BEFORE THE A.P.STATE CONSUMER DISPUTES REDRESSAL COMMISSION: AT HYDERABAD. OF 2007 AGAINST C.D.NO.135 OF 2003 DISTRICT CONSUMER FORUM NIZAMABAD
Between
Dr.J.P.Sharma S/o K.P.Sharma
Age 47 years, occ: Medical Practitioner
D.No.5-593, Khaleelwadi, Nizamabad Appellant/complainant
A N D
M/s First Medical Services
Rep. by its Proprietor
Piyush Seth S/o Ashok Seth
Age 39 years, D.No.125/L/85
Govind Nagar, Kanpur, U.P.
Respondent/opposite party
Counsel for the Appellants Sri K.Mohan
Counsel for the Respondent Publication filed
QUORUM: THE HON’BLE SRI JUSTICE D.APPA RAO, PRESIDENT
SRI SYED ABDULLAH, HON’BLE MEMBER
&
SRI R.LAKSHMINARSIMHA RAO, HON’BLE MEMBER
THURSDAY THE FIFTEENTH DAY OF JULY
TWO THOUSAND TEN
Oral Order ( As per R.Lakshminarsimha Rao, Member)
***
The complainant is the appellant. The appeal is directed against the order dated 26th Day of June,2007 in C.D.No.135 of 2003 by the District Forum, Nizamabad whereby his complaint was partly allowed directing the opposite party to repair the Colour Doppler system and pay costs to the complainant.
The factual matrix of the case is that the complainant purchased a Colour Doppler ATL 9 HDI for his scanning centre from the opposite party for a consideration of Rs.8,50,000/-. As per the agreement, initial amount of Rs.1lakh was paid on 25th April, 2002 and thereafter an amount Rs.6 lakh was to be paid and balance amount of Rs.1lakh was to be paid at the time of installation of the equipment. The opposite party informed the complainant that model equipment ordered by the complainant was not available. The complainant paid an amount of Rs.6,00,000/- through his Bank and ACUSOL 128 HP with similar features that of the equipment as ordered by the complainant was delivered to him in the month of May,2002. The demonstration of the equipment was made on 1o-07-2002.
The machine with 3 probes was supplied by the opposite party instead of the equipment with 4 probes. Therefore, machine could not function in the absence of the required package. When the complainant demanded for the equipment which was agreed to be supplied, the opposite party demanded extra amount for the cardiac probe. The opposite party demanded Rs.8 lakh against the amount of Rs.7 lakh mentioned in the agreement. The opposite party had furnished warranty for the equipment for a period of one year which included the maintenance also. At the time of agreement, the opposite party assured the complainant that the system runs on stabilizer but the system supplied to the complainant has to be supported by a 3KVA UPS online for which the complainant is said to have incurred expenditure of One lakh. The opposite party had suppressed the basic aspects of the functioning of the system resulting it developed problems on 10th April, 2003. The System remained idle as the opposite party has failed to attend to the repairs. The complainant claims that he had suffered loss by spending huge amount on an unworkable system.
The opposite party resisted the claim by filing counter and contending that the opposite party and M/s International Remarketing Company deal in used medical equipments. The complainant had obtained two quotations one each from the complainant and M/s International Remarketing Company, for supply of ATC UN9 colour Doppler system for a consideration of Rs.8.50 lakh and for ACUSON 128 Xp/10 colour Doppler system with 3 probes for a consideration of Rs.8.50 lakh respectively. The complainant entered into an agreement with the opposite party on 25th April, 2002 for the supply of the equipment but he had not paid any amount to the opposite party. The contract was not acted upon by either party.
The complainant confirmed the order for ACUSON with M/s International Re-marketing Company for Rs.8,50 lakh and in compliance of the order the Unit was dispatched as per the quote and invoice, the system with 3 probes was delivered to the complainant. The complainant had received the Unit without raising any protest. The complainant failed to pay the balance amount to the M/s International Re-marketing Company. The complainant had not complained of any problem with the system and continued to utilize it. The complainant complained to the opposite party in the month of June,2003 that the system developed minor problems as his staff spoilt it for which the opposite party informed him that the complainant should bear the technician’s to and fro journey charges and his board and lodging charges. The complainant refusing to accept the proposal of the opposite party has filed the complaint. The warranty given in respect of the quotation issued by the opposite party was expired on 25th February, 2002 whereas the warranty furnished by M/s International Re-marketing Company was expired on 15th May, 2003 during which period of time there was no complaint from the complainant in respect of the equipment. Hence, prayed for dismissal of the complaint.
The complainant has filed his affidavit. ExA1 to A9 had been marked on his behalf. The opposite party has not filed affidavit nor any documents.
The points for consideration are:
1. Whether there was any privity of contract between the complainant and the opposite party?
2. Whether there was deficiency in service on the part of the opposite party?
3. To what relief?
POINT NO1: The learned counsel for the complainant assailed the impugned order contending that the opposite party has been cheating the people by supplying substandard machinery and the direction issued by the District Forum has become superfluous as the opposite party collected the charges from the complainant and repaired the equipment. The learned counsel submitted that the opposite party has to replace the equipment with a new equipment and pay compensation to the complainant. The learned counsel for the opposite party supported the impugned order. There is no dispute between the parties that the complainant had obtained two quotations one each from the complainant firm and the other from M/s International Company for the purpose of purchase of ATC UM9 HDI and ACUSON 128 XP/10 colour Doppler system. It is not in dispute that the complainant and the opposite party entered into agreement dated25th April,2002 in respect of the purchase of the Doppler system.
The opposite party denied that there is any privity of contract between the complainant and it since the complainant had purchased ACUSON 128 XP/10 from M/s International Remarketing Company with which the proprietor of the complainant firm had no any concern. The proprietor of the complainant firm admitted that he is the authorized signatory for M/s International Company. In addition to the admitting the fact of his relationship with M/s International Remarketing Company, the opposite party gives the descriptive account of the schedule of payment of the consideration to M/s International Remarketing Company and the demonstration of the functioning of the equipment. The opposite party contended that the complainant had not paid the balance sale consideration to it. Another circumstance pointing out the relationship between the complainant and the opposite party is the complaint lodged by the complainant with the opposite party about the malfunctioning of the system and the demand of the opposite party for technician’s charges. The opposite party has not challenged the finding of the District Forum that it had supplied the Doppler System to the complainant. The cumulative effect of these facts would prove the contention of the complainant that the opposite party had supplied the colour Doppler system to him. The point is answered against the opposite party.
POINT NO.2: We do not intend to venture into the aspect of the maintainability of the complaint on account of the complainant purchasing the Equipment for the purpose of using it in his scanning centre for the reasons that there is no any pleading in this regard raised by the opposite party and the opposite party has not chosen to file appeal against the impugned order passed against it. The opposite party had informed the complainant that the model of Doppler System as ordered by him was not available and the complainant could ask for any other model such as ACUSON. The complainant claims that the opposite party promised him to supply with the Doppler System of similar features as per the quotation issued by the opposite party and relying upon such promise he opted for purchasing of ACUSON 128 XP/10. The invoice, ExA2 was issued on 6th June, 2002 in respect of ACUSON 128 XP Art Colour Doppler with three probes and accessories. The grievance of the complainant is that the opposite party by misrepresentation sold the Doppler System with 3 probles against the one promised to be sold whereof four probes was the constituent of the System.
According to the complainant the system was delivered to him in the month of May 2002 and installation and demonstration was done on 10th July,2002. The opposite party had furnished warranty vide letter dated 16.5.2002 to the effect that the system ACUSON 128 XP/10 New Skim ART was given warranty for a period of one year commencing from 16.5.2002. The warranty was given subject to the exclusion of risk relating to the theft, fire, physical damage to the unit or probes. It is also mentioned in the letter that the complainant agreed to use the colour Doppler system with a 3KVA UPS online. There is no response from the complainant to the fact that he had agreed to use the colour Doppler with 3KVA UPS online which had been mentioned in the warranty letter. The complainant contended that he was misguided by the opposite party that the system delivered by the opposite party would run on a stabilizer and subsequent to the installation of the equipment as also while issuing the warranty letter he was informed that the system required to be run on 3KVA UPS online. Except, the warranty letter, there is no other evidence on record to show any promise made by the opposite party to the complainant in the matter of the mode of functioning of the system. As evidenced by the warranty letter, the opposite party had supplied the system which runs on 3KVA UPS online. As such the contention of the complainant that he had incurred extra amount of Rs.one lakh for purchasing the 3KVA UPS online for the purpose of running the equipment holds no water and liable to be held untenable.
The learned counsel for the complainant has contended that the opposite party has been in the habit of cheating the innocent people. He relied upon Ex.A9 a letter displayed on Dotmed Honest and Dishonest Dealings Forum on the internet wherein the opposite party said to have sold an ultrasound equipment, 2GE LOGIQ 100’s and LOGIQ 400 PRO promising that the equipment was brand new and there is another complaint by Robin Hastings that the opposite party has to be included in the list of those who had chosen to commit integrity suicide. A complaint displayed on the internet cannot be made basis to arrive at the conclusion that the opposite party had deceived its customers. As aforesaid, there is no evidence available on record to hold that the complainant was either misguided or cheated by the opposite party relating to the equipment with regard to its constituents such as the number of probes. The equipment said to have posed some problems at the fag end of the warranty period furnished by the opposite party. The District Forum has directed the opposite party to get repaired the equipment. In fact a perusal of the grounds of appeal would show that the opposite party has repaired the equipment. Ground no.5 of the grounds of appeal reads as under:
“ the forum below failed to appreciate that the machinery was repaired by United Medical Instruments and the charges were also collected. Hence the question of directing the opposite party to carry out the repairs does not arise”.
The complainant has failed to substantiate his claim that the opposite party had rendered deficient service. The complainant claimed compensation that he had suffered mental tension, loss of reputation and financial loss due to the equipment supplied by the opposite party which was not the same equipment promised to be sold to him. In the aforesaid paragraphs of this order we have held that the opposite party had sold the equipment that was ordered by the complainant and received by him through invoice as also that there was no any promise made by the opposite party that ACUSON with four probes would be delivered to the scanning centre of the complainant. The complainant having failed to prove deficiency in service or negligence on the part of the opposite party, cannot claim for any amount under the heads of compensation, financial loss etc. The appeal is devoid of any merits and liable to be dismissed.
In the result, the appeal is dismissed. There shall be no order as to costs.
PRESIDENT
MEMBER
MEMBER
Dt.15.07.2010
KMK*
