Date of filing: 20.01.2012.

Date of disposal: 20.11.2012.

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM - II:

VIJAYAWADA, KRISHNA DISTRICT

Present: Sri A. M. L. Narasimha Rao, B.Sc., B. L., President

Smt N. Tripura Sundari, B. Com., B. L., Member

Sri S. Sreeram, B.Com., B.A., B.L., Member

Tuesday, the 20th day of November, 2012

C.C.No.17 of 2012

Between:

Uppumavuluri Nagabhushanam S/o Sambasiva Rao, Business, Proprietor, Bharathi X Rays Main Road, Kothapet, Guntur and JCJC Guntur.

….. Complainant

And

1. Bharat Medi Systems, Rep. by CEO M.Hymavathi S/o not known, business, GF/C, Mallika Apartments, Behind Simitha World travels, M.G.Road,

Vijayawada-520 010.

2. B.P.L.Limied, represented by its Director, B.P.L.Health Care Systems, BPL Towers, 13, Kasturba Road, Bengaluru-560 001.

. … Opposite Parties.

This complaint coming on before the Forum for final hearing on 5.11.2012, in the presence of Smt M. Raja Kumari, advocate for complainant and Sri B. Vinod Kumar, advocate for the 1st opposite party; 2nd opposite party remained absent and upon perusing the material available on record, this Forum delivers the following:

O R D E R

(Delivered by Hon’ble President Sri A. M. L. Narasimha Rao)

1. This complaint is filed under Section 12 of Consumer Protection Act, 1986 for a direction to the opposite parties 1 and 2, to pay Rs.62,000/- towards cost of ECG machine purchased from the opposite parties, to pay interest, to pay Rs.1,00,000/- towards damages and to pay costs.

2. The averments of the complaint in brief are as follows:

The complainant is self-employed lab technician had purchase a ECG machine model cardiate 6208 view with LCD display built in re-chargeable battery with software and printer from the 1st opposite party, the selling agent of 2nd opposite party at Vijayawada on 20.2.2010 for Rs.62,000/-. The complainant paid entire price and took delivery of the machine. It has one year warranty. The machine was malfunctioning from day one on several aspects. Due to faulty functioning of ECG machine sold to the complainant he faced ire of the doctors and patients and he suffered untold misery. The malfunctioning was informed to the opposite parties. They did not care to honour the warranty. Ultimately the complainant handed over the ECG machine to the 1st opposite party under written acknowledgement. The opposite parties did not make any effort to replace the faulty machine. The complainant with a view to save his business and to retain customers was constrained to purchase a new ECG machine. The complainant suffered huge loss of business and huge loss of reputation and also suffered mental agony. Therefore he filed the complaint for the aforesaid reliefs.

3. The 1st opposite party filed version denying the allegations made in the complaint and further stating as follows:

The complainant has not taken steps to serve notice on the 2nd opposite party inspite of the 1st opposite party providing correct address. This Forum has no jurisdiction to entertain the complaint. The jurisdiction mentioned in the invoice is only in respect of dispute with regard to payment of the amount and not for manufacturing defects. The 2nd opposite party stationed at Bangalore had issued the warranty for the machine manufactured at Bangalore. The complainant is running a big diagnostic center and machine was purchased for the commercial purpose. Therefore the complainant is not a consumer. He is not a small selfemployed technician. The complainant purchased the machine after demonstration and expressing willingness to purchase it. The complainant made a complaint to the 1st opposite party about ECG machine. He forwarded the complainant to the service provider Prime Medical Systems in Vijayawada. The service provider had sent a mechanic to Guntur to attend repairs and he found no fault in the machine. It was informed to the complainant that he was not maintaining the machine properly and the trouble had occurred due to poor maintenance and not due to any defect in the machine. Inspite of it the complainant handed over the machine to the 1st opposite party. It was forwarded to Prime Medical Systems, the authorized service center. The engineer of the 2nd opposite party thoroughly inspected the machine and found that there was no fault or problem in the machine. It was informed to the complainant and he was asked to take delivery of the machine through letter dated 9.6.2010. The complainant refused to take delivery to the said letter. The service provider sent letter dated 20.6.2011 to the 1st opposite party stating that the machine is working properly and that there is no problem and that the complainant had informed to take delivery of the machine. It was informed to the complainant but he did not take delivery. Instead of it he issued a registered notice. The 1st opposite party was only an agent of the 2nd opposite party and if there is any defect only the 2nd opposite party is liable. The 1st opposite party is not dealer of the products of the 2nd opposite party for one year by the date of written version. The 1st opposite party is not liable to pay any amount to the complainant.

4. The complainant filed his affidavit and it is received as evidence of PW-1. The Proprietor of the 1st opposite party filed affidavit and it is received as evidence of DW-1 and affidavit of one P. Narasimha Rao, the Service Engineer of BPL Limited is received as deposition of DW-2.

5. Exs.A1 to A6 are marked on behalf of the complainant and Exs.B1 to B5 are marked on behalf of the 1st opposite party.

6. Heard the arguments advanced by the learned counsel for both the parties.

7 The points for determination are:

I) Whether this Forum has jurisdiction to entertain this complaint?

II) Whether the complainant is a consumer and he can maintain a consumer complaint?

III) Whether there is defect in the machine sold to the complainant and if there is deficiency in service on the part of the opposite parties?

IV) Whether the complainant is entitled to the amounts asked?

Point No.1:

8. This complaint was originally filed in District Consumer Forum, Guntur. The said Forum had passed an order stating that it does not have territorial jurisdiction and returning the complaint for presentation in proper Forum. Accordingly the complaint was filed in this Forum. Now the opposite parties take the plea that the 2nd opposite party is manufacturer and warranty was issued at Bangalore and therefore this Forum at Vijayawada has no jurisdiction. This is absurd contention.

The ECG machine was admittedly purchased in Vijayawada. Because the cause of action has arisen in Vijayawada, there is nothing to exclude the jurisdiction of this Forum by an agreement between the parties. Therefore this Forum has jurisdiction to entertain this complaint.

Point No.2:

9. The opposite parties contended that the complainant had purchased the machine for commercial purpose that the complainant is running x-ray unit and also maintaining ECG machine in a big lab and the transaction being the one for commercial purpose, the complainant cannot be termed as a consumer.

10. The complainant had stated in the complaint that he is a self-employed lab technician and he purchased the ECG machine. The mere statement of the opposite party that the complainant is running a big diagnostic center is not sufficient to say that the complainant was not running the lab as self-employment or that he is running on large scale commercial activity. When there is no such material running contra to the statement of the complainant that he is running the lab as self-employment activity, we cannot hold that it is a commercial activity excluded from the definition of the consumer. When such is the factual aspect there will not be any need to refer to any decisions relied on by the parties. Therefore we hold that the complainant being a self-employed lab technician can maintain this complaint.

Point No.3:

11. The dispute relates to functioning of ECG machine. The material placed by the complainant, to show that the machine was defective is two certificates issued by two doctors under Exs.A5 and A6. There is no date mentioned in these certificates. These certificates were first filed on 6.9.2011 when the complaint was pending before District Consumer Forum, Guntur. According to these certificates two doctors namely Dr. K. Ramalingeswara Rao and Dr. P. Sivadeva Prasad of Guntur state that they used to refer the cases to the complainant for clinical tests including ECG and during the period from March, 2010 to April, 2010 ECG report indicated abnormalities in every case and doubting the correctness, the patients were sent to other labs and those ECGs show that the machine with the complainant was faulty. It is not known why these certificates were not filed along with the original complaint presented on 18.12.2010 in the District Consumer Forum, Guntur. These two certificates or the complaints made by the doctors are not specifically mentioned either in the complaint or in the notice issued prior to filing of the complaint. The ECG obtained from the machine of the complainant or the ECGS obtained from a different machine for the same patients are not produced at least to indicate the significant variation in the graph and readings.

When the complainant comes forward with contention that the machine he purchased is defective, it for him to first show the patent defect in the machine or at least the manifest wrong result given by the machine. When nothing of that sort is produced we cannot rely on the two certificates under Exs.A5 and A6 to hold that the machine is faulty.

12. The opposite party had specifically stated that an engineer from the 2nd opposite party had inspected the machine and found the machine is perfect and that there is no defect. The affidavit of the engineer is filed as DW-2. He stated that he went to Guntur and personally verified the performance of ECG machine and found no fault in the machine and informed the complainant that the machine was not being maintained property. He further stated that he had thoroughly inspected the ECG machine after it was sent to Prime Medical Systems, Vijayawada and he found no defect or problem in the ECG machine. We cannot ignore this statement of service engineer of the manufacturer particularly in the absence of any positive material to support the complainant’s contention. Therefore we are of the opinion that the complainant failed to show any defect in the machine purchased by him and there is no deficiency in service on the part of the opposite parties.

Point No.4:

13. In view of answer on points 1 to 3 the complainant is not entitled to any reliefs. The complainant shall be at liberty to take deliver of the ECG machine from the service provider, Prime Medical Systems. We are not inclined to burden the complainant with costs.

14. In the result this complaint is dismissed without costs.

Dictated to Steno N. Hazarathaiah, transcribed by him, corrected by me and pronounced by us in the open Forum, this the 20th day of November, 2012.

PRESIDENT                                                                  MEMBER                                                           MEMBER

Appendix of evidence

Witnesses examined

For the complainant:                                                                                                       For the opposite party:

PW – 1, Uppumavuluri Nagabhushanam,                                                                          DW-1, Proprietor of 1st OP,

(by affidavit).                                                                                                                      P. Narasimha Rao, the Service Engineer of BPA

                                                                                                                                           Limited (by affidavits),

Documents marked

On behalf of the complainant:

Ex.A1 Photocopy of BPL user’s manual.

Ex.A2 Photocopy of warranty policy.

Ex.A3 Photocopy of technical specification of the machine.

Ex.A4 20.02.2010 Photocopy of tax invoice.

Ex.A5 Original copy of certificate issued by Dr. K. Ramalingeswara Rao

Ex.A6 Original copy of certificate issued by Dr P. Siva Deva Prasad

On behalf of the opposite parties:

Ex.B1 09.06.2010 Copy of work-order issued by Prime Medical Systems.

Ex.B2 True copy of postal acknowledgement.

Ex.B3 26.06.2010 Copy of letter issued by Prime Medical Systems to Ops.

Ex.B4 29.07.2010 Photocopy of legal notice got issued by the complainant to Ops.

Ex.B5 Photocopy of tax invoice.

PRESIDENT