KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION VAZHUTHACAUD, THIRUVANANTHAPURAM.
OP.NO.40/99
JUDGMENT DATED: 05-04--2011
PRESENT
JUSTICE SHRI. K.R. UDAYABHANU : PRESIDENT
SHRI. M.K. ABDULLA SONA : MEMBER
M/s KPM Hospital Private Limited,
R/by its Chairman and Managing Director- : COMPLAINANT
K.P.Mohammedali Haji, S/o Mohammed Haji,
Down Hill, Malappuram Dist.
(By Adv.Sri.Shyam Padman)
Vs.
1. M/s Larson & Toubro Ltd.,
L & T Chennai House,
10, Club House road, Anna Salai,
Chennai-600 002.
2. M/s Larson & Toubro Ltd.,
Regd. Office, L & T House,
Ballard Estate, Mumbau-400 001.
(Adv for OPs1 & 2 by:Sri.Pirappancode V.S.Sudheer)
3. M/s Shimadzu (Asia Pacific)
PTE Ltd., 16, Science Park Drive 401-01,
The Pasteur Singapore Science Park,
Singapore-118 227.
: OPPOSITE PARTIES
4. M/s. Shimadzu Corporation,
Kyoto, Japan.
Addl. OP-5.
Indelet Technologies, 14-B, Ground floor,
1st St. Dr.Thirumoorthy Nagar,
Nungambakkam, Chennai-600 034.
(Adv. For OPs 3 & 4 by:M/s Brahmanandan & Associates)
JUDGMENT
JUSTICE SHRI.K.R. UDYABHANU : PRESIDENT
The complainant/private hospital represented by its Managing Director has sought for a compensation of Rs.20.lakhs for the alleged deficiency of service on the part of the opposite parties with respect to the functioning of a C.T Scanner and also sought for a direction to replace the alleged defective C.T Scanner with a new one with an extended period of warranty.
The case of the complainant is that carried away by the assurances of the 1st opposite party/dealer they placed orders for the Shimadzu Whole Body C.T Scanner C.T.4800 TE and paid an advance of Rs.2.lakhs on 19/5/1997. It was agreed to deliver the same within 16 weeks. Three rooms of the hospital was arranged for installing the C.T Scanner and a sum of Rs.30.lakhs was spent for arranging the facilities like air conditioners etc. The amount agreed was Rs.70.lakhs less advance of Rs.2.lakhs. Although the amount quoted in the quotation was Rs.71.lakhs, after negotiations it was agreed to be supplied at Rs.70.lakhs. The inauguration was proposed on 16/4/1998. The complainant had arranged the finance through the Kerala Financial Corporation. They had to pay interest at 17% to the KFC. It is alleged that the equipment was dispatched earlier and reached Malappuram in December 1997 and was kept in the godown of the 1st opposite party. At the time of installation it was noticed that the X-ray tube supplied was that of 1500 KHU instead of 750KHU. The entire payment was made in March 1998. The required staff, technicians and doctors were appointed. The inauguration arranged on 16/4/1998 could not be properly made on account of the defect of the X-ray tube. The same was replaced by a standby tube only on 19/4/1998. The functioning of the same was not satisfactory. The pictures obtained were not clear. The 1st opposite party/dealer has issued a letter dated:28/5/1998 alleging that the power supply system is not proper. The same is totally false and the same has been intimated as per reply dated:3/6/1998. The scanner became out of order within `a short time after installation. The same could not be used regularly even for 10 days at a stretch. It is suspected that the machine supplied is not a brand new one. It is alleged that the machine was kept in the godown of Kerala Roadways at Malappuram for about 4 months in improper conditions. It is alleged that the parts of the machine are not new one. Had it been so, the X-ray tube would not have been that of 1500.KHU. 3 doctors 3 technicians and 6 nurses were employed and were made available round the clock in the scanning department. A sum of Rs.67,000/- had to be spend for the staff every month and the current charges amounted to Rs.10,000/- per month. It is alleged that the complainant was sustaining a loss of Rs.15,000/- per day due to the non functioning of the equipment. It was informed as per letter dated:22/7/1998 that the spares in the C.T scanner has arrived at Chennai Airport and that a declaration is required as life saving equipment. The same was issued immediately. A registered letter was issued on 23/9/1998 pointing out the defects noted. The 1st opposite party as per letter dated:29/9/1998 has intimated the complainant that the PCB as well as the new X-ray tube has arrived for warranty replacement and seeking a declaration. In the above letter the 1st opposite has admitted that there were certain problems with the unit. The complainant as per letter dated:2/10/1998 has requested the 1st opposite party to replace the defective scanner with a new one. On 17/12/1998 the 1st opposite party has replaced the X-ray tube and also effected repairs. Thereafter the equipment is being operated without much interruption. Subsequently as per letter dated:17/2/1999 the 1st opposite party has asked for the return of one Shidmazu make X-ray tube and also demanded payment of Rs.1.lakh said to be towards the amounts due. It is contended that no such amount is due to the opposite parties.
The opposite parties 1 and 2/dealers have filed version disputing the allegations of the complainant. It is pointed out that there was no delay in the installation. Although the equipment was available even before it was only on 27/3/1998 that the complainant paid the balance amount of Rs.68.lakhs. The installation of the CT scanner commenced on 1/4/1998 and completed on 16/4/1998. The installation takes ordinarily a minimum 2 weeks time. After completing installation it was found that the X-ray tube is after charging was not functioning satisfactorily. Such problems usually happen. On examination it was found that the X-ray tube not acceptable to the system. Immediately arrangements were made for replacement of the X-ray tube and meanwhile a standby tube was provided. The same obtained customs clearance on 17/4/1998 and despatched in a specially arranged vehicle and reached the premises of the complainant on 18/4/1998. The machine was calibrated and handed over to the complainant on the same day and from 19/4/1998 the same is functioning properly. It was agreed to replace the same with a new X-ray tube and the damaged X-ray tube was to be returned. The new X-ray tube reached Chennai on 15/9/1998. Apparently the complainant wanted to obtain more slices from the standby tube so that the new tube after installation could be preserved for a longer time. The new X-ray tube was installed on 16/12/1998. After installation there were complaints only on two occasions and the same were rectified immediately. It is alleged that the power supply was very poor especially after dusk and the complainant was having only one generator for the entire hospital. The same would effect the performance of the C T scanner. It is also alleged that the warranty period expired on 24/1/99.
Opposite parties 3 and 4/manufacturers who are located abroad has also filed version disputing the allegations in the complaint. They have supported the version of OPs 1 and 2.
The opposite party 5 was impleaded subsequently as OPs 1 and 2 as dealers/service providers were substituted by OP5 during the period ie on 31/8/1998.
The complainant has not claimed any relief against the additional opposite party No.5.
The evidence adduced consisted of the testimony of PW1, RWs 1 to 3, Exts.A1 to A14 and B1 to B8.
PW1 is the Chairman and the Managing Director of the complainant hospital. RW1 is the Assistant Manager (sales) of the 1st opposite party/dealer. RW2 is the Assistant Manager of the dealer. RW3 is the Manager, Administration etc. and the 3rd opposite party/manufacturer.
The evidence of the complainant with respect to the allegations regarding the deficiency in service on the part of the opposite parties and the alleged defective machinery supplied is confined to the testimony of PW1, the Managing Director of the hospital. He has also relied on the letters written by the complainant to the dealer and the Ext.A11 letter dated:29/9/1998 of the dealer admitting certain defects with respect to the system. He has also relied on Ext.A10 letter of the complainant to the dealer dated:23/9/1998 wherein the details of the defects of the system and the period of the system not working properly is mentioned. On the other hand, the opposite parties have contended that no expert evidence in the matter has been adduced. It was stressed by the opposite parties that no documentary evidence at all has been produced to show as to the alleged defects in the performance of the system. The complainant has not produced any records of the hospital nor has the complainant examined any technician or doctors who were operating the system or in charge of the operation of the system. It was pointed out that PW1 is not a qualified person and that he has admitted that his qualification is confined to schooling up to SSLC. It was also pointed out that the complaint filed is only as a repraisal for the demand made by the opposite parties for the balance payment of Rs.1.lakh and the return of the unsuitable X-ray tube vide letter dated:17/2/99 as mentioned in the complaint.
We find that both side have not produced the above letter dated:17/2/99 of the opposite parties. The complaint has been filed in March 1999. It is stated in the complaint that since 17/12/1998 the machine is working properly without much interruption. PW1 has also not deposed that the machine is not functioning properly thereafter. As rightly pointed out by the counsel for the opposite parties, the complainant ought to have examined the technical personnel who are operating the machine or the doctors, specialists who are attached to the unit. The complainant also could have produced the proper records of the hospital that would have positively established the contention of the complainant that the machine was not working during the period and that they have sustained loss in this regard. The complainant has also not produced any records as to the amount spent for arranging the facilities for the installation of the machine and to show as to how much was spent for the staff including technicians and doctors attached to the units. The only objective evidence in this regard on the part of the complainant is Ext.A11 letter dated:29/9/1998 issued by the dealer wherein it is mentioned that subsequent to the installation there was some problems with the unit which needed replacement of the tube. It is also mentioned in the above letter that the tube was replaced temporarily and the unit was put to use. It is also mentioned thereafter the above unit had a problem for which a PCB needed to be replaced and that the PCB as well as the new X-ray tube has arrived for warranty replacement. As per the above letter the dealer has sought for a declaration certificate and chartered engineer certificate to submit to the customs for clearing the material. The above as such cannot be treated as deliberate acts on the part of the opposite parties. Being a highly sophisticated system it is possible that there can be certain problems and the same has to be attended to. It was brought out in evidence that it is the dealer as directed by the manufacturers with whom the AMC has been entrusted.
As per Ext.A10 letter dated:23/9/1998 the complainant has written to the dealer pointing out that the 750 KHU tube and MAS control board has not been replaced. It is also mentioned that on certain days there were faults with respect to certain parts of the equipment. We find that the above letter is hardly sufficient to establish the case of the complainant that the unit was not working properly during the entire period. There is no reason mentioned as to why proper evidence could not be adduced in the matter. It is not for this Commission to presume matters and award compensation.
Of course as evident from Ext.A6 certificate issued by the dealer it can be seen that no further payments are due. It is mentioned in Ext.A6 that they have received full payment. But we find that the alleged letter dated:17/2/1999 demanding the payment of Rs.1.lakh has not been produced by the complainant. The opposite parties have also not insisted for the above balance amount.
In the circumstances we find that the complainant has failed to prove the alleged case of deficiency and the alleged loss sustained. In the circumstances the complaint is dismissed there will be no order as to costs.
JUSTICE K.R. UDAYABHANU: PRESIDENT
M.K. ABDULLA SONA : MEMBER
VL.
APPENDIX
COMPLAINANT’S EXHIBITS
Ext.A1 : Quotation and terms and conditions of sale issued by
The 1st opposite party.
Ext.A2 : Receipt issued by the 1st opposite party.
Ext.A3 :Invoice issued by the 1st opposite party.
Ext.A4 : -do- -do-
Ext.A5 : Letter issued by the 1st opposite party.
Ext.A6 :No charge No Lien Certificate issued by the 1st OP.
Ext.A7 : Letter issued by the 3rd OP to the 1st OP.
Ext.A8 : Letter issued by the 1st OP to the complainant.
Ext.A9 : Reply to the above issued by the complainant.
Ext.A10 : Regd. Letter issued by the complainant to the 1st OP.
Ext.A11 : Letter issued by the 1st OP to the complainant.
Ext.A12 :Letter issued by the complainant to the 1st OP.
Ext.A13 : Letter issued by the 3rd OP to the complainant.
Ext.A14 : Letter issued by the Indelect Technologies to the complainant.
COMPLAINANT’S WITNESS
PW1 : Sri.K.P.Mohammedali Haji.
OPPOSITE PARTIES EXHIBITS.
Ext.B1 : Letter dated:27/10/1997 by KPM Hospital.
Ext.B2 : Copy of the L & T medical service report issued by the respondents 1 & 2.
Ext.B3 : Copy of the terms and conditions annexed to the quotation submitted by the opposite parties 1 and 2 dtd:17/5/97.
Ext.B4 : Letter dated:19/5/97 by KPM Hospital to L & T,
Ext.B5 : Terms and conditions of L & T.
Ext.B6 : Letter dtd:5/6/97 by L & T to Mr.K.P.Musthafa.
Ext.B7 : Invoice dtd:6/8/97.
Ext.B8 : Fax message by R.Suresh to Sap Singapore.
OPPOSITE PARTIES WITNESS
RW1 : P.M.Manoharan
RW2 : Rajeev kumar
RW3 : T.S.Ramani
JUSTICE K.R. UDAYABHANU: PRESIDENT
M.K. ABDULLA SONA : MEMBER
VL.
