BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM RAICHUR.
COMPLAINT NO. (DCFR) CC. 40/11.
THIS THE 26th DAY OF OCTOBER 2011.
P R E S E N T
1. Sri. Pampapathi B.sc.B.Lib. LLB PRESIDENT.
2. Sri. Gururaj, B.com.LLB. (Spl) MEMBER.
3. Smt. Pratibha Rani Hiremath,M.A. (Sanskrit) MEMBER
*****
COMPLAINANT :- M/s. G.P.V. Superspecialty Hospital, Gunj
Road, Raichur through Sri. Dr. Nagaraj Gadwal.
//VERSUS//
OPPOSITE PARTIES :- 1. Abhay Technologies, 8, 17th Main M.C.
Layout, Vijayanagar, Bangalore-560040.
2. The Oriental Insurance Company Ltd., 1/1,Connaught Road, Queen’s Road, Bangalore, through the Branch Manager, Oriental Insurance Company Ltd., Branch Office, Raichur.
CLAIM :- For to direct them to pay cost of Rs. 3,00,000/-
of the machine purchased by him from opposite No-1 insured with opposite No-2 with damages interest.
Date of institution :- 01-06-11.
Notice served :- 20-06-11.
Date of disposal :- 26-10-11.
Complainant represented by Sri. H.B. Rathod, Advocate.
Opposite No- 1 represented by Sri. Sateesh.V., Advocate.
Opposite No- 2 represented by Sri. Vikram Nair, Advocate.
This case coming for final disposal before us, the Forum on considering the entire material and evidence placed on record by the parties passed the following.
JUDGEMENT
By Sri. Pampapathi, President:-
This is a complaint filed by the complainant M/s. G.P.V. Super Specialty Hospital, Raichur through its Dr. Nagaraj Gadwal against opposite Nos. 1 & 2 U/sec. 12 of Consumer Protection Act, for to direct them to pay cost of Rs. 3,00,000/- of the machine purchased by him from opposite No-1 insured with opposite No-2 with damages and interest.
2. The brief facts of the complainant’s case are that, M/s. G.P.V. Super Specialty Hospital, Gunj Road, Raichur is being run by Dr. Nagaraj Gadwal who purchased (1) KODAK 8150 Laser Imager with one tray/one online-refurbished and (2) DICOM grabber card and A-D software to facilitate the printing of CT images for consideration amount of Rs. 3,00,000/- from opposite No-1. The said equipments insured with opposite No-2 Insurance Company. After installation of said unit in the hospital of complainant by opposite No-1, it not worked properly. The same was brought to the notice of opposite No-1 Engineer of opposite No-1 came and replaced some parts and asked to pay Rs. 1,00,000/-. Similarly opposite No-1 started demanding amount from the complainant, as it requires of spare parts, the same was brought to the notice of opposite No-2, now the said unit is not at all working, complainant suffered heavy loss, as its service is required day to day use in the hospital. Neither opposite No-1, nor opposite No-2 repaired it or paid the cost of unit, inspite of repeated demands. Hence there is deficiency in service on the part of opposites and thereby this complaint is filed for the reliefs as noted in it.
3. Opposite No-1 appeared in this case separately and filed its written version by denying all the allegations made against it. Its service engineer visited the hospital of complainant and replaced the same parts, even then, complainant is in the habit of making complaint. However 19-08-10 roll back motor was replaced with free of cost. The unit fell to the ground due to negligence of complainant’s staff it was damaged. Opposite No-1 is not responsible for it, it is the duty to provide maintenance for a period of one year, no replacement of any spare parts with free of cost, accordingly it prayed for to dismiss the complaint against it.
4. Opposite No-2 appeared in this case through its Advocate, field its written version by contending that, this complaint is not maintainable for mis joinder of parties. Opposite No-1 has to replace the damaged parts of unit. Complainant not filed legible copy of AMC with its letter. Copy of the terms and conditions and warranty given by opposite No-1 are not furnished. The present machine on which this claim is based is a different one to that of the machine under coverage of insurance policy. This claim is made only to get monetary benefit by illegal means, the complainant deliberately tampered with the machine and started his claim, the main dispute is in between the complainant and opposite No-1. Hence it prayed for to dismiss the complaint among other grounds.
5. In-view of the pleadings of the parties. Now the points that arise for our consideration and determination are that:
1. Whether the complainant proves that, he purchased unit (1) 1) KODAK 8150 Laser Imager with one tray/one online-refurbished and (2) DICOM grabber card and A-D software to facilitate the printing of CT images from opposite Nos.1 and insured with opposite No-2 installed in his hospital, it failed to work from the date of installation which was informed to opposite Nos. 1 & 2, but none of them have taken care for repair or to cost of unit, they shown their negligence and thereby opposite Nos. 1 & 2 have committed deficiency in their services.?
2. Whether complainant is entitled for the reliefs as prayed in his complaint.?
3. What order?
6. Our findings on the above points are as under:-
(1) In affirmative against the opposite No-2 and in negative against
the opposite No-1.
(2) In view of our finding on Point No-1, the complainant is entitled
for the reliefs as prayed in the complaint from opposite No-2
only.
(3) In-view of the findings on Point Nos. 1 & 2, we proceed
to pass the final order for the following :
REASONS
POINT NO.1 & 2:-
7. To prove the facts involved in these two points, affidavit-evidence of complainant was filed, who is noted as PW-1. Documents Ex.P-1 to Ex.P-4 are marked. On the other hand, affidavit-evidence of opposite No-1 was filed, who is noted as RW-1. Documents Ex.R-1 to Ex.R-6 are marked. Affidavit-evidence of opposite No-2 was filed, who is noted as RW-2. Affidavit-evidence of surveyor is filed, who is noted as RW-1 Documents Ex.R-7 to Ex.R-10 are marked.
8. From the pleadings of the parties, it is a fact that, the complainant- doctor purchased the machine (1) KODAK 8150 Laser Imager with one tray/one online-refurbished and (2) DICOM grabber card and A-D software to facilitate the printing of CT images from opposite No-1 and installed in his hospital at Raichur. It is further undisputed fact that, the same unit was insured with opposite No-2 Oriental Insurance Company for a period from 17-12-09 to 16-12-10.
9. From the documents filed by the complainant as well as opposite No-1 with regard to repair of the said unit is within coverage of insurance policy.
10. It is a proved fact that, now the said unit is not in working condition, that means to say that, it is not in working condition Insurance coverage period in between 17-12-09 to 16-12-10.
11. The main contention of opposite No-1 is that, he supplied spare parts and engineers were reporting to replace the spare parts with free of cost. But the said unit was stopped working due to negligence of complainant. Hence he is not responsible for any damage.
12. The main contention of opposite No-2 Insurance Company is that, the spare parts are covered under warranty period. Hence Insurance Company is not responsible for to replace or to pay any amount to complainant.
13. We have taken note of the entire facts and circumstances of this case and we are of the view that, the contention of the Insurance Company is not correct. It insured the entire unit for to indemnify, if, it fails to work within that coverage period. In view of the coverage of insurance policy to the said unit, it is the duty of the insurance company to indemnify the cost of the machine or any of its damaged parts. It appears from the records available before us which clearly goes to show that, insurance company is shifting its responsibility on the shoulder of opposite No-1, this effort is against to the terms and conditions of the policy, accordingly we have rejected the contention of the opposite No-2 insurance company as it is not responsible for to indemnify the complainant due to failure of installed machine within coverage period.
14. Documents Ex.p-2, Ex.R-7 supports of our view.
15. As regards to other contention raised by the learned advocate for opposites is that, the complainant installed the said unit in his hospital for commercial purpose and he relied on the ruling reported in 2011 AIAR(Civil) 199 (SC), the facts discussed in the said ruling are pertaining to claim of Birla Technologies Ltd, against Neutral Glass Allied Industries Ltd., for the loss. In the said case their lordships of the Hon’ble Supreme Court held that, goods sold to the complainant amounting to goods, purchased by the complainant for commercial purpose for earning of more profits. The services offered was for commercial purpose, complaint for alleged deficiency in service not maintainable.
16. In the instant case, the complaint against opposite No-1 supplier is not maintainable in view of the observations of their lordships, but the service of Insurance Company is included in the meaning and definition of 2(1)(O) of C.P. Act., whether it is commercial or for any other purpose. Accordingly, this argument of opposite No-2 is not correct. As such we have come to the conclusion that, this complaint against opposite No-1 is not maintainable. This complaint against opposite No-2 is maintainable for non providing insured sum vide insurance policy of the said unit which is amounting to deficiency in service by Insurance Company opposite No-2, accordingly this point is answered.
17. It is a fact that, the opposite No-2 insured the said unit for Rs. 3,00,000/- vide Ex.P-2. Admittedly the said unit failed to work within policy period. This fact is supported by surveyor’s evidence and his report. Hence opposite No-2 is liable to indemnify the cost of the machine which is Rs. 3,00,000/- by taking the said unit from the complainant. As regards to deficiency in service, the complainant is entitled for Rs. 3,000/- from opposite No-2. The complainant is entitled for interest at the rate of 9% p.a. on Rs. 3,03,000/- from the date of complaint till realization of the full amount. Accordingly this point is answered.
POINT NO.3:-
18. In view of our findings on Point No- 1 & 2, we proceed to pass the following order:
ORDER
The complaint filed by the complainant against opposite No-2 is partly allowed.
Opposite No-2 is directed to take the machine (1) KODAK 8150 Laser Imager with one tray/one online-refurbished and (2) DICOM grabber card and A-D software to facilitate the printing of CT images installation which are not in working condition from the custody of complainant and directed to pay cost of the machine of Rs. 3,00,000/- to him.
The complainant is entitled to recover an amount of Rs. 3,000/- from opposite No. 2 towards deficiency in its service.
The complainant is also entitled to recover interest at the rate of 9% p.a. on the above total sum of Rs. 3,03,000/- from the date of the complaint till realization of the full amount.
One month time is granted to opposite No. 2 to comply the above order from the date of this judgment.
Complaint against opposite No-1 is dismissed.
Intimate the parties accordingly.
(Dictated to the Stenographer, typed, corrected and then pronounced in the open Forum on 26-10-11)
Smt.Pratibha Rani Hiremath, Sri. Gururaj Sri. Pampapathi,
Member. Member. President,
Dist.Forum-Raichur. Dist-Forum-Raichur Dist-Forum-Raichur.
