Order-14.

Date-24/06/2015.                .

This is an application u/s.12 of the C.P. Act, 1986.

          Complainant by filing this complaint has submitted that complainant, a senior citizen is suffering from heard of hearing and he has no financial

Capacity for which from advertisement of different shops he went to a shop of OP Bose Appliances who are the seller of surgical appliances and hearing aid etc and on 16-01-2013 complainant went there and expressed his mental pain as he is not able to hear due to loss of hearing and OP sold him one hearing aid instrument at a cost of Rs.3,332/- vide Memo No.BA-113 dated 16-01-2013.

          After purchase complainant found that the same is not functioning well so on 13-03-2013 he approached to the OP and asked him to regularize the matter but they neither respond nor replace the instrument, nor return the price amount and as such complainant even after purchase hearing aid did not get any result from that machine(goods).  Thereafter, complainant lodged a grievance before the Assistant Director, Kolkata Central Consumer Affairs & FBP and it was heard but no fruitful result was achieved so, complainant ultimately as a senior citizen being humiliated, harassed and suffering mental pain caused by the OP filed this complaint for proper redressal as OP is indulged in unfair trade practice and also for the deficient manner of service and deceitful manner of trade.

          Against that OP by filing written statement submitted that no doubt complainant purchased one hearing aid machine from OP’s shop on 16-01-2014 with full satisfaction and complainant received the material from the shop.

          Due to defectively using the said machine complainant failed to hear with the help of it but within warranty period complainant appeared before the OP three times and after slight adjustment the machine found ok and handed over the machine to the complainant and the complainant after satisfied received the machine. 

          After expiry of warranty period further the complainant came for repairing the machine by giving charges which complainant mentioned in his letter but it was not possible for them as warranty period expired.  Complainant has no such system for repairing of the hearing aid and another factor is that they are not the manufacturer of the law but simply a seller and manufacturer is not made a party.  So, the present complaint should be dismissed.

Decision with Reasons

On critical appreciation of the complaint including the written version and also hearing the Ld. Lawyers of OP including the complainant himself and further on overall assessment of the receipt in support of purchase of the hearing aid it is clear that complainant purchased the said hearing aid(Axon) F-137 at a cost of Rs.3,332/- vide Memo No.BA-113 dated 16-01-2013 and in the said receipt one year warranty is written in handwriting of the OP’s staff but fact remains in the said cash memo name of the manufacturer, date of production, capacity of the said hearing aid etc. are not written not even written any other factors that means this hearing aid is not manufactured by any renowned company and same is probably prepared by the OP for which they gave one year warranty in handwriting.

          Fact remains the complainant is aged about 72 years.  This hearing loss is due to his age and it is called old age related hearing loss.  Now, the question is whether OP supplied that hearing aid on the basis of any prescription issued by any ENT specialist and whether at the time of selling the said item audiometry test in respect of the complainant was made by the OP or not.  This question was put to the OP’s Ld. Lawyer including the OP but they failed to answer and from the argument of the OP himself and his lawyer we have gathered that as if they are selling spectacles like Iranian Girls of the footpath having no test, having no check, only after adjusting one after another spectacles when one is found given some sight it is being purchased by the customer.  No doubt in respect of such sale no consumer case can be filed.  Another question was asked to the OP whether they are selling the hearing aid jut like Urinal Pot against that also they failed to give any answer.

          We know that without basic knowledge of audiometry and also total ear system one cannot pass any judgment.  Truth is that it is the mandatory duty on the part of the seller of hearing aid to any purchaser, to sell first on the basis of prescription issued by the ENT specialist in respect of a particular patient.  Thereafter, at the time of fixing and adjusting the same he must have to submit a report that such and such type of hearing aid is required.  If any seller has no audiometry test centre in that case the seller cannot sell it directly to the purchaser the patient.  All over the world there is a caution that no seller shall have to sell hearing aid directly to the purchaser without the audiometry test report and ENT Specialist Report because without ascertaining the position of hearing loss of a particular person directly by purchasing one hearing aid they cannot be cured and fact remains all these process are completely ignored by the seller and they are selling it to the poor customer in such a manner just like Iranian Spectacles seller but Bose Appliances claimed that they are renowned shop for selling surgical appliances and hearing aid seller but we can say that Bose Appliances must have to know first that hearing aid cannot be sold to any patient directly without testing report of the particular patient about its hearing loss ascertained by any ENT Specialist and before selling any hearing aid to a patient in his shop there must be an audiometry test who shall have to verify whether particular hearing aid supports the patient to hear it or not but all those factors were not considered by Bose Appliances as if Bose Appliances sold Urinal Pot to the complainant for which no prescription is required, no test report is required.  Anyhow, the matter should be discussed more at this stage otherwise total negligent act of the OP cannot be properly understood for which the detail discussion is made by this Forum.  So, we are discussing the expertised opinion of worldwide expert of different Universities and their opinion regarding selling of any hearing aid to any person and worldwide ENT specialist and audiologist have confirmed that before selling any hearing aid it direct to the patient it is must for the seller to consider the history chart, audiological Evaluation Report and also other reports regarding assessment of his hearing loss and for preparing of one set or two sets of hearing aid machines that means before selling hearing aid  patient must be properly examined by ENT specialist and then by the audiologist and the testing theorization is usually to test the better ear first for determination of ear threshold then damages of ear shall be tested.  At the same time air-bone gap should be assessed.  Further other parts of the entire ear system are to some extent suitable or not because worldwide ENT specialist and audiometrist have confirmed by their so many journals that hearing problem of a person of an aged person of 70 years and above is serious hearing problem and in such a case it must be the duty of the seller or anyone to examine such a patient by otolaryngologist.  Thereafter, put before an audiologist then hearing aid specialist must have to test at the time of fitting or fixing the said machine and each must have different type of training and expertise knowledge and they must have knowledge to fit hearing aid certificated by the Government.  It is specifically opined by all the worldwide doctors, treatment will depend on the severity of the hearing loss and it is specifically mentioned by the doctors or other specialist in hearing aid otolaryngologist that hearing aid is nothing but an electronic instruments and it may sound louder and it must be fitted after ascertaining the label of hearing loss but before selling it must be tested on the basis of a report of the otolaryngologist about the position of the eardrum, oval window, malleus, incus, stapes, semicircular canals, vestibule, auditory nerve, round window, base, apex, cochlea of the auditory system and on the basis of the said report of the otolaryngologist, audiologist shall test the hearing label and thereafter, hearing aid specialized, an audiologist shall certify whether hearing aid will be given to any patient to give a chance to hear and thereafter, hearing aid specialist and audiologist shall certify whether hearing aid is fit for the patient and there is chance on the part of the patient to hear with the help of it and that is the medical authorization of the doctors.  At the same time there are specific authorization of the worldwide doctors in respect of the treatment of hearing loss and about fitment of devices that same may give comfort in hearing of volume is adjustable etc.  But in the present case nothing is there as if Urinal Pan was sold by the OP to the complainant for which no test report, no prescription were considered by the OP but we are failed to understand how this OP sold this item without any prescription without testing by audiologist without any testing report of hearing aid specialist, that means in the present case no testing was made before selling the same.  No scientific theorization has been applied by the OP to come to a conclusion that the item which was sold was sufficient and with the help of that complainant shall hear.  No paper has been submitted by the OP to prove that after adopting the scientific theorization relating to the report of the otolaryngologist, audiologist and hearing aid specialist they sold it.  Most interesting factor is that OP has cheated the complainant which is proved because the item was sold like Urinal Pot without consulting any test report, without verifying the level of hearing loss without report of the audiologist and even no hearing aid specialist was there who submitted any report regarding history chart, audiological evaluation report etc. and without audiological test report no hearing aid can be sold by anyone whoever he may be.  

Last but not least we are confirming that the OP has cheated the old person aged about 72 years and fact remains with the help of such item i.e. hearing aid such a person shall not have to regain his hearing capacity.  In view of the fact worldwide doctors in their renowned literature Credit : NIH Medical Arts confirmed and observed that age related hearing loss is different from hearing loss that can occur for other reasons because hearing depends on a series of events that change sound waves in the air into electrical signals and auditory nerve then carries these signals to brain through a complex series of steps and if it is found that auditory nerve is negative then there is no chance of hearing in case of age related hearing loss.  Practically all those matters were not at all considered by this seller because they are very much well aware of the fact that they are selling hearing aid like Urinal Pan or other Pans to the customer and it is sold by the OP in a deceitful manner and by that way they are selling some third class item to different peoples who have their no capacity to appear before the doctor for evaluation of his ear system and truth is that before fitting any hearing aid several examination and test are must and practically without any test report in respect of ear system done by any otolaryngologist no hearing aid shall be supplied or sold by any OP or any seller.  In fact it is not an article like earring sold by the hawker on the roadside footpath and as because it was glittering it purchases by youthful girl to make herself beautiful looking.  It is not a fact that the complainant went there to purchase a hearing aid machine to beautify his ears.  No doubt earring is being used by youthful boys now-a-days but invariably this old haggard did not try to seat his ear hole by spending Rs.3,332/-. So, considering all the above facts and circumstances, we are convinced to hold that without the report of the otolaryngologist, the audiologist and hearing aid specialist seller cannot prepare any hearing aid for any person.  In this case OP has failed to show the position of the ear system of the complainant at the age of 72 years regarding audiometric system and in absence of report of otolaryngologist about auditory system of the complainant with the hearing aid was sold what is completely unfair but we have gathered that the act of the OP’s selling is like goat, cows etc also but they did not require any report for the patient called in the present because OP has failed to produce any report of otolaryngologist regarding the degree of hearing loss of the complainant and no audiological evolution report is produced by the OP and also no report of the hearing aid specialist before fixing the said machine to the ear of the complainant.  So, we are confirmed that the present sale is completely a deceptive sale and invariably same shall not give any result and OP was also confirmed that it will ultimately not give him such purpose for which within so called warranty period they managed to test it but they were aware that after one year it shall have no value because it was not prepared on the basis of audiometric evaluation test report made by the otolaryngologist, audiologist and fixing was not also made by hearing aid specialist but everything was done by the seller shopowner with the help of their hench employees who are very much expert in selling such article by give hoax and by brushing their hands on the back of the old aged person giving assurance that he shall have to hear and in fact the present OP’s manner of selling is always against the principle of test of hearing loss and also as per medical method and without performing the audiometric test.  So, the procedure as adopted by the OP is nothing but a selling of a spectacles of the Iranian Girls in the roadside.  Considering all the above facts and circumstances, we are convinced to hold that OP sold the same deceiving the complainant without giving him a chance to realize that his hearing loss is completely an old age loss of hearing and he already crossed 72 years and it is age related hearing loss and that cannot be cured by fixing such a Urinal Pan like hearing aid.  The entire selling procedure of the OP is against the medical ethics, medical science and business ethics and fact remains in such a manner many persons are being deceived what we have gathered because already 4-5 cases have been decided by this Forum and in all the cases complainant is in respect of old age related hearing loss and most of the consumers are above 72 ages and up to 85 ages.  OP has tried to convince that according to purchaser choice he sold it but if OP says so then we are directing to close down the shop as he has no moral authority to continue to such business because surgical appliances and hearing aid must be sold after proper testing and as per report of the doctors not as per their wish and hearing aid is not just like a clutch but more than that as it has some electronic activities. 

So, we are directing OPs before selling hearing aid asked those purchasers to bring such report of otolaryngologist, audiometric test report at best and depute one hearing aid specialist in his shop who shall have to justify whether particular hearing aid machine will support the patient to hear but without adopting anything by selling it practically he has deceived the complainant and OP cannot sell it in such a manner and that is not only the worldwide theorization but also of the medical board of doctors and others.  So, in the above circumstances, we are convinced to hold that OP by a deceitful manner sold away the same and no doubt knowing fully well that it will not give him any relief but sometimes it can vibrate a sound which cannot reach up to the brain nerve which makes signals for speaking. 

          Last but not least we are ventilating a very vital opinion of the worldwide famous medical science (ENT) only by fitting hearing aid a person cannot think that with the help of hearing aid he shall hear more but now-a-days without the prescription of the expert doctor or ENT or the otolaryngologist, audiologist, sellers are selling the machine because many poor patients are not in a position to pay more to doctors for collecting such report from the doctors because it is a continuous process and it takes almost 15 days to one month to prepare such a report. 

On overall evaluation of the entire materials and record and defence of the OP we are convinced that many poor customers having history of hearing loss are unable to go to doctors to check up the same but being allured by the advertisement of the different shops and companies they are purchasing those goods from the shops and shop owner to deceive such person sells it and ultimately the customers are being deprived but they are not aware of the fact that in such a manner such an item cannot be sold and in fact in the present case by selling such article by the OP, OP has no doubt deceived the complainant and fact remains it is not only defective machines same cannot be sold without any prescription of ENT specialist without any audiometric evaluation test report or any hearing aid specialist report.  In view of the above materials we are inclined to hold that no doubt complainant is deceived by the OP and that incident is a example of unfair trade practice on the part of the OP no doubt.  There is no chance of recovery of hearing level of the complainant because it is an old age related hearing loss for which the OP must have to refund the entire amount after taking back the goods from the complainant and for harassing the complainant in such a manner and for selling such article without any medical report OP must have to compensate the aged person (consumer) at once.

Thus, this complaint succeeds.

Hence,

Ordered

That the case be and the same is allowed on contest with a cost of Rs.5,000/- against the OP.

          OP is hereby directed to refund the entire amount of Rs.3,332/- the sale price within one month from the date of this order and further OP shall have to pay compensation of Rs.5,000/- to the complainant for harassment and deceiving the complainant by adopting such unfair trade practice.

For adopting unfair trade practice by the OP and for deceiving the customer in such a manner and to check such sort of business OP shall have to pay penal damages of Rs.15,000/- to the Forum and it is imposed to control and check the present unfair trade practice on the part of the OPs in the market.

          OPs are directed to comply the order within the stipulated period failing which for non-compliance of the Forum’s order penal action shall be started against them for which further penalty and fine may be imposed and penal interest shall be assessed  at the rateRs.100/- per day till full satisfaction of the decree and if it is collected it shall be deposited to this Forum.