BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MANGALORE

Dated this the 31^st MARCH 2016

PRESENT

        SMT. ASHA SHETTY           :  HON’BLE  PRESIDENT         

        SMT.LAVANYA M. RAI        :   HON’BLE MEMBER                                        

                                                                                      COMPLAINT NO. 109/2013

(Admitted on 27.04.2013)

Dr. Narayani,

S/o Hanumappa Narayani,

Aged 34 years,

R/at Anand House,

Kembar Alape Padil Post,

Mangalore                                        …….. COMPLAINANT

(Advocate for Complainant: Sri Shashiraj Rao Kavoor)

 VERSUS

1. The Authorized Officer,

Philips Health Care,

Philips Electronics India Ltd.,

The Estate No. 121,

4^th Floor, Deikenson Road,

Bangalore-560042.

2.  The Authorized Officer,

IMAGO SYSTEM,

Authorised Philips Service Dealer,

# 27, Sneha, 2^nd Floor, 1^st Cross,

1^st Main, Arakere Samrat Layout,

Opp: B.G. Road,

Bangalore 560076.

3. Mr. Sabil Surendran,

Aged 30 years,

Senior Customer Sup. Engineer,

Flat No. 106, Crystal Apartment,

Kodialgutthu , Bhagavathi Nagar,

Mangalore – 575 002.              ……OPPOSITE PARTIES.

(Advocate for opposite party No. 1 : Sri M.Chidananda

      Kedilaya)

(Opposite party No.2 and 3 Ex-parte)

ORDER DELIVERED BY HON’BLE PRESIDENT  

SMT. ASHA SHETTY

1. 1. This complaint is filed under section 12 of the Consumer Protection Act alleging defect in Philips Colour U-Ue 350 colour Doppler system as against the opposite parties claiming certain reliefs.

The brief facts of the case are as under:

 The complainant is a Doctor and consultant in Fetal Medicine and running a clinic.  Complainant purchased multispecialty Colour Doppler System manufactured by Opposite Party No. 1 by paying Rs. 8,60,000/- from the Opposite Party No. 2.  It is stated that the complainant paid the amount on 19.03.2012 and the machine was delivered on 28.10.2012.  The allegation of the complainant is that the machine started giving problem and stopped on 14.06.2012. Immediately called customer care and lodged a complaint on 14.06.2012.  The service person has repaired the machine on 21.06.2012 i.e after 8 days. The complainant stated that again the machine had developed problem and stopped working on 24.07.2012 and again lodged a complaint and Opposite Party No. 3 repaired machine on 27.07.2012.  This time PC modulator and hard disk was replaced and the system software was loaded to the machine.  It is further stated that once again within 2 months from the date of repair the machine stopped working and the opposite party No. 3 also came to the conclusion that the same is having major problems which cannot be repaired and hence the machine was replaced with new machine.  The said machine was delivered and installed on 3.10.2012.  Even newly installed machine also stopped working on 5.11.2012.  Once again the power regulator and modulator was defective and the same was replaced.  It is stated that because of the continuous problems the complainant put to financial crisis and later on the complainant requested Opposite Parties to refund the money by taking back the defective machine, but the opposite parties not complied the same.  The complainant contended that machine sold by Opposite Parties has some manufacturing defect and hence above complaint filed U/sec 12 of the Consumer Protection Act 1986 (herein after referred to as the act) seeking direction from this Forum to the opposite parties to refund a sum of Rs. 8,60,000/- along with interest and compensation and cost of the proceedings.

2. 1. Version notice served to the opposite parties No. 1 to 3 by R.P.A.D.  Opposite party No. 2 and 3 inspite of receiving version notice neither appeared nor contested the case before this FORA. Hence we have proceeded ex-parte as against the opposite parties No. 2 and 3.

The opposite party No. 1 appeared through their counsel filed version denied all the allegations and contended that the complainant is not a consumer since he is using the system for commercial purpose.  It is further stated that system was replaced on 03.10.2012 only to satisfy the complainant.  The old machine was in very good condition the Opposite Party granted fresh warranty on the new system.  It is stated that after a month power regulator module failed in the system.  It is contended that there was either the problem in electricity fluctuation or inappropriate environment condition at the place where the system was installed or the complainant was negligent in using the same.

          It is stated that only at complainant’s place machine is not working other place having the same configured machine installed and working properly and denied the defect  and sought for dismissal of complaint.  

III.   1. In support of the complaint Dr. Narayani, (CW1) the Complainant filed affidavit reiterating what has been stated in the complaint and produced Ex. C1 to C15. One Sri Meeru G Gupta, Indian Inhabitant and General Manager-Legal of the Opposite Party (RW1) filed counter affidavit and answered the interrogatories served on him. 

          In view of the above said facts, the points now that arise for our consideration in this case are as under:

1. Whether the complainant proves that the  Multi specialty Colour Doppler System purchased on 07.11.2012 from the opposite parties found to be defective?-
2. Whether the complainant proves that the opposite parties have committed deficiency in service?
3. If so, whether the complainant is entitled for the reliefs claimed?
4. What order? 

We have considered the notes/oral arguments submitted by the learned counsels and also considered the materials that was placed before this Forum and answer the points are as follows:.

Point No. (i) and (ii): Affirmative

Point No. (iii) and (iv). As per the final order.

REASONS

IV. 1. POINTS No. (i) TO (iv):   

    The facts which are admitted is that the complainant is a doctor by profession and running a clinic in order to eke out his livelihood is a consumer. 

As far as manufacturing defect is concerned admittedly complainant purchased Multi-Specialty colour Doppler system for his clinic by paying Rs. 8,60,000/- on 19.03.2012 and delivered on 28.03.2012.  It is also not in dispute that the machine developed problem on 14.06.2012 and lodged a complaint with the Opposite Parties and  opposite parties in turn repaired the machine and delivered on 21.06.202.  It is also further not in dispute that the said machine again developed problem and opposite Parties replaced the machine with new machine and the new machine also developed problem and stopped working on 05.11.2012.

Now the point for consideration is that the above admitted facts clearly reveals that the machine delivered by the Opposite Parties has some problem and not up to the quality because the 1^st machine which they have supplied  not worked within short span of time from date of purchase.  More so within the warranty period.   Even the new machine also stopped working shows some short comings the quality of the machine supplied by the opposite parties.   The Opposite Party contended that the system was replaced on 03.10.2012 only to satisfy the complainant and the 1^st machine was in very good condition etc., etc., cannot accepted because the Opposite Party specifically admitted that first machine stopped working 2 times and thereafter the Opposite Party replaced the new machine even that machine also stopped working means it shows the quality of the product manufactured and sold by the opposite parties.  Another contention of the opposite parties is that there may be electricity fluctuation or problem in usage.  Further it is contended that the same configured machine is working without problem in other premises and only in complainant’s clinic the said machine is not working properly. 

 It is to be noted that, it is the Opposite Party one who manufactured the machine should recommend the customers with regard to the electrical fluctuation or any other problem before installing the machine in premises shown by complainant.  It is the primary duty of the opposite parties to advise the customer /complainant herein after sold the machine.  

In present case we are of the opinion that the Opposite Parties failed to substantiate their defense by obtaining the expert opinion that the machine supplied by Opposite Party has no manufacturing defect.  No such material evidence placed by Opposite Parties therefore we hold that the complainant satisfied that machine supplied by Opposite Party stopped working and defective. Under that circumstances, the Opposite Parties are liable to refund the amount instead of replacing the machine to avoid problems every now and again.

In view of the above discussion, we hold that machine supplied by Opposite Parties are defective and Opposite Parties hereby directed to refund the amount of Rs. 8,60,000/- (Rupees eight lakhs sixty thousand only) along with interest @ 12% p.a. from the date of complaint till the payment by taking back the defective machine and payment shall be made within 30 days from the date of receipt of this order.

In the result, we pass the following:

ORDER

The complaint is allowed. The opposite parties No. 1 to 3  are jointly and severally shall refund ₹ 8,60,000/- (Rupees Eight lakhs sixty thousand only) with interest at the rate of 12% p.a from the date of complaint till the date of payment by taking back the defective machine and also pay Rs. 3,000/-(Rupees three thousand only) as cost of the litigation expenses. Payment shall be made within 30 days from the date of receipt of this order.

Copy of this order as per statutory requirements, be forward to the parties and file shall be consigned to record room.

(Page No.1 to 9 dictated to the Stenographer typed by him, revised and pronounced in the open court on this the 31^st day of MARCH 2016).                           

PRESIDENT                                      MEMBER

 (SMT. ASHA SHETTY)                     (SMT. LAVANYA M.RAI)

D.K. District Consumer Forum                      D.K. District Consumer Forum

     Mangalore.                          Mangalore.                              

ANNEXURE

Witnesses examined on behalf of the Complainant:

CW-1  :       Dr. Narayani             Complainant.

Documents produced on behalf of the Complainant:

Ex. C1 :      07.11.2011:        Final Offer letter issued by

Opposite Party No. 1.

Ex. C2 :      25.12.2012:        Office copy of the legal notice.    

Ex. C3 :      26.12.2012:        Postal Acknowledgment of

Opposite Party No. 3.

Ex. C4 :      26.12.2012:        Returned Envelop of

Opposite Party No.1.

Ex. C5 :      04.01.2013:        Postal Acknowledgment

of Opposite Party No. 2.

Ex. C6 :      17.09.2012:        Invoice.

Ex. C7 :      28.03.2012:        Installation completion form.

Ex. C8 :      21.06.2012:        Service Report No. 17698.

Ex. C9 :      06.07.2012:        Service Report No. 18966.

Ex. C10:     27.07.2012:        Service Report No. 18151.

Ex. C11:     17.09.2012:        Installation completion form.

Ex. C12:     15.12.2012:        Service Report.

Ex. C13:     :        Photograph of Machine.

Ex. C14:   :         Email correspondence Page Extracts (9 in numbers).

Ex. C15:    :        Electrical Safety Test Report

issued by Opposite Party.

Witnesses examined on behalf of the Opposite Parties:

CW-1  :       Sri Meeru G Gupta     – opposite party No. 1

Documents produced on behalf of the Opposite Parties:    

 Nil 

Dated: 31.03.2016.                                 PRESIDENT