BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, KAITHAL.
Complaint Case No.35 of 2018.
Date of institution: 18.01.2018.
Date of decision:19.03.2019.
Doctor Parveen Garg, C/o Sanjeevani Hospital, Ambala Road, Kaithal.
…Complainant.
Versus
- BPL Medical Technologies Private Ltd., 11th KM, Bannerghatta Road, Arakere, Bengaluru-560076, through its C.M.D./Authorized Person/CEO.
- BPL Medical Technologies Private Ltd., through its Regional Head, Plot No.731, Sector-82, JLPL, Industrial Area, Mohali, Punjab-160062.
….Respondents.
Before: Sh. D.N.Arora, President.
Sh. Rajbir Singh, Member.
Present: Sh. Dinesh Tyagi, Advocate, for the complainant.
Sh. Mukesh Sharma, Advocate for the OPs.
ORDER
D.N.ARORA, PRESIDENT
The complainant has filed the present complaint under Section 12 of Consumer Protection Act, 1986, with the averments that the complainant purchased E-cube 7 machine for echocardiography/Multi purpose colour dopler ultrasound system with full digital beam from the Ops company bearing Sr.No.F03102 vide invoice dt. 30.05.2016 for a sum of Rs.10.50 lacs (including taxes etc.) against the warranty of 3 years. It is alleged that due to repeated incurable defects, warranty period was extended for further 6 months via e-mail of Ops dt. 12.04.2017 i.e. upto 42 months from the date of installation. It is further alleged that at the time of purchase of said machine, the value of old ultrasound machine was assessed as Rs.2,75,000/- and the same was adjusted in the value of new machine and an amount of Rs.7,75,000/- was paid by the complainant. It is further alleged that the said machine was defective from the very beginning, having manufacturing incurable defects in it. The machine did not respond to any button while doing echo and the complainant had to restart the machine again. The picture quality of the 2D echo and M mode was poor and worst situation came in Color Doppler. The complainant repeatedly made complaints regarding the above manufacturing defects in the machine since the day of its purchase and ultimately on 27.10.2017, the Ops took back the said defective machine and repaid only Rs.7,00,000/- after deducting the taxes, which is totally wrong and illegal. So, it is a clear cut case of deficiency in service on the part of Ops and prayed for acceptance of complaint. Hence, this complaint.
2. Upon notice, the OPs appeared before this Forum and contested the complaint by filing their reply raising preliminary objections with regard to locus-standi; maintainability; that this Forum has no territorial jurisdiction to entertain and try the present complaint as the present dispute is of civil nature which can only be decided by the Civil Court; that the complainant has concealed the true and material facts from this Forum. The true facts are that the machine in question was purchased by the complainant from the Ops on 30.05.2016 in sale consideration of Rs.10.50 lacs and since then he used this machine for a period of 16 months, but after expiry of six months, the complainant had started to give the complaint to company and whenever the company received his complaint, the company immediately sent his officials to remove the defects and the same was done by the company free of cost. It is pertinent to mention here that to mention here that every time only the software problem was found by the company which was the result of lower net section. But for the sake of good relationship, the company returned an amount of Rs.7,00,000/- to the complainant on 11.10.2017 after giving the prior intimation to the complainant through e-mail on 09.10.2017. Thereafter, the Ops company transferred the amount of Rs.7 lacs in his account. There is no deficiency in service on the part of Ops. On merits, the objections raised in the preliminary objections are reiterated and so, prayed for dismissal of complaint.
3. The complainant tendered into evidence affidavit, Ex.CW1/A and documents Ex.C1 to Ex.C21, Mark-CA to Mark-CN and thereafter, closed the evidence.
4. On the other hand, the Ops tendered into evidence affidavit, Ex.RW1/A and documents Ex.R1 to Ex.R5 and thereafter, closed the evidence.
5. We have heard the learned Counsel for both the parties and perused the record carefully.
6. Undisputedly, the complainant purchased E-cube 7 machine for echocardiography/Multi purpose in question vide invoice dt. 30.05.2016, Ex.C1 for a sum of Rs.10.50 lacs (including taxes etc.). The said machine was installed in the hospital of complainant on 23.06.2016 and warranty of said machine was upto 22.06.2019, as is clear from installation report-Color doppler, Ex.C2. It is also not disputed that the warranty period of said machine was extended for further 6 months via e-mail of Ops dt. 12.04.2017, Mark-CN i.e. upto 42 months from the date of installation. The engineer of Ops (BPL Medical Technology) visited in the premises of complainant on 04.07.2016, 21.07.2016, 29.08.2016, 08.09.2016, 24.09.2016, 14.04.2017 and 31.05.2017 as is clear from the job-sheets Ex.C9 to Ex.C15 respectively but the defects re-occurred again and again and ultimately, the Ops replaced the defective machine of complainant. The grievance of the complainant is that the said machine became defective within the warranty period as there was manufacturing defect and the Ops refunded the amount of Rs.7,00,000/- on 11.10.2017 after deducting the tax of Rs.75,000/-. The counsel of complainant placed reliance upon the case law cited in 2006(1) CLT page 505 titled as Hubli Diagnostics Medicare and Research Centre Pvt. Ltd. Vs. E. Merchindia Ltd. and others (State Commission Karnataka); 2014(1) CLT page 76 titled as Kiran Mishra Vs. Dentsply India Pvt. Ltd. (NC); 2009(3) CLT page 325 titled as Confident Dental Equipments Ltd. Vs. Devesh Jain (Delhi State Commission) and 2018(2) CLT page 233 titled as M/s. Atul Pipe Corporation Vs.Jai Narain and others (NC). The counsel of Ops contended that the machine in question was purchased by the complainant from the Ops on 30.05.2016 in sale consideration of Rs.10.50 lacs and since then he used this for a period of 16 months, but after expiry of six months, the complainant had started to give the complaint to company and whenever the company received his complaint, the company immediately sent his officials to remove the defects, the same was done by the company free of cost. He further contended that every time only the software problem was found by the company and he has drawn our attention towards the job-sheets, Ex.R1 to Ex.R4. He further contented that the complainant used the machine in question for commercial purpose. The counsel of Ops placed reliance upon the case law cited in 2013(4) CLT page 611 titled as Rajinder Singh Vs. HDFC Bank Ltd. and others (Punjab State Commission). The contention of Ops that the complainant purchased the machine in question for his commercial/business purpose has no force because even though the machine/equipment is used for commercial/industrial purposes if any manufacturing defect occurs during the warranty period, then the issue is covered under the Act and for that purpose purchaser of the equipment is entitled to file a complaint under the Act. This point has been elaborated in the following judgments some of which are quoted below: In Meera & Co. Ltd. Vs. Chinar Synten Ltd., II (2004) CPJ 24 (NC) =2004 CTJ 1086 (CP) (NCDRC), this Forum has held that even if the machine in question purchased by the complainant for a commercial purpose, it suffered the alleged defects during its warranty period of 42 months and, therefore, the complainant as well within its right to move the Consumer Forums under the Act, it being a consumer of the opposite party’s service. In this regard, we can rely upon the authority cited in 2015(2) CLT page 1 titled as M/s. Pressweld Engineers Vs. Jayram Reddy From perusal of record, we found that the machine in question became defective within the warranty period, so, the Ops wrongly deducted the amount of Rs.75,000/- as tax from the invoice value of machine in question, hence, the Ops are deficient while rendering services to the complainant. In such like circumstances, we are of the considered view that the complainant is entitled for refund of amount of Rs.75,000/- from the complainant. The authority submitted by the counsel of Ops is not disputed but the same is not applicable to the facts of instant case.
7. Thus, as a sequel of above discussion, we allow the complaint and direct the Ops to pay Rs.75,000/- to the complainant alongwith interest @ 9% p.a. from the date on which the payment of Rs.7,00,000/- was made to the complainant i.e. 11.10.2017 till its realization and further to pay Rs.5500/- as lump sum compensation on account of harassment, mental agony and costs of litigation charges. Let the order be complied with within 30 days from the date of preparation of copy of this order. A copy of said order be supplied to the parties free of cost. File be consigned to record-room after due compliance.
Announced in open court:
Dt.:19.03.2019.
(D.N.Arora)
President.
(Rajbir Singh)
Member.
