Complaint filed on: 16-11-2016 Disposed on: 04-10-2017
BEFORE THE DISTRICT CONSUMER DISPUTES
REDRESSAL FORUM
OLD DC OFFICE COMPOUND, TUMAKURU-572 101
CC.No.146/2016
DATED THIS THE 4th DAY OF OCTOBER 2017
PRESENT
SMT.PRATHIBHA. R.K. BAL, LLM, PRESIDENT
SMT.GIRIJA, B.A., LADY MEMBER
Complainant: -
N.C.Nagaraj
S/o. N.Chikkaiah,
Aged about 60 years,
R/o. Venkateshapura,
Madhugiri Road, Sira gate,
Tumakuru city
(By Advocate Sri.B.K.Prabuswamy)
V/s
Opposite parties:-
1.Dr.Rajesh,
CORTI Hearing Clinic,
H.No.114, Tawakkal Chambers,
MG Road, Frazer Town,
Bengaluru
2.Dr.N.Sathyanarayana
CORTI Hearing Clinic,
No.2284, 1st Cross, MG Road,
Sridevi Nursing Home Road,
Tumakuru
(OP No.1 and 2 by Advocate Sri.N.Hemaprasad)
ORDER
SMT.PRATHIBHA. R.K. PRESIDENT
This complaint is filed by the complainant against the OP No.1 and 2, under Section 12 of the Consumer Protection Act. The complainant prays to direct the OPs to refund of Rs.1,40,000=00 together with interest @ 18% p.a. apart from Rs.15,000=00 towards general damages for mental shock and agony suffered by the complainant, in the interest of justice and equity.
2. The brief facts of the complaint is as under.
The complainant was having a problem in his left ear i.e. intolerable sound in his left ear. Hence, the complainant had contacted the 2nd OP for consultation. After examination, the 2nd OP had advised the complainant to adopt CORTI a machine called as WIDEX with P.312 battery. Thereafter, the 2nd OP contacted the 1st OP who is a manufacturer of the said machine. Both the OPs have given an assurance that, “CORTI” machine will solve his problem.
The complainant further submitted that, as per the advice of the OPs, the complainant had purchased the said WIDEX (Unique 110, Sl.No.062151/ 06211) machine and one battery i.e. P.312 on 22-1-2016 vide invoice No.248T for Rs.1,40,000=00 from the OPs. As per the direction of the OPs, the complainant had adopted the above said hearing machine to his left ear, but the said machine has not solved his left ear problem. Thus, the complainant had kept the machine for unused. Thus, the complainant had approached the OPs and requested them to take back the machine and battery and to refund the amount of Rs.1,40,000=00. But the OPs have refused to take back the said machine and failed to pay the price amount of the machine. Hence, the OPs have shown deficiency in service. Thus, the complainant has suffered great mental shock and agony from the OPs. The complainant has got issued a legal notice to the OPs and the said notice was served on the OPs and the OPs have issued an evasive reply. Hence, the complainant has come up with the present complaint.
3. In response to the Forum Notice, the OP No.1 and 2 have appeared through their counsel and filed common objection, contending interalia as under:
The OPs submitted that, the complaint is not maintainable both in law and on facts and the complaint is liable to be dismissed in limine. The complaint is devoid of merits and the complainant has made false, frivolous and vexatious allegations, malafide with an ulterior motive to harass the OPs and to make wrongful gain from the OPs.
The OPs further submitted that, the complaint is not maintainable for non-joinder of necessary parties As the complainant has approached his doctors by name Dr.Ravi Kumar and Dr.J.V.Rajashekar, who having examined the complainant on preliminary examination referred the complainant to the audiologist/2nd OP for audiological evaluation on 21-1-2016. The complainant has not made as those doctors are parties to the above complaint as such the complainant is liable to be dismissed.
The OPs further submitted that, the complainant got examined for his hearing problem by his doctor and he came to the 2nd OP clinic for audiological evaluation, then the 2nd OP examined the complainant without collecting any fee for audiological evaluation on 21-1-2016. As a result of audiological evaluation, the complainant was having a problem of mild to moderate sensorinural hearing loss in the right ear and moderate to moderately sensorinural hearing loss in the left ear which the disease is called “Tinnitus”, for which there is solution called Tinnitus Masker and hearing aid for hearing loss. Both these are combined in a single instrument and the audiological evaluation sheet was sent to the doctor who referred the complainant with recommendations of hearing aid which WIDEX Unique 110 product manufactured by a company called WIDEX of Denmark, which is a reputed product of high definition hearing the same is marked by WIDEX India Pvt. Ltd. No.54, Delta Tower, 4th floor, Sector 44, Gurgaon, Haryana. The complainant has purchased the said hearing aid device to his satisfaction. Hence, there is no deficiency of service either from the 1st OP and the 2nd OP.
The OPs further submitted that, the complainant has purchased the hearing device as per the satisfaction of the complainant. As such, the complainant has been using the said device is without any manufacturing defect. Further, the sale of the product is within the ambit of sale of Goods Act, as such cannot be taken back and refund of the amount of Rs.1,40,000=00 to the complainant does not arise.
The OPs further submitted that, there is no deficiency of service on the part of the OPs and there is no manufacturing defect in the hearing aid (device) as such there is no relationship of consumer and consignee between the complainant and the OPs.
The OPs further submitted that, the disease “Tinnitus” is a very typical disease which takes a long time to get any relief. There is no miracle cure available. The complainant has to wear the above said instrument for minimum of 8 hours a day at least for 6 months. Whereas the complainant himself is claiming that, he has not worn the aid so how does he cannot expect his hearing to get better. When there is no any defect in the said hearing aid and there is no deficiency in service on the part of the OPs. Hence the OPs are not liable to pay the amount of Rs.1,40,000=00 by taking back the said device with interest including general damages of Rs.15,000=00. The complainant has not approached this forum with clean hands. All other allegations which are not expressly admitted herein are hereby denied as false and the complainant is put to strict proof of the same. Hence, it is prayed to dismiss the complaint exemplary costs, in the interest of justice and equity.
4. In the course of enquiry in to the complaint, the complainant and 2nd OP have filed their affidavit evidence reproducing what they have stated in their respective complaints and version. Both parties have produced documents which were marked as Ex-C1 to C5 and Ex-R1 R6. We have heard the arguments of both parties and perused the documents and then posted the cases for orders.
5. Based on the above materials, the following points will arise for our consideration.
1. Whether there is deficiency in service on the part of the OPs as alleged by the complainant?
2. What Order?
6. Our findings on the above points are;
Point no.1: In the negative
Point no.2: As per the final order below.
REASONS
7. After looking into the allegations made in the complaint and also version filed by the OPs, it is not in disputed that, the complainant had purchased the WIDEX machine (Unique 110, Sl.No.062151/062111) and one P.312 battery from 2nd OP on 22-12-2016 vide invoice no.248T for a sum of Rs.1,40,000=00. The main contention of the complainant is that, the said machine has not solved his left ear problem. Hence, the complainant has approached the OPs seeking for refund of Rs.1,40,000=00 from the OPs. But the OPs have not refunded the amount and refused to take back the said machine from the complainant. To substantiate the above said facts, the complainant has produced VAT Invoice bill dated 22-1-2016 and paid Rs.1,40,000=00 towards WIDES machine. This evidence of complainant remains unchallenged, to discard the evidence of complainant, there is no rebuttal evidence, therefore it is proper to accept the contention of complainant.
8. On the contrary, the OPs have strongly contended that, the complainant has purchased the said hearing device as per his satisfaction. The complainant has been using the said machine without any manufacturing defects. The sale of product is within the ambit of Sale of Goods Act, as such take back the said device and refund the amount of Rs.1,40,000=00 to the complainant does not arise. There is no deficiency in service on the part of the OPs and there is no manufacturing defect in the said device. The complainant has to wear the said device for minimum of 8 hours a day for at least six months. The complainant himself admitted that, he has not worn the said device. Hence, the OPs are not liable to pay the amount of Rs.1,40,000=00 by taking back the said device from the complainant.
9. On making careful scrutiny of the case of complainant on the background of oral and documentary evidence of both parties, it is no doubt true that, the complainant has purchased the WIDEX hearing ear device and one P.312 battery from 2nd OP on 22-12-2016 by paying a sum of Rs.1,40,000=00. The complainant specifically alleged that, the above said hearing device has not solved his left ear problem and it is not at all useful to him. Hence the complainant has approached the OPs seeking for refund of Rs.1,40,000=00, but the OPs have not refunded the amount. The complainant has not produced any documentary evidence to show that, the said hearing device is not useful to him and the said hearing device is having defect. In this regard, the complainant has not produced any expert opinion or technical report to show that, the said hearing device has not solved his hearing problem and also the said hearing device is defect. The OPs have contended that, the said device has to be used for minimum of 8 hours a day at least 6 months continuously to get the relief of the said problem of the complainant. In this regard, the OPs have produced documentary evidence and it is marked as Ex-R1 and R2. The complainant nowhere stated in the complaint or affidavit evidence that, he has used the said hearing device for six months. Moreover, the complainant has not alleged any manufacturing defects in the said device. Accordingly, the OPs have refused to refund the said device amount to the complainant on account of not having valid expert opinion from the technical person. In fact, the OPs have rightly refused the claim of complainant, as he has not having valid expert opinion. Be that as it may, the complainant has not made a single whisper in the complaint that, he was using the machine regularly for 8 hours per day. Further no averment has been made that even after using the machine, the machine has not yield good result. As such we are of the opinion that the OPs are not negligent and there is no deficiency of service on the part of the OPs. Thus, we are of the view that, the oral and documentary evidence of OPs placed before the forum are more believable and trustworthy and acted upon than the material evidence of the complainant. So in view of the discussion made hitherto, we hold that, the complainant has failed to prove this point with believable material evidence that, the OPs are negligent and there is deficiency in service on the part of the OPs. Accordingly, we answer this point in a negative. In the result, for the foregoing reasons, we proceed to pass the following order.
ORDER
The complaint filed by the complainant is hereby dismissed. No costs.
Supply free copy of this order to both parties.
(Dictated to the Stenographer, transcribed and typed by him, corrected and then pronounced by us in the Open Forum on this, the 4th day of October 2017)
LADY MEMBER PRESIDENT
