COMPLAINT FILED: 27.06.2008<br /> <br /> 16th AUGUST 2008<br /> <br /> PRESENT :- SRI. A.M. BENNUR PRESIDENT<br /> SRI. SYED USMAN RAZVI MEMBER <br /> SMT. M. YASHODHAMMA MEMBER <br /> <br /> <br /> COMPLAINT NO. 1431/2008<br /> <br /> <br /> COMPLAINANT Mrs. Janaki Bheemaiah,<br /> No. 3549, 3rd Cross,<br /> Service Road, H A L 2nd Stage,<br /> Indiranagar,<br /> Bangalore – 560 008.<br /> <br /> <br /> V/s.<br /> <br /> <br /> OPPOSITE PARTY Shreya Hearing Clinic,<br /> No. 77, 13th Main Road,<br /> H A L II Stage,<br /> Indiranagar,<br /> Bangalore – 560 008.<br /> <br /> <br /> O R D E R<br /> <br /> This is a complaint filed U/s. 12 of the Consumer Protection Act of 1986 by the complainant to direct the Opposite Party (herein after called as O.P) to refund Rs.8,000/- and pay compensation and for such other reliefs on an allegations of deficiency in service. <br /> <br /> The brief averments, as could be seen from the contents of the complaint, are as under:<br /> Complainant underwent her ear test at OP clinic on 27th July 2007. OP advised to purchase a device costing Rs.32,000/-. Complainant made an advance payment of Rs.4,000/- on 13.08.2007. After the implantation of the said device she has paid the remaining amount. The said device was not adjustable to her, she was very much uncomfortable. For no fault of her, she is forced to face the high B.P. and other health ailments. She brought the said fact to the notice of the OP, there was no proper response. Though she visited OP clinic for more than 6-7 times, she could not get the relief. On the other hand she started getting headache, vocal problem, etc. Then she thought of second opinion from Manipal Hospital. On her examination Manipal Hospital Doctors told her that the hearing device used by her does not suit her, that is the main problem for the health hazards and they directed her to discontinue using the said device. Then she went back to OP and handedover the device and sought for the refund of the cost. OP refunded only Rs.24,000/- out of Rs.32,000/- paid, retained Rs.8,000/- illegally. The repeated requests and demands made by the complainant went in vain. Thus she felt the deficiency in service on the part of the OP. Under the circumstances she is advised to file this complaint and sought for the relief accordingly.<br /> <br /> 2. On appearance, OP filed the version denying all the allegations made by the complainant in toto. According to OP an earlier complaint on the same allegations was filed before this Forum in Complaint No. 563/08 and the said complaint came to be dismissed. It was instituted by her son. On thorough examination of the complainant OP has installed the said device which is suitable to her. It is the complainant who has chosen the said product. Before implantation of the said instrument it was thoroughly checked. Complainant was having lot of wax in her ear that was causing her the problem. There is no defect with the instrument. Manipal Hospital Doctors have not found any fault with the hearing instrument. There is no proof that there is any defect in the said instrument. Complainant has used the said instrument extensively for more than 3 months. With all fairness OP refunded the major portion of the cost of the instrument, that too at the cost of its loss because the said hearing aid cannot be used for any other purpose. Hearing aid is prepared to the requirement of the patient like complainant, it cannot be sold to any other patient. But still complainant has come up with this false and frivolous complaint. The allegations are baseless. There is no deficiency in service on the part of the OP. Among these grounds, OP prayed for the dismissal of the complaint.<br /> <br /> 3. In order to substantiate the complaint averments, the complainant filed the affidavit evidence and produced the documents. OP has also filed the affidavit evidence and produced the documents. Then the arguments were heard.<br /> <br /> 4. In view of the above said facts, the points now that arise for our consideration in this complaint are as under:<br /> <br /> Point No. 1 :- Whether the complainant has proved <br /> the deficiency in service on the part of the OP?<br /> <br /> Point No. 2 :- If so, whether the complainant is <br /> entitled for the reliefs now claimed?<br /> <br /> Point No. 3 :- To what Order?<br /> <br /> <br /> 5. We have gone through the pleadings of the parties, both oral and documentary evidence and the arguments advanced. In view of the reasons given by us in the following paragraphs our findings on:<br /> <br /> Point No.1:- In Negative<br /> Point No.2:- Negative<br /> Point No.3:- As per final Order.<br /> <br /> <br /> R E A S O N S<br /> <br /> 6. At the outset it is not at dispute that the complainant purchased a hearing aid from OP at the cost of Rs.32,000/-. According to the complainant the said instrument was not suitable to her, that is why she was very much uncomfortable, B.P. is raised, she had unbearable headache, etc. Though she visited the OP institute for 6-7 times after implantation of the said device, she could not get the relief. That is why she went to Manipal Hospital, consulted the ENT Surgeon took the advice. The said Doctor opined that the hearing aid that is implanted is not suitable to her ailment and directed her to discontinue the same to avoid the further problem and the complication.<br /> <br /> 7. Unfortunately complainant has not filed the affidavit of the said Doctor of Manipal Hospital who treated her and gave such an opinion. In addition to that as it is there is no iota of evidence to show that there is any manufacturing defect in the said device or the instrument. Even the Doctor of the Manipal Hospital has not stated that the said instrument has got inherent manufacturing defect. With all fairness it appears OP when received the complaint from the complainant that the said device is not suitable to her they took it back and refunded Rs.24,000/- out of Rs.32,000/- by that time complainant has already used the said instrument for more than 3 months.<br /> <br /> 8. It is specifically contended by the OP that the said device and instrument will be prepared and manufactured as per the requirement and ailment of each patient individually. The said instrument cannot be used for any other patient or for any purpose. This fact is not denied by the complainant nor the said fact is denied by any of the expert in the field. When that is so, though OP manufactured and gave the said instrument to complainant to cure her ailment by incurring certain costs, they are unable to reap the investment made because they are forced to take it back. So withholding of Rs.8,000/- does not appears to be illegal. Actually OP has sustained complete loss due to the return of the said instrument which is worth of Rs.32,000/-. Though complainant received more than 75% of the amount paid, but still she has come up with this complaint, which on the face of it appears to be devoid of merits.<br /> <br /> 9. OP has further contended that the complainant has mishandled the said instrument, she had lot of wax in the ear, that was the real problem for the health hazards. As and when she appeared before the OP ear was cleaned, volume was adjusted, but still complainant made one or the other complaint to the reasons best known to her. As already observed by us, when there is no proof with regard to the manufacturing defect in the said instrument and when there is no supporting evidence that the said instrument and device is not suitable to the ailment suffered by the complainant, we are of the view that the complainant is not entitled for the relief claimed.<br /> <br /> 10. It is also not at dispute that the son of the complainant P.B. Ponnappa had filed an earlier Complaint No. 563/2008 which came to be dismissed on 24.04.2008. Unfortunately the said fact is not pleaded in this complaint which is filed on 27.06.2008. So there is a suppression of material fact. The approach of the complainant does not appears to be bonafide and reasonable. It is said he who seeks equity, must do equity and must come with clean hands. But here the approach of the complainant is otherwise. Viewed from any angle, we are of the opinion that the present complaint is misconceived, as such complainant does not deserves the relief as claimed. There is no deficiency in service on the part of the OP. Accordingly we answer point nos.1 and 2 and proceed to pass the following: <br /> <br /> O R D E R<br /> <br /> The complaint is dismissed. In view of the nature of dispute no order as to costs.<br /> <br /> (Dictated to the Stenographer and typed in the computer and transcribed by him, verified and corrected, and then pronounced in the Open Court by us on this the 16th day of August 2008.) <br /> <br /> <br /> <br /> <br /> MEMBER MEMBER PRESIDENT<br />