivery, etc.”

 

18. Therefore by drawing attention to the emphasized part of the aforesaid Clause re-produced above, it was submitted on behalf of the said Respondent that the damage caused to the Complainants on account of delay on the part of the Transporter (i.e. the present Petitioner) were the responsibility of the said Transporter/Appellant, who is therefore a necessary party to the proceedings.

19. This Commission is, however, not convinced by such aforesaid contention raised on behalf of the Respondent No. 4, since the Appellant/Transporter was itself not a party to the aforesaid consent agreement  entered  into between the Complainants and Respondent No. 4.  Even otherwise, the said Respondent No. 4 had entered into a separate Agreement with the Appellant being “ Logistics Agreement for life science shipment dated 03.05.2012 entered between the Appellant and Respondent No. 4 [Annex. A6]”, according to Clause 9 of which, it was specified as under –

 

20. It is, therefore, seen that in terms of the aforesaid Logistics Agreement, the Respondent No. 4 had itself been estopped from making any agreement or commitment to a 3rd person to incur any liability on behalf of the Appellant.  The Complainants themselves were not parties to such Agreement.  Consequently, even Clause 10.2 of the Informed Consent Agreement between Respondent No. 4 and the Complainants was in violation of Clause 9 (d) of the Logistics Agreement earlier executed by the Respondent No. 4 with the present Appellant, on account of which, clearly the said Respondent was in no position to pass on any liability upon the Appellant/Sequel Logistics Pvt. Ltd., who in any case, had no privity of contract with the Complainant, nor had been engaged by the Complainants for providing any service in which there was any deficiency qua the Complainants.  It was, therefore, clearly not a necessary party to the proceedings.

21. For the aforesaid reasons, this Commission is of the opinion that the impugned Order passed by the Ld. State Commission is untenable and not in accordance with law.  The First Appeal is, therefore, allowed after setting aside the impugned Order.  Parties to bear their own costs.

22. The Ld. State Commission is now requested to decide the Complaint Case in accordance with law as expeditiously as possible and preferably within three months from the date of appearance of the original Parties in the Complaint Case before it. The Respondents representing the original Complainant(s) and the original Opposite Parties are now directed to appear before the Ld. State Commission on 15.1.2025.

 

 

23. Pending application(s), if any, also stand disposed off as having been rendered infructuous.