BEFORE THE CONSUMER DISPUTES REDRESSAL FORUM, ERNAKULAM.
Dated this the 4th day of April 2017
Filed on : 18-10-2013
PRESENT:
Shri. Cherian K. Kuriakose, President.
Shri. Sheen Jose, Member.
Smt. Beena Kumari V.K. Member.
CC.No.716/2013
Between
Dr. Sheeba Zino, : Complainant
Pulimood House, Church Road, (By Adv.Ajith George, Peechanatt
N. Kalamassery, house, Panangad, Cochin-682 506)
Ernakulam-683 104.
And
Confident Dental Equipments : Opposite party
Ltd., Ist Floor, Sivadas Towers, ( By Adv. S. Renjith, 1st floor, Shivadas,
Opp. Mymoon Theatre, Towers, Opp. Mymoon Theater,
Chittoor road, Cochin-18, Chittoor road, Ernakulam, Kochi-18)
rep. by its Authorised Officer.
ORDER
Cherian K. Kuriakose, President.
1. Complainant's case
2. The complainant is a Dental surgeon running a clinic by name C'N'ZEE Dental Clinic for her likelihood at Pulimoodu building, Church road, North Kalamassery. She purchased an Auto Clave machine from the opposite party for sterilizing Dental equipments, at a cost of Rs. 33,712/-. The machine delivered to the complainant was a faulty one. Even though the complainant purchased the machine during February 2013, the bill issued by the opposite party shows the date of purchase as 03-10-2012. The false date in the retail invoice was with the intention of the opposite party to deliver a faulty machine to the complainant in order to deceive her. From the 1st day onwards the machine showed signs of complaint. The complainant was dismayed and she contacted the opposite party for a solution for her problem. But the opposite party was not unable to rectify the problem even after three attempts made on different dates. The opposite party had assured that they would replace the machine or reimburse the value of the machine. Despite waiting for four months the faulty machine was not replaced. The complainant had to rent out a machine at the rate of Rs.100/- per day as the machine supplied by the opposite party became functionless. The complainant's husband also contacted the opposite party through e-mail dated 03-09-2013, which also did not yield any results. The complainant had to divert many of her patient to nearby clinic since the Auto Clave machine supplied by the opposite party was defective. The opposite party thereby committed unfair trade practice and deficiency in service. The complainant therefore seeks a direction to the opposite party to replace the faulty machine or reimburse its cost with the 12% interest and to award compensation of Rs. 4,00,000/- with costs of the proceedings.
3. Notice was issued to the opposite party. The opposite party appeared and filed a version contending inter-alia as follows:
4. The complaint is not maintainable. The complainant has not disclosed the correct fact before the forum. The allegation that she purchased the Auto Clave machine during February 2013 is incorrect. It was purchased on 03-10-2012. The cost of the machine was Rs. 33,712/-. The machine was installed on the very next day of its purchase, in the clinic of the complainant. The machine carried a warranty of 12 months from 3-10-2012 the date of purchase. The complaint was filed on 18-10-2013. The complainant did not produced the warranty card purposefully. The opposite party never received any e-mail from the complainant on 03-09-2013 . The machine given to the complainant was of good quality. No complaint was made to the opposite party by the complainant over the phone as alleged. The complainant did not rent in any machine to her clinic. There was no deficiency in service on the part of the opposite party. The complainant did not sustain any loss. There is no cause of action. The complaint deserves dismissal.
5. The following issues were settled for consideration
i. Whether the complaint is maintainable?
ii. Whether the complainant had proved that the opposite party had committed deficiency in service and unfair trade practice as alleged?
iii. Reliefs and costs
6. The evidence in this case consist of the oral evidence of PW1 and Exbts. A1 and A2 were marked on the side of the complainant. The opposite party examined as DW1 and Exbts. B1 and B2 were marked. Heard both sides.
7. Issue No.i. The learned counsel for the opposite party argued that the complainant was running a dental Clanic since last 9 years and that she was a medical professional. It can not be considered that a medical professional who had purchased a medical equipment would come within the purview of a consumer within the meaning of consumer Protection Act. There is no evidence with regard to the income of the complainant and therefore it can not be construed that the complainant was living with the income derived by conducting a dental clinic. A dentist's profession can not be assumed as a profession meant for eking out one's livelihood. It is a dignified profession, made viable by marketing it commercially . In that view of the matter the purchase of the machine was for pursuing a commercial transaction. The complainant will not therefore come within the purview of the definition 'consumer' within the meaning of the Consumer Protection Act. The issue is accordingly found against the complainant.
8.Issue No. ii. Exbt. A1 is the purchase bill of the machine dated 3-10-2012. Exbt.A1 would go to show that the complainant had purchased an Auto Clave machine from the opposite party on 3-10-2012. Exbt. A2 is a copy of the e-mail communication allegedly sent by the complainant to the opposite party. Exbt. A2 is seen to have sent to the address “cdelcochin @vsl net”. Exbt. A2 document does not bear any date. It also does not show that it was sent to the address of the opposite party, as none of the documents produced by the opposite party or the complainant has shown the said email address was belonging to the opposite party. Going by Exbt. A1 the complainant had filed the complaint only after the expiry of the warranty period. The complainant had not produced relevant documents to substantiate her claim. In the above circumstances, we find the issue is against the complainant.
9. Issue No.iii. In the result, having found issue numbers 1 and 2 against the complainant we find that the complaint is liable to be dismissed and is accordingly dismissed.
Pronounced in the open Forum on this the 4th day of April 2017.
Sd/-
Cherian K. Kuriakose, President.
Sd/-
Sheen Jose, Member.
Sd/-
Beena Kumari V.K., Member.
Forwarded/ByOrder,
Senior Superintendent.
Appendix
Complainants Exhibits
Exbt. A1 : Invoice dt. 03-10-2012
A2 : True copy of e-mail
Opposite party's Exhibits:
Exbt. B1 : True copy of warranty
B2 : Receipt
Depositions
PW1 : Dr. Sheeba Zino
DW1 : Jobi N.T.
Copy of order despatched on:
By Post: By Hand:
