Haryana

Karnal

CC/111/2018

Hospital Amritdhara Private Limited - Complainant(s)

Versus

M/s Rups Life Science Private Limited - Opp.Party(s)

Ashok Kapoor

05 Feb 2021

ORDER

                                                                                                                                                                                                                                                                               BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, KARNAL.

 

                                                         Complaint No.111 of 2018

                                                        Date of instt. 09.05.2018

                                                        Date of decision 05.02.2021

 

Hospital Amritdhara Private Limited, near ITI Chowk, National Highway no.1, Karnal through its Managing Director Dr. Dhurav Gupta son of late Shri Rajiv Gupta.

 

…….Complainant       

                                        Versus

 

1. M/s Rups Life Science Private Limited, SCO 127, New Grain Market, Jalandhar Bypass, Ludhiana (Punjab) through Director Mukesh Kumar.

2. Mr. Mukesh Kumar, Director M/s Rups Life Science Private Limited, SCO 127, New Grain Market, Jalandhar Bypass, Ludhiana (Punjab).

 

…..Opposite Parties.

 

      Complaint u/s 12 of the Consumer Protection Act, 1986.       

 

Before   Sh. Jaswant Singh……President.       

      Sh.Vineet Kaushik ………..Member

              Dr. Rekha Chaudhary……Member

 

 Present: Shri Ashok Kapoor counsel for complainant.

               Shri Akash Gupta counsel for opposite parties.

               

                (Jaswant Singh President)

ORDER:                    

 

                This complaint has been filed by the complainant u/s 12 of the Consumer Protection Act 1986 on the averments that Opposite party (herein after referred as to OP) no.1 is manufacturing medical equipments such as high Pressure High Vacuum Steam Sterilizer, Bedpan washer, washer disinfector, storage cabinets etc. at Ludhiana (Punjab) whereas the complainant is the Managing Director of Hospital Amritdhara Private Limited, near ITI Chowk, Karnal.

2.             The OP no.1 is one of the World fame company and comply with all the safety measure and precautions and company also refers its profile and product list through letter dated 06.01.2017, thus keeping in view the safety measure complainant approached the OP no.1 through Shri Vinay Khanna for the purchase of equipment i.e. High Pressure High Vacuum Steam Sterilizer and placed the purchase order dated 14.02.2017 for the said equipment with terms and conditions mention on it. The OP gives the cost of the said equipment (High Pressure High Vacuum Steam Sterilizer) Rs.6,50,000/-. At the time of placing the purchase order, complainant has paid an amount of Rs.3,25,000/- (i.e.50% of the total cost of the equipment) through cheque. At the time of placing of purchase order, it has been settled between the complainant and the OPs that 5% of the remaining amount will be paid by the complainant after six month from the date of inauguration of hospital and 45% of the remaining amount will be paid on the date of installation but the OPs asked for full amount before delivery knowingly that the requirement was faulty. The OPs have sent the aforesaid equipment at the premises of complainant on 29.06.2017 with invoice bearing 000057 of Rs.6,50,000/- but the said equipment was not installed by the OPs at that time intentionally and deliberately with malafide intention. Thereafter, the representative of the OPs came at Karnal and told the complainant that the concerned person/technician is coming for installation of equipment very soon, in the meanwhile the representative of OPs opened the box of equipment to show the machine to the complainant. On seeing the equipment complainant stunned to know that the said equipment is not good condition and is not fit for use because of rust (iron oxide) on some parts of the equipment. There are also many other defects in the machine which can be seen by a naked eye such as (a). Door seals are not properly fixed, (b) No proper covering of wires connection as well as electric panel (c) Slip printer is not fixed properly and comes out its cavity while changing paper. (d) Gauges are not made up of as per approved marks and do not contain any certification marks. (e). Rust on open/close valve, neumatic valve, temperature censur, heat ailment, pressure gauge etc. are all made up of old materials. Then the complainant immediately asked the representative of the OPs about the rust (iron oxide) and other defects but he did not reply satisfactorily and due to which the same has not been installed yet and same is lying in the premises of complainant at Karnal as useless equipment like spectator.

3.             Further, complainant several times requested the OPs to change the equipment or to return the money but OPs have not replied and complied the terms and conditions willfully, which has already been settled between the complainant and the OPs at the time of placing purchase order dated 14.02.2017. Moreover, the OPs have not sent the equipment in fit condition and same cannot be installed for proper working. Thus, the complainant is entitled to get the aforesaid amount of Rs.3,25,000/- back alongwith interest @ 24% per annum from the date of issuing the cheque in favour of the OPs till its realization.

4.             Further, the purpose of the machine is to sterilize the equipments used for operations of patients. If the quality of the material is not fit and proper than it cannot be used for the purpose for which it is bought and it is a risk for both operators as well as for patients. Thus, complainant is entitled damages amounting to Rs.5,00,000/- on account of mental agony, harassment and deficiency in service on the part of the OPs. Complainant sent a legal notice dated 28.08.2017 to the OPs but inspite of the receipt of said legal notice, the OPs have not come at the premises of the complainant to install the equipment or returned the aforesaid amount to the complainant.

5.             It is alleged that when the abovesaid equipment started by electricity, the display at the equipment shows that the equipment was not the new one, rather the same is a second hand equipment which was previous used in some other hospital. In this way there was deficiency in service and unfair trade practice on the part of the OPs. Hence complainant filed the present complaint.   

6.             On 26.09.2017 complainant filed an earlier complaint before this Forum regarding the same subject matter which was dismissed in default, vide order dated 21.03.2018 due to absence of his counsel.

7.             Notice of the complaint was given to the OPs, who appeared and filed written version raising preliminary objections with regard to maintainability; locus standi; cause of action; jurisdiction and concealment of true and material facts. On merits, it is pleaded that complainant filed an another complaint before this Forum vide complaint no.323/2017, which was dismissed in default for the non-appearance of the complainant. As per section 15 of the Consumer Protection Act, 1986 an appeal/revision is maintainable against the impugned order, whatsoever it is but without preferring to file an appeal/revision before the Hon’ble State Commission, the complainant has filed the present complaint. It is further pleaded that since a litigation between the same parties regarding same subject matter is pending in the learned Civil Courts at Ludhiana (Punjab). It is further pleaded that OPs are manufacturing medical equipment such as high vacuum steam sterilizer, bedpan washer, washer disinfector, storage cabinets etc. at Ludhiana(Pb.) concerned is a mater of record. It is further pleaded that complainant’s hospital is a multispecialty hospital and number of doctors, nurses and other staff are working with complainant, so the activity whatsoever it is for the complainant hospital, is totally commercial purposes. It is further pleaded that the balance payment whatsoever it is, has not been made by the complainant hospital with an ulterior motive and with malafide intention. It is further pleaded that no refund of Rs.3,25,000/- alongwith interest @ 24% per annum is not sustained in the eyes of law, rather it is the OPs, who is suffering financial loss due to non-payment on the part of the complainant. There is no deficiency in service on the part of the OPs. The other allegations made in the complaint have been denied and prayed for dismissal of the complaint.

8.             Complainant tendered into evidence affidavit Ex.CW1/A, affidavit of Om Nath Malik retired XEN PWD Ex.CW2/A, affidavit of Nitin Kumar Designatin-Bio Medical Engineer Ex.CW3/A, copy of company profile letter dated 06.01.2017 Ex.C1, copy of purchase order dated 14.02.2017 Ex.C2, retail invoice dated 29.06.2017 Ex.C3, registered legal notice dated 28.08.2017 Ex.C4, acknowledgment receipt Ex.C5, copy of letter regarding inspection of autoclave machine Ex.C6, report of O.N. Malik regarding deficiencies in the machine in question Ex.C7, photographs of machine Ex.C8 to Ex.C18 and closed the evidence on 24.04.2019, vide separate statement.

9.             On the other hand OPs led no evidence after availing several opportunities including last opportunity, hence the evidence of the OPs closed by Commission order dated 11.02.2020.

10.           We have appraised the evidence on record, the material circumstances of the case and the arguments advanced by the learned counsel for the parties.

11.           Learned counsel for the complainant argued that the complainant purchased equipment (High Pressure High Vacuum Steam Sterilizer) for an amounting to Rs.6,50,000/- and paid Rs.3,25,000/- through cheque and remaining payment will be paid on installation of the said unit. The said equipment sent to the premises of complainant on 29.06.2017 but the same was not installed by the OP at that time intentionally and deliberately with a malafide intention. After that, when the representative of OPs opened the box of the equipment and on seeing the same, complainant shocked as the said equipment was not fit for use because of rust (iron oxide) on some parts of the equipment. Moreover, there were many other defects in the said unit which can be seen by naked eyes. The said unit seems to be a second hand as it was having many scratches. The said unit is still lying in the premises of the complainant unused being defective one. Complainant requested OPs many times to replace the said unit or to refund the value of the same but OPs refused to do so. Now the complainant has purchased new unit as such, he has no need to replace the same and prayed for refund of Rs.3,25,000/- alongwith interest and heavy compensation. Learned counsel for the complainant further argued that earlier complaint filed by the complainant was dismissed in default and not decided on merits. Hence, the present complaint is very well maintainable. He further argued that purchaser of a machine would be a consumer if the defect in the machine develops within warranty period even though the machine was purchased for commercial purpose. In this regard, learned counsel for complainant placed reliance upon Dr.Vijai Prakash Goyal Versus The Network Limited 2006 (1) CLT 76 and Indian Machinery Company Versus M/s Ansal Housing and Construction Ltd Civil Appeal No.557 of 2016 and Jay Kay Puri Engineers and others Versus Mohan Breweries and Distilleries (1998 ) 1 CPJ 38 (NC)

12.           Per-contra, learned counsel for OPs argued that this Commission has no jurisdiction to try and entertain the present complaint as the litigation between the same party regarding the same subject matter is pending before learned Civil Judge at Ludhiana. Furthermore, the complainant earlier filed a complaint before this Commission which was dismissed in default and there is no provision to file fresh complaint. Further, complainant is not a consumer of the OPs. The complainant-hospital is a multi-specialty hospital and number of doctors, nurses and other staff are working in the hospital, so the activity whatsoever it is for the complainant hospital is totally commercial purposes. The complainant failed to pay the remaining payment with an ulterior motive and malafide intention. There is no defect in the said unit. Further, no refund of Rs.3,25,000/- alongwith interest is sustained in the eyes of law, rather it is the OPs who are suffering from financial loss due to non-payment of remaining amount by the complainant. The present complaint is filed just to harass and humiliate the OPs with a view to avoid payment of balance amount and lastly prayed for dismissal of complaint with heavy costs. Learned counsel for OPs placed reliance upon Laxmi Engineering Works Versus P.S.G. Industrial Institute 1995 (2) CPC, Nidhi Knitwears (P) Ltd. Versus Bank of Maharashtra & another 2014 (2) CPC 31, Avery India Limited Versus Kaybee Sulphates Limited 2014 (2) CPC 165, Max Infra (India) Ltd (M/s). Versus Ashok Leyland Ltd (M/s) and others 2014 (2) CPC 482, Pharos Solutions Pvt. Ltd Versus Tata Motors Ltd. and others 2014 (3) CPC 559, Lord Wear Pvt. Ltd Versus Rance Computers Pvt. Ltd 2014 (1) CPC 391, Shri Ajit Singh Longia Versus M/s Action Construction Equipments Private Limited 2003 (1) CPC 417, Kurji Holy Family Hospital Versus Boehringer Mannhem India Ltd. and others 2000 (2) CPC 200, Ranbaxy Laboratories Ltd. Versus Smt.Mamta Sarkar and others 1997 (1) CPC 243, Kores India Limited and Two others Versus Shakti Prem Sethi 1997 (2) CPC 274 and Sterling Computer Ltd. Versus P.Raman Kutty 1996 (1) CPC 350. 

13.           Admittedly, the complainant purchased equipment (High Pressure High Vacuum Steam Sterilizer) from the OPs for an amount of Rs.6,50,000/- vide purchase order and retail invoice (Ex.C2 and Ex.C3 respectively). It is also admitted that the complainant paid Rs.3,25,000/- to the OP i.e. 50% of the amount and remaining payment was to be paid on installation of the unit in question.

 14.          The plea taken by the OPs that a civil suit is pending at Civil Court at Ludhiana, has no force, as the onus to prove this fact was upon the OPs but OPs failed to prove the same on record.

15.           Furthermore, the OPs have failed to place on record any evidence relating to the fact that machinery was used for commercial purpose. The case laws given by the OPs relied upon the observations that “if complainant uses any machinery for commercial purpose in that case he cannot be a consumer under the Consumer Protection Act.” Whereas, on the other hand, complainant relies upon the judgment of Hon’ble National Commission in Jay Kay Puri’ case (supra) wherein it was held “that purchaser of a machine would be a consumer if the defect in machine develops within warranty period even though the machine was purchased for commercial purpose.”  

16.           During the course of evidence, complainant tendered affidavit Ex.CW2/A of Om Nath Malik, retired XEN PWD (Electrical) who has physically inspect the unit and observed that the machine in question is a defective one and in this regard he has prepared his report Ex.C7. In the report, he has specifically observed as under:-

i)      The steel chamber is having corrosion at many places;

 ii)      The main controller (Electronic Panel) shows the name of

 hospital (Indus Hospital, Derabassi) where it was previously

         installed. 

   iii)     There is no name slip (plate) on the machine to indicate date

        the date of manufacturing or make of the machine itself.

 iv)   All control valves are having corrosion;

v)     That the writing has been badly connected with the joint which

        is not safe and the insulation tape is being applied at places

        where it indicates that it has been replaced earlier.

17.           Complainant also examined Nitin Kumar, bio-medical Engineer, who has tendered his affidavit Ex.CW3/A, and on inspection found that the machine in question is an old one.

18.           In order to prove that the machine in question was having many defects, the complainant has relied upon photographs of the unit in question Ex.C8 to Ex.C18. From the perusal of the photographs it appears that the unit in question is having many scratches and seems to be a second-hand one.

19.           Complainant paid an amount of Rs.3,25,000/- and remaining payment was agreed to be paid on installation of the unit but the OPs sent the second-hand and defective unit. Since, the OPs sent the second hand and defective machine, that is why, the complainant has refused to install the same. 

20.           OPs failed to rebut the evidence led by the complainant and there is no occasion to disbelieve the version of complainant. From the evidence lead by the complainant and documents placed on file, it has been proved that the unit in question is second hand one.  OPs failed to lead any evidence. Thus, the act of OPs amount to deficiency in service and unfair trade practice. Hence complainant is entitled for refund of Rs.3,25,000/- alongwith compensation and litigation expenses.

21.           The case laws relied upon by learned counsel for OPs are not applicable to the facts of the present complaint, whereas the case laws relied upon by the complainant are fully applicable. 

22.           Thus, as a sequel to abovesaid discussion, we allow the present complaint and direct the OPs to pay Rs.3,25,000/- to the complainant with interest @ 9% per annum from the date of making payment by the complainant to the OPs till its realization. We further direct the OPs to pay Rs.25,000/- to the complainant on account of mental agony and harassment and Rs.11,000/- towards the litigation expenses. Complainant is also directed to handover the machine in question to the complainant. This order shall be complied with within 45 days from the receipt of copy of this order. The parties concerned be communicated of the order accordingly and the file be consigned to the record room after due compliance.

Announced

Dated:05.02.2021                                                                     

                                                                  President,

                                                       District Consumer Disputes

                                                       Redressal Commission, Karnal.

 

 

 

        (Vineet Kaushik)             (Dr. Rekha Chaudhary)

                Member                      Member