Asian Surgical Company , Hyderabad V/S Dr. V. Sridhar Reddy S/o. V.P. Balamaddilati Reddy, Raichur - Consumer Court Case

Karnataka

Raichur

CC/10/113

Dr. V. Sridhar Reddy S/o. V.P. Balamaddilati Reddy, Raichur - Complainant(s)

Versus

Asian Surgical Company , Hyderabad - Opp.Party(s)

Sri. M. Nagaraj

04 Mar 2011

ORDER

Dist. Consumer Disputes Redressal Forum, Sath Kacheri, Raichur.
Dist. Consumer Disputes Redressal Forum, Sath Kacheri, Raichur.
consumer case(CC) No. CC/10/113

Dr. V. Sridhar Reddy S/o. V.P. Balamaddilati Reddy, Raichur						...........Appellant(s)
Vs.
Asian Surgical Company , Hyderabad						...........Respondent(s)

BEFORE:

Complainant(s)/Appellant(s):

OppositeParty/Respondent(s):

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ORDER

JUDGEMENT By Sri. Pampapathi, President:- This is a complaint filed by the complainant Dr. V.Sridhar Reddy against Opposite Asian Surgical Company Ltd., U/section 12 of Consumer Protection Act for to direct the opposite to supply new sterilizer under Buy Back Policy for cost of Rs. 1,10,000/- for to pay difference amount of Rs. 70,000/- with cost of Rs. 50,000/- damage with interest and cost. 2. The brief facts of the complainant case are that, he owns hospital establishment by name Balanku Orthopedic & Maternity Hospital, Raichur. He purchased Horizontal High Pressure Sterilizer from opposite for Rs. 1,82,000/- vide Chalan No. 75108 dt. 01-04-08 for to install it in his establishment, accordingly the said instrument was installed and thereafter it stopped working, he informed the same to opposite and opposite engineer visited the hospital on 16-12-09 and inspected the instrument and opined that, it is not repairable. Therefore he contacted opposite and came to an understanding to purchase new one by selling old one under Buy Back Policy to opposite. As per the said understanding he sent DD for Rs. 1,10,000/- under Buy Back Policy for to send new machine. Opposite not supplied the new one by taking damaged sterilizer and one day i.e, on 14-07-10 opposite returned the said DD without assigning any reasons. He requested the opposite over phone as well as in writing, but opposite shown its negligence in supplying the new one by taking old machine under Buy Back Policy, as such he filed this complaint for the reliefs as prayed in it. 3. Opposite appeared in this case through its Advocate, and filed its written version by contending that, its engineer inspected the hospital of the complainant on 16-12-09 and noticed that, chambers of the instrument were broken, welding not repairable, damage took place due to direct connection to power supply, it was not due to any defect in sterilizer. It denied such understanding for the supply of new instrument under Buy Back Policy. The complainant voluntarily sent DD, it requested the manufacturers, but not obliged for such supply of new one, under Buy Back Policy by taking old one, hence it returned the said DD to the complainant. No deficiency in its service, accordingly it prayed for to dismiss the complaint among other grounds. 4. 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 Horizontal High Pressure Sterilizer as per chalan No. 75108 dt. 01-04-08 for RS. 1,82,000/- after installation of the said instrument in his hospital, it stopped working, it was intimated to the opposite, the engineer inspected the sterilizer in his hospital and opined that, it was not repairable, however opposite agreed to replace the said damaged sterilizer with new one under Buy Back Policy on payment of Rs. 1,10,000/-, accordingly he sent DD for Rs. 1,10,000/- on 22-04-10 but opposite kept the said DD with it till 14-07-10 and returned it without assigning any reasons and not supplied a new machine under Buy Back Policy and thereby opposite found guilty under deficiency in its service.? 2. Whether complainant is entitled for the reliefs as prayed in his complaint.? 3. What order? 5. Our findings on the above points are as under:- (1) In Negative. (2) In Negative. (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:- 6. To prove the facts involved in these two points, affidavit-evidence of the complainant was filed, he was noted as PW-1. The documents Ex.P-1 to Ex.P-5 are marked. On the other hand affidavit-evidence of the opposite was filed, who is noted as RW-1. No documents marked on behalf its behalf. 7. In the instant case, it is undisputed fact that, complainant purchased Horizontal High Pressure Sterilizer through opposite dealer vide Chalan No. 75108 dt. 01-04-08 for sum of Rs. 1,82,000/-. 8. It is further undisputed fact that, after installation of the said unit in the hospital of complainant it was not in working condition, as it was damaged and un repairable condition. In view of the Engineers report of opposite vide Ex.P-2. 9. In the present case, the complainant not claiming his right as a consumer in between 01-04-08 vide Ex.P-1 till 16-02-09 vide Ex.P-2 by alleging that, opposite supplied defective sterilizer or it developed mechanical defects in between that period. Further it is very much clear that, complainant is not claiming any kind of right under C.P. Act by alleging any kind of allegations against the said machine in between that period, as it was a guarantee period of said machine. As such above facts are not helpful for the complainant to claim any kind of reliefs against opposite. 10. The second part of the case of complainant is that, himself and opposite came into an understanding for to supply new sterilizer by taking back the damaged sterilizer on payment of Rs. 1,10,000/-, accordingly he sent DD for Rs. 1,10,000/- dt. 22-04-10 and thereafter opposite retained the said DD till 16-12-09 without supplying new one by taking damaged sterilizer. 11. The learned advocate for complainant took the help of document Ex.P-5, which is a reply notice by the opposite to the legal notice of complainant. Ex.P-5 discloses the fact that, opposite came to an understanding with the complainant for to purchase the damaged sterilizer of complainant and in turn it has to supply a new sterilizer on payment of Rs. 1,10,000/- by the complainant. So, there is no any ambiguity regarding the case of complainant. The stand taken in written version and affidavit-evidence of opposite RW-1 not helpful to depart from the admission given by it in Ex.P-5. 12. In view of the facts and circumstances of this case and the nature of the transaction said to have taken place in between the complainant and opposite under Buy Back Policy. It appears to us that, the said fact promoted the complainant to file this consumer complaint. Admittedly, there might be understanding in between the parties with regard to Buy Back Policy, now the point for consideration is whether such understanding in between the parties would establishes the relationship of consumer and trader as defined under C.P. Act. In this regard we have referred the judgment of the Honble National Commission in: M.N. Narasimha Reddy V/s. Managing Director Maruti Udyoga Ltd., reported in 1999 I CPR 168 (NC). In this case the Honble National Commission was dealing a case of mere agreement to purchase goods, whether complainant is a consumer or not. The Honble National Commission held in this case as: A person, who has merely entered into an agreement for the purpose of purchase of goods, it is not fall within the definition of consumer under the C.P. Act as the definition contemplates the pre-existing of completed transaction. The facts of the present case are similar to the facts dealt by their lordships of the Honble National Commission. The complainant is basing upon his case on the understanding for to supply of new sterilizer by taking back the damaged sterilizer under Buy Back Policy for reduced amount. Still transaction is not completed, as such complainant is not a consumer as defined U/sec. 2(1)(d) of C.P. Act 1986. 13. The another thought of us, in the light of the pleadings of the complainant. Admittedly, he intended to sell his damaged sterilizer to opposite for certain amount, in the similar way opposite consented or agreed to supply new one, by taking the said damaged vehicle for lesser value. In view of the nature of the transaction said to be made understanding in between the parties, we are of the clear view that, complainant cannot be a consumer under the meaning and definition of section 2(1)(d) of C.P. Act. Exchange of goods in between himself and trader either for less value or for higher value is not a consideration in its real meaning as stated in section 2(1)(d) of C.P. Act, as such we are of the clear view that, the present complainant cannot raise consumer dispute against opposite under C.P. Act, before the Consumer Forum. If really complainant aggrieved for retaining his DD and non supplying a new machine under Buy Back Policy, he make get a relief, for his grievances before other Forums but not before Consumer Forum, and we cannot say that, there is a deficiency in service by the opposite in view of the nature of the transaction as stated by the complainant, as such we answered Point No-1 in Negative. POINT NO.2:- 14. In view of the finding on Point No. 1, the complainant is not entitled for any of the reliefs as prayed in his complaint, accordingly we answered Point Nos- 1 & 2. POINT NO.3:- 15. In view of our findings on Point Nos. 1 & 2, we proceed to pass the following order: ORDER The complaint filed by the complainant is dismissed. Intimate the parties accordingly. (Dictated to the Stenographer, typed, corrected and then pronounced in the open Forum on 03-03-11) Sd/- Sri. Pampapathi, President, District Forum-Raichur. Sd/- Sri. Gururaj, Member, District Forum-Raichur. Sd/- Smt.Pratibha Rani Hiremath, Member. District Forum-Raichur.

JUDGEMENT By Sri. Pampapathi, President:- This is a complaint filed by the complainant Dr. V.Sridhar Reddy against Opposite Asian Surgical Company Ltd., U/section 12 of Consumer Protection Act for to direct the opposite to supply new sterilizer under Buy Back Policy for cost of Rs. 1,10,000/- for to pay difference amount of Rs. 70,000/- with cost of Rs. 50,000/- damage with interest and cost. 2. The brief facts of the complainant case are that, he owns hospital establishment by name Balanku Orthopedic & Maternity Hospital, Raichur. He purchased Horizontal High Pressure Sterilizer from opposite for Rs. 1,82,000/- vide Chalan No. 75108 dt. 01-04-08 for to install it in his establishment, accordingly the said instrument was installed and thereafter it stopped working, he informed the same to opposite and opposite engineer visited the hospital on 16-12-09 and inspected the instrument and opined that, it is not repairable. Therefore he contacted opposite and came to an understanding to purchase new one by selling old one under Buy Back Policy to opposite. As per the said understanding he sent DD for Rs. 1,10,000/- under Buy Back Policy for to send new machine. Opposite not supplied the new one by taking damaged sterilizer and one day i.e, on 14-07-10 opposite returned the said DD without assigning any reasons. He requested the opposite over phone as well as in writing, but opposite shown its negligence in supplying the new one by taking old machine under Buy Back Policy, as such he filed this complaint for the reliefs as prayed in it. 3. Opposite appeared in this case through its Advocate, and filed its written version by contending that, its engineer inspected the hospital of the complainant on 16-12-09 and noticed that, chambers of the instrument were broken, welding not repairable, damage took place due to direct connection to power supply, it was not due to any defect in sterilizer. It denied such understanding for the supply of new instrument under Buy Back Policy. The complainant voluntarily sent DD, it requested the manufacturers, but not obliged for such supply of new one, under Buy Back Policy by taking old one, hence it returned the said DD to the complainant. No deficiency in its service, accordingly it prayed for to dismiss the complaint among other grounds. 4. 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 Horizontal High Pressure Sterilizer as per chalan No. 75108 dt. 01-04-08 for RS. 1,82,000/- after installation of the said instrument in his hospital, it stopped working, it was intimated to the opposite, the engineer inspected the sterilizer in his hospital and opined that, it was not repairable, however opposite agreed to replace the said damaged sterilizer with new one under Buy Back Policy on payment of Rs. 1,10,000/-, accordingly he sent DD for Rs. 1,10,000/- on 22-04-10 but opposite kept the said DD with it till 14-07-10 and returned it without assigning any reasons and not supplied a new machine under Buy Back Policy and thereby opposite found guilty under deficiency in its service.? 2. Whether complainant is entitled for the reliefs as prayed in his complaint.? 3. What order? 5. Our findings on the above points are as under:- (1) In Negative. (2) In Negative. (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:- 6. To prove the facts involved in these two points, affidavit-evidence of the complainant was filed, he was noted as PW-1. The documents Ex.P-1 to Ex.P-5 are marked. On the other hand affidavit-evidence of the opposite was filed, who is noted as RW-1. No documents marked on behalf its behalf. 7. In the instant case, it is undisputed fact that, complainant purchased Horizontal High Pressure Sterilizer through opposite dealer vide Chalan No. 75108 dt. 01-04-08 for sum of Rs. 1,82,000/-. 8. It is further undisputed fact that, after installation of the said unit in the hospital of complainant it was not in working condition, as it was damaged and un repairable condition. In view of the Engineers report of opposite vide Ex.P-2. 9. In the present case, the complainant not claiming his right as a consumer in between 01-04-08 vide Ex.P-1 till 16-02-09 vide Ex.P-2 by alleging that, opposite supplied defective sterilizer or it developed mechanical defects in between that period. Further it is very much clear that, complainant is not claiming any kind of right under C.P. Act by alleging any kind of allegations against the said machine in between that period, as it was a guarantee period of said machine. As such above facts are not helpful for the complainant to claim any kind of reliefs against opposite. 10. The second part of the case of complainant is that, himself and opposite came into an understanding for to supply new sterilizer by taking back the damaged sterilizer on payment of Rs. 1,10,000/-, accordingly he sent DD for Rs. 1,10,000/- dt. 22-04-10 and thereafter opposite retained the said DD till 16-12-09 without supplying new one by taking damaged sterilizer. 11. The learned advocate for complainant took the help of document Ex.P-5, which is a reply notice by the opposite to the legal notice of complainant. Ex.P-5 discloses the fact that, opposite came to an understanding with the complainant for to purchase the damaged sterilizer of complainant and in turn it has to supply a new sterilizer on payment of Rs. 1,10,000/- by the complainant. So, there is no any ambiguity regarding the case of complainant. The stand taken in written version and affidavit-evidence of opposite RW-1 not helpful to depart from the admission given by it in Ex.P-5. 12. In view of the facts and circumstances of this case and the nature of the transaction said to have taken place in between the complainant and opposite under Buy Back Policy. It appears to us that, the said fact promoted the complainant to file this consumer complaint. Admittedly, there might be understanding in between the parties with regard to Buy Back Policy, now the point for consideration is whether such understanding in between the parties would establishes the relationship of consumer and trader as defined under C.P. Act. In this regard we have referred the judgment of the Honble National Commission in: M.N. Narasimha Reddy V/s. Managing Director Maruti Udyoga Ltd., reported in 1999 I CPR 168 (NC). In this case the Honble National Commission was dealing a case of mere agreement to purchase goods, whether complainant is a consumer or not. The Honble National Commission held in this case as: A person, who has merely entered into an agreement for the purpose of purchase of goods, it is not fall within the definition of consumer under the C.P. Act as the definition contemplates the pre-existing of completed transaction. The facts of the present case are similar to the facts dealt by their lordships of the Honble National Commission. The complainant is basing upon his case on the understanding for to supply of new sterilizer by taking back the damaged sterilizer under Buy Back Policy for reduced amount. Still transaction is not completed, as such complainant is not a consumer as defined U/sec. 2(1)(d) of C.P. Act 1986. 13. The another thought of us, in the light of the pleadings of the complainant. Admittedly, he intended to sell his damaged sterilizer to opposite for certain amount, in the similar way opposite consented or agreed to supply new one, by taking the said damaged vehicle for lesser value. In view of the nature of the transaction said to be made understanding in between the parties, we are of the clear view that, complainant cannot be a consumer under the meaning and definition of section 2(1)(d) of C.P. Act. Exchange of goods in between himself and trader either for less value or for higher value is not a consideration in its real meaning as stated in section 2(1)(d) of C.P. Act, as such we are of the clear view that, the present complainant cannot raise consumer dispute against opposite under C.P. Act, before the Consumer Forum. If really complainant aggrieved for retaining his DD and non supplying a new machine under Buy Back Policy, he make get a relief, for his grievances before other Forums but not before Consumer Forum, and we cannot say that, there is a deficiency in service by the opposite in view of the nature of the transaction as stated by the complainant, as such we answered Point No-1 in Negative. POINT NO.2:- 14. In view of the finding on Point No. 1, the complainant is not entitled for any of the reliefs as prayed in his complaint, accordingly we answered Point Nos- 1 & 2. POINT NO.3:- 15. In view of our findings on Point Nos. 1 & 2, we proceed to pass the following order: ORDER The complaint filed by the complainant is dismissed. Intimate the parties accordingly. (Dictated to the Stenographer, typed, corrected and then pronounced in the open Forum on 03-03-11) Sd/- Sri. Pampapathi, President, District Forum-Raichur. Sd/- Sri. Gururaj, Member, District Forum-Raichur. Sd/- Smt.Pratibha Rani Hiremath, Member. District Forum-Raichur.