[Per Mr.Narendra Kawde, Member]
[1] Complainant is proprietary concern dealing in the field of diagnostic facilities. Opponent is a supplier of medical equipments. Complainant tentatively booked Philip Gyroscam Intera 0.5 T MRI System Machine by paying cheque of Rs.5,00,000/- as against total cost of Rs.2,13,00,000/- with the opponent. Opponent after visit of their Zonal Manager to the complainant’s office conveyed certain terms and conditions which were not agreeable to the complainant. Therefore, by letter dated 01/05/2000, complainant cancelled the booking and requested for refund of down payment of Rs.5,00,000/-. However, the opponent refused to refund the same and on the contrary demanded 10% of the value of the machine as cancellation charges minus Rs.5,00,000/- paid in advance. This is how the consumer dispute arose between the parties. This consumer complaint has been filed alleging deficiency in service and unfair trade practice seeking direction for refund of Rs.5 lac along with interest of 18% p.a. and Rs.50,000/- for mental agony and Rs.15,000/- for cost of litigation.
[2] Opponent contested the claim by filing detailed written version. It is stated that as per terms and conditions, complainant is under obligation to pay 10% of the contract value i.e. Rs.2,13,00,000/- for cancellation of order. Terms and conditions provide for cancellation charges of 10% of order value. Opponent believing in the transaction to be genuine placed the order with the manufacturer/supplier on the foreign soil and therefore it was not possible to cancel the transaction except with compliance of terms and conditions by the complainant. Opponent raised the demand of balance claim of Rs.16,30,000/- required to be settled by the complainant against the 10% of the cancelation charges. Amount of Rs.5 lac paid by the complainant was already adjusted by the opponent against cancellation of order leaving balance of Rs.16,30,000/- to be recovered from the complainant, well within the knowledge of the complainant. Moreover, complainant as contended is not a consumer u/s.2(1)(d) of the Consumer Protection Act, 1986 [in short ‘C.P.Act’] and the opponent is not service provider u/s.2(1)(g) of the C.P.ACT since the transaction did not materialize and transaction was for commercial purpose i.e. for use of diagnostic facility against payment. On this ground, opponent prayed for dismissal of the consumer complaint.
[5] Heard learned counsel Mr.Uday Wavikar-advocate for the complainant and Mr.Akshay Deshmukh-advocate for the opponent.
[6] On perusal of the record, we find that admittedly initial booking amount was Rs.5,00,000/-. was paid by the complainant. Yet there is no conclusive detailed contract entered in to the parties and it was to be drafted and signed on mutually agreed terms. The terms and conditions brought on record are available in the complaint compilation denied to have been received by the complainant. There is no conclusive proof about service of the said terms and conditions on the complainant prior to making initial payment or even thereafter. Opponent relied heavily on these terms and conditions. The correspondence took place between the parties evidently shows that complainant never agreed to the revised terms and conditions and therefore decided to cancel the booking and sought refund of initial payment of Rs.5 lac. We do not find anything on record whether immediately on receipt of down payment, whether opponent has placed the order with the manufacturer/supplier of Philip Gyroscam Intera 0.5 T MRI System Machine. The quotation available on record does not include any terms and conditions of forfeiture of deposit paid, if any, on cancellation of the booking order.
[7] As regards contentions raised against the status of the complainant as consumer, we find that the consumer complaint has been filed 03/12/2001 i.e. prior to introducing amendment of Act 50 of 1993 effective from 18/06/1993 which provides for hiring or availing of services as a part of transaction. However, Sec.2(1)(d)(i) of C.P.ACT was already in existence prior to this amendment which provides for buying of goods not covered obtained for any commercial purpose. The complainant has failed to justify whether they are excluded from the operation of provisions of Sec.2(1)d)(i) of C.P.ACT by leading supporting documentary evidence to counter the contentions raised by opponent. The diagnostic facility run by the complainant is obviously against receiving the payment from the patients and not certainly based on the charity. We are unable to agree with learned counsel of complainant who submitted that complaint filed is prior to amendment of C.P.Act as Sec.2(1)(d)(i) was very much existed with Statute Book. Therefore, in view of this legal position, the contentions raised on behalf of the opponent are tenable. Complainant failed to establish as to how this covered under provisions under C.P.Act. The complainant has a remedy to recover the monetary claim in the appropriate forum as the claim raised in consumer complaint amounts to money suit.
[8] In view of the observations made above, we are of the view that complainant is not a consumer as defined under Sec.2(1)(d)(i) of the C.P.Act as rightly pleaded by the opponent. Therefore, consumer complaint cannot be entertained. Hence, it deserves to be dismissed. We proceed to pass the following order.
ORDER
- Consumer Complaint stands dismissed.
- Parties to bear their own costs.
- One set of the complaint compilation be retained and return rest of the sets to the complainant.
- Copies of the order be furnished to the parties free of cost forthwith.
Prononuced
Dated 14th May, 2015.
