DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II
Udyog Sadan, C-22 & 23, Qutub Institutional Area
(Behind Qutub Hotel), New Delhi- 110016
Case No.120/2013
Mr. Prashant Singh Kushwaha,
S/o Mr. Anand Singh Kushwaha,
R/o D-1, Anupam Nagar,
Near Jiwaji University, Gwalior,
M. P.
….Complainant
Versus
SpHear Speech & Hearing Clinic,
B-70, (Basement), Lajpat Nagar-II,
New Delhi – 110024
Dr. Ameet Kishore,
Indraprashta Apollo Hospital
Sarita Vihar, New Delhi – 110076
Phonak India (P) Ltd.
39, The Great Galleria, Plot No.20,
Sector-4, Nerul, Navi Mumbai-400706, M.S.
also at corporate office
Phonak India (P) Ltd.
104, Pujit Plaza,
Plot No.67, Sector-11, CBD Belapur, Navi Mumbai-400614
& Delhi office at
Phonak India (P) Ltd.
C-98, 3rd Floor, Lajpat Nagar, Part-I,
Near Defence Colony, New Delhi - 24 ….Opposite Parties
Date of Institution : 11.03.2013
Date of Order : 09.02.2022
Coram:
Ms. Monika A Srivastava, President
Ms. Kiran Kaushal, Member
Sh. U.K. Tyagi, Member
ORDER
President: Ms. Monika A Srivastava
The complainant initially filed the present complaint on 02.03.2013 with two OP’s. OP-1-M/s SpHear Speech & Hearing Clinic who is stated to be in the business of offering personalized hearing, speech and communication services. OP 2 is stated to be a doctor who advised the complainant to opt for hearing aids. Vide order dated 26.11.2013, the manufacturer of hearing aid M/s Phonak India Private Limited was impleaded as OP 3, who was however proceeded ex-parte on 24.03.2015.
It is the case of the complainant that upon the recommendation of OP 2, complainant purchased the ear machine from OP 1 on 07.09.2012 for a total consideration of Rs.1,25,000/. It is stated that the complainant purchased hearing aid known as “Phonak Solana 209311 and ROS 209310” (hereinafter referred to as hearing aid). It is further stated that since its purchase, the said hearing aid is not working, which fact has been brought to the notice of the OP’s time and again, but no response was forthcoming from them. It is further stated the said hearing aid suffered from manufacturing defect, despite knowledge of same, the OP’s sold the said hearing aid to the complainant. The OP’s in connivance with each other and with the furtherance for their commercial gain, sold the said hearing aid to the complainant. It is further stated that OP’s while ignoring to understand the problems faced by the complainant, sold the said hearing aid to the complainant, which has cost tremendous pain and agony to the complainant. It is also claimed that the problem of the complainant aggravated on account of his inability to use the said hearing aid. The complainant has prayed for a sum of Rs.3,45,000/- from the OP’s which inter-alia include a sum of Rs.1,25,000/- towards the cost of hearing machine, Rs.1,00,000/- towards damages for causing inconvenience mental agony, pain and harassment and Rs. 1,00,000/- damages for multiplying the hearing problem of the complainant on account of supplying defective hearing aid.
OP 1 in its reply has challenged the maintainability of the present complaint because there is no deficiency in service or unfair trade practice on the part of the OP’s. They had also challenged the maintainability of the petition on account of non-joinder of the manufacturer. On merits, it is submitted that the complainant was suffering from bilateral sensorineural hearing loss, which in layman terms means that complainant’s right ear had mild to moderate sloping loss and left ear had profound sensorial loss. OP 2 diagnosed that the hearing loss was caused because of a surgery which was performed upon his left ear two years ago.
OP 2 had prescribed hearing aid as a solution to hearing disabilities of the complainant. OP 1, while noticing the petitioner was facing difficulties in hearing, in classroom situations, when usually the teachers speak from different directions, advised that the complainant has two options available to him, one of which is BICROS (Binaural Contra Lateral Routing of signal) hearing aids and the other option is Cochlear implant in the left year. In the first option, a set of two hearing aids are put in the each ear and they come in four kind of classification viz. BTE (behind the years), RIE (receiver in the ear), ITE (in the ear) or CIC (complete in canal). It is further stated that the complainant and his father ruled out the Cochlear implant option considering its cost and time consuming process of installation. The complainant, on the advice of the OP 1, initially opted for RIE option in BICROS, which were tested by the complainant, however later it was rejected because it was visible from outside and he preferred to opt for devices which are smaller and invisible. The complainant opted for ITE option in BICROS, against the purchase of which, the complainant was cautioned, that it would have blocked hearing of his better ear. It is further stated the complainant chose to sacrifice the utility and usefulness of the advised hearing aid to the cosmetic benefit of an invisible hearing aid. The complainant accordingly paid a sum of Rs. 50,000/- on 05.09.2012, following which his ear impression was taken and sent to OP 3 for making of ITE (BICROS hearing device with right ear Solona ITE and left ear CROS with Solana in ITE model). On 07.09.2012, the said hearing aid was fitted in the ears of the complainant and counselling given in long sessions with the audiologist of OP 1. The complainant, on the said date concluded the sale transaction and paid the balance sale consideration, after availing a discount of Rs. 25,000/- from OP 1. The complainant visited OP 1 thrice after making the purchase for fine tuning of the said hearing aid which service was provided to him.
OP 2 has filed his written statement wherein he has claimed that his role was only to the extent of advising the complainant that his problem can be resolved by use of hearing machine, therefore, no liability of manufacturing defect and deficiency in service can be attributed to him. OP 3 has not filed any written statement and as stated above was proceeded, ex-parte.
The Complainant has filed rejoinder to both the written statements and reiterated what was stated in the complaint. Evidence filed by the complainant is a verbatim reproduction of his complaint.
The OP 1, in its affidavit in addition to reiterating what is stated in the written statement has stated that after fitting of the said hearing aid, no complainant was received about its malfunction. It is further stated that on the request of complainant ITE Solana (right ear) was replaced with audio smart RIE at the expense of OP 1, since the manufacturer does not take back used hearing aids. OP 1 has also, in its evidence relied upon literature prepared by OP 3 to buttress its argument about the suitability of the hearing aid for the complainant. They have also relied upon a delivery challan which evidences that they at their own cost exchanged Solana ITE with audio smart RIE, copies of reports indicating reprogramming done on 29.10.12 and device check note issued by OP 3 indicating that said hearing aid was functioning properly.
The affidavit by way of evidence by OP 2 reiterates what is stated in the written statement. Written submissions have been filed by the complainant. Common written submissions have been filed on behalf of OP 1 and 2.
In the present case, except a bald averment in the complaint that the subject hearing aid was having manufacturing defect, no expert evidence has been led by the complaint to prove his allegation. Pleadings of the complainant are absolutely silent even to the nature of difficulty faced by him in the use of the said hearing aid. Complainant has also not met the specific averment of the OP 1 about him buying a hearing aid, contrary to the advice of OP 1 and that the complainant has sacrificed the suitability of a hearing aid best suited to his situation for cosmetic value, in his rejoinder.
Hon’ble Chandigarh SCDRC in the matter of V S Battu vs Aarti Gupta, Appeal case no. 19 of 2004 was adjudicating a case of relating to hearing aids, wherein the case of the complainant was that he was provided a hearing aid which was spurious and suffered from manufacturing defects. OP in that matter had taken a defence that hearing aid machines are not sold in routine across the counter, rather the buyer is subjected to several tests before a decision with regard to choosing a hearing aid is taken. OP in its evidence deposed about various tests conducted on the consumer however the complainant did not lead any convincing evidence to prove that hearing aid was spurious. It was stated, it is a different matter that the grievances of the complainant is that hearing aid purchased by him did not suit him as it did not improve his hearing at all but it is an altogether a different allegation that the item purchased was a spurious one. It was finally held in the absence of expert evidence hearing aid purchased by the complainant, was spurious or suffered from manufacturing defect.
This Commission is of the view that the complainant having not found the subject hearing aid to his utility after purchase is trying to wriggle out of the purchase consciously made by him which does not fall in the category of suffering from manufacturing defect. The OP 1 has proved that it had provided services to the complainant as and when approached and acted with due diligence in performance of its duties. Hence the complaint is dismissed without any order as to costs.
File be consigned to the record room after giving copy of the order to the parties. Order be uploaded on the website.
