DISTRICT CONSUMER DISPUTES REDRESSAL FORUM Govt. House No.16-D, Civil Station, Near SSP Residence, BATHINDA- 151001, PUNJAB.

CC No.483 of 2014

Date of Institution: 06.08.2014 Date of Disposal : 05.05.2015

Rajesh Kumar S/o Manohar Lal S/o Milkhi Ram, C/o Garg Clinical Laboratory, Opposite Dr.Puran Singh, Bhagta Bhai Ka, Tehsil Phul, District Bathinda.

..... Complainant

Versus

Suraj Medical Agencies, Near Street No.14, Ajit Road, Bathinda, through its Proprietor/Partner.

Vector Biotek Pvt. Ltd, 425, New GIDC, Kabilpore, Navsari, 396 424 (Gujarat), through its Proprietor/Partner.

.......Opposite parties

Complaint under Section 12 of The Consumer Protection Act, 1986.

............

Present:-

For complainant : Sh.Amanpreet Singh, Advocate.

For OPs : Sh.Rajiv Kumar Goyal, Advocate.

Quorum:-

Sh.Surinder Mohan, President.

Sh.Jarnail Singh, Member.

ORDER:-

Surinder Mohan, President

Contd.........2

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Brief facts of the case are that complainant is running a clinical laboratory under the name and style of “Garg Clinical Laboratory” at Bhagta Bhai Ka, Tehsil Phul, District Bathinda for livelihood of his family. Complainant purchased instrument VChem+ from OP No.1, manufactured by OP No.2, on 4.1.13 vide Invoice No.R-08861 against cash payment of Rs.1,15,000/-. At the time of its purchase, OP No.1 had assured about the quality of instrument and best after-sale service from OP No.2. Instrument carried warranty of two years till 4.1.15 and warranty certificate in this regard was issued by OP No.2 on 2.3.13. After about four months of its purchase, the instrument started giving problem as it started malfunctioning. Many times it did not give any report and at times it started giving different reports and thus created problem for the complainant. Complainant brought this fact to the knowledge of OPs and requested them to remove the defect, as it was adversely affecting his business, but OPs did not render any service to complainant. Complainant served a legal notice upon OPs, but a vague reply was given by OPs. Due to the act and conduct of OPs, complainant has been subjected to mental tension, agony, humiliation and physical harassment. Hence, complainant has sought a direction to OPs to refund the price of machine i.e. Rs.1,15,000/- alongwith interest @ 18% p.a. from the date of its payment till actual realization. OPs be also directed to pay compensation to the tune of Rs. 50,000/- and Rs.10,000/- as costs.

2. OPs filed joint written version and took several legal objections that complainant has no cause of action and locus-standi to file the present complaint; that complainant has twisted and distorted the true facts; that present complaint is not maintainable, as OPs gave upto date service to complainant and he was satisfied with it; that the allegations levelled by the Contd.........3

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complainant are false, fabricated and manipulated, as instrument in question never caused any problem/trouble to the Complainant as per service reports; that complainant is estopped from filing the present complaint; that present complaint is purely misuse and abuse of process of law; that complaint has been filed with some ulterior motive and to cause unnecessary harassment and humiliation to the replying OPs. There is no manufacturing defect in the instrument as after the purchase, Service Engineers of OP No.2 has given prompt service to complainant on his demand and during warranty period in 2013. Instrument was working OK. Complainant and his representative were fully satisfied and then signed on the service reports dated 3.10.13, 10.10.13, 1.11.13, 7.11.13 and 23.12.13. On the last service i.e. on 23.12.13, instrument was working properly and satisfactorily. Present complaint has been filed in order to derive undue gain. Instrument in question did not cause any problem/trouble to Complainant as per service record and there was some improper maintenance/installation on the part of complainant and some dust etc. was collected in the instrument which was removed and as per service record the instrument is OK in all respects and working properly and satisfactorily. OP has reiterated all the averments made in legal objections and admitted the purchase of instrument in question by Complainant from OP No.1. It is again submitted that upto date service was provided to complainant and instrument is working/functioning correctly, properly and satisfactorily. Entire story has been fabricated and manipulated by the complainant. Legal notice was duly replied on 11.7.14 by OP No.2. It is denied that complainant has suffered any harassment and humiliation or any financial loss, as the instrument in question is working properly and satisfactorily. Prompt services were provided to complainant Contd.........4

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and no problem was found in the instrument. It is crystal clear that complainant is telling a lie and has filed the complaint without any basis just to harass and humiliate the OPs, as such, complainant is not entitled to any relief and present complaint is totally false and liable to be dismissed. It is further submitted that instrument in question is manufactured by OP No.2 at Navsari (Gujarat), as such, this Forum has no jurisdiction to entertain and try the present complaint, however the instrument was purchased by the complainant from OP No.1 at Bathinda. Other paras of the complaint have been denied and a prayer for dismissal of the complaint has been made.

3. In evidence, complainant tendered documents Ex.C-1 affidavit of Rajesh Kumar, Ex.C-2&C-3 invoices dated 4.1.13, Ex.C-4 Warranty Certificate(5.1.13 to 4.1.15), Ex.C-5 legal notice dated 18.6.14 and Ex.C-6 another affidavit of Rajesh Kumar.

4. In order to rebut this evidence, OPs tendered documents Ex.OP1/1 affidavit of Azad Brar (Area Service Manager), Ex.OP1/2 Reply dated 11.7.14 to legal notice, Ex.OP1/3 Job sheet dated 7.11.13( No.11051675), Ex.OP1/4 job sheet No.20140864, Ex.OP1/5 Job sheet dated 27.5.14 No.20138262, Ex.OP1/6 Job sheet dated 14.3.14 No.20138233, Ex.OP1/7 job sheet dated 1.11.13 No.11051674, Ex.OP1/8 job sheet No.201062 Ex.OP1/9 undated job sheet.

5. We have heard learned counsel for parties and have gone through the record very carefully.

6. There is no dispute that complainant purchased VChem+ “Programmable Biochemistry Analyzer” on 4.1.13 from OP No.1, manufactured by OP No.2 for Rs.1,15,000/-. Complainant has alleged that there is some manufacturing defect in the instrument, but there is no expert Contd.........5

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report in this regard. It is admitted case of parties that instrument had two years warranty w.e.f. 5.1.13 to 4.1.15. As per case of complainant, after 4 months of its purchase, the instrument started giving problem due to its mal-functioning, means there was result variation. Regarding this there is no evidence on the file. There should have been some comparative reports of a particular sample tested at the same time at a different laboratory, but the same is missing on the file. It is the specific case of OPs that proper 'after-sale service' was being given to complainant as when ever complainant lodged any complaint the same was immediately attended to.

7. A specific objection has been taken by OPs regarding improper installation of the instrument. This point raised by OPs has no legs to stand. As per case of OPs, they have been providing prompt services upto 23.12.13. Legal notice Ex.C-5 served upon OPs by the complainant was also replied on 11.7.14, which is Ex.OP1/2 on the file. In reply to the legal notice, OPs have specifically mentioned that 1st service was given on 3.10.13, 2nd on 10.10.13, 3rd on 1.11.13, 4th on 7.11.13 and 5th on 23.12.13. There is no reference of any service in the reply after 23.12.13. In case there was any improper installation, it could be pointed out in the first very service report which was done on 3.10.13. Moreover, had there been any improper installation, defect could have been noticed immediately after purchase of the instrument. The instrument was purchased on 4.1.13 but 'improper installation' has been pleaded for the first time by OPs in the written version filed on 1.10.14. Even there is no mention of 'improper installation' of the instrument in any of the service reports or reply to the legal notice. Moreover, had there been any improper installation, the instrument should not have run/worked at all. Therefore, plea of improper Contd.........6

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installation is an “after-thought” and untenable.

8. Perusal of file shows that instrument was purchased on 4.1.13 and first service was provided on 3.10.13. It shows that instrument worked properly for about 9 months and no defect was ever pointed out by the complainant to the OPs. OPs have placed on file some Job Sheets, but Job Sheets dated 3.10.13, 10.10.13 and 23.12.13 have not been placed on the file, though these job sheets have been mentioned in the written version and reply to the legal notice. The details of job sheets vide which services were provided by OPs and placed on file are given as below:

Job Sheet dated 1.11.13 Ex.OP1/7:

Problem Reported Result variation etc..

Observation OK, Kit of Tg was not OK

Action Taken Checked all the light path, cleaned it reprogramming done etc. Instrument was kept under observation. Job sheet has been signed by complainant.

Before dealing with the next job sheets, it may be pointed out that OPs have tendered the documents, particularly job sheets, in a very negligent manner and not in chronological order. It seems that OPs have exhibited the job sheets according to their own suitability which has unnecessarily wasted the time of the Forum.

Job Sheet dated 7.11.13 Ex.OP1/3:

Problem Reported: Result variation,

Observation kit of Trg and cholesterol not OK. Reagent OD was not good,

Contd.........7

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Action Taken: collected two different values sample, reprogramming done etc. Instrument is now working OK. Suggested for using good quality reagents. Job sheet has been signed by complainant.

There are three more job sheets dated 14.3.14, 23.5.14 and 27.5.14 placed on file by OPs, but there is no mention of these job sheets in the written version as well as in the reply to the legal notice.

Job Sheet dated 14.3.14 Ex.OP1/6:

Problem reported -

Observation dust inside the instrument, flow cell dirty

Action taken cleaned flow cell, removed the dust inside the instrument. Instrument is running OK.

Job sheet is not signed by complainant. It seems that this job sheet has been manipulated lateron.

Job Sheet dated 23.5.14 (unexhibited) :

Problem reported Result not OK...

Observation Dust inside the instrument...

Action Taken cleaned the filter and flow cell. Checked the result with another lab..

Job sheet is signed by complainant. But this Job sheet is not referred in any of the documents.

Job Sheet dated 27.5.14 Ex.OP1/5:

Problem reported Result variation

Observation dirty flow cell and dust in instrument. Sample filter is not working well.

Action taken Clean the flow cell, inner and outer instrument ... Suggested to use a quality pipette and provide dust Contd.........8

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free environment. Job sheet is not signed by complainant.

Besides this, there are three job sheets but without any date. Ex.OP1/4 is such a job sheet bearing No.20140864 but without any date. It is signed by complainant. Another such Job Sheet is Ex.OP1/8 bearing No.201062.. but without any date and not signed by complainant. This job sheet also seems to be manipulated. Another job sheet is Ex.OP1/9, its number and date are not readable, but it is signed by complainant.

9. There is a sorry state of affairs on the part of complainant as well as OPs. A specific order was passed by this Forum on 9.2.15 that 'documents are unreadable, legible copies be filed'. OPs filed some legible copies on 24.2.15 which have been placed on the court file. As observed earlier, the job sheets have not been exhibited in chronological order and it seems that illegible job sheets have been filed to confuse the matter, therefore, we are of the opinion that OPs have manipulated the job sheets which are not signed by complainant and some of the job sheets do not find mention either in written version or in reply to the legal notice. This is clearly “unfair trade practice” and “deficiency in service” on the part of OPs. Both the parties are expected to approach the Forum with clean hands.

10. Learned counsel for complainant has relied upon 2006(2) CPJ (NC) 289 with the title M/s East India Construction VS Modern Consultancy Service wherein the Hon'ble National Commission, while dealing with a case where machine was used for commercial purpose and manufacturing defect occurred during warranty period, was pleased to observe that :

Contd.........9

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“continuous breakdown of machinery despite repairs made from time to time by Service Engineer. Deficiency in service proved. Directed to return the equipment to the dealer.”

11. Complainant cannot drawn any benefit from this authority, as complainant in the aforesaid case had stated that within a fortnight of the delivery of the machine, a part of the machinery broke resulting into defect in the machinery. But in the present case, the instrument was purchased on 4.1.13 and there was no complaint regarding its working for nine months and first job sheet was prepared on 3.10.13, although neither complainant nor OPs have placed on the file job sheets dated 3.10.13 and 10.10.13 for the reasons best known to them. Complainant has not made any reference of any job sheet and service provided by OPs from time to time. Even complainant has not contradicted the details of service mentioned in the reply to the legal notice as well in the written version by controverting the same.

12. Complainant has filed two affidavits first affidavit is dated 4.8.14. Complainant had received the reply dated 11.7.14 of his legal notice from OPs. Complainant came to know regarding various job sheets through this reply, but did not say even a single word in his affidavit Ex.C-1 dated 4.8.14. Similar is the position regarding affidavit Ex.C-6 sworn on 28.10.14

13. In view of our above discussion, we are of the opinion that neither complainant nor OPs have disclosed the true facts. Instrument had a warranty of two years from 5.1.13 to 4.1.15. Complainant has failed to establish any manufacturing defect in the said instrument as he has been using the said instrument from 9 months since inception and service was being rendered by way of job sheets wherein it was found that there was Contd.......10

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dust in the instrument. Complainant did not use good quality of Reagents, but at the same time OPs have prepared wrong job sheets just to confuse the matter.

14. Resultantly, complaint is partly accepted. OPs are directed to extend the warranty of the instrument for another one year i.e. upto 4.1.2016 and OPs will provide free after sale service. Since OPs have indulged in “unfair trade practice” and are “deficient in rendering service”, OPs are ordered to pay Rs.10,000/- to the complainant. Compliance of the order be made within one month from the date of receipt of the copy of this order.

15. Let certified copies of order be communicated to the parties free of cost by registered post and file be consigned to the record room.

Announced:

05.05.2015

Jarnail Singh, Surinder Mohan,

Member. President.