Dated 23.02.2024

As per Sanjay Kumar, President.

O r d e r

1. Present appeal has been filed on behalf of appellant/opposite parties for setting aside the judgment and order dated 04.12.2010 passed by District Consumer Forum, Siwan in complaint case no. 340 of 2010 whereby and whereunder appellants/opposite parties have been directed to pay a sum of Rs. 1,25,000/- as pecuniary loss and Rs. 2,000/- as cost of litigation to the complainant within 2 months failing which interest @15% per annum shall become payable.
2. Briefly stated the facts of the case is that complainant claims himself to be unemployed youth and he runs a C.T. scan centre for his livelihood which is only source of income.
3. Complainant purchased a C.T. scan machine from opposite party after obtaining loan from bank and executed a memorandum of under standing dated 05.03.2009 that opposite party will replace/repair the defective part of scan machine within 24 hours of the complaint.
4. On 21.05.2009 scan machine became defective for which complainant was made to opposite party upon which engineer came on 28.08.2009 and repaired the machine but again on 30.08.2009 it became defective and stopped functioning.
5. It is alleged that while repairing the CT scan machine by engineer send by opposite party although H.V. tank CT scan of complainant was of 120 k.v.a but it was replaced by H.V. tank of 80 k.v.a and inspite of repeated request H.V. tank of 120 k.v.a was not replaced as a result which CT scan remained defective, useless and complainant suffered huge pecuniary loss and filed consumer complaint case in the District Consumer Forum, Siwan. Upon which notices were issued to opposite parties but even after valid service of notice they did not appear and case proceeded ex-parte against them.
6. The District Consumer Forum after hearing and considering the evidences available on record held that CT scan contained H.V. tank of 120 k.v.a which was replaced by engineer of opposite party by H.V. tank of 80 k.v.a as H.V. tank of 120 k.v.a was not available with opposite party and opposite party assured to replace it but same was never replaced and machine did not function.
7. Complainant availed the services of different agency who replaced 80 k.v.a H.V. tank by 120 k.v.a H.V. tank and scan machine started functioning for which complainant had to pay Rs. 1,25,000/- to another agency inspite of written agreement and undertaking given by opposite party that it will repair/replace the machine and shall keep the machine in working  condition but failed to do so which amounts to deficiency in service causing pecuniary loss as well as mental & physical harassment to complainant and directed opposite party to pay Rs. 1,25,000/-  for deficiency in service and Rs. 2,000/- as cost of litigation, aggrieved by which present appeal has been filed by opposite parties.
8. It is stated on behalf of appellant that complainant is not a consumer and goods purchased were for commercial purpose as such complaint case was not maintainable.
9. It is further stated that parties had resolved to confer jurisdiction on courts within Kanpur city as such Siwan Consumer Forum had no jurisdiction over the matter. The issues involved were complex in nature and could have been adjudicated by a Civil court of competent jurisdiction. There was no expert evidence on record that the problem suffered by the complainant was due to incompatible H.V. Tank. The MOU for spare parts and service automatically stood terminated on account of non-observance of payment schedule by the complainant. Any repair by the third party engineer will relieve the appellant from any liability of maintenance under MOU.
10. Perused the impugned order and considered materials available on record.
11. It is an admitted fact that complainant had purchased a CT scan machine from opposite parties and thereafter MOU was entered between the parties on 05.03.2009 for services, under which any defect in machine was to be repaired within 24 hours and any defective part was to be replaced forthwith and machine was to be kept in running condition.
12. Machine became defective on 21.08.2009 and engineer came and repaired the machine but it again became defective on 30.08.2009 and machine stopped working. Even after several correspondences no step was taken to rectify the defect to and start the machine.
13. There is specific averment made in complaint petition that machine was purchased to earn livelihood and not to earn profit from business as such complainant comes within definition of consumer.
14. Consumer case can be filed at any place where cause of action has arisen and as part of cause of action had arisen within the territorial jurisdiction of Siwan as such District Consumer Forum, Siwan had territorial jurisdiction over the matter.
15. Machine became defective within warranty period and opposite parties were bound to repair the machine within 24 hours and replace the defective part so that machine becomes operational as per terms and condition of MOU. Opposite party failed to repair the machine and complainant had to approach another agency to get machine repaired which shows deficiency on part of opposite party.
16. The defect was cured by engineer/technicians of another agency by replacing H.V. tank of 80 k.v.a by 120 k.v.a for which complainant had to pay Rs. 1,75,000/- and machine became functional as such defect was curable and opposite parties breached the terms and condition of MOU in not taking any steps to cure the defect and make machine functional and operational causing pecuniary loss and harassment to complainant.
17. There is no error or infirmity in the judgment and order dated 04.12.2010 passed by District Consumer Forum, Siwan in complaint case no. 340 of 2010. Accordingly, the appeal is dismissed. However, rate of interest is reduced to 8% per annum.   
18. A copy of this order be supplied to both the parties free of cost as mandated by the Consumer Protection Act. Office is directed to send a copy of this order to the District Commission, Siwan by E-mail forthwith and order to be uploaded on the website of the Commission.
19.    Let the file be consigned in the record room along with copy of this order.

 ( Md. Shamim Akhtar)                                                                                                        (Sanjay Kumar,J)

       Member                                                                                                                               President

Md. Fariduzzama