Date : 05.5.2016

DEBASIS BHATTACHARYA, PRESIDING MEMBER

This is a complaint U/s. 17(a) (i) of the Consumer Protection Act, 1986.

         The case of the Complainants is that it is a Hospital  established by the workers of Indo-Japan Steel Ltd. together with the active members of  the civil society and render health service to the target group at a just cost. They had hired  the service  of the OPs  for purchase of a pre-owned C.T. Scanner  (Model – PRONTU ) on payment of consideration and total sum of Rs. 19,00,000/- in advance had been paid at the time  of placing of order, but the C.T.Scanner’s necessary approval of Updated Atomic Energy  Regulatory Board  (in short, AERB Type System)  has not been supplied to the Complainants as promised, who also undertook to install the same having precauations for radiation  safety for the purpose of using for  patient scan and there is no hazard of any radiation violation and promised to deliver the necessary approval of the system at the site of the Complainants  within the end of July or first week of August, 2012. But, the OPs did not give the necessary approval of updated AERB Type system installed by them. As a result, the Complainants suffered serious prejudices. Till date no positive action has been taken by the OPs in the matter, though the OP No.2 promised to deliver the necessary approval of the system at the site of the Complainants with the period ending July or first week of August, 2012. Such callousness and negligence on the part of the OPs, the system could not be made operative by the Complainants resulting in imposition of higher cost of service to the target group of the Complainants and on that score the Complainants will be entitled to a  compensation of RS. 70,00,000/ ( Rupees seventy lakhs ) tentatively  quantified by the Complainants. As the OPs did not take any steps  to provide the necessary approval for functioning of the C.T. Scanner, the same is lying inoperative. Accordingly, on 01.03.2013, the Complainants served a Demand Notice of justice through their Ld. Advocate to the O.P No. 2 to refund the money taken by the OPs and for refund of the money taken by the OPs in advance together with interest @18% p.a. Accordingly, the case:

         On the other hand, the case of the O.P. No.1 is that the Complainant is not a Consumer as defined U/s. 2(1)(d)(i) of the Consumer Protection Act, 1986. According to the terms and conditions, the balance amount of Rs. 17,50,000/- ( Seventeen lakh fifty thousand ) only  was to be paid  against delivery of the C.T. Scanner System at the site of the Complainant. But, the Complainant did not pay the said balance amount, thereby breached the contract by delaying to effect payment of the balance outstanding amount for no fault of the O.P. In fact,  the Complainant issued  a cheque of SBI, Bally Branch  bearing no. 437910 dated 29.08.2012 of Rs. 7,00,000/- being the part payment of the total outstanding, but the said cheque stood dishonoured, and on presenting the same again realised the amount. However, the Complainant did not pay the balance amount of Rs. 10,50,000/-. Lastly, it received a payment of Rs. 5,00,000/- vide cheque  of SBI, Bally Branch bearing no.437944 dated 03.10.2012. However, the OP installed the C.T. Scanner at the site without getting the full payment as per purchase order and the system  was handed over to the Complainant  on 06.10.2012  on satisfactory working condition and the  installation report was duly signed by the Complainant. The Complainant further issued a cheque of SBI, Bally Branch bearing no. 992079 dated 28.11.2012  of Rs. 5,50,000/-,  which also stood dishonoured and the OP is  yet to receive the balance money from the Complainant. There has been a delay of more than 386 days in payment of the outstanding amount since the delivery of the C.T. Scanner on 10.08.2012. Subsequently, the O.P.  sought  to confirm that the supplied C.T. Scanner was an approved system by the Atomic Energy Regulatory Board (AERB ) and that  C.T. Scanner had an NOC when it was imported. The O.P by a letter dated. 08.11.2012 confirmed that the supplied of C.T. Scanner was an approved System by the Atomic Energy Regulatory Board (AERB) and that the C. T. Scanner had an NOC. Since the C. T. Scanner was second hand and pre-owned System, the O.P. provided the Complainant a copy of the NOC as was obtained by it in the year 2006. Thus, the Complainant still owes the O.P a sum of Rs. 5, 00,000/-, and in order to defeat the O.P from receiving the balance dues, the Complainant has approached the Forum with unclean hands. Accordingly, it prayed for dismissal of the complaint.

         Over the pleadings of the parties, the following points are raised  for a proper  determination of the case :-

         1) Is the case maintainable ?

         2) Is the Complainant a consumer of the O.P. as per the Consumer Protection Act, 1986 ?

         3) Have the OPs committed  deficiency in service ?

         4) Is the Complainant entitled to the claim as prayed for?

         5) What other reliefs, if any, is the Complainant entitled?

Decision of the reason

Point Nos. 1 & 2  : Both the points are not very much agitated  at the time of final hearing of the case. Accordingly, both the points are decided affirmatively in favour of the Complainant.

Point Nos. 3 to 5 : All these points are taken up together  for brevity in discussion and being  inter-related.

          Ld. Advocate for the Complainant has submitted  that  this Hospital is a Charitable Institution running for  30 years and it is purely private funded. It is a multi-speciality Hospital having units also at Serampore and Sunderbans. As such, it has been given exemption U/s.  18(g) of the Income Tax Act. It is not a commercial organization, being funded by the people and there is no grant given by any corporate organisation. The charges are almost free in nature, just some charges are taken, mostly it caters the poor people. There has been installation of C.T. Scan Machine by the O.P. But, it  does not conform the guidelines of AERB, i.e.,  Atomic Energy Regulatory Board, so there is  every possibility of   radiation of the machine supplied by the OP,  who have been informed duly by the Complainant, but it was  denied by them, which culminated  in the cause of action of the case. So, the Complainant has sought for a proper replacement of the machine and actually one trial run was done in the  present machine. Also, this particular model has been banned in India.

         Ld. Advocate for the O.P. No. 1 has submitted that it is a pre-owned  C.T. Scan, as the Complainant  who is to buy the same according to their object, which is an admitted position. The said machine has been supplied and also installed by the O.P. The AERB notification is dated 05.07.2013 which is  much later after such sale and installation. So, the dispute as has been raised by the Complainant has not  led  to stand of. There has been payment of Rs. 7,00,000/- and sought by the Complainant and balance payment  has not been made till the date of filing of the case. In fact,  some cheques were given by the Complainant., which  bounced  and a part payment of the outstanding amount has been obtained. In order to defraud the OP of the balance amount, the case has been made.

         It is purely a pre-owned C.T. Scan purchased by the Complainant from the O.P. Company. It was supplied by the O.P. to the Complainant  on 10.08.2012. Finally, the system was handed over to the Complainant on 06.10,2012 in proper working condition which has been noted by the Complainant. On 29.08.2012, the Complainant paid Rs.7,00,000/- at the time of installation, the Complainant  was required to pay the balance conciliation money. It is found that on 28.11.2012, the Complainant gave the cheque of Rs. 5,50,000/-  but the same has been dishonoured  by the Bank. The issuance of the said cheque on 28.11.2012 itself indicates that the machine operative when delivered and at the time of the date of commission. It is the categorical   case that N.O.C in respect of the said machine  was obtained at the time of  first sale the machine in the year  2006. There is no provision for giving extra and/or further N.O.C. in the matter. Factually, the said machine was purchased on 10.08.2012 on the basis of ‘as is where is basis’. The specific notification as called for  in the matter by the  Complainant from the O.P.  is a misnomer. The O.P.  cannot be held  liable for any deficiency in service, accordingly,  the case   of the Complainant falls flat. The issues go against the Complainant.

         In a result, the complaint fails..

Order

        Hence, it is ordered that,

        the complaint be and the same is dismissed on contest.