BEFORE THE DIST. CONSUMERS DISPUTES REDRESSAL FORUM; DHARWAD.
DATE: 31st December 2015.
PRESENT:
1) Shri B.H.Shreeharsha : President
2) Smt.M.Vijayalaxmi : Member
Complaint No.: 277/2015
Complainant/s:
U.S.Parameshwara,
Age: 62 years, Occ: Retired, R/o. C/o. S.B.Warad, II Floor, Chandrashekhar Apartments, II Main, I Cross, Kayan Nagar, Hubballi 580031
(By Sri.B.S.Hoskeri, Adv.)
v/s
Respondent/s:
- M/s. Saharam Diagno Care, Medical and General Stores, No.4, Sheevsheela Complex, Opp: New KSRTC Bus Stand, Gokul Road, Hubballi 580030. R/by its Managing Partner.
- M/s.Arkray Healthcare Pvt. Ltd., 701/ 702, Opulence, 6th Road, TPS III, Santacruz East, Mumbai 400055. R/by its Managing Director.
(By Smt.B.G.Bhat, Adv.)
O R D E R
By: Shri. B.H.Shreeharsha : President.
1. The complainant has filed this complaint claiming for a direction to the respondents to refund Rs.3,376/- the cost of the apparatus with interest @18% from the date of purchase till payment, to pay compensation of Rs.10,000/- for loss, harassment and mental agony, to pay cost of the proceedings and to grant such other reliefs.
Brief facts of the case are as under:
2. The case of the complainant is that, the complainant was in need of BP self monitor apparatus. Hence, approached respondent.1 medical and general store and enquired with regard to the BP self monitor apparatus manufactured by respondent.2 of the product Arkray Trust – Check X Pert. During that time respondent.1 highly appeased the complainant by inducing assurances and made the complainant to purchase the said model of the batch HL 888 HC. In turn the complainant purchased the same for a consideration of Rs.3,376/- inclusive of VAT under bill # 4962 dt.25.11.2013 with one year warranty. Immediately after return to the home the complainant got checked BP of himself and the family members during that time the complainant shocked to note the BP self monitor apparatus was showing high BP. Immediately rushed to the nearby hospital and got check their BP status. On verification at hospital BP was found normal. Immediately the complainant approached the respondent.1 and informed and narrated the facts. Respondent.1 sent his person Mr.Santosh to his house. After checking the BP self monitor apparatus the said person informed the complainant that the BP self monitor apparatus is suffering from manufactural defects and informed the same to the respondent.1 and narrated the facts. Thereafter the said Mr.Santosh assured the complainant that they will replace within 3 – 4 days. But not replaced inspite of 15 times approaches and contacts and not complied only gave assurance saying that the respondent.1 is only a dealer and it will be brought to the notice of the respondent.2 then it will be settled within 15 days. Accordingly the complainant waited but no reply from either respondents. Hence, complainant got issued legal notice to the respondent.1 calling upon to take necessary steps & to refund the amount within a week. The respondent sent reply on 09.08.2014 with falsely justifying the correctness of the instrument & telling the same was informed to the respondent.2 and he is only a dealer. Even then none of the respondents settled the claim which amounts to deficiency in service as defined under CP Act as such the complainant approached the Forum and filed the instant complaint praying for the relief as sought.
3. In response to the notice issued from this Forum the respondents appeared. Respondent.1 admits filed the written version in detail. While the respondent.2 adopts the written version and evidence affidavit averments filed by respondent.1.
4. The respondent by taking defence that the very complaint is false, frivolous and not maintainable either on law or on facts and also on the grounds of limitation point, prays for dismissal of the complaint. Further the respondent reveals in detail the trade name, service rendering by respondents with detailed address. The respondent admits approach of the complainant and purchase of the device, cost of the device, assured warranty. While denied the approach and assurance given by Mr.Santosh as contended by the complainant. Further the answering respondent denied the defects and asserted the device is working & no defects as pointed out by the complainant and puts the complainant to strict proof of the same. Further the respondents admits the issuance of the legal notice dtd.02.08.2014 & also earlier legal notice dt.30.04.2014 and were suitably replied revealing the real facts and further taken contention that the complainant alleged new facts in the complaint which are not traversed and mentioned in the legal notice. Further alleged the complainant approached the Forum after long time from the date of purchase and after expiry of warranty period even though there is no defects in the device. Further the respondents also denied the insist and false assurance apprised at the time of purchase of the device by the complainant from the respondent.2. Further among such other admissions and denials the respondent taken contention by revealing as and when the complainant approach respondent.1 and issued legal notice suitably attended and replied as such there does not arise question of committing deficiency in service or playing unfair trade practice as alleged by complainant and prays for dismissal of the complaint with exemplary cost.
5. On the said pleadings the following points have arisen for consideration:
- Whether complainant has proved that there was deficiency in service on the part of respondents ?
- Whether complainant is entitled to the relief as claimed ?
- To what relief the complainant is entitled ?
Both have admits sworn to evidence affidavit and relied on documents. U/s.13(1) (c ) of CP Act, Forum got report with regard to the device. Heard. Perused the records.
Finding on points is as under.
- Negatively
- Accordingly
- As per order
Reasons
Points 1 and 2
6. On going through the pleadings & evidence coupled with documents of both the parties it is evident that there is no dispute with regard to the fact, the complainant has purchased the BP self monitor apparatus from respondent.1 manufactured by the respondent.2.
7. Now the question to be determined is, whether the BP self monitor apparatus as contended by the complainant suffering from manufactural defects, if so, for what relief the complainant is entitled.
8. Since the facts have been revealed in detail which requires no repetition.
9. The very contention of the complainant is that on the date of purchase itself immediately after return to the home complainant got check up his BP and family members. During that time the device reads high BP, complainant was shocked immediately approached nearby hospital and got checked his BP. On verification it found normal BP. Hence, complainant came to know and confirmed the device purchased by him was suffering from manufactural defects. Thereafter he approached and complained to respondent.1. But respondents did not solved his problem. While the respondents denies all these averments and say of the complainant with regard to the manufactural defects contending that except oral say no evidence has placed before this Forum to corroborate the same.
10. By the evidence of the complainant it is evident that the complainant along with his family members are BP patients. Hence, he need of BP self monitor apparatus, so he purchased and found purchased BP self monitor apparatus is defective. Further the complainant case is that immediately after BP self monitor apparatus shown high BP readings he went to nearby hospital and got checked BP. During that time on verification the BP was normal. If this is the contention of the complainant the complainant would have produced the BP recorded by the said doctor and also he could adduce the evidence of the said doctor. But the complainant did not attempt and led any evidenciary evidence to establish his case. As narrated supra at its assertions and denials by both the parties with regard to know and ascertain the correct working position of the device this Forum referred the same to the Dist. Surgeon, Govt. Civil Hospital Dharwad to inspect the device and to report in the presence of both the parties. In turn the Dist. Surgeon, Govt. Civil Hospital Dharwad sent report with a note “checked BP and variation within 5%”. This means the variation in reading among the device of the hospital and this device. But Dist. Surgeon, Govt. Civil Hospital Dharwad did not give his opinion among the two apparatus i.e. of hospital and device in question by saying which is correct and which is wrong. But he has not said anything with regard to defects in the device. So also it is the case of the complainant that the apparatus is working and is showing high reading. Except saying this the complainant did not produced his medical records to show that what was his BP when it was checked previously before purchasing the device and also what was the BP reading when he approached the hospital on the day he purchased the device for verification. Under those circumstances and as per the evidence led on record there is no sufficient reason to arrive and to hold the device is suffering from manufactural defects and complainant is entitled for refund of the amount. By gathering the evidence led on record the complainant failed to establish his case of device is suffering from manufactural defects and respondents have committed deficiency in service in not set righting or replacing the device and have committed deficiency in service. Hence, complainant is not entitled for any relief.
11. In view of the above discussions we have arrived and proceed to held issue.1 and 2 in negatively and accordingly.
12. Point.3: In view of the finding on points 1 and 2 proceeded to pass the following
O R D E R
Complaint is dismissed. No order as to costs.
(Dictated to steno, transcribed by him and edited by us and pronounced in the open Forum on this day on 31st day of deceased 2015)
(Smt.M.Vijayalaxmi) (Sri.B.H.Shreeharsha)
Member President
Dist.Consumer Forum Dist.Consumer Forum
MSR
