Haryana

Kurukshetra

59/2018

Nirmal Singh - Complainant(s)

Versus

Ocean biomed - Opp.Party(s)

Ripan Sharma

26 Mar 2019

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, KURUKSHETRA.

                                        Complaint Case No.59 of 2018.

                                        Date of institution: 20.03.2018.

                                        Date of decision:   26.03.2019

 

 

Nirmal Singh aged about 30 years son of Sh.Ram Pal, resident of village Gobind Majra, Tehsil Thanesar, District Kurukshetra.

 

                                                                …Complainant.

                        Versus

 

1.     Ocean Biomed, Plot No.347, Industrial Area, Phase-1, Chandigarh.

2.     Ajay Bhardwaj, General Manager, Ocean Biomed, Plot No.347, Industrial Area, Phase-1, Chandigarh.

 

….Opposite parties.

Before       Smt. Neelam Kashyap, President.

                Ms. Neelam, Member.

                Sh. Sunil Mohan Tirkha, Member.

 

Present:     Sh.Ripan Sharma, Advocate for complainant.

                Sh.J.P.Gupta, Advocate for opposite parties.

               

(ORDER)

                This is a complaint under Section 12 of the Consumer Protection Act, 1986 moved by complainant Nirmal Singh against the Ocean Biomed and another, the opposite parties.

2.             Brief facts of the present complaint are that complainant  is running a laboratory in the name of Point Laboratory at village Dhurala, Main Market, Tehsil Thanesar, District Kurukshetra.  He is only earning person in his family and his family depends upon the earning by this laboratory. It is further alleged that complainant had purchased a fully auto Hematology Analyzer (Optimus 60), 100072 Diluent-20 liter Batch No.OBDP171009, LYSE(500ML)Batch No.170301, probe cleaner (125 ML-Pack) and EZ-Cleaner(50ML) from the OP No.1 for a sum of Rs.3,00,000/- vide bill No.113 dated 02.11.2017.  It is further alleged that the said machinery was n not working properly and the machine gave a wrong report/ sample of the patients. That when the complainant approached the ops and requested to repair the said machine, then the ops vide their letter dated 1.2.2018 submitted that the said machine is based on the principal of impudence for which the proper electric supply and grounding is the prime requirement.   They also submitted that they had replaced one new unit when showed error as a good will gesture, even though the visible reason was improper electric supply in laboratory and to prove their point the new replaced unit was installed at Ved Laboratory near his lab. As per the letter of ops, it is wrong that the electricity supply is not proper at complainant’s lab because from there the electricity supply of Ved Laboratory is same. It is further alleged that the Ops have rejected/refused to replace the said machine or to make the payment of new machine despite his repeated requests and demands.  It is further alleged that he also moved an application to CM Window bearing No.CMOFF/N/2018/010843 dated 30.01.2018 against the Ops, but till today no action has been taken against the Ops. It is further alleged that this act and conduct on the part of Ops amounts to unfair trade practice and deficiency in service and prayed for acceptance of complaint with the direction to Ops to refund the amount of Rs.1,50,000/- alongwith the interest @18% per annum and further to pay a sum of Rs.70,000/- as compensation for harassment and mental agony as-well-as Rs.11,000/- as litigation expenses.  Hence, this complaint.    

3.            Upon notice, the OPs appeared before this Forum and filed their reply submitting therein that the firm Ocean Biomed is a proprietorship firm of Ajay Bhardwaj, therefore, op no.1 and op no.2 be considered as same. That as per clause 5 of the Proforma Invoice dated 1.11.2017, any dispute arising out of the sale of product shall be subject to the sole jurisdiction of courts at Chandigarh and this Forum has no jurisdiction to entertain and try the present complaint. It is further submitted that machine has been working properly and no such incidence of wrong report has ever been reported to the op till date. It is further submitted that installation report dated 2.11.2018 clearly depicts that the power supply as well as earning is not proper and the engineer has recommended immediate action. It is further submitted that complainant did not take any corrective action and one day as informed by complainant over phone that the instrument gave “Motor Error” which actually was due to a sudden surge or drop in power supply at a particular stage when the motor was working. Since it was a point event, once the instrument is turned off and again turned on, it works normally. The complainant did not allow the op’s technical staff to practically see this error and simply took a stand to replace the machine. This was made an issue by the complainant and as the first PDC was yet to be presented, the op had to succumb to the unjust demand of the complainant by replacing the instrument even without getting an opportunity to actually see the problem, though the cause can be well ascertained even without seeing the instrument. Apart from the replacement of the instrument, the complainant forced the op to provide one set of reagents worth INR 7350 in order to compensate for re-installing the instrument. This unjustified demand was also fulfilled vide their delivery challan No.135 dated 5.12.2018. At the same time, the complainant insisted the op to start the first PDC w.e.f. 06.1.2018 instead of 6.12.2018. It is further submitted that another instrument was placed at the complainant site after he informed them that he has got the power supply rectified. The second installation report was signed on 18.11.2017 wherein it was again observed that complainant had still not get the earthing done. In order to prove their point, the instrument was installed at a nearby Lab under the name of New Modern Laboratory, who is their similar instrument user for past more than five years. The replaced instrument installed at New Modern Lab worked fine for almost a month alongwith their five year old similar machine installed at New Modern Lab. It is further submitted that payment of Rs.20,000/- was due on 6.1.2018 and the complainant informed the op not to present the cheque in view of the order of the Hon’ble Supreme Court by virtue of which lab technician are not authorized to sign and issue the report. The complainant also inquired from the technical person of op that he wanted to return the instrument and get the money back from op in view of the adverse order from Hon’ble Supreme Court, which was denied by the technical person. However, after waiting for some days, the cheque of Rs.20,000/- was presented by op for clearing to its account and same was credited to the op accounts on 16.1.2018 without prior information to complainant. It is further submitted that complainant created a lot of fuss on this and strictly informed the technical person of op not to present any further cheques without prior confirmation from him. The complainant shifted the instrument to his lab without any intimation to the op. The complainant informed that the instrument again gave “Motor Error” and informed their technical person Mr. Sunil Dhiman not to enter his lab and simply take the machine back and refund entire amount paid by complainant to the op. This was towards the end of January 2018 and the op realized that the complainant starts complaining about problem just before the payment is due. As a result, the op sent a letter to complainant dated 1.2.2018 to provide the working conditions for the operation of the instrument. The complainant has lodged a frivolous complaint to harass the op and to return the instrument after earning almost entire cost of instrument. It is further submitted that the cheques issued by complainant has been dishonored repeatedly from 6.2.2018 even though the complainant is earning from the instrument till date. This itself proves the ulterior motive of the complainant. Remaining contents of the complaint are also denied and prayer for dismissal of complaint made.

4.             Ld. Counsel for the complainant tendered affidavit as Ex.CW-1/A and documents Ex.C-1 to Ex.C-7 in evidence and closed the evidence on behalf of complainant. 

5.             On the other hand, the Op tendered into evidence affidavit, Ex.RW1/A and documents Ex.R-1 to Ex.R-11 and thereafter, closed the evidence. 

6.             We have heard the ld. Counsel for both the parties and perused the record carefully and minutely.

7.             Learned counsel for complainant argued that complainant is running a laboratory and is only earning person in his family and his family depends upon the earning by this laboratory. The complainant had purchased the laboratory instruments from op no.1 for a sum of Rs.3,00,000/- vide tax invoice dated 2.11.2017 Ex.C3. He has further argued that machinery was not working properly and complainant approached the ops but they have refused to replace the said machine. He also moved an application before C.M. Window but no action has been taken against the ops and the conduct of the ops amounts to unfair trade practice and prayed for acceptance of the complaint.

8.             On the other hand, learned counsel for op argued that this Forum has no jurisdiction to try this complaint because as per clause 5 of terms and conditions duly signed by complainant, all products sold by the company are subject to the jurisdiction of Chandigarh courts only. He has further argued that it is an admitted fact that machine was purchased by complainant for a sum of Rs.3,00,000/- and he paid only half of the amount at the time of purchase and he had to pay remaining amount in installments of Rs.20,000/- per month as mentioned in Ex.R2 signed by complainant but complainant has not paid the balance amount and the cheque given by complainant was dishonored as account was closed by complainant as mentioned in outward return cheque advice Ex.R11/B. He has further argued that machine is in proper working condition as shown in photograph Ex.R3/A. Moreover, at the time of installation of machine, it was clearly mentioned in installation report dated 2.11.2017 Ex.R6 that earthing required immediately but complainant has failed to do so. He has further argued that after the decision of the Hon’ble Supreme Court in case titled as North Gujarat Unit of Association Versus North Gujarat Pathologists Associations & Ors. decided on 12.12.2017 that laboratory report can be counter signed only by a registered medical practitioner with a post graduate qualification in pathology, the complainant wants to return back the machine and wants to take money back because he is not a medical practitioner and prayed for dismissal of complaint.

9.             We have considered the rival contentions of the parties and have perused the case file carefully.

10.            The photograph Ex.RW3/A goes to show that machine is in working condition. As per condition no.4 of installation pre-requisites of Optimus 30/670 Hematology Analyzer mentioned in Ex.R5/A, it is clearly mentioned that it is highly recommended to use a separate grounding with copper wire in order to avoid any false peaks arising out of backflow of current from other devices used in the laboratory/ hospital. Further in installation report dated 2.11.2017 Ex.R6, it was clearly mentioned that earthing required immediately. Then in the installation report dated 18.11.2012 Ex.R8, it is mentioned that 15 volts supply not suitable and installed at new modern laboratory. The op written a letter dated 1.2.2018 to the complainant (Ex.R10) wherein they clarified that the new replaced unit was installed at Ved Laboratory nor his lab. and their observation stands proved as the instrument did not give any error while being placed in the site of Ved Lab. They further reported that however after the instrument is shifted to his lab, the same error is reported again and they therefore, recommend him to get the electrical supply checked and also to install a proper UPS with automatic voltage regulator or UPS with stabilizer so as to attain the grounding of <5v (preferably 3v). The complainant has failed to prove on record that he has got done the needful in order to take proper functioning of the machine in question. The ops through their cogent and reliable evidence have proved on record their plea and it is also proved on record that the cheques of Rs.20,000/- each given by complainant were dishonored. In these circumstances, the complainant has failed to prove his case by leading cogent and convincing evidence. There is no deficiency in service and unfair trade practice on the part of ops.

11.            In view of the above, we find no merit in the present complaint and same is hereby dismissed but with no order as to costs. A copy of this order be supplied to the parties as per rules. File be consigned to the record room after due compliance.

Announced in open Forum:

Dt.: 26.03.2019.                                          (Neelam Kashyap)

                                                                     President.

 

 

(Sunil Mohan Trikha),           (Neelam)       

Member                             Member.