PER MR. JUSTICE R.K. BATTA, PRESIDING MEMBER The Complainant had called tenders for purchase of various items including C-Arm Image Intensifier with operation table from the competent manufacturers and agents/dealers. The tender submitted by the Opposite party was accepted and the complainant hospital placed the purchase order on 27.5.1998 with the Opposite party. For the purchase of the aforesaid C-Arm Image Intensifier with operation table, amount of Rs.24.90 lacs was paid by cheques on 10.9.1998. The Opposite party had executed an agreement dated 28.8.1998 providing warranty for a period of 36 months from the date of installation against manufacturing defects etc. The Opposite party installed the said unit in the Hospital on 5.9.1998. The said unit was to be used by highly qualified professionals and experts working in the hospital. However, the C-Arm Image Intensifier started malfunctioning immediately after the installation which was brought to the notice of the Opposite Party. The unit was inspected by the representative of the opposite party on 8.12.1998 and it was reported that there was no input and the cables were rusted badly and some of the cables were cut and the unit was not functioning satisfactorily. The fluoroscopy part of the unit functioned for about 15 days after installation and the radiography part did not at all function since the day of its installation. The same could not be repaired by the representative of Opposite party as certain parts had to be brought from Delhi. On 15.2.1999 the representative of Opposite party reported that the component was spoiled, software had been corrupted and the unit was not functioning. He informed that certain parts had to be brought from Italy to repair the unit. In spite of repeated requests opposite party failed to rectify the defects and make C-Arm Image Intensifier functional. The Complainant Hospital also complained of defects and requested for repair at the earliest by sending fax message dated 24.3.1999. On 28.4.1999 the representative of the Opposite party repaired fluoroscopy part of the unit and promised that the radiography problem will be rectified later on in a months time. On 26.5.1999 the complainant reported to Opposite party that fluoroscopy part of C-Arm had failed and was not functioning. The repairs were carried out on 28.4.1999. However, within a few days C-Arm unit stopped functioning and it was reported to the Opposite party on 8.6.1999. On the same day, the representative of the Opposite party came and found that the motherboard of the unit was not functioning. The engineer of the Opposite party rectified fluoroscopy part of the unit, but failed to rectified the radiography part. In October, 1999 fluoroscopy part again failed and the matter was reported to Opposite party by the Complainant on 18.2.2000 and that the radiography part of the unit was not functioning since its installation. According to the complainant the Opposite party failed to rectify C-Arm Image Intensifier unit which was defective, ineffective and sub-standard. The Opposite party was incapable of providing effective and efficient after sales service contrary to warranty and assurances given by them at the time of purchase of the unit. The complainant , thus, suffered great financial loss, mental agony for want of the said unit. The complainant has then explained the importance of the C-Arm Image Intensifier in the operation as against conventional methods and as also filed rate list of some of the treatments and surgical operations performed in its hospital. It is further submitted that when C-Arm Image Intensifier was working, the Complainant was conducting 4 to 6 surgeries per day but no details thereof or the dates or amount charged has been given by the Complainant. According to the Complainants the loss was over Rs.10,000/- per day. A legal notice was sent to the Opposite party on 28.3.2000 seeking compensation of Rs.1,22,25,400/-. Details of which are as under and in respect of which this complaint has been filed :- PARTICULARS AMOUNT 1) Cost of C-Arm Image Intensifier Unit 24,19,000 2) Interest on the cost of the unit @ Rs.24.10 lscs 14,51,400 3) Losses suffered by hospital due to non- Functioning of the unit @ Rs.10,000/- per day since its installation on 5.9.1998 upto 20.3.2001 i.e. for 773 days 77,30,000 4) Causing inconvenience, loss mental agony And suffering to the hospital and its Professionals 5,00,000 5) Towards the cost of the present litigation 1,25,000 ________ TOTAL 1,22,25,400 _________ The Opposite party filed written version. Amongst the preliminary objection taken is that the warranty of 36 months was against manufacturing defects and the warranty does not cover defects/damage to the unit on account of mis-handling, misuse or operation by the non technical personnel or damages arising out of natural or man made calamities viz. lightening, flood, earthquake, high voltage, seepage of water or ingress of rodents etc. into the unit. According to the Opposite party the non-functioning of the unit after installation and the problems which cropped up were the result of mishandling of the unit by untrained technical staff and the same has been used and operated by mass, whereas the service engineer of the Opposite party had cautioned the authorities that the unit was sophisticated unit and should be handled and operated by highly qualified technical staff and only by 2-3 surgeons /doctors. It is also pointed out that the unit had been imported and opposite party had to approach the principal manufacturer for replacements which takes time to rectify and attend to the complaints. On merits it is pointed out that the unit was imported and spare parts had to be imported if they were not in stock. The defects reported by the Complainant vide letter dated 24.3.1999 are not covered under the warranty as the same were not manufacturing defects. The non-functioning of the unit and intermittent problems were due to improper care and handling of the unit and more so incorrect power supply. It is also pointed out that the service engineer on installation had found that C-Arm’s cables were twisted improperly as a result of which the inside cable/wire got cut/loosened. According to the Opposite party effective after sales service was provided and the unit was attended to with reasonable promptness. Reliance has been placed on the reports of inspection and the repairs done. The Complainant has filed rejoinder affidavit in which the allegations of mishandling and poor maintenance have been denied and it is stated that the unit was always used and operated by trained technicians and qualified doctors. The defects pointed out are on account of manufacturing defects. The Complainant has filed affidavits evidence of Dr. K.R. Parthasarthy, Lecturer in Radiology. Dr. V.N. Gubbi, Assistant Prof. Orthopaedics and Dr. V. Gopya Naik, Prof. in Orthopaedics. The Opposite Party has filed affidavit of Dr. V.L. Narayan, Proprietor of the Opposite Party. It may be mentioned at this stage that on 17.3.2005 directions were given to appoint an Engineer of Opposite party to inspect the unit and assess the estimated cost which is likely to be incurred to make the unit functional. The Engineer of the Opposite party filed report in which it was reported that a few parts/components are to be replaced and some of the parts required repairs. Out of replacement, the manufacturing of some articles/components has been discontinued by the principal manufacturer/exporter as the model of unit has become obsolete. The Opposite party has made every endeavour and frantic efforts for the procurement of articles/ components and estimated cost has been furnished as below:- Sl. No. Description Qty. Amount(Rs.) 1. NCD AU 01 Card 01 24,000 2. NCD VD 01 Card 01 24,000 3. CCD Camera 01 70,000 4. TH 7195-3 Power Supply 01 80,000 (Code 49.38.001.008) 5. Grid (Metallic Part) 01 40,000 _________ SUB TOTAL 2,38,000 VAT @ 12.5% 29,750 _________ GRAND TOTAL 2,67,750 _________ Thus, according to the Engineer of Opposite party a sum of Rs.2,67,750/- would be incurred for making the unit/machine functional. It was further pointed out that since the unit has been assessed on apparent look, the estimate may go high in case the above stated parts/articles/components that are to be replaced and repaired at the first instance and the machine still needs some internal replacement or repairs. No objections were filed by complainant in respect of the said inspection report. It appears that after furnishing of this report, no action was taken either to replace the parts or repair the same in order to make the unit functional and the entire purpose of appointing the engineer was lost. The Counsel for the parties have filed written submissions and they were also orally heard. Learned Counsel for the Complainant took us through the various job cards relating to attending to the complaints made by them from time to time and urged before us that the defects which were noticed in the unit were on account of manufacturing defects which could not be rectified by the Opposite party and even after carrying out the repairs, the machine did not work effectively. According to Learned Counsel for the Complainant , the Complainant –Hospital was attending to 4 to 6 patients per day but since the unit was not functioning, the complainant had to suffer loss of approximately Rs.10,000/- per day. According to him, the compensation sought be awarded. On the other hand, Learned Counsel for the Opposite party submitted that the defects pointed out by the Complainant were duly attended to and none of the said defects were on account of manufacturing defects, but the same were on account of mishandling and improper maintenance of the unit which required to be handled by qualified professionals with skill and diligence. It was further submitted by him that the defects reported were not covered by the warranty as the same were not manufacturing defects. It is also pointed out that no details of the patients which were attended to when the unit was functional have been given nor the amounts paid by them have been placed on record by the Complainant. It was further pointed out that the report filed pursuant to order dated 17.3.2005 shows that only certain parts were required to be replaced and repaired and as such it is not a case of manufacturing defect which would require replacement of the unit. Learned Counsel for the Opposite party also raised the issue relating to commercial use of the unit and that the complainant Hospital does not charge for all medical services to its patients of operation as is apparent from its own document Annexure X pages 24 to 39. In fact, this issue was not taken up by the Opposite party in the written version and as such it cannot be agitated at the final stage without any pleadings to that effect. It is also pointed out that the service engineer of the Opposite party had visited the complainant Institute to set right C-Arm but t he Institute turned down the request of repair as can be seen from Exhibit OP-13 at page 131. It is therefore, prayed that the complaint be dismissed. We have gone through the record and considered the submissions made on behalf of both the parties. The agreement was executed on 28.8.1998 provides for 36 months warranty which reads as under:- “This day the unit is supplied and installed. As per the service agreement the unit carries warranty period of 36 months from the date of installation/supply. However, the warranty covers only against manufacturing defects, and it will be invalid if the equipment is mishandled misused or operated by non-technical personnel or damage arising out of natural or man-made calamities viz. Lightening, Floods, Earthquake, High Voltage, Seepage of water or ingress of rodents etc. into the unit. *9” Field Image Intensifier with Two Monitors and 12 Digital (01 No.) * X-Ray Tube for Radiology and Fluoroscopy (01 No.) *X-Ray Generator with Mechanical Support structure on wheels (01 No.) The warranty period includes the replacement of Tubes and other spare parts, if any, due to manufacturing defects. The company will not charge during the service period for the visits.” The unit was installed on 5.9.1998. After the instalation, the first letter placed on record is dated 8.12.1998 from the Opposite Party no.2, the Petitioner which is exhibit OP-1 at page 119 of record which reads as under:- “VIL:1289:98 8.12.98 The Director Sanjay Gandhi Accident Hospital and Research Institute Byrasandra, Jayanagar East Bangalore – 560 011 Dear Sir, We regret to inform you that our equipment ARCOVIS HF C-Arm Mobile Image Intensifier supplied to your Hospital is not been handled properly. Our service engineer, during his last visit has pointed out that the outer cover of Image Intensifier has been damaged and he had cautioned all the concerned people to handle the equipment very very delicately. Now again in his visit he has observe that the C-Arm cables are twisted improperly alongwith unit and has a result the inside cable wire got cut/loosened and the unit is out of order. Though it is being rectified but we are once again requesting you to advice the concern people to handle the unit properly. So that it will serve for longer period without any major problem. Thanking you, Yours faithfully, For VILLA INDIA R. Ranganathan Manager-South” In this letter it was pointed out by the Opposite Party that the unit in question was not handled properly and the service engineer during his last visit had pointed out that the outer cover of Image intensifier has been damaged and he had cautioned all the concerned people to handle the equipment very very delicately. During the visit on 8.12.1998 the service engineer of Opposite Party observed that there was no input from IT tube, cables were twisted badly and some of the wires got cut. The service engineer once again requested that the concerned people should handle the unit properly. The service engineer connected them properly and found that the unit was working satisfactorily. The report of the service engineer is exhibit – OP-4 at page 122 below which there is signature of the customer that ‘service completed satisfactorily’. This report would go to show that unit, in question, had not been carefully used as a result of which the cables were twisted badly and some of the wires were got cut. The unit admittedly was sophisticated unit. It was clearly stated that the warranty covers only manufacturing defects and it will be invalid if the unit is mishandled, misused or operated by non-technical personnel. The service engineer again examined the unit on 15.2.1999 since the unit was not functioning. The report of examination is exhibit OP-5 at page 123 which reads as under:- “Checkedand found some oily and sticky type liquid settled on the PCBs and most of the component got spoiled. At present I do not have spares with me. Software also has been corrupted. These are to be imported from our principal. It will take time. As soon as I will get these, I will come and rectify he problem. Duration I will confirm from Delhi first I have to confirm from my principal.” This report once again shows that service engineer found some oily and sticky type liquid settled on the PCBs and most of the components got spoiled. He also found that the software had been corrupted which was required to be imported from the principal. By letter dated 3.3.1999 which is annexure R-2 at page 56 the Opposite Party informed the Complainant that some liquid has spoiled few printed circuit boards in the unit which is not covered under warranty. However, with a view to keep long term relationship with the institute, principal has been requested to replace these components . In this letter it was also emphasised that the institute should have only two or three trained technicians to operate the unit and fix their responsibilities for the upkeep of the same and the unit should be removed from OT when it is being fumigated or washed etc. to avoid ingress of moisture and chemical into the machine. It is further informed that dust and moisture/humidity free atmosphere is important while the unit is in operation and even while parked. By letter dated 26.3.1999 Annexure R-3 which is at page 57 the Opposite Party wrote to the Complainant that with reference to letter dated 24.3.1999 (which has not been filed on record by any party,) that since the problem in the unit is not covered under warranty, the Opposite Party had to convince the principal to supply the required component as a free replacement. In respect of the handling of the unit it was once again pointed out that the unit was not handled properly and it was used by almost all the surgeons and theatre staff without precautions whereas it was required to be operated only by two or three trained technicians which fact was brought to the notice of the Complainant vide letter dated 3.3.1999. The next service report is dated 28.4.1999 which is exhibit OP-6 which is at page 124 which reads as under:- “Traced out and rectified the problem. Demonstrated the unit in working condition. Radiography is not working. To make it functioning 400 KL card will have to be replaced. Fluorosocopy is working alright Radiography problem will be rectified within a month.” Below the said report an endorsement is made by Dr. Vasudeva Murty of the Complainant that fluoroscopy satisfactory. In this report it is stat ed that radiography problem will be rectified within a month since 400 KL card will have to be replaced. The next service report Ex. OP –7 which is at page 125 dated 8.6.1999 shows that no image is coming on the monitor. The service engineer checked the unit and found the problem in mother-board and video section. This problem occurred due to incorrection of power supply and it was pointed that even proper earthing is not in operation theatre, leakage current is more than 100 volt whereas it should not more than 10 volt otherwise unit can give a shock. The voltage has been corrected and the unit is now working properly. The report further shows that the extension board which is used with this unit should also be properly connected with earthing wire but it was not so. It was also pointed out that the servo stabilizer is giving 231 volt it should be adjusted at 220 volt and the same be got corrected, otherwise company will not be responsible for any type of damage due to power supply problem. The next inspection report of the unit is Ex.OP –8 which is at page 126 dated 22.11.1999. The complaint was that no image was on the monitor. The service engineer found the problem with video section and as such he took alongwith him the video section for testing purpose. The video device box was put back in the unit on 30.12.1999 as can be seen from service report Ex. OP-9 which is at page 127 dated 30.12.1999. After checking the video device box it was found that CCD camera calibration had gone out of focus and calibration of focus is not possible here and the same is possible only in Delhi Service Centre. Therefore, the CCD Camera for focusing calibration was taken for focus calibration. The next service report is OP 11 at page 129 dated 30.5.2000 which shows that ghost image was coming on the monitor. The service engineer checked the unit and found some blood had entered inside of II HVPS on account of which HVPS got short circuit and the same is not repairable in India and will have to be sent to the Principal for repair. Accordingly, he took II power supply alongwith him for repair. The note of the service engineer states that during the surgery II should be properly covered by cloth cover/plastic covered to avoid this type of problem. On behalf of the Petitioner there is a note by the customer which states that short circuit of HVPS is not due to blood seepage as per opinion of Institute HOD of Radiology. It appears that it took about 5 months to put back CCD camera as can be seen from the service report dated 2.6.2000 which is OP-10 at page 128. The service report of the said date shows that CCD camera was put back in the unit now it’s functions are OK. Calibrated the factors still radiography was not working and only radioscopy was working. Below the service report, there is a note that only fluoroscopy part is working, the grid of fluoroscopy should be replaced and the radiography part not working in spite of many calls. The next service report is dated 24.3.2001 exhibit OP-12 at page 130 which mentions that no image was coming on TV monitor. The unit was checked and it was found that there was poor image on the TV monitor because of CCD camera focus calibration problem. Therefore, the service engineer once again took with him CCD camera and related grid for focus calibration for repairs at Delhi Service Centre. It was also mentioned that after focus calibration of CCD camera the same will put it back at the earliest possible. It was also stated that new high voltage power supply was put back in the unit in replacement of old one power supply. The complaint in question was filed on 9.5.2001. After filing of the complaint the Director of the Complainant wrote to the Opposite Party on 18.9.2001 that the matter is pending in the Consumer Forum, New Delhi and despite that the Opposite Party have been seeking date to send engineer for repair of C-ARM . It is further pointed out that several repair works had been undertaken by Opposite Party to put the instrument in working order. It was not successful on account of which Institution had lost faith in repair work. It was further pointed out that granting permission to repair the instrument shall not be constructed as giving up claims before the consumer forum and even if the Opposite Party replaces the existing machine with new one, the damages caused due to the non functioning of the existing machine have to be compensated. At this stage, we may also point out that this Commission had directed the Engineer of the Opposite Party vide order dated 17.3.2005 to visit the hospital and prepare an estimate of the cost which is likely t o be incurred to make the equipment functional on 26.4.2005. Vide order dated 17.3.2005 it was also pointed out that report was filed and no objections were filed by the Complainant. However, none of the parties pursued the matter thereafter. In view of the above position, we have to determine whether the Complainant has been able to establish that there were manufacturing defects which were covered under the warranty and whether the non working of the unit at various stages was on account of mishandling, misuse of the unit or operation thereof by non technical personnel as also on account of high voltage, seepage of water or increase of loads etc. into the unit which are excluded under the warranty. The service reports to which references have been made would go to show that the unit was not being operated , used and handled properly. In fact, this is the main defence which have been put up by the Opposite Party. The Complainant have filed affidavit, evidence of Dr. K.R. Parthasarthy, Lecturer in Radiology, Dr. V.N. Gubbi, Assistant Professor in Orthopaedics and Dr. V. Gopya Naik, Professor in Orthopaedics. The complaint was verified by Dr. V. Sadashiva Murthy, Director of the Complainant and affidavit was also filed by him in support of the complaint that he was acquainted with facts and circumstances of the case. However, no affidavit was filed by Dr. V. Sadashiva Murthy, Director of t he Complainant for the reason best known to the Complainant. It is interesting to note that although three affidavits were filed by three different doctors on behalf of the Complainant, yet the contents thereof except for few paragraphs here and there are verbatim same in all the paragraphs. In all these affidavits it has been stated that professionals and staff of the Complainant discovered that C-ARM unit which the Opposite Party had supplied was sub standard, defective and was not operational fully. When all these professionals and staff of the Complainant had discovered the same is no where disclosed in any of the three affidavits filed by the doctors on behalf of the Complainant. We have also pointed out that the main defence of the Opposite Party is that the unit was misused and was not operated by persons having technical know how. Complainants have failed to place on record as to who were the persons who were handling the unit including doctors, staff as also technicians. Besides this, except for the averments that the unit was not working for various reasons from stage to stage and repairs had to be carried out, the Complainant have failed to prove any manufacturing defects as such in the unit. Of course, there has been delay in rectifying the defects on the part of the Opposite Party for which the Opposite Party shall certainly be liable to pay compensation to the Complainant. The engineer of Opposite Party had inspected the unit at the instance of this Commission. He was asked to prepare the estimate of the cost to make the unit functional. In his report he has stated that he visited the hospital on 26.4.2005 to assess the unit which is lying unused for quite a long period. In his opinion, a few parts/components are to be replaced and some of parts require repairs. However, manufacturing of some articles/components has been discontinued by the Principal manufacturer/exporter as the model of equipment being obsolete. According to him a sum of Rs.2,67,750/- would have to be spent on making the unit functional. However, since the unit has been assessed on apparent look, the estimated amount may go high in case the above stated parts/articles/components that are required to be replaced and repaired at the first instance and the unit still need some internal replacements or repairs. No effort was made by any of the parties for appointing an expert in order to assess the cost of internal replacement/repairs or to pursue the matter further. The Complainant did not even choose to file any objections to the said report of the engineer. Matter could be sorted out but the parties continued with stalemate At this stage, it would be futile to appoint an expert in the matter. Be that as it may, we shall now examine the delay on the part of the Opposite Party in even carrying out the repairs of the Unit and to make it functional. The work orders to which we have already made reference would itself show the time taken by the Opposite Party for rectifying the unit from time to time. On 15.2.1999 it was found that some of the components got spoiled due to oily, sticky type liquid which had settled on PCBs but the said spare parts were not available. It was also found that the software had also been corrupted. The reason for the same is not indicated in the said work report and the same was required to be imported which would take time which means that unit was not functioning from 15.2.1999 to 28.4.1999. Though the unit was rectified and it started working yet radiography was not working. The work report states that radiography problem will be rectified within a month which again means that part of the unit was not functioning from 28.4.1999 to 8.6.1999. The fault resulting from incorrect electricity supply was rectified and the unit started working. On 22.11.1999 the service engineer had taken with him video section box for testing purpose and it was put back on 30.12.1999 which means that the unit was not functional during the said period. On that date there was problem that CCD camera focusing calibration which had gone out of focus. The same could not be rectified as it could be rectified only in Delhi. Therefore, service engineer took alongwith him CCD camera for focusing calibration which again means that the unit was not functional. The CCD camera was put back in the unit on 2.6.2000 but still radiography was not working and only the unit was working. Again on 24.3.2001 there was problem of CCD camera focus calibration and the service engineer again took the CCD camera with him for correction at Delhi Service Centre. From the above narration, it is clear that the Opposite Party took considerable time for rectifying the defects in the operation of the unit and the operation was possible after rectification at different stages and on account of non functioning of the unit the Petitioner had to suffer consequences thereof. The warranty includes maintenance of the unit and rectification of defects during the operation of the unit. There has been thus deficiency on the part of the Opposite Party for which the Complainant is required to be compensated. Balancing the equities on either side, we deem it appropriate that a consolidated compensation of Rs.7.5 lakh, which includes costs of repairs as assessed by the Engineer appointed by the Commission, be awarded in favour of the Complainant. The complaint is, therefore, allowed in aforesaid terms.