PER SHRI. S. G. CHABUKSWAR – HON’BLE MEMBER
1) This is a complaint for the reliefs of refund of price of hearing aid machine
Rs.17,000/-, compensation Rs.50,000/- and Rs.10,000/- cost of complaint.
2) The case of the Complainant in short is as under -
The Complainant is a practicing advocate residing at Borivali (W), Mumbai.
Opposite Party No.1 is the manufacturer and supplier of hearing aid machines and
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Opposite Party No.2 is the audiologist having its clinic at August Kranti Marg,
Mumbai. On 14/10/2010, the Complainant had approached to Opposite Party No.2
for hearing aid. Opposite Party No.2 after testing the ears of the Complainant, advised
for purchasing hearing aid for left ear. The Complainant replying on the said advise
agreed to purchase one hearing aid for left ear from Opposite Parties and paid
Rs.1,500/- as an advance payment on 14/10/2010. Opposite Parties issued receipt of
said payment on the same day. On 20/10/2010 Opposite Parties supplied one digital
hearing aid machine B2X, Sr. 486742 on further payment of Rs.15,500/- and issued
receipt No.1027 alongwith cash memo no.161 for Rs.17,000/-.
3) The further case of the Complainant is that, Opposite Party No.2 had assured
him that he would certainly be able to hear clearly in the Court room and he would be
able to hear what the Ld. Judge spoke. The Complainant had started to wear the said
hearing aid machine but he was unable to hear the words spoken in the Court room or
outside at a distance of even three to four feet. Thereafter, the Complainant made
complaint with Opposite Party No.2 about improper, unsuitable and unsatisfactory
hearing aid machine. Opposite Party No.2 made adjustment in the said machine even
then the same defect was continued. The Complainant had approached to the clinic of
Opposite Parties for six-seven times for adjustment of hearing aid machine and threefour
times to the Borivali Office. The hearing aid machine supplied by Opposite
Parties was defective, faulty, ineffective, inadequate and deficient in quality. As per
the guarantee card issued by Opposite Parties the guarantee period was two years from
20/10/2010 to 19/10/2012.
4) The further case of the Complainant is that on 07/04/2011, he again went to the
clinic of Opposite Parties and told that he was total dissatisfied with the said hearing
aid machine and offered to return the same and for refund of price amount of said
machine. On 13/04/2011 the Complainant sent letter and hearing aid machine in
question and demanded refund of Rs.17,000/- from the Opposite Parties. On
07/05/2011, Opposite Party No.2 replied the said letter and refused to take back the
hearing aid machine in question and to refund the amount. Opposite Party No.2 sent
back the said machine to the Complainant with the letter dtd.07/05/2011. The
Complainant collected hearing aid machine in question on 06/07/2011. Lastly on
10/10/2011 Complainant issued notice to the Opposite Parties and demand refund of
Rs.17,000/- price of hearing aid machine, Rs.50,000/- compensation towards mental
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agony. Opposite Parties served with the said notice but in vain. Hence, this complaint
for the reliefs mentioned in above para no.1.
5) Opposite Parties have resisted the claim by filing written version. The
contention of Opposite Parties is that on 14/10/2010 the Complainant had approached
to the clinic of Opposite Party No.2 for the test of loss of hearing. Prior to sale of
hearing aid machine the Opposite Party exercised complete prudence and due
diligence and the Complainant was made to undergo a complete audiological
evaluation whereby the need recorded on 14/10/2010. That once the said audiological
evaluation was complete it was duly decided by an audiology expert as to which
hearing aid machine were best suited to the Complainant. The Complainant was
professionally advised to have himself fitted with Widex Flash hearing aids which are
equipped with two microphones and are specifically designed to function in noisy
situations such as Court room as was required by the Complainant. The MRP of said
hearing aid machine being superior in quality and technology was approximately
Rs.50,000/-. The Complainant in turn had expressed his desire for certain hearing aid
which were cheaper and less suited as the same was within his budget against express
opinion and advice of said audiology expert Opposite Party No.2 who was best suited
to express opinion in the matter as she is professionally trained in the relevant field.
However, the Complainant decided to purchase only one hearing aid instead of two of
his own volition.
6) The further contention of Opposite Parties is that Complainant was fitted with
the hearing aid and hearing instrument purchase agreement was executed between the
parties after explaining all the necessary terms and conditions of the agreement. On
20/10/2010 the Complainant was provided a 15 days trial period during which he
could report back to the Opposite Party any discomfort or deficiency detected by him.
On 20/10/2010 the Complainant reported to Opposite Party No.2 that he was duly
satisfied with hearing aids fitted. On the relevant date the Complainant was again
made to undergo necessary check-ups and he himself duly claimed that he had a
satisfactory experience. The Complainant himself stated that, he did not require
superior hearing aids as he rarely attended Court. The Complainant was advised to
undergo auditory training and revert back within a period of 15 days as to the changes
and development is experiences. The Complainant never underwent any auditory
training and is now a victim of his own negligent act and conduct. The hearing aids
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machine in question is non-suited to the Complainant and the said machine suffers
from no defect. As per the terms and conditions the warranty is limited to the extent
to set right the product by repairing or replacing defective parts only and not exchange
perfectly working hearing aid machine. The Complainant is bound to file
authenticated report of the expert from an approved laboratory in support of his
allegation. The Complainant has not produced such report. The Opposite Parties
have denied that they supplied defective hearing aid machine to the Complainant and
there is deficiency in service on the part of Opposite Parties. Opposite Parties have
denied all rival contentions of the Complainant and prayed for dismissal of complaint
with cost.
7) From the rival pleadings of the parties, following points arises for consideration
and our findings thereon are noted against each of them for the reasons given blow –
Points Findings
1. Does the Complainant prove that Opposite Parties Negative.
sold him defective and discomfortable hearing aid
machine ?
2. Whether Opposite Parties rendered deficiency in Negative.
service to the Complainant ?
3. Whether Complainant is entitled to the reliefs Negative.
Claimed by him ?
4. What reliefs and order ? As per final order.
Reasons
8) The Complainant has filed his affidavit of evidence. The Complainant has also
filed affidavit of evidence of Shri. M.K. Dixit, Advocate in support of his claim.
Opposite Party has filed reply/written version by way of affidavit of Shri. Tushar
Patil. We have gone through the documents produced by both parties. Both parties
have submitted their respective written notes of arguments. We heard oral arguments
of the Complainant in person and Shri. Unmesh Brid, Ld.Advocate for Opposite
Parties.
9) Point Nos.1 & 2 :- Admittedly on 14/10/2010 the Complainant had
approached to the clinic of Opposite Party No.2 for the test of loss of hearing. On that
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day the Complainant paid to Opposite Parties an amount of Rs.1,500/- for purchasing
hearing aids machine. On 20/10/2010 the Complainant has purchased from Opposite
Parties hearing aid machine BRAVO B2XS0 486742 for Rs.17,000/-. On 20/10/2010
the Complainant paid to Opposite Parties Rs.15,500/- and obtained the possession of
above hearing aid machine. The Complainant has produced alongwith compliant at
Exh.A, B & C receipts and cash memo of purchase of hearing aid machine. As per the
case of the Complainant the hearing aid machine in question was defective therefore,
he was unable to hear the words spoken in the Court room and outside at the distance
of three to four feet. The case of the Opposite Parties is that the hearing aid machine
in question was non-suitable to the Complainant. Opposite Parties had advised to the
Complainant hearing aid machine which is equipped with two microphones.
Therefore, question arises whether hearing aid machine in question was defective or
non-suitable to the Complainant
10) The burden lies on the Complainant to prove that hearing aid machine in
question (hereinafter referred as machine in question) was defective. The Complainant
has not moved an application for the test of machine in question through expert person
to bring the defect of said machine on record. The Opposite Parties have brought to
the notice of Complainant the provision of Sec.13 (1)(c) to (g) of the Consumer
Protection Act, 1986 by filing separate application alongwith written version on
31/07/2013. After 31/07/2013, Complainant has not submitted application for the test
or examination of machine in question from the expert. In the absence of expert
evidence it cannot be said that machine in question was defective.
11) Shri. Tushar Patil, Reigional Sales Manager of Opposite Parties has stated on
oath that, on 14/10/2010 the Complainant was advised to have himself fitted with
Widex Flash hearing aid which was equipped with two microphone and are
specifically designed to function in noisy situations such as a Court room as was
required by the Complainant. The market rate price of the said hearing aid machine
being superior in quality and technology was approximately Rs.50,000/-. The
Complainant in turn expressed his desire for certain hearing aid which were cheaper
and less suited as the same was within his budget against the express opinion and
advice of the audiology expert. The Complainant decided to purchase only one
hearing aid machine for his left ear instead of two. The Complainant in his affidavit of
evidence has denied para nos.3, 4, 5 & 2 of the written version of Opposite Parties.
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The Complainant has not specifically stated on oath in affidavit of evidence that
Opposite Party never advised him for purchasing two microphones hearing aids of
Rs.50,000/- and he never shown his desire for purchase of hearing aid machine lesssuited
within his budget. Shri. M.K. Dixit witness of the Complainant has not deposed
that Opposite Party had not given above such advice to the Complainant.
12) Opposite Party has produced alongwith written version the hearing evaluation
report of the Complainant prepared by Opposite Parties on 14/10/2010. It has been
mentioned in the column of report comments as “Bilateral Moderate SN loss”. It
means there was loss of hearing to both sides of the Complainant. The contentions of
Opposite Party is that they had advised Complainant for fitting two microphones
hearing aids but Complainant purchased only one hearing aid. The Complainant has
produced receipt No.986 of payment of Rs.1,500/- dtd.14/10/2010 at Exh.A and
receipt No.1027 of payment of Rs.15,500/- dtd.20/10/2010 at Exh.C. It has been
mentioned in the receipt Exh.C that payment received on account of B2X/Sr.486742.
However, the word and figure B2X/Sr.486742 are not appearing in the receipt Exh.A.
The Complainant has produced cash memo dtd.20/10/2010 at Exh.B. It has been
mentioned in the column of particulars of the said cash memo as BRAVO B2XSr.
486742. If Opposite Parties would have advised hearing aid machine in question to
the Complainant then the word BRAVO B2XSr. 486742 would have been mentioned
in the receipt Exh.A on 14/10/2010. On the contrary it appears in the relevant column
of receipt Exh.A Gestomization for ITG hearing aid has been mentioned by the
Opposite Parties. The particulars mentioned in Exh.B & C are not appearing in receipt
Exh.A therefore, it can not be said that Opposite Party had advised hearing aid
machine in question to the Complainant.
13) The Complainant has pleaded in para no.7 of the complaint that as per
guarantee card the guarantee period of machine in question was for two years from
20/10/2010 to 19/10/2012. This fact shows that Opposite Party has issued document
of guarantee to the Complainant and the Complainant is having knowledge of the
terms and conditions mentioned therein. Opposite Parties have produced alongwith
written version hearing instrument purchase agreement which took place between the
Complainant and Opposite Parties on 20/10/2010. It has been mentioned in the
hearing instrument purchase agreement that client’s obligation is payment of
Rs.1,500/- and any money paid excess of this amount will be refunded. These
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contention of purchase agreement shows that Opposite Party has not accepted amount
Rs.1,500/- from the Complainant for any particular hearing aid machine on
14/10/2010 and it was advance for suitable hearing aid machine.
14) The terms and conditions of purchase agreement dtd.20/10/2010 are as under –
money refund within a period of two weeks from the date of supply, at least
one further personal consultation will be provided free of cost to assess the progress
and the further assistance if required in the unlikely event instrument(s) being proving
to be unsuitable then provided return is in new condition within 15 days of the date of
supply. Clients only obligation is payment of Rs.1,500/-. And any money paid in
excess of this amount will be refunded. After the aforesaid 15 days period the hearing
aid cannot be returned and no refund made. The Complainant and Opposite Parties
have signed the said agreement on 20/10/2010.
15) The Complainant has pleaded in para no.6 of the complaint that he had
contacted to Opposite Party No.2 and complained about non-suitability of machine in
question. On Six-seven times complaint went to the clinic of Opposite Party No.2 and
three to four times to the office of Borivali of Opposite Party. The Complainant has
not mentioned the dates on which he visited to Opposite Party No.2 on six-seven
occasions and three-four times to office Borivali. It has not come on record that the
Complainant made complaint with Opposite Parties about discomfortability of
machine in question within two weeks from the date of purchase of it i.e. 20/10/2010.
Opposite Party had given to the Complainant period of 15 days for making complaint
about discomfortability of hearing aid machine and to get refund of the price of said
machine. But Complainant failed to do so within the said period. As per the terms of
purchase guarantee agreement, the instrument purchased will be guaranteed against
any defect or workmanship or material for a period of 24 months from the date of
purchase. Damage due to misuse, accident or attempted repairs may not be covered by
the guarantee and subsequently will be provided through the hearing aid dealer. Non
of the foregoing affect the client’s statutory rights. As per the above terms the
warranty of hearing aid machine purchased by the Complainant was limited to the
extent of repairing or replacing defective parts only and not to exchange the hearing
aid in question. The Complainant failed to prove that he had made complaint with
Opposite Parties about non-suitability of hearing aid within the period of two weeks.
After the above said period Complainant cannot raise dispute about the hearing aid
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machine in question. The evidence available on record shows that Complainant failed
to prove that the machine in question was defective and deficiency in service on the
part of Opposite Parties. Hence, point nos.1 & 2 are answered in the negative.
16) Point No.3 :- In view of findings to point nos.1 & 2 the Complainant failed to
prove that the hearing aid machine in question was defective and Opposite Parties
rendered deficiency in service, therefore, Complainant is not entitled to the reliefs
claimed by him. Hence, point no.3 answered in the negative.
In the result complaint deserves to be dismissed. Considering the facts and
nature of the complaint both parties have to bear their own cost. Hence, we proceeds
to pass following order –
O R D E R
i. Complaint No.224/2012 is dismissed.
ii. Both parties shall bear their own costs.
iii. Certified copies of this order be furnished to the parties.
