RESERVED

State Consumer Disputes Redressal Commission

U.P., Lucknow.

Appeal No.466 of 2008

Dr. O.P. Agarwal s/o Late Shri S.R. Agarwal,

aged about 62 years, R/o 46- Jawahar Park

Market, Behind Hind Talkies, P.S. Kotwali,

District: Bareilly.                                             ...Appellant.

Versus

1- Excel Medical System, 108-A, Ist Floor,

    Ratandeep Complex, P.S. Kotwali,

    District: Bareilly- 243001 through its

    Proprietor/Managing Director.

2- Wipro G.E. Medical System, A-1,

    Golden Enclave Airport Road,

    Banaglore-560017 through its Proprietor/

    Managing Director.                               ….Respondents.

Present:-

1- Hon’ble Sri A.K. Bose, Presiding Member.

2- Hon’ble Sri R.C. Chaudhery, Member.

For the appellant             : None.

For the respondent No.1 :None.

For the respondent No.2 :Shri Rohit Verma.

Date   13.12.2016

JUDGMENT

Sri A.K. Bose,  Member- Aggrieved by the judgment and order dated 8.2.2008, passed by the Ld. DCDRF, Jaunpur in complaint case No.170 of 2006, the appellant Dr. O.P. Agarwal has preferred the instant appeal under Section 15 of the Consumer Protection Act, 1986 (Act 68 of 1986) on the ground that the impugned order is arbitrary, perverse and is bad in the eye of law. It was delivered without proper appreciation of law and/or application of mind on the basis of surmises and conjectures and therefore, it has been prayed that the appeal be allowed and he be granted

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the reliefs sought by him in the complaint otherwise, he will suffer irreparable financial loss.

From the perusal of the records, it transpires that the appellant/complainant Dr. O.P. Agarwal purchased an Ultrasound Machine LOGIQ-3 Pro Console, 3.5C Convex Probe, 3S Sector Probe with StCWD, E8C  TV/TR Probe with Biopsy Guide, 10LB Linear Probe, THI with Inkjet Color Printer (HP 5000 Series)  bearing serial no.15701 W.S.-6 from M/s Excel Medical System, Bareilly on 24.6.2004 vide Customer Code no.260924 Invoice No.45500159 dated 24.6.2004. M/s Excel Medical System is the authorized dealer/ agent of the OP no.2 Wipro G.E. Medical System, Banglore for a sum of Rs.12,50,000.00. The dealer assured him at the time of the transaction that an expert from the Company will visit the chamber of the appellant within a fortnight for configuration and narration/explanation of all applications. However, the respondent failed to provide the services as promised to the full satisfaction of the customer and thereby, allegedly committed deficiency in service. Aggrieved by this remiss, the appellant/ complainant Dr. O.P. Agarwal filed complaint case no.179 of 2006 for redressal of his grievances. It also submitted that the respondent/OPs be directed to pay Bank interest and loss of income incurred by him for non-operation of the aforesaid Ultrasound Machine to the tune of Rs.5 lacs, in addition to Rs.50,000.00 for mental and physical pain.

The Forum below, after hearing the parties,  observed that the complaint was frivolous in nature and accordingly, dismissed the same on 8.2.2008. It also

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directed the appellant/complainant to pay a sum of Rs.10,000.00 to the OPs under section 26 of the Act for filing frivolous complaint.

 The appeal was taken up for hearing on 18.11.2016. The ld. counsel for the appellant Shri S.K. Verma was not present. An adjournment application was moved on his behalf which was vehemently opposed by the ld. counsel for the respondents. It was submitted that Shri S.K. Verma never appears in any case but some how manages to send his adjournment applications clandestinely. Detailed observation in this respect has been made in the order sheet dated 18.11.2016. The ld. counsel for the respondent no.2 M/s Wipro G.E. Medical System was present during hearing. The registered notice sent to its dealer was not returned served or unserved. Hence, service over it was deemed sufficient. Since the appeal was pending for more than 8 years for disposal therefore, in view of the provisions contained under Rule 8(6) of the U.P. Consumer Protection Rules, 1987 read with Section 30(2) of the Act 68 of 1986, we deemed it appropriate to proceed with the matter. Accordingly, ld. counsel for the respondent no.2 was heard. During the course of hearing, he submitted that the Company will have no objection if the amount of cost Rs.10,000.00 imposed upon the appellant under section 26 of the Act 68 of 1986 is set aside. We have given due consideration on this aspect of the matter. Section 26 provides that:

"where a complaint instituted before the District Forum, the State Commission or as the case may be, the National Commission, is found to be frivolous or vexatious, it shall, for

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reasons to be recorded in writing, dismiss the complaint and make an order that the complainant shall pay to the opposite party such cost, not exceeding ten thousand rupees, as may be specified in order."

In the instant matter, the factum of transactions of the Ultra Sound Machine has not been disputed. The respondents/OPs have also not disputed the fact that several requests were made by the appellant/complainant for timely configuration and optimized setting. There is nothing on record to prove that proper attention was paid to these requests. From the perusal of the records, it transpires that the appellant/complainant had made various Addendum Claims which are neither permissible nor could be ordered to be paid under the Act. The ld. Forum below, on the basis of facts, circumstances and documentary evidence, arrived at a conclusion that the appellant had failed to prove his case. It accordingly dismissed the complaint. There is no irregularity or illegality in the finding as the appellant/complainant has not disclosed the nature of configuration which were required to be installed. Vague allegations are not sustainable and therefore, we are not inclined to interfere in the same.

The ld. Forum below, however, directed the appellant/complainant to pay a sum of Rs.10,000.00 as cost under section 26 of the Act for filing a vexatious and frivolous complaint. No reason has been recorded for arriving at this conclusion. Every failure to prove the complaint case can not be treated as frivolous or vexatious. In the instant matter, the transaction has not

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been denied. No evidence has been adduced to prove that the Ultra Sound Machine was properly configurated and put at its optimized setting at the time installment. Therefore, it was not appropriate for the ld. Forum below to exercise powers vested under section 26 of the Act. The appellant/complainant failed to prove his case and therefore, his case was dismissed. There is no irregularity or illegality in this aspect of the finding. However, the ld. Forum has not recorded any finding to establish the factum of frivolousness. Thus, this part of the judgment can not be confirmed. The ld. counsel for the respondent Shri Rohit Verma has no objection if the cost imposed upon the appellant/complainant under section 26 of the Act 68 of 1986 is set aside.

Considering the totality of the circumstances, we deem it appropriate to set aside the cost imposed under  section 26 of the Act. Remaining part of the judgment and order is liable to be confirmed. Accordingly, the appeal deserves to be partly allowed.

ORDER

          The appeal is partly allowed. The cost of Rs.10,000.00 imposed upon the appellant/complainant under section 26 of the Act is set aside. Remaining part of the judgment of confirmed. 

No order as to costs. Certified copy of the judgment be provided to the parties in accordance with the rules.

         (A.K. Bose)                                (R.C. Chaudhary)

    Presiding Member                                Member

Jafri PA-II

Court No.3