This is an application u/s.12 of the C.P. Act, 1986.
Complainant by filing this complaint has submitted that he purchased two hearing aids from OP2, Widex India Pvt. Ltd. vide invoice No.2010-2011/037 dated 18-02-2011 for Rs.1,04,000/- and those hearing aids had a guarantee of 24 months and those hearing aids were bought from Hyderabad. But those hearing aids started to act in a defective manner from the very initial stage, i.e. after two days from purchase, those aids started to give problem. The complainant intimated to the OP over phone and e-mails. The OP1 told the complainant to visit their office but the complainant was not in a position to visit OP’s Kolkata office due to ill health and audio-visual problem. But the complainant’s hearing aids were repaired on 02-09-2011 and 10-11-2011 from the OP’s Kolkata office and paid an amount of Rs.552/- as service charge but in spite of repair, the defects of the hearing aids could not be recovered.
Then the OP offered a special discount of exchange and return of the aforesaid faulty hearing aids by purchasing a new one by e-mail dated 04-10-2012, but the complainant was not interested, he did not agree with the exchange offer, because the complainant’s hearing aids are within the guarantee period. In this regard, the complainant states that the OPs are deficient and negligent in their service.
Complainant lodged a complaint at the DCDRF, Burdwan, but the same was dismissed being barred by territorial jurisdiction. In this situation, the complainant has suffered from mental agony, financial loss and unbearable harassment.
Considering the circumstances stated above complainant prays to direct the OPs to replace the present defective hearing aids with a new one. The complainant also prays to direct the OPs to refund Rs.1,04,000/- with interest at the rate12 percentfrom the date of purchase, if not replace the old ones with a new one and to direct the OP to pay compensation of Rs.1,20,000/- for harassment, mental agony and to direct the OPs to pay litigation cost of Rs.20,000/-.
In his written version OP2 states that the complainant has approached to the Forum with unclean hands by not stating the truth. The present complaint is vague baseless and devoid of any merit. OP2 states that after delivery of the hearing aids, the complainant was given 15 day time. The complainant was supposed to report the OPs if any defect was detected in the machines. The complainant was also told to refund the money if any discrepancy occurred during the period of 15 days. But the complainant never reported within that stipulated period.
On 02-09-20911 and 10-11-2011, the complainant approached the OP with the machine and the servicing was done free of cost as per terms and conditions of the warranty and the complainant made no such allegations at that time and accepted the free service. Further, the complainant himself admitted that the complainant got the money back, spent in the service and maintenance work. The OPs have duly complied with the terms and conditions of the warranty. The complainant himself admitted that there was remarkable improvement in the hearing ability of the complainant. he also filled up a post fitting form wherein he admitted that his hearing ability had been improved a lot. So the present complaint is a gross misuse of the process of law. This compliant has been lodged with mala fide intention for extracting money from the OPs. According, to the terms and condition of the warranty, the liability of the OPs is limited by repairing or replacing defective parts only, but not replacing the entire hearing aid machine.
Further, the complainant is bound to file authenticated report of the expert from an approved laboratory in support of the allegations. Otherwise, the allegations are baseless and liable to be rejected. All allegations made by the complainant are denied and disputed.
The machine sometimes needs tuning. It will work properly after tuning. The complainant got discount of Rs.26,000/- against total price Rs.1,30,000/- and then he is misleading the Forum by stating false report. Complainant got the benefit of servicing and maintenance free of cost and then alleging the OPs. If the machine is defective, then he ought to have attempted to get back the amount within 15 days, which was prescribed in the terms and conditions. So, he OP2 prays to Forum to dismiss the plea for the interest of justice.
Decision with Reasons
On comparative study of the complaint and the written version and further considering the argument as advanced by the Ld. Lawyers of both the parties further on overall evaluation of the documents as produced by the complainant issued by the OPs it is clear that complainant is an old person and aged about 80 years. Truth is that complainant is/was suffering from age related hearing loss which is called presbycusis because it is the age hearing loss which is a part of the body system and as per medical science age related hearing loss is the most often occurs in both ears, affecting them equally because the loss is gradual and in such case an aged person of 80 years has their no ability to hear and after considering the age of the complainant, complainant for the purpose of hearing went to the OPs’ selling centre and purchased two sets of high definition hearing aid instruments bearing model No.M2-9 and M2-19 vide invoice no.HYDBH11SI0231 dated 18-02-2011 from Senso Hearing Centre, Banjara Hills at a discount scheme by getting a discount of Rs.26,000/- out of total cost of two sets Rs.1,30,000/-
From the argument of the OPs’ Ld. Lawyer and also their written version it is found OPs tried to convince that after confirming and proper checking, adopting all scientific audiometry process hearing aids were supplied and complainant being satisfied got such hearing aid. Thereafter, in writing he submitted his satisfaction to the Widex India Pvt. Ltd. on 24-08-2012 and fact remains Widex Company‘s representatives Sri Bikash Ghose and Smt. Lipika Sarengi visited his residence at Mamoni and repaired and cleaned his hearing aid and after servicing it is found working properly and complainant was given such instruction how to maintain the hearing aid in future and he also expressed that he is satisfied about the hearing aid but even after such repairing complainant failed to hear with the help of such hearing aid and OPs’ main contention is that after delivery of the said machine complainant was provided a 15-day trial period during which he could report back to the OPs any discomfort or deficiency detected by the complainant and if that would be reported in 15 days OP ought to have refund the entire amount if it would be found that complainant is unhappy and he was unable to hear with the help of hearing aid but complainant never went to report with any such discomfort or deficiency but it is evident from his own declaration on 24-08-2012 to the OP Company that he was satisfied with that hearing aid. Fact remains OP has tried to convince that machines after testing were found ‘OK’ but complainant did not maintain it as per required basic service but as soon as OP was reported basic service was given at free of cost inconsonance with the terms and conditions of warranty and complainant expressed his satisfaction in writing but thereafter, complainant never made any complaint about the defect of the hearing aid. Now, question is whether proper method was applied by the OPs at the time of preparing the hearing aids of both the ears of the complainant.
In this context, we have gathered that OP supplied history chart, audiological Evaluation Form and some other reports regarding assessment of his hearing loss and for preparing of two sets of hearing aid machines and tried to convince that the patient was properly examined, his hearing ability was tested properly and the machine was fixed on his two ears and complainant expressed his satisfaction that he began to hear with the help of the same so, there is no deficiency on the part of the OPs. But after considering those papers we have gathered that in fact label of background noise : this may significantly affect the results, especially at low frequencies. Sound-attenuating headphones and/or an acoustic booth/special test room need to be used. Calibration : the machine needs testing and recalibrating regularly. Threshold determination : the patient should be told to respond at the least suggestion of a signal instead of when a signal is definitely heard. Test order : usually test the better ear first, starting at 1 kHz then 2,4,8,0.25 and 0.5 kHz for air-conduction thresholds. Then test the other ear. Then test non-masked bone – conduction thresholds at 1,2,4,0.5 and 0.25 kHz in that order with the vibrator on the side with the better air-conduction threshold. At the same time air-bone gap should be assessed. But it is found that practically all the above issues at the time of performing audiometric test was not done but worldwide theorization is that when hearing problem is of a person of aged 75 and above it is serious hearing problem and in such case it is must to examine such a patient by an otolaryngologist therefore, by an audiologist and then hearing aid specialized and each must have different type of training and expertise knowledge and they must be licensed to fit hearing aids by the Government. But it is specifically mentioned by the doctors all over the world that treatment will depend on severity of hearing loss and it is specifically mentioned by the authors, doctors, specialists in hearing aids, otolaryngologist. Hearing aids are electronic instruments and they may sound louder and it must be tested before fitting what is the label of hearing loss and at the same time there must be 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 a chance to hear and fact remains that there is specific theorization of the world wide doctors in respect of treatment of hearing loss and about fitment of devices that same are given comfort in hearing and volume is adjustable etc or not. But in the present case after considering the papers supplied by the OP it is found before selling the said item no scientific theorization has been adopted as stated above and it is specifically mentioned by the worldwide famous otolaryngologist in their literature what is age related hearing loss. (Credit : NIH Medical Arts) and they have specifically observed that age related hearing loss is different from hearing loss that can occur for other reasons.
It is also observed by those doctors 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 even by fixing two hearing aids. At the same time loss of fluids in the cohela of the inner ear is very vital matter because if fluid in cohela dried in that case with the help of hearing aid no one shall have to hear again. Considering all those factors behind fixation of hearing aids give a chance to the person who has lost his hearing is a vital factors which must be examined by the otolaryngologist and his report must be there and without his report or opinion hearing aid specialist must not have to prepare hearing aid of any person but in this case there is no material to show what was the position of the present complainant aged about 80 years regarding his audiometric system but in absence of the report of the otolaryngologist about auditory system of the complainant hearing aid was sold. But worldwide doctors the otolaryngologist have confirmed that before giving any hearing aid a report of otolaryngologist is must but that is absent in this case, then how Audiologist or hearing aid Specialist came to a conclusion that the present sets are sufficient of hearing further it is mentioned that in absence of any expert medical report that is otolaryngologist if any hearing aid is sold by any concern with the help of audiologist or hearing aid specialized same shall not give any result and it is no doubt a bad practice to sell such hearing aids without the report of otolaryngologist and in this case OP has failed to produce any expert medical report of any otolaryngologist. At the same time there is no report of a licensed Audiologist and hearing aid specialize but everything is done by the company with the help of their machine but that is not at all accepted scientific method for which we are confirmed that hearing aids sold by the OP to the complainant is completely against the principle of testing of hearing loss and at the same time no medical method at the time of performing the audiometric test were not done. In this context we are mentioning one procedure which had been adopted in many years back when our family members and poorer sections of people when found their eye sight problem they used to purchase spectacles from the road side Irany ladies without any report of any Eye Specialist. Sometimes that spectacles initially support but later it is found that the said spectacles do not give sight to the patient but ultimately the Irany Ladies have their no expertise knowledge about determining the eye sight. In fact, this system has been discontinued when several patients who suffer from short of sights after purchasing such spectacles when they practically fail to increase their eye sight, they goes to the doctors and in the meantime people at large have cleared their awareness about their eye sight and as and when any person feel short of sight he forthwith goes to the doctors for checking up and thereafter, purchasing spectacles and after purchasing it tested by the doctors who issued the prescription and that is the procedure and now-a-days before purchasing spectacles now to increase their eyesight abovbe procedure is adopted as medically approved process, similar is the procedure in case of hearing aids – first a patient must be examined by a specialist doctor that is an otolaryngologist, thereafter, an Audiologist must have to take such patient after that hearing aid specialist must have to check the same but any ENT Specialist (an otolaryngologist) after testing comes to a conclusion that auditory nerve is damaged and fluid in cohela is dried and further hearing structure are damaged in that case there is no chance of increase hearing of said person even after fixation of hearing aid. In fact, all these procedure has not been followed by the OP but OPs are in the market to sell the same at higher rate without following the above medical procedure and just like as Iranian Ladies and practically for not adopting medical procedure by the OP the complainant even after purchase of hearing aids are unable to hear any single word after fixing two units of hearing aids valued at Rs.1,30,000/- and no doubt the entire procedure as adopted by the OP has caused damaged to the complainant and complainant practically relied upon them that he shall have to get chance to hear after purchasing it but truth is that complainant failed to hear even after purchasing the said two machines but at present the two machines are nothing but two stone balls inside ear holes. It must be taken in our mind that hearing aids are not the ornaments of the person who have lost his hearing ability but it is just like spectacles which gives support or power to see alternately and similarly hearing aids is such a medical assistance which supports our auditory system to hear but fact remains there must be a report of ENT specialist (an otolaryngologist) regarding auditory system at first and in absence of that any hearing aids is sold by any company with the help of their deputed person as audiologist or hearing aid specialist it is not scientific and audiologist and hearing aid specialist cannot say and cannot recognize the defect of auditory system and in the present case without ascertaining the total function of the auditory system the hearing aids were supplied which is against any medical theorization. Now-a-days practically huge number of people are facing hearing loss or trouble, so, they are proceeding direct to the selling centre of the hearing aids and they are deceiving such patient in so many manners though fact remains Audiologist or hearing aid specialist have their no knowledge about the function of cohela or auditory nerve, vestibule, semicircular canals, incus, stapes, malleus etc. at the same time they have their no knowledge what is the function of the cohela what is the function of the auditory nerve because hearing depends on various factors that change waves in the ear into electronical signals and no doubt this signals to our brain through a complex series of steps and all these matters are found to some extent living then with the help of hearing aids one can hear but in the present case this present complainant is aged about 80 years and practically as per doctors opinion is such sort of cases a chance to hear with the help of hearing aids is bleak because in such sort of ages auditory nerve dies and not work properly due to blood pressures, sugar etc and some other causes but there is no report in this case whether this patient has been suffered from sugar, blood pressure. There is no report what is the position of the eardrum, the vestibules, the apex or base but nothing is there. So, we are convinced that this octogenarian complainant was deceived by the OP and fact remains even complainant purchases the hearing aids even after spending 5 lakhs he shall not have to hear a single word because his entire auditory system is practically damaged for which even after purchasing two sets of hearing aids complainant failed to hear it. So, in the above circumstances, we find that complainant must have to get back the entire amount and OPs shall have to take back the hearing aids and refund the entire amount in the above premises and in future all the hearing aids centre must have to first check up any patient who have been suffering from hearing loss by an otolaryngologist and before any testing by the audiologist the auditory system report must be there, which must be issued by an otolaryngologist.
At the same time there is no report whether there is abnormalities or reduce function of three tiny bones in the middle ear which carry sound wave from timpanic membrane to the inner wall and in fact the scientist did not know how to prevent age related hearing loss. However, in this case there is no such opinion on the part of the so called Audiologist or hearing aid specialist in respect of the particular patient, the present complainant.
Anyhow, on proper consideration of the entire materials we have gathered that no medical scientific procedure had been adopted by the OPs before fixing of the hearing aid and selling the same to the complainant. Another factor is that many factors can be contributed to hearing loss as a person get older and it can be difficult to distinguish age related hearing loss from hearing loss that may cause for other reason and truth is that hearing loss is caused by long term exposure to sounds that are either too loud or last too long. This kind of noise exposure can damage the sensory hair cells in one’s ear that allow one to hear and as per medical science once these hair cells are damaged, they do not grow back and one’s ability to hear is diminished but all these factors had not been determined by the OP before coming into conclusion about the auditory system of the complainant which is no doubt a negligent and deficient manner of service and selling of the hearing aid item without coming into conclusion about the condition of the auditory system is nothing but a non medical approach on the part of the OP but fact remains in this case it is proved that OP for the purpose of sale sold such items and ultimately complainant did not get any result so, it is clear that such a sale of hearing aid by the OP is completely uncalled for and no doubt an unfair trade practice on the part of the OP.
In the present case on proper consideration of the entire materials at the same time non-production of any such document to show by the OP about the position of the auditory system of the complainant before fitting this hearing aid we are convinced that without adopting medical procedure this two items were sold, fitted with the ears and ultimately complainant failed to hear with the help of this. So, this disputed hearing aid items are nothing but two reflected ornaments like earring to the complainant and it has not actually given any support to the complainant to hear because many other age related factors for hearing loss was there. When that is the fact then it is clear that hearing depends on series of events that events must be searched out to come to a conclusion whether the total auditory system of the complainant was up to the mark for fitting two such hearing aids and it will give support to the complainant to hear. Medical Scientist all over the world have come to a conclusion that only by fitting hearing aids a person cannot expect that with the help of that hearing aid he shall have to hear to some extent but now a days without the prescription of the expert doctors of ENT i.e. an otolaryngologist the hearing aid sellers are selling hearing aids like Irany ladies who sells spectacles in the market and in the present case it is proved that the present OP sold this two machines(hearing aid items) without determining the condition of the auditory system of the complainant and also did not consider that he is aged about 80 years. There is no such finding that it is age related hearing loss and there is no such finding that his hair-cells are not damaged because if it is found that hair cell is damaged in that case there is no question of ability to hear even with the help of hearing aids and other factors are also not discussed in details about possibility or chance to hear with the help of hearing aids and about auditory system and the ambit of quantified relative to normal hearing and the range of the present position of the auditory system, so, we are convinced to hold that this hearing aid was sold without proper testing without any prescription of any ENT doctors that is an otolaryngologist so, we have convinced that complainant was deceived by the OPs and fact remains it is the duty on the part of the OPs run the business for selling the hearing aids to any buyers only after complying the aboe medically approved methods, 1st the examination report of the otolaryngologist, thereafter, the Audiologist, thereafter the hearing aid specialist and another factor is after supplying of such hearing aid it must be further checked by the ENT specialist that has not been done. So, we are convinced that the sale was made against the medical principle and theorization. So, sell was no doubt a mis-sale and practically by deceiving the complainant OP sold it for which complainant is entitled to get back the entire amount what he paid for the purpose of purchasing the said hearing aid but in fact, OP sold the disputed item to a deaf person. It is no doubt an unfair trade practice for which OP should be imposed penalty whatever it may be no doubt the company is a well known company but he is the manufacturer of the item or seller of the item but they are not doctors to determine the position and condition of the auditory system of the complainant.
On overall evaluation of the entire material on record and the entire defence we are convinced that many customers to increase his hearing ability go to such shoproom or selling centre for getting a relief but ultimately they are being deprived only on the ground without any proper medical test same are being sold and such a selling is no doubt a mis-sale theorization and for which complainant has proved the negligence and deficient manner of service on the part of the OP and at the same time their manner of selling such sort of object to deceive so many customers by alluring the customers by the advertisement visiting their shop. In view of the above materials we are inclined to hold that complainant is deceived and this incident is an example in respect of such trade, which is no doubt unfair trade practice on the part of the OP for which complaint succeeds.
Hence,
Ordered
That the case be and the same is allowed on contest with a cost of Rs.10,000/- against the OPs.
OPs are hereby directed to refund the entire amount of Rs.1,04,000/- with 8 percentinterest from the date of receipt of the said amount within one month from the date of this order and if OP fails to repay the same within the stipulated period in this case 8 percentinterest shall be assessed over the same till full payment of the same and at the same time for mental harassment and pain as compensation OP shall have to pay a sum of Rs.25,000/- to the complainant within one month from the date of this order.
For adopting unfair trade practice and also for deceiving the customer in such a manner and to check such sort of business OP shall have to pay penal damages of Rs.25,000/- 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.200/- per day till full satisfaction of the decree and if it is collected it shall be deposited to this Forum.
