IN THE CONSUMER DISPUTES REDRESSAL FORUM, PATHANAMTHITTA,
Dated this the 19th day of March, 2012.
Present : Sri. Jacob Stephen (President)
Sri. N. Premkumar (Member)
Smt. K.P. Padmasree (Member)
C.C.No.165/2011 (Filed on 12.07.2011)
Between:
Thiruvalla Medical Mission
(The Dewan Bahadur Dr. V. Varghese
Hospital Trust Association),
Post Box No.50, Thiruvalla,
Rep. by its Chief Executive Officer,
Mr. John. V. Abraham.
(By Adv. Sabu Thomas) ….. Complainant
And:
M/s. Cizac Sales & Services-
Pvt. Ltd., Chittoor Road,
Pachalam, Cochin – 482 012,
Rep. by its Managing Director,
Joseph Zachariah.
(By Adv. Soni. P. Bhaskar) ….. Opposite party.
O R D E R
Smt. K.P. Padmasree (Member):
Complainant has filed this complaint against the opposite party for getting a relief from the Forum.
2. The case of the complainant is as follows: Complainant is the Chief Executive Officer of an hospital run by a Trust registered under Travancore-Cochin Educational and Charitable Societies Act 1955. Complainant’s hospital is a service organization giving medical service to the general public. It is not a commercial concern. On 17.07.2010 complainant purchased an Usha make Blower for the hospital under invoice No.TTB 157 from the opposite party for an amount of ` 85,099, with a positive warranty for 1 year. Blower is used in effluent treatment plant as an essential part of an hospital arrangement. On 02.05.2011 a slight noise change was noticed and the matter was intimated to the opposite party. The representative of the opposite party came on 04.05.2011 and the blower was taken for repair under warranty period. Thereafter opposite party informed the complainant that an amount of ` 40,000 is to be paid for the repair and now it is with them from 04.05.2011. Blower is an inevitable machine for the treatment of waste water in the hospital. So complainant was forced to buy a new blower. During the warranty period, opposite party has not even deputed a technician to do the maintenance of the machine. Till this complaint was filed the blower was not repaired or given back. Opposite party failed to undertake the terms of contract and warranty. Opposite party committed unfair trade practice. On 18.06.2011 complainant sent a notice demanding repair as per warranty but the opposite party replied raising untenable contentions. The above said act of the opposite party is deficiency in service which caused financial loss and mental agony to the complainant and the opposite party is liable to the complainant for the same. Hence this complaint for the realization of ` 1,94,167 under various heads including the price of the old blower and the newly purchased blower along with compensation and cost.
3. Opposite party entered appearance and filed their version with the following contentions. The complaint is not maintainable either in law or on facts and the opposite party admitted that the complainant purchased a blower but it is for commercial purpose. Opposite party’s contention is that, on that ground itself complaint is not maintainable. Opposite party’s further contention is that the blower is working satisfactorily without any complaint. But due to the careless and irresponsible operation of the machine and lack of preventive maintenance from the operators the machine got damaged. On receiving the information about abnormal sound, service engineer inspected the machine on 30.04.2011 and give specific direction to stop the working of the machine until further inspection. But avoiding the direction operators continuously operated the blower till 02.05.2011. On 02.05.2011 the service engineer inspected the machine and found that the machine is operated without any lubricants. For the daily operation of the machine periodical application of lubricants is essential.
4. Due to the non-application of oil to lubricate the bearings, the bearings got damaged and the continuous running of the machine with damaged bearing caused major damage to the components of the machine. So the complaint was due to the careless and irresponsible operation of the machine. Complaints due to careless handling and lack of preventive maintenance will not come within the terms and conditions of warranty. Hence opposite parties are not legally bound to do the maintenance work free of cost and hence they prays for the dismissal of the complaint with that cost.
5. On the basis of the pleadings of the parties, the only point to be considered is whether this complaint can be allowed or not?
6. The evidence of this complaint consists of the oral testimony of PW1 and DW1 and Exts.A1 to A5 and B1 to B4. After closure of evidence, both sides were heard.
7. The Point:- The complainant’s allegation is that complainant purchased an Usha Make Blower on 17.07.2010 from the opposite party for an amount of ` 85,099 with one year guarantee. On 04.05.2011, the non-functioning of the blower was reported to the opposite party. Blower was taken by the opposite party under warranty period but they demanded `40,000 for its repair. Blower is with the opposite party without repairing or replacing. Blower is highly essential and inevitable machine for the treatment of effluent to the hospital. According to the complainant, the above said act of the opposite party is violation of the terms of contract and is an unfair trade practice.
8. In order to prove the case of the complainant, Chief Executive of the complainant filed a proof affidavit in lieu of his chief examination along with 5 documents. On the basis of the proof affidavit, complainant’s Chief Executive was examined as PW1 and documents produced were marked as Exts.A1 to A5. Ext.A1 is the purchase order in the name of complainant. Ext.A2 is the Retail Invoice No.TTB.157. Ext.A3 is the delivery note in the name of the complainant. Ext.A4 is the legal notice issued by the complainant. Ext.A5 is the reply notice to Ext.A4 issued by the opposite party.
9. On the other hand, the contention of the opposite party is that the petition is not maintainable as the complainant purchased the blower for commercial purpose. According to opposite party, the blower is working without any complaint but due to the careless and irresponsible operation of the machine and lack of necessary preventive maintenance from the part of the complainant, the blower got damaged. Damage was caused solely due to the careless and irresponsible operation of the machine. Warranty is applicable to the damage of manufacturing defects and not for damage caused due to careless handling. Careless handling and lack of preventive maintenance will not come within the terms and condition of warranty. So they are not liable to repair the blower free of cost and the complainant is liable to pay the repairing cost.
10. In order to prove the contentions of the opposite party, opposite party is examined as DW1 and the documents produced were marked as Ext.B1 to B4. Ext.B1 is the reply notice issued to the complainant. Ext.B2 is the postal receipt. Ext.B3 is the acknowledgment card and Ext.B4 is the operational and maintenance manual of Usha Make Blower.
11. On the basis of the contentions and arguments of the parties, we have perused the entire materials on record and found that there is no dispute between the parties with regard to the sale and purchase of the blower. The blower purchased by the complainant is for using it in connection with the activities of the complainant and it is not purchased for resale or for selling the product manufactured by the said equipment. So the contention of the opposite party that the complainant is not a consumer and the product was purchased for commercial purpose is not sustainable. The evidence shows that the complaints of the blower occurred during the warranty period and it was not rectified by the opposite party as per the warranty conditions. It is further evidenced that they have demanded repairing charges and the major part of the blower was taken by the opposite party for repairs and the said part were now in the custody of the Forum as the order of the Forum. Opposite party’s allegation regarding the complaint of the blower is due to the mishandling by the operators of the complainant. But this allegation is not supported by any cogent evidence and hence this contention is not sustainable. So the opposite party’s stand in not repairing the Blower free of cost during the warranty period can’t be justified, and it is a clear deficiency in service from the part of the opposite party. Therefore this complaint can be allowed against the opposite party. However in the absence of any cogent evidence from the side of the complainant for allowing the other prayers in the complaint as such. In the nature and circumstances of this case, this complaint is allowed with certain modifications against the opposite party.
12. In the result, this complaint is allowed with modifications, thereby the opposite party is directed to repair the Blower free of cost and to return the same along with a compensation of `10,000 (Rupees Ten Thousand only) and cost of ` 2,000 (Rupees Two Thousand only) within 15 days from the date of receipt of this order, failing which the complainant is allowed to realize the whole amount ordered herein above along with `85,000 (Rupees Eighty Five Thousand only) the price of the Blower, with 10% interest per annum from today till the realization of the whole amount.
Declared in the Open Forum on this the 19th day of March, 2012.
(Sd/-)
K.P. Padmasree,
(Member)
Sri. Jacob Stephen (President) : (Sd/-)
Sri. N. Premkumar (Member) : (Sd/-)
Appendix:
Witness examined on the side of the complainant:
PW1 : John Varkey Abraham
Exhibits marked on the side of the complainant:
A1 : Photocopy of purchase order dated 29.06.2010 for ` 85,099 issued by
the complainant to the opposite party.
A2 : Photocopy of the retail invoice No.TTB.157 dated 17.07.2010 for `
85,099 issued by the opposite party to the complainant.
A3 : Photocopy of the delivery chalan dated 17.07.2010 issued by the
opposite party to the complainant.
A4 : Photocopy of the legal notice dated 18.06.2011 sent by the
complainant to the opposite party.
A5 : Reply notice dated 24.06.2011 sent by the opposite party to the
complainant.
Witness examined on the side of the opposite party:
DW1 : Shaji Joseph
Exhibits marked on the side of the opposite party:
B1 : Reply notice dated 24.06.2011 sent by the opposite party to the
complainant.
B2 : Postal receipt of Ext. B1 reply notice.
B3 : Acknowledgment card of Ext. B1 reply notice.
B4 : Operational and maintenance manual of Usha Make Blower.
(By Order)
(Sd/-)
Senior Superintendent.
Copy to:- (1) Mr. John. V. Abraham, Chief Executive Officer,
Thiruvalla Medical Mission (The Dewan Bahadur Dr. V.
Varghese Hospital Trust Association), Post Box No.50,
Thiruvalla.
(2) Joseph Zachariah, Managing Director, M/s. Cizac Sales &
Services Pvt. Ltd., Chittoor Road, Pachalam, Cochin – 482 012.
(3) The Stock File.
