Date of filing: 19.07.2021
Date of order: 28.07.2022
BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, VELLORE AT VELLORE DISTRICT.
PRESENT: THIRU. A. MEENAKSHI SUNDARAM, B.A.,B.L. PRESIDENT
THIRU. R. ASGHAR KHAN, B.Sc.,B.L. MEMBER – I
SELVI. I. MARIAN RAJAM ANUGRAHA, M.B.A. MEMBER - II
THURSDAY THE 28th DAY OF JULY 2022
CONSUMER COMPLAINT NO. 21/2021
The Christian Medical College Vellore Association,
Represented by Secretary,
Ida Scudder Road,
Vellore – 632 004.
Tamil Nadu. …Complainant
-Vs-
M/s. Emtex Engineering Pvt Ltd.,
Represented by Business Development Manager,
Enterprises Sales,
Industry Buying,
E-Commerce Company,
Having registered office,
At Plot No. 401, 402, First floor,
GHITORNI, M.G. Road,
New Delhi – 110 030. …Opposite Party
Counsel for complainant : Thiru. M.R. Ramanan
Counsel for Opposite Party : Set exparte (01.06.2022)
ORDER
THIRU. A. MEENAKSHI SUNDARAM B.A.,B.L. PRESIDENT,
This complaint has been filed under section 12 of Consumer Protection Act 1986, the complainant prayed this commission to direct the opposite party to refund the amount he paid towards supply of the product sum of Rs.38,97,600/-, and to pay a pay sum of Rs.20,000/- towards loss of use of the amount till date with future loss with interest 12percent per annum till payment and also to pay a sum of Rs. 1,00,000/- as compensation towards hardship and agony suffered by the complainant
1.The case of the complaint is briefly as follows:
The complainant submits that Christian Medical College, Vellore, is a minority educational institution, as contemplated under Article 30 (1) of the Constitution of India and it is owned and administrated by The CMC Vellore Association, a society registered under the Societies Registration Act, doing humanitarian, charitable and educational service in the cause of attending to the sick and injured humanity as a whole. Because of the present COVID-19 pandemic, there has been rush of patients needing urgent hospitalization and treatment. To cope up with that, separate special wards have also been created and patients with serious acute respiratory syndrome are admitted. All the medical staff from Doctors to Sanitary workers, are rendering yeoman service day and night at great risk and sacrifice. The opposite party is an E-Commerce entity, engaged in supply of oxygen concentrators. The opposite party had sent an email dated 07.05.2021, at 01.55 p.m. showing a list of 12 oxygen concentrators, out of which 3 were selected by the complainant for enquiry of price and other details. Subsequently, by email dated 08.05.2021 at 01.55p.m, the complainant enquired, whether supply of 100 units of brand Drive Devilbiss was possible within 15th of May, 2021. The opposite party replied, by email, dated 10.05.2021 at 02.35 p.m., that delivery was possible only by 30th May, 2021. After a series of communication and telephonic conversations, alternatively the opposite party, by email dated 11.05.2021 at 08.00 p.m, suggested that delivery of two other brands namely ‘You well’ and ‘DEDAKJ’ was possible by 13th May, 2021. Owing to the urgent need for the lifesaving oxygen concentrators, and the timeline for supply of DEDAKJ, an email dated 12.05.2021 was sent, placing order for 30 numbers of DEDAKJ along with purchase order no. 21P0332509 dated 12.05.2021 for supply of the model DE-2A. Thereupon, the opposite party delivered on 17.05.2021, with their Tax Invoice dated 13.05.2021, showing supply of 30 units of DEDAKJ Oxygen concentrators model Sku MED OXY with standard accessories and 10 litres capacity for Rs.38,97,600.00/-. The amount was remitted by the complainant prior to delivery. Along with the Tax Invoice, the opposite party has sent user manual and warranty card. The complainant is herewith filing the copy of their Tax Invoice with enclosures and all correspondence mentioned above. On quality analysis done by the Bio-medical Engineering team of CMC, it was shocking to note that out of 30 units, 4 (four) were not functioning / defective and the rest 26 (Twenty six) were not of the standard quality. Thus all 30 units failed the quality test with oxygen analyser. The complainant was greatly disappointed and highly grieved. Therefore, the complainant was constrained, to issue the letter dated 21.05.2021, by email together with the quality assessment report of the 30 units, calling upon the opposite party to refund the invoice amount of Rs.38,97,600/- and to take back all the equipments supplied by the opposite party.
2. The complainant is herewith filing the copy of the letter dated 21.05.2021, sent to the opposite party together with the copy of quality assessment report. The opposite party sent an email reply dated 22.05.2021, stating that they are only an E-commerce Company and not manufactures and that they are ready to take back only 4 (four) oxygen concentrators, offering to replace the same. The complainant is prone to believe that the opposite party, deliberately supplied sub-standard useless equipments and dishonestly enriched taking advantage of emergent situation. The opposite party did not furnish the name and address of the manufacturer and the complainant had no negotiation or any dealings with or privy to the manufacturer. In response to the email dated 22.05.2021 of the opposite party, the complainant replied by email dated 24.05.2021 stating that it was the opposite party who proposed that the ready stock of 30 units of this new brand DEDAKJ could be supplied to the complainant within a couple of days by email dated 11.05.2021. The complainant also pointed out the provisions of the Consumer Protection Act 2019 as to how the opposite party was liable. The complainant is herewith filing copies of the said email dated 22.05.2021 from the opposite party and the reply email letter dated 24.05.2021 sent by the complainant. By referring to the two letters dated 21.05.2021 and 24.05.2021 of the complainant, the opposite party by its Cluster Head (North), by email letter dated 08.06.2021 reiterated their stand by denying their liability to refund the Invoice amount and to take back the sub-standard oxygen concentrators. The same letter shows that the opposite party had least interest with regards to quality of the equipments supplied by them. Timeline may be important but there should be no compromise on the quality of the product supplied by the opposite party. The complainant is herewith filing copies of the letter dated 08.06.2021 sent by the opposite party. While analysing the official website of the Brand DEDAKJ the complainant came to know that the company DEDAKJ has two oxygen concentrators, one for home use and the other for medical use. The oxygen concentrator model DE-2A was not a medical oxygen concentrator. The product detail given in the official website clearly states that “this is an auxiliary device and cannot be used to relieve serious illness or relieve people who use medical oxygen to maintain life”. It is also mentioned that “the portable oxygen generator adopts PSA (Pressure Swing Adsorption) technology to obtain high purity oxygen especially suitable for homecare, outdoor travel, cars, etc.”. The opposite party never sent these details along with the catalogue details mailed to the complainant.
3. Further, the Tax Invoice dated 17.05.2021 issued by the opposite party describes the oxygen concentrator as MED OXY in the item description but this model DA2E is not a medical oxygen concentrator. The particulars mentioned in the Tax Invoice of the opposite party are misleading and clearly indicates their wrongful intent to deceive the complainant. It is submitted that in the medical oxygen concentrators the flow rate would by 93% and it would be constant. But it was not so in this case it is evident from the Quality Assessment Test report. The complainant was shocked to find out that DEDAKJ has no medical concentrator of 10 litres capacity. Therefore, it is clearly established that the opposite party supplied only home oxygen concentrators of 10 litres capacity to the complainant. This supply made to the complainant is dishonest and also unfair deceptive practice on part of the opposite party. The complainant is herewith filing the copies of the catalogue details of both 10 litres home oxygen concentrator and 5 litres medical oxygen concentrator available from the official website of the DEDAKJ company. As per the provisions of the Consumer Protection Act 2019, the opposite party, as a product seller, is liable to refund the amount claimed. The complainant submits that the fact that the products supplied to them are useless equipments and it is not disputed by the opposite party as can be seen from the letters from them. The stand of the opposite party is that (a) the opposite party is not the manufacturer of the product supplied by the opposite party and (b) that the Brand was opted by the complainant. The stand cannot be countenanced. This was the product which was in stock and to be supplied within the time -line of the earliest as claimed by the opposite party thereby dishonestly induced the complainant to opt for this Brand before placing the order. Even otherwise, the opposite party cannot supply spurious products especially at the emergent known life saving situation in the Hospital. The complainant has also been put to loss of face and could not render timely help to suffering patients. The complainant has been put to great hardship and agony. The complainant had to make alternative arrangements at great expense. The opposite party is liable to compensate the complainant for loss and agony suffered by the opposite party.
4. Though the notice was received by the opposite party from this commission. The opposite party did not appear before this commission. There was no representation on the side of the opposite party and therefore, the opposite party is called absent and Set exparte.
5. Proof affidavit of complainant filed. Ex.A1 to Ex.A13 were marked. Written argument of complainant filed and also oral argument heard.
6. THE POINTS THAT ARISES FOR CONSIDERATION ARE:
1. Whether there is any deficiency in service on the part of the opposite party
2. Whether the complainant is entitled for relief as claimed in the complaint
3. To what relief, the complainant is entitled to?
7. POINT NO. 1&2: The complainant placed an order for 30 numbers of DEDAKJ Oxygen cylinders on 12.05.2021. The said communication was marked as Ex.A5. The opposite party delivered 30 Units of DEDAKJ Oxygen concentrators on 17.05.2021. The total cost of the equipments was Rs.38,97,600/- The said amount was remitted by the complainant to the opposite party prior to delivery of the equipments. After purchase of the said oxygen concentrators a quality analysis was done by the Bio-medical Engineering team of CMC, it was shocking to note that out of 30 units, 4(four) were not functioning defective and the rest 26 were not of standard quality. Thus all 30 units failed the quality test with oxygen analyser. Therefore the complainant issued the letter dated on 21.05.2021, which is marked as Ex.A9. Along with quality assessment report of the 30 units, calling upon the opposite party to refund the invoice amount of Rs.38,97,600/- and to take back all the equipments supplied by the opposite party. The opposite party send an email reply on 22.05.2021, stating that, they are only an E-commerce company and not manufacturers and that they are ready to take back only 4 concentrators and offered to replace the same, which was marked as Ex.A10. It was pertinent to note that though the product was sold through E-commerce company, but the same was manufactured by some other company. Admittedly the manufacturer of the equipments did not arrayed at a party to productions. when this forum raise this issue during the argument of the counsel for complainant contended that, since the opposite party not furnished the name and address of the manufacturer and also there was no privy to the manufacturer. The opposite party alone is responsible for the defective equipments.
8. Further the counsel for the complainant also contented that while analysing the official website of the brand DEDAKJ, the complainant came to know that the company has two types of oxygen concentrators, one for home use and the other for medical use. The oxygen concentrators model DE2A was not a medical oxygen concentrator. The product details given in the official website clearly state, that this is an auxiliary device and cannot be used to give relief for serious illness or relieve people who use medical oxygen to maintain live. The opposite party never disclosed the details along with catalogue to the complainant. In fact, the opposite party are misleading which clearly indicates their wrongful intend to deceive the complainant. In the medical oxygen concentrator the flow ready would be 93% and it would be constant. But the equipments supplied by the opposite party was not so. The complainant was shocked to find out that DEDAKJ has no medical Oxygen concentrator of 10 litres capacity. Therefore, it is clearly established that the opposite party supplied only home oxygen concentrator of 10 litres capacity to the complainant. This supply made to the complainant is, dishonest and also unfair deceptive practice on the part of the opposite party. The counsel for the complainant also contented, that as per the provision of the Consumer Protection Act 2019, the opposite party as a product seller is liable to refund the amount claimed. The product supplied by them are useless equipments is not disputed by the opposite party. The opposite party is not the manufacturer of the product supplied by the opposite party that the brand was opted by the complainant. The stand by the opposite party cannot be countenanced, because this was the product which was in stock and to be supplied within the timeline of the earliest has claimed by the opposite party thereby dishonestly induced the complainant to opt for this brand before placing the order. Even otherwise, the opposite party cannot supply spurious products especially at the emergent known life-saving situation in the hospital. Despite notice from before this Hon’ble Commission. The opposite party did not appear. Thus we have no other option except accepting contention of the complainant and allowed this complaint that there is a deficiency in service on their part. Hence, these Point Nos.1&2 are decided in favour of the complainant.
9. POINT NO. 3: As we have decided in Point Nos.1 and 2 that there is a deficiency in service on the part of the opposite party. The opposite party is hereby directed to pay a sum of Rs.38,97,600/- (Rupees Thirty Eight Lakhs Ninety Seven Thousand and Six Hundred only) the cost of equipments (30 units of oxygen concentrators) and also to pay a sum of Rs.1,00,000/- (Rupees One Lakh only) as compensation for deficiency in service and mental agony and also to pay a sum of Rs.10,000/- (Rupees Ten Thousand only) towards cost to the complainant. This point No.3 is also answered accordingly.
10. In the result this complaint is allowed. The opposite party is hereby directed to pay a sum of Rs.38,97,600/- (Rupees Thirty Eight Lakhs Ninety Seven Thousand and Six Hundred only) the cost of equipments (30 units of oxygen concentrators) and also to pay a sum of Rs.1,00,000/- (Rupees One Lakh only) as compensation for deficiency in service and mental agony and also to pay a sum of Rs.10,000/- (Rupees Ten Thousand only) towards cost to the complainant within one month from the date of receipt of this order, failing which the above amounts shall carry interest at the rate of 9% per annum from the date of this order to till date of realization.
Dictated to the steno-typist transcribed and typed by her corrected and pronounced by us in the open Commission on this the 28th of JULY 2022.
Sd/- Sd/- Sd/-
MEMBER – I MEMBER – II PRESIDENT
LIST OF COMPLAINANT SIDE DOCUMENTS :
Ex.A1 – 07.05.2021 - Copy of E-mail sent to opposite party by the
complainant about the availability of the products
Ex.A2 – 07.05.2021 - Copy of E-mail sent to complainant by the opposite
party about availability of stock details and time-line for
supply of the products
Ex.A3 – 08.05.2021 - Copy of E-mail sent by complainant to the opposite
party proposing to order for supply of 100 units if
supply could be made within 15.05.2021.
Ex.A4 – 11.05.2021 - Copy of E-mail from opposite party intimating
availability of stock of DEDAKJ and date of delivery as
13.05.2021 and to be confirmed by next day.
Ex.A5 – 12.05.2021 - Copy of E-mail received from opposite party with stock
information blocking of 30 units and warranty for
DEDAKJ.
Ex.A6 – 12.05.2021 - Copy of E-mail sent by complainant to opposite party
ordering for purchase of 30 units of DEDAKJ to block
stock, po and advance to follow.
Ex.A7 – 12.05.2021 - Copy of purchase order mentioning advance payment
is under process, to arrange to supply immediately with
E-mail for payment made.
Ex.A8 – 13.05.2021 - Copy of Tax Invoice showing supply of 30 units of
oxygen concentrators with standard accessories,
capacity 10 litres, Brand DEDAKJ with copies of user
manual, warranty card.
Ex.A9 – 21.05.2021 - Copy of letter sent by complainant to the opposite party
attaching therewith quality test assessment report
dated 17.05.2021 of 30 units with the defects found.
Ex.A10 – 22.05.2021 - Copy of E-mail received from opposite party expressing
readiness to take back only 4 units and to replace the
same, stating that they are not the manufacturers of
the products supplied.
Ex.A11 – 24.05.2021 - Copy of letter sent by the complainant to the opposite
party stating, inter alia, that as E-Commerce entity, the
opposite party is liable to refund the invoice account of
Rs.38,97,600/- to complainant.
Ex.A12 – 08.06.2021 - Copy of reply received from the opposite party cluster
head for the seeking to discuss and amicably resolve
declining liability.
Ex.A13 - - Catalogue and pictures of 2 types of oxygen
concentrator was taken from DEDAKJ official website
Link http://dedakjmall.com
LIST OF OPPOSITE PARTY SIDE DOCUMENTS: -NIL
Sd/- Sd/- Sd/-
MEMBER – I MEMBER – II PRESIDENT
