Andhra Pradesh

Chittoor-II at triputi

CC/72/2016

Dr.Chadalawada Venkataramana, S/o C.Mohan Rao - Complainant(s)

Versus

Bio-Medical Engineering Company, Rep. By its Vice President, J.Chandrasekhar - Opp.Party(s)

D.Jayachandra

22 Sep 2017

ORDER

         

 

                                                                                                Filing Date:-01-08-2016                                                                                                               Order Date:  22-09-2017

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II, CHITTOOR AT TIRUPATI.

Present: - Sri. Ramakrishnaiah, President

                                                       Smt. T. Anitha, Member

FRIDAY THE TWENTY SECOND DAY OF  SEPTEMBER, TWO THOUSAND AND SEVENTEEN

 

C.C.No.72/2016

Between

Dr. Chadalawada Venkataramana,

S/o. C. Mohan Rao, Hindu, aged about

47 years, Doctor, residing at Door No.10-3-206/A3/A,

Reddy and Reddy Colony, Tirupati,

Chittoor District.                                                                                  … Complainant

 

And

Bio-Medical Engineering Company,

Rep. by its Vice-President J.Chandrasekhar,

S/o. not known to complainant,

Hindu, aged about 46 years, Business,

Having business at No.37, Pushpa Nagar Main Road,

Nungambakam, Chennai – 600 034                                               … Opposite party

 

           This complaint coming on before us for final hearing on 07.09.2017 and upon perusing the complaint, written arguments of the complainant and other relevant material papers on record and on hearing of Sri.D.Jayachandra, counsel for the complainant and opposite party is remained exparte having stood over till this day for consideration, the Forum made the following.

ORDER

DELIVERED BY SMT. T. ANITHA, MEMBER

ON BEHALF OF THE BENCH

          This complaint is filed under Section 12 of the Consumer Protection Act, 1986, complaining the deficiency in service on part of the opposite party and prayed this Forum to direct the opposite party to pay an amount of Rs.19,90,000/- with interest @ 12% p.a. from the date of the complaint till the date of realization and to pay costs of the complaint.

        2. The brief facts of the case are:  The complainant who is a Cardiologist by profession and for his self employment he is running a hospital in the name and style of Dr.Venkata Ramana Heart and Maternity Hospital in Tirupati. The complainant further submits that, for the above said hospital he has installed PHILIPS Integris Allura Fixed Cath Lab and the opposite party came to Tirupati and approached the complainant and stated that they will provide one year comprehensive maintenance for the above said equipment. Hence he entered in to an agreement for the period of one year for providing Comprehensive Maintenance commencing from  01.10.2015 to 30.09.2016 for consideration of Rs.4,50,000/- towards the maintenance and received a sum of Rs.50,000/- as part payment on 30.09.2015  Vide Cheque No. 023619 and agreed to receive the remaining amount of Rs.4,00,000/- on or before 31.10.2015 and executed an agreement in favour of the complainant, on the same day the complainant has paid remaining balance amount of Rs.4,00,000/- by way of cheque bearing no.23639 on 29.10.2015 and the same was encashed by the opposite party.

         3. The complainant further submits that under the above said agreement the opposite party agreed to provide maintenance for one year which includes repairs, replacement of spare parts except stabilizer  and UPS of the said equipment and further agreed to inspect the equipment in six visits which includes one annual inspection and five periodical inspections at regular intervals within one year period and also the opposite party has agreed to attend the service within 48 hours from the time of breakdown call and the breakdown call visits are unlimited within the above said period of one year. The above said service includes  checking the working condition of all parts of the equipment and report in writing of defects and rectify the problem or replace the part as required and all safety controls to inform the adjustment as required to the complainant.  The complainant further submits that on 16.12.2015 the above said equipment stopped working and same was informed to the opposite party. But the opposite party has failed to attend within 48 hours as agreed and after 10 days they have attended for the repairs. But, in spite of attending the repairs they failed to rectify the same. Hence again they have attended for repair on 12.01.2016 and repair the same. Again on 27.04.2016 the equipment started giving trouble, hence the complainant informed the same to the opposite party immediately, but after one week the opposite party attended and rectified the equipment on 04.05.2016. Again on 01.06.2016 the said equipment started giving trouble and the opposite party attended for repair on 15.06.2016. But the equipment worked only for two days and again failed to work from 17.06.2016. Immediately the same was informed to the opposite party but the opposite party has failed to attend the call and rectify the equipment which is nothing but deficiency in service on part of the opposite party towards the complainant.

        4.  The complainant further submits that he waited till 21.07.2016 with a fond hope that the opposite party will attend the equipment and rectifies the same but they failed to rectify the equipment as per the terms and conditions of the contract. Hence by that date the above said equipment was worked only for 80 days in four intervals as stated supra. After deducting the grace period of 48 hours (2days) to attend the each call in total for four calls 8 days and after deducting the same the complainant was unable to perform investigations with the above equipment for a period of 72 days. Hence due to the improper rectification of the mistakes from the beginning by the opposite party only the said troubles was arised which causes serious loss and hardship to the complainant. Hence due to non performance of the Cath lab during the above said intervals the complainant was unable to conduct the investigations to his patients and he has forced to depends on alternative arrangement in other hospitals by spending the huge amount which caused  much inconvenience to his patients and also his reputation was damaged in the minds of his patients. Hence because of inaction of the opposite party in time the complainant was put to serious loss and hardship. Hence he caused a legal notice on 21.07.2016 calling upon the opposite party to rectify the equipment immediately after receipt of this notice. But after receipt of the legal notice the opposite party visited the hospital of the complainant on 28.07.2016 and stated that he will bring the parts which are to be replaced within one day and for the demand of the complainant the opposite party has issued a service report cum Proforma invoice dated 28.07.2016. But the opposite party failed to replace the defective parts till today and failed to perform their duties which are mentioned under the contract of Maintenance Agreement. Hence the complainant filed this complaint against the opposite party as he suffered a loss of Rs.4,00,000/- per month due to non conducting the investigations over the said equipment and in total for 72 days for Rs.10,26,667/- he suffered a loss and also the complainant estimates the compensation of loss of reputation and mental agony suffered by him  of Rs.1,50,000/-. The opposite party also liable to pay the future loss from 01.08.2016 i.e. the date of the  complaint till 30.09.2016 the date of ending the contract total 61 days to a sum of R.8,00,000/- for his non performance of the service agreed under the contract. Hence in total the complainant prayed this Forum to pass an order in favour of the complainant to a tune of 19,90,000/-. Hence he filed the present complaint.  

        5.  The complainant filed his evidence on affidavit and Exs: A1 to A5 were marked on behalf of him. As the opposite party failed to file the written version even after granting  several adjournments hence opposite party called absent and set exparte. The complainant counsel filed written arguments and oral arguments were heard.

       6.  Now the points for consideration are:

              (i)  Whether there is any deficiency in service on part of the opposite party    

                     towards the complainant?            

             (ii)  Whether the complainant is entitled for the reliefs as prayed for? If so?         

             (iii)  To what Relief?

         7. Point No:-(i).   The main case of the complainant is as he is a doctor, for his self-employment he is running a hospital in the name and style of Venkata Ramana Heart and Maternity Hospital, Tirupati. For the said hospital he installed the PHILIPS Integris Allura Cath Lab in order to diagnise the disease for the patients. On 30.09.2015 the opposite party came to Tirupati  and approached the complainant and agreed to provide annual maintenance for the above said machine and entered in to an agreement under Ex:A1 the agreement period starts from 01.09.2015 to 30.09.2016 and also the complainant agreed to pay maintenance charges to the opposite party of Rs.4,50,000/- and the opposite party received an amount of Rs.50,000/- towards advance on 30.09.2015 vide cheque no.023619 and also he paid remaining consideration of Rs.4,00,000/-  on 29.10.2015 by way of cheque bearing no.23639 and both the cheques were encashed by the opposite party.

         As per the agreement the opposite party agreed to provide one year maintenance to the above said equipment which includes repairs or replacement of spare parts of equipment except stabilizer and UPS and also further agreed to inspect the equipment in 6 visits which includes one annual inspection and 5 periodical inspections at regular intervals within one year of contract period and also agreed to attend innumerable breakdown calls within 48 hours of the call.

         The counsel for the complainant further stated that the above said machine stopped working from 16.12.2015 and on the same day the complainant intimated to the opposite party, but the opposite party failed to attend the equipment within 48 hours as agreed and attended for repair after 10 days of the call and failed to rectify the same and at last on 12.01.2016 the opposite party able to rectify the defect. Again on 27.04.2016 the above said machine started giving trouble repeatedly on 27.04.2016 and 01.06.2016 but the opposite party failed to attend the repairs immediately within 48 hours and attended for repair after taking one week time. At last the above said machine stopped working from 17.06.2016 but the opposite party failed to attend for repairs and rectify the same till 21.07.2016 which is nothing but deficiency in service on part of the opposite party.

      Finally on 21.07.2016 the complainant caused a legal notice under Ex:A3 calling upon the opposite party to rectify the equipment. After receipt of the said notice the opposite party attended for repairs on 28.07.2016 under Ex:A5 the service report and stated that he will bring the spare parts which are to be replaced. But till the date of filing of the complainant the opposite party failed to replace the spare parts and rectify the machine which is nothing but deficiency in service on part of the opposite party. The complainant further submits that by the date of the legal notice dt:21.07.2016 the above said equipment was not worked for 72 days by deducting the grace period of 48 hours in four intervals. As the opposite party failed to provide the service as agreed in the contract dt: 30.09.2015 even after receipt of the full consideration which is nothing but deficiency in service on part of the opposite party.

       As per Ex: A1 dt: 30.09.2015 clearly denotes that the opposite party agreed to attend for service for the equipment of Cath lab of the complainant and also received Rs.4,50,000/- towards maintenance charges for the annual maintenance starts from 30.09.2015 to 01.06.2016 and also it was  clearly mentioned  in the agreement that they will provide one annual inspection and 5 periodical inspections with regular intervals and also agreed to attend for break down calls within 48 hours. But as per the contention of the complainant that the opposite party failed to attend for the break down calls within 48 hours and rectified the equipment after taking 4 to 5 days gap after receipt of the break down call and also stated that they have sent several mails to the opposite party under Ex:A2 to  attend  for the repairs. But finally after receipt of the legal notice dt:21.07.2016 the opposite party attended for the repairs  on 28.07.2016 and stated that they will come next day for the replacement of the spare parts but failed to rectify the equipment and as per Ex:A5 the service report clearly shows that the opposite party has not completely rectified the machine and also mentioned in the service report “ that image intensified needed to be replaced, during the cabinet closure, by mistake the engineer broken the          pot-meter  and same will be corrected next day and also mentioned that the machine will be fully functional after replacement” but they failed to do so. Hence that itself clearly shows that the opposite party failed to rectify the equipment at their last service under Ex:A5 and also shows that improper handling of the machine at the time of service. As the opposite parties failed to file the written version even after granting of several adjournments finally on 30.11.2016 the opposite party called absent and set exparte. On 18.01.2017 the advocate for opposite party filed petition to set aside the exparte order    dt: 30.11.2016 in I.A.10/2017 and same was dismissed on 04.04.2017 as the statutory  period of 45 days was already completed. The opposite party failed to prefer any revision against the order in I.A.10/2017 passed on 04.04.2017. Hence as the opposite party remained exparte failed to challenge the contentions of the complainant by filing their written version and as per the evidence placed on behalf of the complainant clearly shows that the opposite party failed to attend for the service as agreed under Ex:A1 even after receipt of the full consideration of Rs.4,50,000/- which is nothing but deficiency in service on part of the opposite party towards the complainant.  Hence this point is answered in favour of the complainant.

        8. Point(ii):-  As per the Ex:A1 the agreement dt: 30.09.2015 clearly shows that the opposite party received the consideration of Rs.4,50,000/- towards maintenance charges for the period of one year starts from 30.09.2015 to 01.09.2016 and also agreed to attend for annual maintenance and also 5 regular maintenance and also agreed to attend break down calls within 48 hours. But they failed to attend within 48 hours and also they have taken 4 to 5 days gap to rectify the defect in the machine which clearly shows that the opposite party failed to do their part as per Ex:A1 and also under Ex:A2 clearly shows that the opposite party failed to attend for the repair even after receipt of the several mails from the complainant. Under Ex:A5 it clearly shows that the above said machine was not fully rectified by the date of  the last service dt:28.07.2016 as stated by the complainant. Hence it clearly shows that the terms of the contract were not satisfied by the opposite party by duly attending for the service whenever complainant informed the repairs. Hence on those circumstances the complainant is entitled of Rs.2,00,000/-(rupees two lakhs only) towards  damages for violating the terms and conditions of agreement under Ex:A1 with interest @ 9% p.a. from the date of the complaint.

        The complainant further stated that the above said machine is not worked for 72 days and he has referred the patients to other hospitals for diagnosing the diseases. Hence because of the improper maintenance of the opposite party he has suffered a loss of Rs.4,00,000/- per month due to non conducting the investigations over the said equipment for total 82 days he claimed for Rs.10,26,667/-. But the complainant has not mentioned anywhere in the complaint that when he purchased the machinery and installed the machinery which creates doubts that whether the machine is brand new or second hand machine hence we cannot  asses the performance of the machine and  he has  not filed any document to show that he is getting income of Rs.4,00,000/- per month  through the above said machine.  In the absence of any report of the other hospitals, that the complainant referred the patients to other hospitals cannot be considered. Hence on those circumstances as the complainant failed to prove that he will suffered a loss of Rs.4,00,000/- per month and in total Rs.10,26,667/- for 82 days cannot be considered in the absence of any documentary proof. As per the contention of the complainant he suffered a lot because of improper working of the machine and causing much inconvenience to the patients who will come for the treatment. Hence he claimed Rs.1,50,000/- towards compensation for deficiency in service and for mental agony. But it is reasonable to grant Rs.1,00,000/- towards compensation for deficiency in service on part of the opposite party for causing mental agony and also he is entitled of Rs.2,000/- towards costs of the litigation. Hence this point is answered accordingly.   

         8.Point (iii):-   In view of our discussion on points 1 and 2, we are of the opinion that there is deficiency in service on part of the opposite party hence  the complaint is  to be allowed accordingly.

        In the result, the complaint is allowed in part, directing the opposite party to pay a sum of Rs.2,00,000/- (rupees two lakhs only) towards damages for violating the terms and conditions of agreement under Ex:A1 with interest @ 9% p.a. from the date of the complaint (01.08.2016) till realization. The opposite party is further directed to pay Rs.1,00,000/- (rupees one lakh only) towards compensation for deficiency in service on part of the opposite party and for causing mental agony to the complainant. The opposite party is further directed to pay a sum of Rs.2,000/- (rupees two thousands only) towards costs of the litigation. The opposite party is further directed to comply with the order within six(6) weeks from the date of receipt of copy of this order failing which, the above said compensation amount of Rs.1,00,000/- (rupees one lakh only) shall also carry interest @ 9% p.a. from the date of this order till realization.  

         Dictated to the stenographer, transcribed and typed by her, corrected and pronounced by me in the Open Forum this the 22^nd day of September, 2017.

        Sd/-                                                                                                                          Sd/-                                                                                                                                                                                                         

  Lady Member                                                                                                             President

APPENDIX OF EVIDENCE

Witnesses Examined on behalf of Complainant/s.

 

PW-1: Dr. C. Venkata Ramana (Chief Affidavit filed).

                                   Witnesses Examined on behalf of Opposite PartY/S.

 

RW-1: J. Chandrasekhar (Affidavit filed).

 

EXHIBITS MARKED ON BEHALF OF THE COMPLAINANT/s

Exhibits (Ex.A)	Description of Documents
	Original Agreement in between the Complainant and Opposite party. Dt: 30.09.2015.
	Colour photo copy of correspondence in between the complainant and opposite party through mails. Dt: 15.07.2016.
	Office copy of the legal notice along with postal receipt. Dt: 21.07.2016.
	Photo copy of postal track consignment with regard to the service of notice.
	Original copy of Service report cum proforma invoice issued by the opposite party. Dt: 28.07.2016.

EXHIBITS MARKED ON BEHALF OF THE OPPOSITE PARTY/s

-NIL-

                                      

                                                                                                                     Sd/-                                                                                                                       

                                                                                                            President

// TRUE COPY //

                                               // BY ORDER //

 

                                          Head Clerk/Sheristadar, 

                                              Dist. Consumer Forum-II, Tirupati.

 

Copies to:  1) The Complainant

                  2) The Opposite party.