DISTRICT CONSUMER COMMISSION REDRESSAL COMMISSION LUCKNOW – 1
Case No. 184 of 2010
PRESENT: SHRI NEEL KUNTH SAHAI, PRESIDENT
SHRI ASHOK KUMAR SINGH, MEMBER
SMT. SONIYA SINGH, MEMBER
DATE OF FILING OF CASE : 12.03.2010
DATE OF JUDGEMENT : 05.07.2022
Dr.Santosh Kumar,son of Late Dr. Sohan Lal, Sadashaya Diagonistic , Oppisite Novelty Cinema, Kapoorthala, Aligang,Lucknow,presently situated at 503/101,Shekhapur,Bada Chandgang,opp.Sai Mandir,Kapoorthala,Lucknow.
...............Complainant.
VERSUS
- M/s Bharat Serum & Vaccines Limited ,16th Floor,Hoechst House, Nariman
Point, Mumbai.
2. M/s Advy Chemicals,17th Floor, Hoechst House, Nariman Point, Mumbai.
3. M/s Gopal Enterprises, L-IV,L1/12,Sector “L’’,Aligang, Lucknow.
....................Opposite Parties.
ORDER BY : SHRI ASHOK KUMAR SINGH, MEMBER
JUDGEMENT
1. The Complaint is filed by Complainant for direction to Opposite parties to return Rupees 1,30,000=00 ( Rupees One Lakh Thirty Thousand ),as price of Mono Qrome D3180 and take back the machine, to direct the Opposite parties to pay Rs. 26000=00( Rupees Twenty Six Thousand only) as interest on price of Rs. 1,30,000=00 from March 2008 till filing of Complaint, award damages of Rs. 10,000,00=00 ( Rupees Ten lacs only) for the loss of work, harassment and mental agony, award 25000=00 ( Rupees twenty Five Thousand only)as cost of Legal expenses, award interest @ 10 percent per annum on pendentilite and Future and award any other suitable relief which is fit and Proper in this circumstances.
2. The case in brief is that the complainant is a consumer of the Mono Qrome D3180, Biochemistry Analyzer, Manufactured by OP-1 and sold by the Op-2 through Op-3 (M/S Gopal Enterprises ) to the complainant at a price of Rs.1,30,000=00. The Complainant is a Qualified Doctor(MD Pathology)and was running a Diognostic Centre named “Sadashaya Diognostic” opposite Novelty Cinema Lucknow. The Mono Qrome D 3180 is used for the Quantative analysis of human blood or body fluid by Photometric method. The complainant purchased the machine for his professional use for quick and exact analysis. In this Mono Qrome D3180 a lamp is fitted inside which plays the major role in getting Quantitative analysis /diagnosis of the fluid. The light from the lamp reaches the cuvitte from the optical path . The optical signal is received and converted into an electric signal by an array of photo electric diodes. The lamp plays major role.
3. That due to manufacturing defect in the machine Mono Qrome D3180 from its very inception the lamp got fused frequently which stopped functioning of the machine. Complainant reported the defect to OPs within Warranty Period and requested to change it or return the price. But the OPs only changed the lamp eight times during warranty period which never worked more than two days. This was a hindrance to profession of Diagnosis. It was the machine which was defective from its inception. Later on, regarding the defect in the above Machine Complainant made several complaints through e-mail but no engineer was sent nor machine was rectified. Later on Engineer found that the lamp supplied was of low intensity. The machine did not work and several e-mails sent to OPs were of no heed. The complainant alleges that that complete changing of software is a proof that machine was defective. Several e-mail were sent by complainant but no one from OPs attended and the machine remained dead. On 29-12-2009 engineer Sudhir Kr. Srivastava visited the lab and reported that Advy Chemials has been supplying defective low intensity lamps and that’s why they were fusing regularly. The lamp got fused within two three days. The Complainant sent an email of taking legal action but the machine was not made functional.
4. Complainant alleges that the Mono Qrome Q3180 machine supplied by OPs was defective and Complainant suffered huge loss in the work of diagnosis to the tune of more than eight lacs and thus suffered great financial loss and mental harassment and agony.
5. OP-1 and 2 has given preliminary objections and alleges that the Complainant does not come under the definition of Consumer because the complainant is running a Diagnostic Clinic named “Sadashaya Diagonistic” which is Commercial in nature for earning profit and has filed the complaint by concealing fact . They have made objection that the questioned product is not sold to complainant by Op-1. It is sold to Avadh Scientific services ,Nishat Ganj Lucknow and the cost was Rs. 87552/-. The Complainant had purchased the said product from M/S Gopal Enterprises that is Op-3 and so the relation of purchaser and seller was between OP-3 and the Complainant. And thus the cost of the product is not the concern of OP-1&2. They have alleged that the product was not working due to mishandling as these products which needs to be handled carefully and as per guidelines. They have said that Op-2 has attended the complaints every time as intimated by complainant and so has given service. It is the mishandling of product that led to fusing of the Lamp and not worked properly. So there is no Deficiency of Service on the side of Op-2. They have alleged that there is no expert opinion in support of the allegation that there is manufacturing defect.
6. OPs 1&2 have said that they do not have branch office or Head Office in Lucknow so the complaint cannot be filed within territorial jurisdiction of District Consumer Forum, Lucknow. Also the complaint is filed by misconceived notion and intention, so it is liable to be dismissed.
7. OP-3 has submitted the written statement and admitted the sale of the product to complainant for which they received 13 post dated cheque of 10,000 /- each from complainant. OP-3 has stated that they informed the Complainant before the sale that the above product would have one year warranty and warranty claims are directly managed by the Marketing Company M/s Bharat Serum and Vaccines Ltd.OP-1 &2 and they are not responsible for any kind of service and Guarantee/Warranty after sale which is the normal course. And during warranty Complainant had not given any complaint to them. So the charges/demand raised by complainant is not their concern and has no malafied intention about the equipment warranty. So the claims of Complainant be rejected.
8. The Complainant has filed the Replication to the WS by Op-3 and has alleged that the OP-3 sold the equipment to the complainant and was responsible for Mal Function of the afforesaid Machine and has contended that the complaint is correct. The OP-3 has supplied defective machine which did not work even during warranty period. Complainant alleges that it was the responsibility of Op-3 to replace the Equipment or pay back the money with interest. In the replication Complainant alleges that Op-3 at the time of sale had assured of all responsibility for any kind of service and claim and due to this assurance the Equipment was purchased, so he is responsible for the defect during warranty period. Complainant has further refuted the statement of OP-3 and said that OP-3 was duly informed about the defect and problem. So OP-3 is responsible for refund of price with interest and Damages .
9. Complainant has requested that the equipment to be examined by expert engineers who have been dealing with such machines. Complainant has requested that the expert report be sought from Sarojini Sientific & Engineers regarding the defect in the equipment/machine for which the charges/fee was submitted by the Complainant. This report is available in the file.
10. The Complainant has filed his Affidavit and Fifteen Annexures as evidence along with the Complaint.
11. Heard Counsel for the parties and perused the entire record.
12. Firstly, it has to be examined that the complainant is a Consumer or not as it is alleged by OP1 &2.In this regard the Complainant is a Qualified Doctor and was running a Diagnostic clinic for his livelihood. To justify his being a Consumer the Complainant has submitted the Citation of Honourable Supreme Court which in Case appeal No.5165 of 2009 with No. 5166 of 2009 dated August 7, 2009 in Madan Kumar Singh (dead ) Versus District Magistrate Sultanpur and others has passed the Following Order:
“ A. Consumer Protection Act 1986-S.2(1)(d) “Consumer” and “Commmercial purpose “ Definition of ,interpreted – Appellant purchased a truck for livelihood to earn his livelihood by means of self employment, held, notwithstanding appointment of a driver to ply the said truck, appellant would still be a consumer Word And Phrases - “Consumer “ “Commercial Purpose”
Apart from this the Consumer Protection Act too provides that for any commercial activity of a person for self Employment would come under the purview of “Consumer”. In this perspective the Complainant would Come under the definition of Consumer.
13. Further according to the provision of the Consumer Protection Act this Complaint comes under the territorial jurisdiction of District Consumer Forum, Lucknow as the machine has been purchased by the complainant in Lucknow from M/S Gopal Enterprises, Aliganj, Lucknow. This Purchase from Lucknow, the seller agency creates Jurisdiction for District Consumer Forum Lucknow. So this objection of OP1&2 too does not hold ground.
14. On the Perusal of the file,the document and evidences available in it, it is obviously clear that the Complainant purchased a Mono Qrome D 3180, Biochemistry Analyzer from OP-3 which was manufactured by OP-1 and sold by OP-2and complainant paid the price for it but it stared troubling in the Warranty period. The lamp of the Machine got fused frequently and that too within two-three days of repair by engineer. Every time there was problem Complainant lodged complain, engineer came and repaired by replacing the lamp. But such frequent fusing of lamp of the machine should have warranted the OPs to find out the root cause and the reason of such frequent fusing of the lamp. But the OPs did not care to find out the exact reason of the frequent fusing of the lamp that deadened the Machine. There was a big laxity on part of OPs which is categorized as “Deficiency in Service”. The complainant, on repeated problem in Machine requested for Expert Report and demanded that expert report be sought from Sarojini Scientific & Engineers who have expert engineers who have been dealing in such examining of the functioning of the said Analyzer.The Expert report was sought which reported as follows:
“ Since Optical System is not working therefore machine cannot be used for the purpose it is meant for. Required spare parts like filter, lamp and flow cell has to arrange from the supplier company or manufacturer. In the event if company cannot provide these spares, equipment cannot be used in a pathology laboratory. From this Expert Report it is authentically clear that there was mechanical problem which the said Machine was having. This was not done by Ops in order to avoid replacement of the machine. Here the Ops are found wanting in bearing their responsibility and satisfying the Consumer.
15. The product are manufactured in the Company who through their agency/ sellers sell the product to consumer. So both are equally responsible if there is defect in the product vis-a-vis the Consumer. The Brand companies and reputed agencies/sellers on the moral and ethical ground follow the general norm of business practice to give full satisfaction to the Consumer if any problem is found in the product. Here the OPs are found wanting in abiding by the provisions of the Act and Rules that covers the Right of the Consumers. From the Objections of OPs 1&2 and from the WS of Op 3 it is obvious that they Dilly-Dallyied the problem by throwing the responsibility to another. The OPs irresponsiveness towards the Complainant complain was also obvious from the fact that they did not seek the Expert report and instead mentioned in their Objection that no expert report is available. Especially for the product costing one lakhs and thirty thousand all facility of repair and going to the root cause of repeated fusing of the part, should have been given due attention and responsiveness from the Ops. But Ops didnot Facilitate and Violated the Provisions of The Consumer Protection Act that covers the rights of the Consumers which comes under the Category of “Deficiency in Service”. This aviodance of the rules and provision makes the Ops liable for granting of Relief and Compensation to the Complainant. OPs here are responsible for the long mental agony, harrassment financial loss to the Complainant. The Complainant was the Pathologist who as running the Diagnostic center for his livelihood and such long and repeated defects and deadening of the Analyzer Machine his work was zeopardized by this irresponiveness of the Ops which is in Violation of the Provision Of the Consumer Protection Act and hence are liable for sanctioning of the relief and Compensation to the complainant. Thus in view of the above observation the Complainant is entilted for Relief and compensation.
ORDER
The Complaint is partly allowed and Opposite Parties are directed severally and jointly to pay the amount of the Mono Qrome D3180 payed by Complainanent which is Rs.1,30,000,.00( Rupees One lakh thirty thosand only) with interest of 9% from the day of filing of the Complaint till the payment is done and take back the Machine from the Complainant. Furthermore, the OPs are directed to pay Rs 50,000.00 ( Rupees Fifty Thousand only )as compensation for the mental agony, harassment, loss of work and cost of legal expenses.
This payment by the OPs has to be complied within 45 days from the date of order. If the compliance of the order is not done within the stipulated time, then 12 percent interest would be payable on the entire amount from Opposite Parties.
(SONIYA SINGH) (ASHOK KUMAR SINGH) (NEEL KUNTH SAHAI)
MEMBER MEMBER PRESIDENT
DISTRICT CONSUMER DISPUTES REDRESSAL
COMMISSION FIRST LUCKNOW.
Today the order/decision is signed and Pronounced in open court.
(SONIYA SINGH) (ASHOK KUMAR SINGH) (NEEL KUNTH SAHAI)
MEMBER MEMBER PRESIDENT
DISTRICT CONSUMER DISPUTES REDRESSAL
COMMISSION FIRST LUCKNOW.
DATE-05/07/2022
