Kerala

StateCommission

A/16/817

M/S CONFIDENT DENTAL EQUIPMENT - Complainant(s)

Versus

DR. DEEPAK P G - Opp.Party(s)

S REGHUKUMAR

29 Nov 2019

ORDER

KERALA STATE CONSUMER DISPUTES REDRESSAL

COMMISSION  VAZHUTHACAUD, THIRUVANANTHAPURAM

APPEAL NO. 817/16

JUDGMENT DATED: 29.11.2019

PRESENT : 

SHRI. T.S.P MOOSATH                                             : JUDICIAL MEMBER

SHRI.RANJIT .R                                                          : MEMBER

SMT. BEENAKUMARI.A                                            : MEMBER

1. M/s Confident Dental Equipments Ltd.,

Plot No.17H, Sector 1, Phase II,

Bidadi, Ram Nagar, Karnataka State,

PIN – 562 109. R/by its Managing Director,

Sri. Brahmavar Subhashchandra Shetty.

                                                                                                 : APPELLANTS

2. M/s Confident Dental Equipments Ltd.,

#4, 1^st floor, Sivadas Tower,

Opp. Mymoon Theatre,

R/by its Managing Director,

Sri. Brahmavar Subhashchandra Shetty.

 

(By Adv: Sri. George Cheriyan Karippaparambil)

 

            Vs.

 

Dr. Deepak P.G,

Pranavam, S-15, Shanthinagar,

Sreekaryam, TVPM, Kerala State-695 017.                  : RESPONDENT

 

JUDGMENT

SHRI. RANJIT. R : MEMBER

Opposite parties 1 and 2 in the appeal against the order in CC.06/14 dated,17.06.2016 on the file of Consumer Disputes Redressal Forum, Thiruvananthapuram (for short the District Forum) by which the District Forum directed  them to refund an amount of Rs.4,14,313/-  to the complainant along with Rs.50,000/- as compensation and Rs.5000/- as costs of the proceedings.

2.      The case of the complainant in brief is that:-

Complainant is a dental doctor by profession.  He placed an order for two dental chairs and an X-ray machine on 14.10.2012 from Confident Dental Equipments Ltd.  The total price of the products were Rs. 4,14,891/-Rs. 10,000/- was advanced on 14.10.2012.  Opposite party’s Cochin office on confirmation of the order asked the complainant to pay the balance amount in two installments. Complainant made the payment as two installments of Rs. 1,30,015/- on 9^th January 2013 and Rs. 2,74,876/- on 16^th April 2013.  On 10^th of March complainant placed another order for a compressor and dental trolley.  An autoclave package was also added to this order later.  The total price of the products were Rs. 1,20,769/-.  Rs. 5,000/- was advanced on 16^th March 2013.  On confirmation of the order by opposite party, complainant made the payment in two installments of      Rs. 40,005/- on 16^th of April 2013 and Rs. 80,764/- on 9^th July 2013.  The first order was delivered to the complainant on 23-04-2013, but the second order which was assured by opposite party to be delivered by first week of May was delayed.  Complainant had planned the inauguration of his clinic on June, 2013.  Complainant informed the matter to opposite party and they told him that the product will be delivered by first week of June 2013.  By the start of June 2013, complainant came to know that there was a strike on the warehouse of opposite party.  So complainant tried to cancel the order, but then again 2^nd opposite party ensured him that the delivery will be made soon.  After a long wait the products were delivered to him only on 2^nd August 2013.  The dental trolley that the complainant ordered was out of stock and hence it was cancelled and its payment Rs. 18,632/- was refunded to him on 27^th August 2013.  Due to delay in delivery the inauguration was rescheduled to 17.08.2013.  While installing the product at complainant’s clinic Service Technician of the opposite party informed the complainant that the X-ray machine delivered to him was not what he ordered for, but a cheaper model.  The technician reported this matter to Branch Manager of the opposite party and as instructed by him, the X ray unit, that was delivered and installed. Opposite party then assured the complainant that the original machine would be delivered to him within two weeks time.  During installation 3 way syringe of a dental chair was found defective by the technician of the opposite party.  This was also reported to opposite party.  This should have been replaced under the one year replacement warranty of the parts, as assured to him by the representative of the opposite party during purchase.  This part was not replaced.  The earnings from the clinic is the only source of income of the complainant for his livelihood.  The dental chair is an unavoidable component in the clinic.  Even a basic check up of the patient cannot be properly done without a proper working dental chair.  Even during warranty period, the service from opposite party was extremely poor.  Complainant has lost trust in opposite party.  Hence he filed the complaint praying that the opposite party to take back the supplied machinery and refund its price with interest @ 12% per annum. 

3.      Opposite parties filed joint version contending that:-

The complainant ordered Blue X-ray unit, due to non-availability of the same and after making urgent demands through telephone for installation of any temporary X-ray unit by the complainant, the opposite party installed the New Life Radiology X-ray unit temporarily.  After installing the first temporary X-ray unit later on 24.04.2014 the opposite party send Blue X-ray unit to the complainant, it was received by the complainant.  Again an unit of X-ray was sent to the complainant.  Even after receiving the same he was not permitted the agents of opposite party to install the X-ray units and take back the temporary unit.  Now the complainant retained two additional X-ray units illegally.  The complainant purposely cheats the opposite party.  The illegal action performed by the complainant cause huge damages and untold hardship to the opposite party.  The action of the complainant is illegal and tried to harass and defame the opposite party.  The act of the complainant clearly demonstrates that complainant did not approach this Forum with clean hands.  The complainant makes wrongful loss to the opposite party.  The complainant tries to suppress real facts by means of adducing false allegations.  The opposite party issued three types of X-ray mounting arrangement such as wheel mounted on 4 wheels model No. C70-D, chair Mount Model No C 70-E and wall mount model No. C70-F.  Even though the opposite party issued three units the complainant filed frivolous and vexatious application.  The complainant is not obeying the statutory requirements such as registration, obtain licence etc.  The opposite party issued three X-ray units instead of one unit.  Even though the opposite party sent three X-ray units to the complainant, the complainant is not willing and ready to install the second and 3^rd units and take back the first temporary X-ray unit.  It means that the complainant purposely tried to defame the opposite party.  The act of the complainant cause huge loss and damage to the opposite party. 

4.      Evidence consisted of the affidavit in lieu of chief examination of the complainant and Exts.P1 to P7 marked on his side.  The power of attorney of the opposite party filed affidavit in chief, no document was marked on their side.  Commissioner’s report was marked as Ext.C1.

5.      On the basis of the materials produced more particularly the commission report and considering the rival contentions the District Forum found that there exist defects in the items supplied by the opposite party. The Forum on the basis of the above finding directed the appellant to pay the entire price of the products ie Rs.4,14,313/- with compensation of Rs.50,000/- and costs of Rs.5000/-.  Aggrieved by this order opposite parties have preferred this appeal.

6.      The learned counsel for the appellant contending that there is no defect to both the dental chairs and the alleged defect in the complaint and in the commission report were limited only to one three way syringe and one air rotor point in the respective chairs.  The cost of replacement of the aforesaid three way syringe and one air rotor is less than Rs.1000/-.  Hence direction to refund the entire sale price is unwarranted and un sustainable.  The aforesaid one three way syringe and one air rotor point are consumable parts which require service due to its use.  The District Forum should have appreciated that the actual price of the X-ray machine is only Rs.72,676/- and complainant is having three X-ray machines for the price of the one X-ray machine.  Two X-ray machines given for replacement are kept in the clinic of the complainant and this fact is made mentioned in the commission report also.  There is no explanation or reason for non-installation of the replaced X-ray machine in the clinic by the complainant.  The installation of New Life Radiology X-ray Head was only on a temporary basis till the completion of the civil and interior works as requested by the complainant.  Opposite party agreed to install the new X-ray head after the completion of the entire work of the clinic.  Accordingly they have send the X-ray unit on 3.10.2013 to replace the New Life X-ray Machine, which was installed.  The complainant willfully did not allow the opposite parties to install the Blue X-ray head and complainant did not return the New Life Radiology X-ray.  Further as directed by the District Forum the opposite party has supplied another X-ray machine on 30.4.2014.  The above facts were also noted by the commissioner in his report.  Hence the direction of the Forum to refund the entire amount with compensation is not proper and is un-warranted and prays for allowing the appellant by setting aside the Order of the District Forum.

7.      The respondent/complainant who was present in person reiterated his contentions in the complaint.  He further contended that the version of the opposite party that the Blue X X-ray machine was ready for delivery on 14.2.1013 is wrong.  In the affidavit filed by the opposite party in lieu of chief the representative of the opposite party has stated that Blue X X-ray was not available.  Second order was placed on 10.3.2013 and 1/3^rd of the payment was made on 16.4.2013 and in the letter sent by the opposite party to the complainant it is stated that the products will be delivered within 5 to 7 weeks.  But they delivered it only on 2.8.2013 ie 16 weeks after confirmation of the order.  Due to these acts the complainant had to postpone inauguration of his clinic and it could be inaugurated only on 17.6.2013.  The X-ray machine which was ordered was Blue X X-ray whereas opposite party has delivered New Life Radiology X-ray.  He has pointed out the same in the installation certificate itself and the opposite party has agreed to replace the same.  Second X-ray machine was delivered, but it was a chair mount machine, instead of wall mount machine which was ordered by him.  These facts are clearly stated by the commissioner in his report.  The commissioner has pin pointed that there is defects in the X-ray machine which was installed.  The three way syringe system was not working, the second chair Mookambika showed two defects ie in Air rotor and suction device.  The opposite parties delivered un-wanted items, which do not serve the purpose.  They deliberately delivered the X-ray machine, which was not ordered by the complainant.

8.      We have considered the arguments put forward by both parties and perused the records.  The allegations leveled against the opposite parties by the complainant are that-

1. The dental chairs with accessories and other parts were delivered later.  The X-ray machine ordered was not delivered instead of delivered another unit.  This X-ray machine was having manufacturing defects also.  Due to these facts the inauguration of the clinic of the complainant was postponed.  The dental chair with accessories which was supplied was having many defects and hence it is to be replaced. 
2. There is no dispute to the fact that the complainant, a Dentist has placed an order of two dental chair and X-ray machine on 14.10.2012 for his clinic.  He placed another order on 13.3.2013 for compressor, dental trolley and autoclave package.  He has also made payment for the same.  The first order was delivered on 23.4.2013 the supplied items was (i) Meenakshi dental unit with accessories and (ii) Mookambika dental chair with accessories.(iii) Euro dental operations and (iv) compressor dental operations.  The X-ray unit supplied was not the one which the complainant ordered.  New Life Radiology X-ray Unit was delivered instead of Blue X X-ay wall mount which was ordered for which the amount was paid.

9.      The second order was assured to be delivered by first week of May (Ext.P2), but it was delayed.  Due to the delay the inauguration of the clinic was postponed to August 2013.  The 2^nd order was delivered only on 2^nd August 2013.  Even though they promised that it will be delivered within 5 to 7 weeks.  The order of dental trolley was cancelled as it was out of stock and the amount for the same was refunded.

10.    The products were installed on 16.8.2013.  On installation of the products, it was noted by the complainant in the installation certificate (Ext.P4) itself that its X-ray unit installed is New Life Radiology instead of Blue X X-ray wall mount.  He has instructed the opposite parties to replace the X-ray unit.  He has also noted in the installlation certificate that the horizontal arm of X-ray wall mount installed was defective.

11.    According to the opposite party, the installation of New Life Radiology X-ray head was only on a temporary basis till, the complainant finish civil and interior works.  They have sent the Blue X X-ray machine on 13.10.2013 to replace the New Life X-ray machine.  According to the complainant the replaced X-ray machine is a chair mounted one whereas he has ordered for wall mounted Blue X X-ray head.

12.    We find that the opposite party has delivered a different model X-ray unit to the complainant intentionally.  If they have delivered different X-ray unit as a temporary machine as requested by the complainant, they would not have send the e-mail,( Ext.P5) to their Cochin Branch office.  In the e-mail it is stated that Ext.P5  “the below said X-ray unit was dispatched in the month of February 2013 so far after 7 months  you are delivering that X-ray unit came wrong, what can be do now?  Moreover the complainant has noted that the delivered X-ray Unit is not the one which he ordered in the installation certificate (Ext.P4)  itself.  These exhibits clearly show the falsity of the claim of the opposite party.  The allegation leveled against the complainant by the opposite party is with malafide intention.  No satisfactory explanation is given by the opposite party in not delivering the Blue X X-ray unit which was ordered by the complainant.

13.    Now the next question is whether there were defects to the items that was delivered by the opposite party.  To prove the same.  Complainant has taken out an expert commission to note the defects of the items delivered.  The commissioner in his report has pointed out the following defects. (1) x-ray unit is stopped by the opposite party has many defects.  This unit was not the one which was ordered by the complainant and hence this X-ray unit ie New Life X-ray unit is replaced to Blue X X-ray wall mount.  One of the three way syringe system is not working.  The dental chair, Viz. Mookambika dental chair had two defects, ie defects in Air rotor and suction device.  The commissioner has stated that personal of the opposite party who was present at the time of his inspection, agreed that these defects were there at the time of installation itself.  The commissioner further stated that the replaced Blue X X-ray head was chair mountable, whereas the ordered unit was wall mountable.  The commissioner also stated that the replaced X-ray unit (Blue X X-ray chair mount) and another unit which was alleged to be replaced by the opposite party as per the directions of the Forum is kept un boxed in the premises of the clinic.  These boxes are creating inconvenience to the complainant.  He further states that the delivered components are un warranted components.  Commissioner’s report is un-challenged.  These defective parts/ accessories of the dental chair is to be replaced.   Since the X-ray unit which was delivered and installed is a different one, it has to be replaced with brand new model with Blue X X-ray wall mount, which was ordered by the complainant.  Admittedly opposite party delivered a Blue X X-ray, but  that is chair mount  only.  The complainant had ordered for Blue X X-ray wall mountable.  The 3^rd unit which was delivered is un boxed and it is not known whether it is wall mount or chair mount.  The opposite party is bound to replace the X-ray unit which was installed with a brand new model with fresh warranty.  The District Forum had directed the opposite party to refund Rs.4.14.313/- the costs of the entire equipments and directed them to take back of the machines from the premises.  However it is found that C1 report does not speak that the entire items delivered were defective.  The report only states about the defects of some accessories such as three way syringe system, Air rotor point and suction device of one dental chair (Mookambika dental chair).  The X-ray unit is also to be replaced.  The order of the District Forum hence is wrong and unsustainable.  This order is to be set aside. We do so. The complainant was using the dental chair and accessories for all these years.  Hence the opposite parties are liable to replace the defective parts only.  The order of the District Forum to refund the entire amount is to be set aside and accordingly order is to be modified.

14.    More over the above stated acts and omission on the part of the opposite party, naturally lead to much mental agony, hardship and loss to the complainant.  The complainant is to be adequately compensated for the same.  The District Forum has awarded a compensation of Rs.50,000/- on this ground.  We feel it is just and reasonable compensation to be awarded in the above circumstances.  This part of the order is only to be confirmed.  We do so.  The District Forum also awarded Rs.5000/- as costs of the proceedings for which no interference is called for.

In the result appeal is partly is allowed and the order of the District Forum is modified as follows:-

1. The opposite party is directed to replace the X-ray unit already installed with brand new Blue X  X-ray unit wall mount giving fresh warranty or in the alternative the opposite party has to refund the price of the Blue X X ray - wall amounted with 9% interest from the date of installation (16.08.2013) till realization.
2. One three way syringe system is to be replaced with brand new unit with fresh warranty.
3. Air rotor point of the 2^nd chair ie Mookambika and suction device is to be replaced with brand new unit with fresh warranty.

In the alternative the opposite party is directed to refund the cost of the accessories with 9% interest from the date of installation (16.08.2013)  till realisation.  On payment of these amounts the opposite party can take back the defective accessories from the complainant.  The amount of compensation of Rs.50000/- and costs of Rs.5000/- as ordered by the District Forum is upheld.  Parties to suffer their respective costs.

Release Rs.25,000/- to the respondent/complainant on proper application to be adjusted towards compensation and costs awarded, which was deposited by the appellant at the time of filing the appeal.

 

T.S.P MOOSATH : JUDICIAL MEMBER

 

RANJIT .R : MEMBER

 

 BEENAKUMARI.A : MEMBER

VL.