Tamil Nadu

North Chennai

143/2012

Dr.S.Rafia Sulthana, - Complainant(s)

Versus

M/s.Sri Balaji Enterprises,rep. by Proprietor Bharath - Opp.Party(s)

M/s.S.Mahimai Raj.

22 Mar 2017

ORDER

 

                                                            Complaint presented on:  14.06.2012

                                                                Order pronounced on:  22.03.2017

 

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, CHENNAI (NORTH)

    2^nd Floor, Frazer Bridge Road, V.O.C.Nagar, Park Town, Chennai-3

 

PRESENT: THIRU.K.JAYABALAN, B.Sc., B.L.,        PRESIDENT

                    TMT.T.KALAIYARASI, B.A.B.L.,           MEMBER II

 

WEDNESDAY THE 22^nd   DAY OF MARCH 2017

 

C.C.NO.143/2012

 

 

Dr.S.Rafia Sulthana,

Sulaiman Dental Clinic,

No.131, Moorthi Nagar Street,

Vyasarpadi,

Chennai – 600 039.

                                                                                    ….. Complainant

 

..Vs..

M/s. Sri Balaji Enterprises,

Represented by its Proprietor Mr.Bharath,

No.1/A, Sankarabakthan Street,

Ramalingapuram,

Chennai – 600 012.

 

.....Opposite Party

Date of complaint                                 : 28.06.2012

Counsel for Complainant                      : M/s.S.Mahimai Raj, S.Thenmozhi &

                                                                    M.Renton

 

Counsel for    Opposite Party                   : M/s.V.Balaji, A.Sermaraj

 

 

O R D E R

 

BY PRESIDENT THIRU. K.JAYABALAN B.Sc., B.L.,

          This complaint is filed by the complainant to refund the cost of the product of Rs.38,000/- with interest and also compensation for mental agony with cost of the Complaint u/s 12 of the Consumer Protection Act.1986.

1.THE COMPLAINT IN BRIEF:

          The Complainant is a Doctor and she has been running a Dental Clinic under the name and style of “Sulaiman Dental” Clinic at No.131, Moorthinagar Street, Vyasarpadi, Chennai – 600 039. The Complainant is a second generation Dentist and she is carrying on the goodwill and reputation of the said Clinic originally founded by her father Dr.Sulaiman. The Complainant purchased from the Opposite Party one 48 Volt 3 KVA Microtek Inverter for a total sum of Rs.38,000/- under Invoice No.350 dated 03.03.2011 for the use of her clinic. The Complainant paid a sum of Rs.20,000/- by way of cash on 03.03.2011 and the balance amount of Rs.18,000/- was paid  by the Complainant through two post dated cheques each for a sum of Rs.9000/-  and the same have been duly realized by the Opposite Party.  The said Inverter was purchased by the Complainant for the purpose of the functioning of two Dental chairs, Tubelights, Fans and one socket in her clinic in the absence of power supply. The Complainant states that within one month from the date of purchase i.e., in the month of April 2011 itself the problem cropped up. The Complainant immediately contacted the Opposite Party and informed the Opposite Party that Inverter did not work the employee of the Opposite Party came and checked the Inverter and tried to rectify the defect but could not succeed. The Complainant states that on finding no other way the said person took the entire unit for repair and the same was delivered to the Complainant after twenty days.            Subsequently also i.e within short span of two weeks again the product became repair and the said unit was delivered back to the Complainant after a period of three weeks. In July 2011 for the third time the Inverter machine gave trouble. The Complainant contacted the Opposite Party and expressed her strong objections for the defective product being delivered to the Complainant. The Opposite Party’s workman came and delivered a spare Inverter and took the entire new Inverter unit for servicing. The workman stated that he would come on the next day for giving the connection to the spare Inverter. However, the said person did not turn up. The Complainant contacted the Opposite Party for the purpose of redelivering the new Inverter after repair and however the Opposite Party stated that the new Inverter unit was sent to the Microtek office and that the same would be delivered soon.  Inspite of the Complainant’s repeated requests and fervent appeals to either redeliver the new Inverter after repair or atleast give the connection to the spare Inverter as a temporary relief there has been no reciprocity from the side of the Opposite Party. The Complainant states that finally she contacted the Opposite Party on 07.11.2011 but there has been no positive response. Finding no other alternative, the Complainant issued the notice dated 28.11.2011 to the Opposite Party highlighting the serious lapses and deficiencies on his part and the mental agony suffered by her owing to the defective product delivered to her. The Complainant sent another Notice dated 02.01.2012 enclosing the earlier Notice dated 28.11.2011 which was duly received and acknowledged by the Opposite Party. The Opposite Party sent a vexatious reply dated 09.01.2012.  The Complainant issued the Rejoinder dated 16.02.2012  to the Opposite Party reiterating the demands made by her in the previous notices dated 28.11.2011 and 02.01.2012 and stating the correct position and denying the various unscrupulous allegations made by the Opposite Party. Hence the Complainant filed this Complaint to refund the cost of the product of Rs.38,000/- with interest and also compensation for mental agony with cost of the Complaint.

2. WRITTEN VERSION OF THE  OPPOSITE PARTY IN BRIEF:

          The Opposite Party states that unless the manufacturer is impleaded in the main Complaint, the Complainant cannot claim main relief of refund of inverter. Hence the Complaint ought to have been dismissed for non joinder of necessary party of manufacturer.  The inverter has been purchased for commercial purpose this Forum have no jurisdiction to entertain the Complaint. The dealer is not responsible for manufacturing defects alleged in the Complaint. The Complainant has purchased Inverter with four numbers of Battery for a total price of Rs.41,000/- and not Rs.38,000/- as alleged in the Complaint. The Complainant has paid Rs.38,000/- only and still she has to pay the balance amount of Rs.3,000/- to the Opposite Party. The Complainant made Complaint on 12.05.2011. The inverter was taken for repair and the same was delivered to the Complainant on 18.05.2011. Again a Complaint was made on 06.07.2011. The unit was taken for repair and delivered on 12.07.2011. Except these two occasions there was no Complaint till today. However the Complainant deliberately misleaded this Hon’ble Forum as if three occasions there was a problem in inverter. It is once again submitted that on 12.07.2011 only the inverter purchased by the Complainant alone delivered. The Opposite Party given detailed reply on 09.01.2012 to the notice issued by the Complainant on 02.01.2012. Thereafter the Complainant issued the rejoinder on 16.02.2012 for which the Opposite Party given sur-rejoinder on 06.04.2012.  It is therefore prayed that this Hon’ble Court may be pleased to dismiss the Complaint with costs.

 

3. POINTS FOR CONSIDERATION:

          1. Whether there is deficiency in service on the part of the opposite party?

          2. Whether the complainant is entitled to any relief? If so to what extent?

4. POINT NO :1 

          The Complainant is a Doctor and she has been running a Dental Clinic under the name and style of “Sulaiman Dental” Clinic at No.131, Moorthinagar Street, Vyasarpadi, Chennai – 600 039 and for the purpose of smooth functioning of the Dental clinic, even during disruption of the electric supply the Complainant purchased a  Microtek Inverter with four members of  Amar Raja Battery from the Opposite Party/dealer under Ex.A1 for valuable consideration of Rs.38,000/- paid to the Opposite Party and the original of Ex.A1  is marked as Ex.A8 and the Opposite Party copy is marked Ex.B1  and while product is in use in the clinic of the Complainant, the inverter did not work and she Complained the problem and was attended by the Opposite Party men and also provided a spare inverter to the Complainant.

          5. The Complainant alleged deficiencies against the Opposite Party are that within one month from the date of purchase in the month of April 2011, the problem arose in the product then she contacted the Opposite Party and the employer of the Opposite Party came and changed and however he did not rectify the product and the Opposite Party person took the entire unit for repair and the same was delivered to the Complainant after 20 days and after two weeks again the inverter machine gave trouble and again the Opposite Party man came and took the entire unit and after repair, it was delivered to the Complainant and after a period of three weeks again for the 3^rd time the inverter machine gave trouble and the Opposite Party work man delivered spare inverter to the Complainant and  took new inverter unit and sent the unit to the Microtek  Office that the same would be delivered soon and hence the Opposite Party sold the defective product to the Complainant. The Opposite Party did not deny that the Complaint made thrice for repair of the inverter. Therefore, while the inverter in use in the Complainant clinic it gave some problem and that was attended by the Opposite Party persons are accepted.  

6. Whether the Opposite Party sold the defective product to the Complainant is to be answered?

The Complainant alleged in the Complaint that only the inverter did not work. However the nature of defect has not been properly alleged in the Complaint. The Complainant would state that the defective product has been sold to her. It means the sold product should have only the manufacturing defect. For the manufacturing defect the Opposite Party/dealer is not liable and only the manufacture alone is liable. However, the manufacturer has not been added a party in this case. The Complainant stated that the new inverter unit was sent to the Microtek Office and also supplied a spare inverter to the Complainant establishes that for the purpose of smooth functioning of Dental Clinic by the Complainant, a  spare inverter was supplied to her. Therefore, even though the product is  a defective one and the Complainant has not added the manufacturer is not a party to this case and the Opposite Party supplied a spare inverter shows that the Opposite Party had not committed any deficiency in selling the  product to the Complainant.

          7. The Opposite Party specifically argued that the Complainant is not a Consumer, since he had purchased the inverter for commercial use in her Dental Clinic and in support of her contention, she relied on the orders of the National Commission reported in 2013 (2) CPR 61 (NC) (DR.D.RAMA KRISHNA VS.THE MANAGING DIRECTOR, ALLENGERS MEDICAL SYSTEM LTD. & ANR.) and 1(2017) CPJ 504 (NC) (NEELAM GUPTA (DR) VS. ONIDA SWITCH GEAR). The Complainant counsel replied that treating the patient is for livelihood and she had not resold purchased product from the Opposite Party and therefore the Complainant earns for his livelihood cannot be a commercial one and therefore the Complainant will fall within the definition of Consumer as per the Act.

          8. The Complainant pleaded in her Complaint para-5 that the said inverter was purchased for the purpose of functioning of two dental chairs, tube lights, fans and one socket in her clinic in the absence of power supply and in para 12 that the inverter is to function in a clinic where patients with various dental Complaints   come for treatment including emergency treatment the Opposite Party has conducted himself in an ill mannered fashion in not catering to the needs of the Complainant. The Complainant purchased the inverter with batteries when power goes off for alternate supply of power for functioning of two dental chairs, tube lights and fans. The National Commission held in its order reported 2013 (2) CPR 61 (NC) that equipment was purchased for the purpose of hospital and predominant purpose for running hospital is to earn profit which is a commercial purpose. Likewise in   I(2017) CPJ 504 (NC) held that it is amply clear that the petitioner had placed order of the subject stabilizer for smooth running of her hospital. The running of hospital obviously is a commercial purpose”.  The above order of the Hon’ble   National Commission clearly held that the any product purchased for the smooth running of hospital obviously is a commercial purpose. In the case in hand also the Complainant purchased the inverter to give electric supply while the electric supply disturbed that the Complainant has to smoothly run her clinic with functioning of 2 dental chairs through the inverter power shows that she had purchased the product running a clinic and the derives earnings from the clinic is obviously is to earn profit and such earning of profit is clearly a commercial purpose.  Therefore we hold that the Complainant purchased the inverter only for commercial purpose and hence she cannot be considered as a Consumer as per the Act.

          9. According to the Opposite Party the cost of the product is only a sum of Rs.41,000/- and however the Complainant paid by way of cheque and cash only a sum of Rs.38,000/- and still the Complainant is due a sum of Rs.3,000/- to the Opposite Party. The Complainant would contend that as per Ex.A1, Ex.A7 invoice there is rebate  of Rs.3,000/- was shown by way of less and hence  the total amount of  Rs.41,000/- was scored off and hence the cost of the product only a sum off Rs.38,000/- and such amount was paid to the Opposite Party and there was no due payment to him. The Opposite Party filed Ex.B1 copies of Ex.A7 originally invoice. In Ex.B1 there was no deduction of amount of Rs.3,000/- was shown and on the other hand a balance of Rs.3,000/- was shown in Ex.A1 & Ex.A7 Complainant document. As found in Ex.A1 and Ex.A7 less Rs.3,000/- endorsement should also reflect in Ex.B1 also. When such amount was not reflected in Ex.B1 as contended by the Complainant, it is held that the product cost is not Rs.38,000/-  and it should be only Rs.41,000/-.

          10.  From the forgoing discussions, it is held that though there was some defect in the product and the new inverter was sent to the Microtek Office and a spare inverter was also supplied to the Complainant by the Opposite Party and the Complainant purchased the product only for a commercial purpose and she cannot be considered as a Consumer, we hold that the Opposite Party has not committed any deficiency in service.

11. POINT NO: 2

 Since the Opposite Party has not committed any Deficiency in Service, the Complainant is not entitled for any relief and the Complaint is liable to be dismissed.

          In the result the Complaint is dismissed. No costs.

          Dictated to the Steno-Typist transcribed and typed by her corrected and pronounced by us on this 22^nd  day of March 2017.

 

MEMBER – II                                                               PRESIDENT

LIST OF DOCUMENTS FILED BY THE COMPLAINANT:

Ex.A1 dated 03.03.2011                   Invoice issued by Opposite Party to Complainant

Ex.A2 dated 28.11.2011                   Notice issued by Complainant to Opposite Party

Ex.A3 dated 02.01.2012                   Notice issued by Complainant to Opposite Party Ex.A4 dated 09.01.2012           Reply given by Opposite Party  to Complainant

Ex.A5 dated 16.02.2012                   Rejoinder issued by Complainant to Opposite                                  

                                                    Party

 

Ex.A6 dated 06.04.2012                   Sur-rejoinder issued by Opposite Party to

                                                    Complainant

 

Ex.A7 dated 03.03.2011            D.C//Invoice

Ex.A8 dated  NIL                    Returned Postal  Cover sent by the Complainant to

                                                    the Opposite Party

 

 

 

 

LIST OF DOCUMENTS FILED BY THE OPPOSITE PARTY :

 

Ex.B1 dated 03.03.2011                   Invoice

Ex.B2 dated 18.05.2011                   Invoice

Ex.B3 dated 12.07.2011                   Invoice

 

 

 

MEMBER – II                                                               PRESIDENT