BEFORE THE A.P STATE CONSUMER DISPUTES REDRESSAL COMMISSION AT HYDERABAD.
FA 501 of 2010 against C.C. 6/2009, Dist. Forum, Nizamabad
Between:
1) M/s. Transasia Bio-medicals Ltd.
Transasia House,
8, Chandivali Studio Road
Andheri (East), Mumbai.
2) M/s. Transasia Bio-medicals Ltd.
1st Floor, 1-10-27/1, Street No. 3
Ashok Nagar, Hyderabad
Rep. by its Area Manager. *** Appellants/
O.Ps
And
M/s. Bharat Pathological Laboratory
Opp. Bus-stand Lane,
Siti Cable Building, Khaleelwadi
Nizamabad.
Rep. by its Proprietor
T. Linga Reddy, S/o. Malla Reddy
R/o. 5-7-623, Khaleelwadi
Nizamabad.
*** Respondent/
Complainant
Counsel for the Appellant: M/s. Srinivas Karra
Counsel for the Respondent: M/s. K. Visweshwara Rao
CORAM:
HON’BLE SRI JUSTICE D.APPA RAO, PRESIDENT
&
SMT. M.SHREESHA, MEMBER
MONDAY, THE SIXTH DAY OF FEBRUARY TWO THOUSAND TWELVE
ORAL ORDER: (Per Hon’ble Sri Justice D.Appa Rao, President )
***
1) This is an appeal preferred by the opposite parties against the order of the Dist. Forum directing them to refund Rs. 60,000/- with interest @ 9% p.a., from 13.9.2005 till the date of payment together with compensation of Rs. 3,000/-, and costs of Rs. 1,000/-.
2) The case of the complainant in brief is that he is running a laboratory to eke out his livelihood. In order to ascertain accurate and perfect analysis of bloods cells of human beings he placed an order on 13.9.2005 with the opposite parties for supply of “Fully Automated Haematology Analyser’” (herein after called ‘the equipment’) . The value of the equipment was Rs. 3,50,000/- to be paid on or before 25.9.2005. The appellants agreed to deliver the equipment with a warranty of 12 months and would deliver haematology reagents worth Rs. 40,000/- free of cost along with the equipment. He paid advance of Rs. 40,000/- and Rs. 20,000/- by way of demand drafts on 13.9.2005 and also delivered 12 post dated cheques for Rs. 24,167/- each drawn on Oriental Bank of Commerce, Nizamabad. The appellants had agreed to deliver the equipment by 5.10.2005 the appointed date. Despite several requests the equipment was not delivered. On that he repeatedly requested to refund the advance for which they failed to give any reply. On that he issued legal notice to compensate him for the loss and take back the equipment, and return his post dated cheques for which the appellant gave false reply. Therefore he sought for refund of advance with interest, compensation and costs.
3) The appellants resisted the case. It alleged that the complaint is not maintainable it being a commercial dispute. The complaint is also barred by limitation. The complainant is carrying out commercial activity. He concealed the fact of purchase of one instrument worth Rs. 1,50,102/- from the appellant on 29.1.2005. It had agreed to supply the equipment on 25.9.2005 but the same could not delivered due to delay on the part of complainant. The order of confirmation was not received which was mandatory. The complainant ought to have refused to receive the equipment, if there was any breach of conditions of sale. Once the customer accepted the goods the question of non-performance of equipment would not arise. He waived his claim for refund of amount. It has given a proper reply to the notice issued. It was ready to refund the advance amount after adjusting dues towards supply of spare parts and service of EC5+V2 instrument supplied. The equipment was to be supplied on 5.10.2005, and the complaint was filed on 12.1.2009 and therefore the complaint was barred by limitation, and therefore prayed for dismissal of the complaint with costs.
4) The complainant in proof of his case filed his affidavit evidence and that of third party evidence of Arjun Singh dealing in surgical business, reiterating the facts mentioned by PW1 and got Exs. A1 to A18 marked, while the appellants filed the affidavit evidence of K. Venkata Ram, Executive (Administration) and got Ex. B1 to B7 marked.
5) The Dist. Forum after considering the evidence placed on record opined that the appellant did not supply the equipment on the schedule date having received the advance, amounting to deficiency in service directed the appellant to refund Rs. 60,000/- with interest @ 9% p.a., from 13.9.2005 till the date of payment together with compensation of Rs. 3,000/-, and costs of Rs. 1,000/-.
6) Aggrieved by the said decision, the appellants preferred the appeal contending that the Dist. Forum did not appreciate either facts or law in correct perspective. It ought to have seen that the equipment is meant for commercial purpose and that complainant is not a consumer, and that the Dist. Forum has no jurisdiction to entertain the complaint. The complaint was barred by limitation. There was no delay in supply of the equipment nor there was any deficiency in service on their part, and therefore prayed that the complaint be dismissed.
7) The point that arises for consideration is whether the order of the Dist. Forum is vitiated by mis-appreciation of fact or law?
8) It is an undisputed fact that the complainant T. Linga Reddy is running a pathological laboratory to eke out his livelihood and he required a
“Fully Automated Haematology Analyser’” (the equipment) for analysis of blood etc. The appellants are manufacturers of above said equipment. It is not in dispute that the complainant had placed an order on 13.9.2005 evidenced under Ex. A1 to deliver the said equipment at Rs. 3,50,000/-. He paid an advance of Rs. 60,000/- on 26.9.2005 evidenced under receipts Exs. A2 & A3. The appellants had confirmed the order by its letter dt. 26.9.2005 and assured the date of delivery and installation of the equipment by 5.10.2005 on which date the complainant had scheduled the inauguration of said equipment vide Ex. B6. The appellant for whatever reason did not deliver the equipment by 5.10.2005. It is also not in dispute that the complainant is a known customer. Earlier some instrument was installed viz., EC5+V2 vide Ex. B3. Whatever be the earlier relationship between the parties, the fact remains though he fixed the date of inauguration of equipment on 5.10.2005 it was not delivered, therefore according to him the very purpose for which he purchased the equipment was defeated. The complainant in the first instance sent letters after letters, however, there was no reply from the appellants.
9) The contention was that having accepted the equipment beyond the date of 5.10.2005, the complainant did not issue confirmation for despatch of the equipment for taxation purpose, unless such declaration was issued it could not have been cleared from the check point. Evidently, the said declaration was received from the complainant on or about 2.10.2005 vide Ex. B5. No doubt the appellant contends that there was considerable delay for delivery of the equipment in view of non-supply of declaration, however, we may state that the confirmation letter was sent and faxed to the appellant on 2.10.2005 vide Ex. B6. May be the appellant intends to settle the matter evident from its reply Ex. A17, however the complainant having received the said equipment subsequent to scheduled date did not use it. After issuing notices and finally legal notice under Ex. A11 dt. 22.12.2006 he filed the complaint. Therefore the evidence would undoubtedly disclose that the appellant had failed to supply the equipment on the scheduled date viz., on the date of inauguration on 5.10.2005. Despite the fact that he had intimated not to supply the equipment, the appellant had sent the equipment. While the complainant asserts that he did not put the equipment into use and it is lying in the premises in ‘as is where is’ condition, the appellant disputed the same.
10) The Commission in order to find out whether the equipment having been kept idle for all these years could be put to use or not, and as to the appropriate orders that could be passed in the matter while resolving the dispute, directed the appellant to depute a mechanic/service engineer to assess the status of equipment and whether it can be put to use.
11) The Service Engineer of appellant gave his report dt. 28.12.2011. It runs as follows :
As per the directions of the Hon’ble A.P. State Commission, Hyderabad I am deputed by my company M/s. Transasia Bio Medicals Ltd. to carry out inspection of the ‘Fully Automated Haematology Analyzer’ . Accordingly I visited M/s. Bharat Pathlogoical Lab, Nizamabad on 28.12.2011 at 16.00 hrs after intimating the same to Sri T. Linga Reddy, proprietor. At the time of my visit I found that the machine box is opened and it appears the machine is not put to use. It was informed to me that the machine was never used by the customer. In order to verify the status of machine working condition, new reagents are required (Chemicals). Further at the time of delivery of the machine the reagents/chemicals were delivered to the customer and the same cannot be used after long period of time. The regents/chemicals were expired.”
Therefore except for chemicals that were supplied were expired, the machine is in working condition. Since the appellant was at fault in not delivering the equipment in time, and the complainant never used the said machine, and all through protesting for the conduct, and ultimately filed the complaint for refund of amount, nevertheless the complainant is liable to return the equipment. He cannot have equipment as well as refund of amount. In the light of above circumstances, we are of the opinion that as the complainant did not put it to use it would not be proper to direct him to pay remaining balance. All through he has been protesting by way of letters, notices etc. for which the appellants did not respond.
12) The learned counsel for the appellants contended that since the equipment is being used to generate profits, the complaint is not maintainable under the Consumer Protection Act, as the transaction being a commercial one. The complainant is a proprietary concern, and that he categorically stated in his complaint that he has been eking out his livelihood by running a pathological laboratory and it is only his source of income. The said fact was not controverted. The Hon’ble Supreme Court as long back as in 1995 in Laxmi Engineering Works Vs. P.S.G. Industrial Institute reported in 1995 AIR 1428 held that “ A person who buys goods and use them himself, exclusively for the purpose of earning his livelihood, by means of self employment is within the definition of the expression "consumer". Therefore the complaint is maintainable. The National Commission in SACNA Photostat Vs. Excell Marketing reported in 2011 (2) CPR 35 NC opined that ‘the person who purchased the equipment for earning his livelihood he is a consumer.’
13) The learned counsel for the appellants also contended that the complaint is barred by limitation. At the outset, we may state that the appellants though agreed to install the equipment by 5.10.2005 it had delivered after a month. The complainant has protested for the conduct and was corresponding continuously up till 16.1.2007. The appellant by letter dt. 5.12.2008 demanded the complainant to pay balance of consideration. Therefore the cause of action undoubtedly arises on 5.12.2008. The complaint was filed on 12.1.2009 within one year. The period stipulated u/s 24A of the Consumer Protection Act is two years. Therefore it cannot be said that the complaint was barred by limitation. We do not see any merits in the appeal. However, while confirming the order of the Dist. Forum, we direct the complainant to return the equipment to the appellants.
14) In the result order of the Dist. Forum is modified in part, confirming the order of the Dist. Forum directing the appellants to refund Rs. 60,000/- with interest @ 9% p.a., from 13.9.2005 till the date of payment together with compensation of Rs. 3,000/-, and costs of Rs. 1,000/-, and consequently directing the complainant to return the equipment. The appellant is directed to issue notice to the complainant to hand over the equipment to its authorized agent by giving name and authorization letter by fixing a date, and the appellant representative shall receive the equipment on the said date, and on such delivery the complainant is entitled to receive the amount awarded above. In the circumstances there shall be no order as to costs in the appeal. Time for compliance four weeks.
1) _______________________________
PRESIDENT
2) ________________________________
MEMBER
06/02/2012
*pnr
UP LOAD – O.K.
