| Final Order / Judgement | DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION-II Udyog Sadan, C-22 & 23, Qutub Institutional Area (Behind Qutub Hotel), New Delhi- 110016 Case No.108/2011 DR. RUPAL AGRAWAL Flat No.25, Pocket-1, Phase-II, Sector-13, Dwarka, New Delhi ….Complainant Versus DENTAL AVENUE (I) PVT. LTD. Through Its Manager 42/-A/1, Corner Market Malviya Nagar, New Delhi-110017 DENTAL AVENUE (I) PVT. LTD. Through its M.D. 308, Lakshmi, The Mall, Lakshmi Industrial Estate, New Link Road, Andheri (West), Mumbai-400053 ….Opposite Parties Date of Institution : 06.04.2011 Date of Order : 18.04.2022 Coram: Ms. Monika A Srivastava, President Ms. Kiran Kaushal, Member Sh. U.K. Tyagi, Member ORDER Member: Ms. Kiran Kaushal - Succinctly put, Complainant, Dr. Rupal Agrawal purchased a Galla Hasteflex 200 (Titanium) Chair vide retail invoice No.R01/086 dated 14.01.2009 and paid a sum of Rs. 3,11,000/- to Dental Avenue(I) Pvt. Ltd., hereinafter referred to as OP. It is alleged that the said chair had multiple problems.
- It is stated that Complainant at the time of purchase of the Dental Chair was informed that warranty papers of the said chair would be inside the packaging but when the product was opened warranty papers were not there. After repeated reminders, OP sent two year warranty cards of different components, identity details of which do not match with the components fixed in the chair.
- Complainant noticed multiple problems in the functioning of chair from the very first day of its installation. Service engineer’s were called repeatedly but no solution could be provided and after suffering for more than a month when the Complainant asked OP to take back the chair, another service engineer was sent from Mumbai office. The said chair was reinstalled by OP on 05.02.2009. But even after reinstallation there was no end to the problems. After a month the Electronic Control Unit (PCB) needed to be replaced .Besides that water control valve was also defective which needed replacement; connector of the light was burnt and needed replacement. The PCB was finally replaced on 19.06.2009 i.e around 5 months after the problem was encountered. It is stated that the above said replacements clearly indicate that a second hand chair was supplied to the Complainant against the order for a new Galla Hasteflex Chair. It is next stated that the Complainant had to have non-functional chair for four months which caused substantial financial loss to the Complainant. Complainant was left with no other option except to prepare another chamber and install her old manual chair to run the clinic and to carry on with her professional work.
- It is next averred that many components were defective in the said chair, arm of three way syringe was replaced because it was tilted. Out of ten rubber washers eight were found missing and were later supplied by the engineer. Micro motor point of a different company was already found installed in the chair at the time of delivery, despite the fact that it is an optional component and is supposed to be installed later on. There was patch of discoloration on the left arm of the chair.
- Complainant alleges following manufacturing defects in the chair:
- The Venturi Suction never worked from the day of installation and is still nonfunctional.
- The light source of Fibreoptic headpiece has not been replaced as yet.
- Dabi scaler did not work, hence was taken back.
- High vac suction provided with the chair did not work, hence new suction of Kitani was installed after additional payment of Rs.17,500/-.
- From July 2009, chair light started giving problems and was not solved till October 2009.
- The delivery unit has chipped at multiple places and touch pad of delivery unit is nonfunctional requiring replacement since May 2010, and has not been addressed yet.
- The compressor is not working properly and compressor of other dental chair is being used to run the chair.
- It is stated that by the above said act, Complainant feels cheated of her hard earned money by OP. Thus, aggrieved Complainant approached this Commission with prayer for directions to OP to refund the amount paid by the Complainant for the said chair i.e Rs.3,11,000/- along with interest @24% per annum and to grant compensation of Rs. 1,50,000/- for deficiency in service, mental agony and professional losses, additionally it is prayed for directions to award Rs. 11,000/- towards cost of litigation.
- OP resisted the Complaint raising preliminary objection that the Complainant is a Doctor/Dentist by profession. She purchased the said Medical Multiple Function Chair for attending and treating the patients, meaning thereby that the Complainant is using the same for commercial purpose. It is stated that the said chair was purchased to earn profits. Therefore, Complainant cannot be treated as a ‘Consumer’ as per the provision of Section 2(i)(d) of the Consumer Protection Act.
- OP also states that present complaint is time barred as it has been alleged by the Complainant that there were multiple problems in the functioning of the chair right from the day one and it is also alleged that the warranty papers were not found in the chair. Therefore, the alleged cause of action arose on 14.01.2009 while the complaint was filed in the year 2012, that is after more than 2 years.
- It is next stated that OP is not manufacturer of the said chair. OP supplied the chair/s after assembling different parts procured from different companies/manufacturers. But only standard items, approved by ISI or ISO, were being used and that too as per the orders and specifications given by the customers and to their satisfaction. It is stated that since OP has not manufactured anything or even a small part of the chair and has merely assembled different goods/items that too in the premises of the complainant, OP is not liable for any claim.
- It is further averred that OP always attended the so called complaints, irrespective of nature viz. whether it was self generated/created or merely a training session again and again and/ or some trouble. It is stated that OP supplied extra PCB, the payment of which was never made by the complainant. OP replaced ultra sonic scaler of Dabi without any extra cost. OP also replaced other parts as per the choice and wish of the Complainant, without charging any cost.
- It is next stated that service reports are a proof that OP always attended the so called complaints and complainant has shown her satisfaction after every service. It is stated that mental agony and harassment if any, are caused to OP because of Complainant’s immature and rough handling of the said chair. It is therefore, prayed that complaint be dismissed with exemplary cost.
- Complainant has filed the Rejoinder. Evidence by way of Affidavit and Written Arguments are filed on behalf the parties. Material placed on record is perused. Submissions made on behalf of complainant are heard.
- The first preliminary objection raised by OP is that Complainant is not a Consumer as she is a Doctor by profession who is running a Dental clinic, thereby using the said chair to earn profits. Section 2(i)(d) of the Consumer Protection Act clearly states that any person who obtains such goods for resale or for any commercial purpose ceases to be a consumer. OP has referred to number of judgments however, the judgments relied upon are distinguishable on facts. H’ble Supreme Court of India in LAXMI ENGINEERING WORKS Vs P.S.G. INDUSTRIAL INSTITUTE, (1995) 3SCC 583 has held
“the expression “large-scale” is not a very precise expression- the Parliament stepped in and added the explanation to Section 2(d)(i) by Ordinance/Amendment Act, 1993. The explanation excludes certain purposes from the purview of the expression “commercial purpose” - a case of exception to an exception. Let us elaborate: a person who buys a typewriter or a car and uses them for his personal use is certainly a consumer but a person who buys a typewriter or a car for typing others’ work for consideration or for plying the car as a taxi can be said to be using the typewriter/car for a commercial purpose. The explanation however clarifies that in certain situations, purchase of goods for “commercial purpose” would not yet take the purchaser out of the definition of expression “consumer”. If the commercial use is by the purchase himself for the purpose of earning his livelihood by means of self-employment, such purchaser of goods is yet a “consumer”. - It is Complainant’s case that she had purchased one Automated Dental Chair for earning her livelihood and for the purpose of self employment. OP has not been able to establish the fact that Complainant was running a hospital or a clinic with multiple chairs. Therefore we opine that Complainant by purchasing one chair from OP would not cease to be a Consumer and her complaint would be well within the purview of Consumer Protection Act.
- Another objection raised by the OP is that the complaint is barred by limitation as the alleged cause of action arose on 14.01.2009 when the Complainant purchased the Dental Chair while the complaint has been filed by the Complainant in 2011 i.e after more than two years. It is noticed from the material placed before us that various job cards for repairing the chair have been annexed by the Complainant and the last job card when the Complainant got the chair repaired is dated 31.10.2009. The complaint is filed on 06.04.2011 which is very well within the period of limitation, therefore this plea of OP is rejected outrightly.
- The next objection raised by OP is that OP is not a manufacturer; it merely assembled the chair using parts procured from different companies as per the specifications, in the premises of the Complainant. Therefore, as per OP is not liable for any claim as the items installed in the chair were from different manufacturers. It is noticed that OP charged the Complainant for the complete chair without giving any warranty for the same. It is not the case that the complainant paid different manufacturers, for installing different parts. Therefore, we are of the opinion that OP cannot now escape its liability stating that it only assembled the chair as full consideration for the chair was received by them.
- Now, on the merits of the Complainant, Complainant in support of her case has annexed seven, Engineer’s Service Reports/Job Cards appended from Page 23 to 32 of the complaint. It is noticed that the Complainant purchased the said chair on 14.01.2009 and the chair was reinstalled on 05.02.2009 i.e within less than one month. Thereafter, the next problem in PCB and water control not working in the said chair arose on 19.03.2009 i.e approximately one month after reinstallation of the chair. Thereafter, it is noticed that about around five complaints were made to OP and OP rectified the problems therein till 31.10.2009. It is a clear case of deficient service as the complainant paid Rs.3,11,000/- for an automated Dental Chair to provide better services to her patients whereas she had repeated interruptions in the functioning of her clinic.
- It is observed from the material placed on record that the chair was purchased in January 2009 and till September, multiple problems had arisen in the chair. Besides causing substantial financial loss to the Complainant, it was more of harassment as OP denied any warranty on the chair stating that warranty was only on the items installed in the chair.
- We are of the view that OP has made bald averments without a single documentary proof of the fact that the items installed in the said chair were of good quality else why would OP change almost each and every part. OP changed the Electronic Control Unit (PCB), Water Control Valve and Connector. The Old adage that ‘men may lie but documents don’t’ suits the instant complaint as the various reports from service engineers of OP establish the fact that there were multiple problems in the Dental Chair from the very beginning.
- During the course of arguments Counsel for the Complainant was asked whether the Complainant was still in possession of the said chair. It is informed by the Complainant that the said chair was sold about two to three years back without the permission of this Commission. Therefore, as the Complainant does not possess the said chair, it cannot be repaired or replaced, hence we are not inclined to refund the amount paid for the chair.
- In view of the discussion above we partly allow the complaint and direct OPs to pay Rs.1,50,000/- for causing mental agony and professional loss to the Complainant within four months from the date of order. Failing which OP shall pay Rs. 1,50,000/- @10% from the date of filing of the complainant till realization.
File be consigned to the record room after giving a copy of the order to the parties. | |
