Karnataka

Chitradurga

CC/48/2017

Sri. Dr. Dada Hayth Peer, - Complainant(s)

Versus

The Company Secretary, Toshiba Medical Systems, REG Office and Head Office, - Opp.Party(s)

Khalid Ahamed,

08 Jun 2018

ORDER

 

COMPLAINT FILED ON:22/05/2017

DISPOSED      ON:08/06/2018

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, CHITRADURGA

 

 

C.C.NO: 48/2017

 

 

DATED: 8^th JUNE 2018

PRESENT: - SRI. T.N. SREENIVASAIAH  : PRESIDENT                                   B.A., LL.B.,

                   SRI.N. THIPPESWAMY        : MEMBER

                          B.A., LL.B., PGD., CLP  

 

 

 

 

……COMPLAINANT/S	Sri. Dada Hayath Peer, Challakere Digital X-ray and Scanning Centre, Near Bus Stand, Ajjanagudi Road, Challakere Town, chitradurga.   (Reptd., By Sri. Khalid Ahmmed, Advocate)
V/S
…..OPPOSITE PARTIES	1. The Company Secretary, Toshiba Medical Systems, REG Office and Head Office, ERBIS Engineering Company Ltd., Kamiyacho, Plaza Building, 1-14, CHOME, MINATO-KE, TOKIYO, JAPAN PIN-108-0014.   2. The Manager Toshiba Medical Systems, India Office, No.39, 2nd Main Road, R.A.Puram, Chennai PIN-600-028.   3. The Manager, ERBIS Engineering Co. Ltd., No.2247, Rajamma Nikethana, 23rd Cross, K.R.Road, Banashankari 2nd Stage, Bangalore-560 070.   (Reptd. By M/s Indus Law Associates)

ORDER

SRI. T.N. SREENIVASAIAH:   PRESIDENT

The above complaint has been filed by the complainant u/Sec.12 of the C.P Act, 1986 for the relief to direct the OPs to replace the new Toshiba Xario 100 with accessories or to refund the amount of Rs.16,25,000/- with interest @ 18% p.a from 05.10.2016 till payment, costs and such other reliefs.    

2.      The brief facts of the case of the above complainant is that, on 01.09.2016, he purchased one Toshiba Xaria 100 with accessories for a sum of Rs.16,25,000/- as per sales confirmation.  He has paid a sum of Rs.2,00,000/- as an advance and the balance was sent through  a DD No.037635 dated 032.10.2016 drawn on the Axis Bank, Chitradurga in favour of OP No.2 for a sum of Rs.14,25,000/-.  The above said machine was delivered on 03.10.2016 and installed on 05.10.2016 as per installation report and the warranty for the said machine was till 04.10.2017 and started work in the month of December 2016 and started trouble from January 2017 i.e., License problem on 05.01.2017, PIMS problem on 05.01.2017, Hard disc problem on 07.01.2017, maintenance on 30.01.2017, TVS-PIMS4 on 14.03.2017, TVS-PIMS4 problem on 15.04.2017 and settings problem on 19.04.2017.  For the first two problems one Vijay. M.R, Engineer has attended the complaint and the remaining problems attended by one Sri.Mahesh Kumar.P.  Even in spite of repeated attempts made by the above said Engineers to solve the problems, they could not able to solve the problems occurred in the Toshiba Xaria 100 and the same was worked only for few days and the same was not corrected so as to work satisfactorily.  It is further submitted that, due to frequent repairs of the above said machine and the defective material supplied by the OPs, many of the patients left the shop due to frequent repairs of the machine and lost the confidence on the complainant.  The complainant has invested huge amount and incurring loss due to defective machine.  The defects and imperfection found in the machine was not rectified by the Engineers of the OPs and they could not able to make the machine to rectify and work successfully.  The complainant is paying rent to the owner of the building without any fruitful returns and hence he has suffered loss due to the defective material supplied by the OPs and has lost the confidence on the said machine.  The liner probe setting and Doppler setting is not satisfactory since from the date of installation.  Thereafter, the complainant has issued notice to OP No.1 on 12.05.2017 and notice to OP No.2 and 3 through RPAD on 08.05.2017 but, none of the OPs have complied nor replied to the said notice.  The complainant has availed the material exclusively for earning his livelihood by way of self-employment.  The machine was installed on 05.10.2016 and the same has got one year warranty.     The defective machine supplied by the OP No.1 has not been rectified by the Engineers of the OPs.  The Engineers of the OPs repeatedly tried to repair but, failed to repair the same which is within the jurisdiction of this Forum and therefore, the OPs are liable to compensation and prayed for allow the complaint.     

3.      After service of notice, OP No.1 to 3 appeared through M/s Induslaw Advocate Associates and filed their version. According to the version filed by OP No.1 and 2, it is submitted that, except for the clarification that the product was purchased by the complainant and the DD dated 03.10.2016 was drawn in favour of OP No.3 and not in favour of OP No.2 and the complainant is put to strict proof of the same.  It is pertinent to note that, without prejudice, neither Toshiba nor ERBIS have been arrayed and arraigned as OPs to this complaint.  The complainant baselessly sought to prosecute the Toshiba and ERBIS.  It is submitted that, the product was purchased from ERBIS, ERBIS per se is a party to the above complaint renders the above complaint, the same is liable to be dismissed for non-joinder of necessary party.  It is further submitted that, the complaint cannot be entertained and maintained as the complainant has no locus-standie to prefer the above complaint and there is no cause of action against the OPs or even against Toshiba and ERBIS.  It is evident from the document sought to be relied upon by the complainant himself that, the purchaser of the product is the said Centre and not Dr.Dada Hayath Peer being the complainant and there is no privity of contract between Dr. Dada Hayath Peer and the OPs or with Toshiba and ERBIS.  The complainant is not the consumer of the product within the meaning of term for the purpose of the C.P. Act, 1986 and therefore, the complaint is liable to be dismissed in limine.  It is submitted that, to the effect that the said center and the complainant started using the product only from December 2016 and started giving problem from January 2017.  It is submitted that, none of the visits of Service Engineers of ERBIS are attributable to any problem in the product but, were routine process, which shows the promptitude and care that, ERBIS takes in servicing their customers.  The Engineer of ERBIS visited the Centre of complainant on 05.01.2017 for the problem of license and found that, the product was functioning in perfect condition and in respect of PIMS, a warning message appeared, the product was functioning perfectly.  Out of abundant caution, ERBIS service engineers attempted to remake database procedure and ultimately decided to replace the hard disk.  Notwithstanding this, the complainant and the said Centre continued to use and taking benefit from the product in the routine manner, even pending replacement of the hard disk.  On 07.01.2017, the Service Engineer of ERBIS replaced the hard disk and subsequently, the backup was restored and settings of the product were adjusted as per the specific requirements of the complainant and observed that, the working of the product for the whole day and handed over the same in good working condition.  On 30.01.2017, the visit was made by the ERBIS Service Engineer as a routine service procedure towards carrying out preventive maintenance and handed over the product in good working condition.  On 14.03.2017 the Engineer visited the Centre and realized that the warning message appeared due to overflow of patient history date and found that, the product to be working satisfactorily and once again shown how to export, restore and delete system examination history data which would prevent the warning message.  On 15.04.2017, on inspection, the ERBIS Service Engineers realized that the warning message again appeared on the product due to overflow of patient history data.  Therefore, the history and OB browser data of the product was cleared and the product was found to be working satisfactorily and once again shown how to export, restore and delete system examination history data which would prevent the warning message.  On 19.04.2017, the visit was made by the ERBIS Service Engineers to load the pre-set settings and adjust the same according to the specific needs of the complainant and the said Centre.  It is denied that, the alleged defect in the product could not be solved despite repeated attempts by ERBIS Engineers on several occasions and the Engineers are not capable of repairing any issues concerning to the product, the product requires frequent repairs, for that, the Toshiba and ERBIS are jointly and severally liable to pay the reliefs. It is further submitted that, due to frequent repairs of the above said machine and the defective material supplied by the OPs, many of the patients left the shop due to frequent repairs of the machine and lost the confidence on the complainant, the complainant had invested huge amount and is incurring loss due to defective machine, the complainant is paying rent to the owner of the building where the said Centre is situated without any fruitful returns and hence he has suffered loss due to the defective material supplied by the OPs and has lost the confidence on the said machine are all unfounded and untrue and denied as false.  The liner probe setting and Doppler setting is not satisfactory since from the date of installation, the complainant had any valid reason to cause the legal notice dated 08.05.2017, the contents of the legal notice has any merit, the said legal notice has not been replied to by ERBIS and that there has been any deficiency in quality of goods or service provided by the OPs or Toshiba or ERBIS in respect of the product are all denied as incorrect and the complainant is put to strict proof of the same.  Moreover, Toshiba is further informed by ERBIS that in response to every service request from the complainant, ERBIS Service Engineers promptly attended and left the Centre only after ensuring the product was working properly and to the satisfaction of the said Centre and the complainant.  It is further submitted that, only on the failure of the personnel at the said centre, including the complainant, to do so led the memory becoming full and a message displaying.  Further it is submitted that, the Toshiba is informed by ERBIS that there is no defect in the product and the same is functioning perfectly.  It is further submitted that, the complainant and other personnel at the said Centre are making substantial use of the product and the same is evident from a reading of the Scans done by using the product and therefore, there is no question of any alleged manufacturing defect or frequent failure or operation defect in the product.  It is further submitted that, the services rendered for commercial purpose are not excluded from the Consumer Protection Act in view of the amendment made in the year 2003 and the complaint filed is comes within the ambit of Consumer Protection Act, is devoid of merit.  It is further submitted that, the product purchased for the purpose of being used in profit making activities engaged on a large scale at the said Centre and every customer of patient, who visits the Centre and takes advantage of the product, has to pay for the same and service rendered at the Centre in this regard is not free.  Therefore, the product purchased and is being used for Commercial Purpose within the meaning of the term for the purpose of The C.P Act, 1986 and therefore, the purchaser of the product falls outside the scope of the definition of “Consumer” and hence prayed for dismissal of the complaint.    

4.      The OP No.3 has adopted the version filed by the OP No.1 and 2.  It is stated in its version that, the complaint is not maintainable either in law or on facts.  It is further submitted that, the machine supplied by the OP No.1 is not defective.  The complainant has purchased the machine for commercial purpose.  If the complainant used the machine for commercial purpose, the complainant is not a consumer under the C.P. Act.  It is further stated that, the complainant is not a consumer as per Section 2(1)(d) of the C.P Act and hence, prayed for dismissal of the complaint.

5.      The complainant herself has examined as PW-1 by filing affidavit evidence and the documents Ex.A-1 to A-13 were got marked and closed his side.  On behalf of OPs No.1 and 2, one Sri. B. Sampath Kanthraj, the Authorized Representative of Canon Medical Systems Corporation has examined as DW-1 by filing respective affidavit, on behalf of OP No.3 one Sri. S. Ramachandran, the Deputy General Manager – Finance – Indian Operations has examined as DW-2 by filing affidavit and relied on Ex.B-1 to B-20 documents have been got marked and closed their side.     

6.      Arguments heard.

7.      Now the points that arise for our consideration for decision of above complaints are that;

1. Whether the complainant proves that, the OPs have supplied defective Toshiba Xaria 100 with accessories to him and committed deficiency in service and the OPs 1 to 3 are jointly and severally liable to replace or refund the amount  and entitled for the relief as prayed for?

              (2)   What order?

          8.      Our findings on the above points are as follows:-

                    Point No.1:- Partly in affirmative.

                    Point No.2:- As per final order.

 

REASONS

9.      Point No.1:-  It is not in dispute that, the complainant has purchased one Toshiba Xaria 100 with accessories machine from OPs on 01.09.2016 for a sum of Rs.16,25,000/-.  Initially, the complainant has paid Rs.2,00,000/- as an advance and the remaining amount has been sent by the complainant to OP No.2 through DD No.037635 dated 03.10.2016 drawn on Axis Bank, Chitradurga.  The OPs delivered the machine to the complainant on 03.10.2016 and installed the same on 05.03.2016 as per the installation report.  The warranty period for the machine is for one year i.e., up to 04.10.2017.  After installation of the machine, the work started in the month of December 2016.  Such being the case, in the month of January 2017, the machine which was supplied by the OPs started giving trouble and the same was informed to the OPs.  The OPs have send the Engineers for rectification of the defects found in the machine.  One Mr. Vijay. M.R and Mr. Mahesh Kumar. P, the Engineers visited the premises of the complainant to solve the defects found in the machine.  But, the Engineers sent by the OPs have not solve the defects found in the machine.  Finally, the complainant send the legal notice to the OPs asking to replace the machine or to refund the amount, as the machine was defective.  But, the OPs have denied the same and stated that they have not supplied the defective machine to the complainant.  Further they have taken a contention that, the complainant is not a consumer under the C.P. Act as defined under Section 2(1)(d).  Further the OPs have taken a contention that, the complainant has purchased the machine for commercial purpose as the complainant has collected money from the patients and hence, the complainant is not comes under the C.P Act, because he has used the machine for commercial purpose.  It is further taken a contention that, no remedy is available under the C.P. Act where there is no privity of contract between the disputing parties.  It is argued by the advocate for the OPs that, the burden of proving the facts always lies on the persons who ascertains, therefore, the complainant has to prove the case to the satisfaction of the court by means of cogent evidence.  The OPs have relied upon the judgment dated 07.12.1993 passed by the Hon’ble Supreme Court in Civil Appeal No.7330/1993 in the case of Indian Oil Corporation Vs. Consumer Protection Council, Kerala and another wherein it has been stated that, it is not open to the complainant to seek remedy under clause 2(g) of the Consumer Protection Act, 1986 as there is no privity of contract between the complainant and the appellant corporation.    Further it is stated that, (g) “deficiency” means any fault, imperfection shortcoming or inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force has been undertaken to be performed by a person in pursuance of the contract or otherwise in relation to any service.  In so far there is no privity of contract between the appellant and the consumer no “deficiency” as defined under Section 2(g) arises.  Therefore, the action itself is not maintainable before the Consumer Forum.  The OPs have relied on another Judgment passed by the Hon’ble Supreme Court in Civil Appeal No.10650/2010 in the case of Birla Technologies Ltd., Vs. Neutral Glass and Allied Industries Ltd., wherein it has been held as under:

Case Note:

Consumer – Deficiency of Service – Complainant whether a consumer within the meaning of Section 2(1)(d)(i) of the Consumer Protection Act, 1986 – Determination thereof – Impugned finding by the National Commission held that the ‘goods’ purchased were being used for a commercial purpose, and, therefore, complainant not a ‘consumer’ – However, it was further held that notwithstanding such findings, the complainant was entitled to maintain a complaint under the Act with respect to the deficiency in service during one year warranty period with respect to said goods relying on Section 2(1)(d)(ii) of the Act – Held, in view of the findings of the National Commission that the goods sold amounted to ‘goods’ and that such goods were purchased for commercial purpose of earning more profits, there could be no dispute that even the services which were offered had to be for the commercial purpose – Complaint itself was not maintainable, firstly, on the count that under Section 2(1)(d)(i), the goods were purchased for commercial purposes and on the second count that the services were hired or availed of for commercial purposes – Appeal allowed – Order of the National Commission set aside.

 

The OPs have relied on another Judgment passed in Complaint No.285/1993 dated 26.03.1996 passed by the Hon’ble Gujarath State Consumer Disputes Redressal Commission, Ahmedabad wherein it has been held that, the facts stated above clearly reveal that the complainants had purchased the equipment for carrying on activity on large scale for the purpose of earning profits.  The daily earning from equipment was at least Rs.500/- per day or about Rs.15,000/- per month.  It is, therefore, obvious that profit earned from the equipment was on large scale.  This earning was besides the fees earned by the complainants for surgical and gynecological treatment which was given in their hospital.  We are, therefore, inclined to uphold the opponent’s contention that the equipment was purchased by the complainants for commercial purpose and, therefore, they are not consumers, as defined under Section 2(1)(d) of the Act.  In the result, this complaint is dismissed. However, there will be no order as to costs. 

          10.  The complainant has relied on a decision delivered by the Hon’ble Supreme Court of India reported in 2018 AIAR(Civil) 491 in the case of M/s Paramount Digital Colour Lab & ORS ETC Vs. M/s AGFA INDIA PVT. LTD & ORS ETC wherein it has been held as under:

 

Consumer Protection Act, 1986, Sec. 2(1)(d) – Word “consumer” defined under – Meaning and scope and ambit of – “consumer” as defined under Sec.2(1)(d) of the Act does not include a person who obtains a goods for a “commercial purpose” – Explanation supplied to Sec.2(1)(d) clarifies that “Commercial Purpose” does not include use by a person of goods bought and used by him and services availed of by him exclusively for the purpose of earning his livelihood by means of “self employment”- If both these provisions are read together, it leads to the conclusion that if a person purchased the goods for consideration not for any commercial purpose, but exclusively for the purposes of earning his livelihood by means of “self employment”- Such purchaser will come within the definition of “consumer”- “Self employment” necessary means earning for self – If a person being unemployed purchases a certain machine for self employment to start a business for earning good income by which basic needs of livelihood of his and his family would be fulfilled and seeks help of the “operators” and “Helpers” for running the same – Same would not lead to the conclusion that the person was using the machine for commercial purposes – Word “purchaser” means and includes members of his family also.   

The above decision is squarely applicable to the case of the complainant and in other words the decisions relied on by the OPs are not applicable to the facts of the present case on hand. 

11.    We have gone through the entire documents, affidavits produced by the complainant and OPs which clearly goes to show that, the complainant has purchased Toshiba Xaria 100 with accessories for a sum of Rs.16,25,000/- on 01.09.2016 for his self employment to lead his life out of the income arrived from the above said machine.  The family of the complainant is depending upon the earnings of the said machine.  As per the decision relied on by the complainant, the complaint is maintainable because, the complainant is a consumer under the C.P Act.  The complainant has purchased the above said machine for his self employment and his family is also depending upon the income derived from the said machine.  The contention taken by the OPs in their version, affidavit and written arguments that, the complainant is not a consumer under Sec.2(1)(d) of C.P Act is not sustainable under law.  The OPs have failed to disprove the case of the complainant.  The exhibits produced by the complainant clearly shows that, the complainant has purchased the above said machine for his self employment and for his livelihood.  The OPs have taken a contention that, the complainant has purchased the said machine for commercial purpose.  But as per the decision and documents produced by the complainant clearly shows that, the complainant has used the same for his self employment.  The documents itself clearly shows that the complainant has purchased the machine by paying Rs.16,25,000/- from the OPs and the same was defective as it frequently giving problem within the warranty period i.e., seven times the Engineers of the OPs visited the center and tried to rectify the defects found in the machine but failed to solve the same.   Therefore, we come to the conclusion that, the OPs have committed deficiency of service in supplying the machine to the complainant.  Such being the case, the OPs are responsible to give compensation and accordingly, this Point No.1 is held as partly affirmative to the complainant.    

  12.     Point No.2:- As discussed on the above point and for the reasons stated therein we pass the following:-

ORDER

The complaint filed by the complainant U/s 12 of C.P Act 1986 is partly allowed.

It is ordered that, the OPs are hereby directed to replace the new Toshiba Xario 100 with accessories to the complainant by taking back the old defective machine from the complainant.  If fails to replace the same, the OPs are hereby jointly and severally directed to pay a sum of Rs.16,25,000/- to the complainant along with interest at the rate of 9% p.a from 05.10.2016 till realization.

It is further ordered that, the OPs hereby jointly and severally directed to pay a sum of Rs.10,000/- towards mental agony and  Rs.5,000/- towards cost of the proceedings to the complainant.

It is further ordered that, the OPs are hereby directed to comply the above order within 30 days from the date of this order.

(This order is made with the consent of Member after the correction of the draft on 08/06/2018 and it is pronounced in the open Court after our signatures)         

 

                                     

 MEMBER                                                   PRESIDENT

-:ANNEXURES:-

Witnesses examined on behalf of Complainant:

 

PW-1:  Complainant by way of affidavit evidence.

 

Witnesses examined on behalf of OPs:

 

DW-1: Sri. B. Sampath Kanthraj, the Authorized Representative of Canon Medical Systems Corporation by filing affidavit evidence.

 

DW-2:-Sri. S. Ramachandran, the Deputy General Manager, of OP 3 by way of affidavit evidence.

 

Documents marked on behalf of Complainant:

 

01	Ex-A-1:-	Final quotation dated 01.09.2016 with terms and conditions
02	Ex-A-2:-	Sales confirmation dated 01.09.2016
03	Ex-A-3:-	Tax Invoice dated 30.09.2016
04	Ex.A-4:	Delivery Challan dated 30.09.2016
05	Ex.A-5:-	E-Segam Form dated 03.10.2016
06	Ex-A-6:-	Installation report dated 05.10.2016
07	Ex-A-7:-	Field Service report Nos.7040, 7041, 6999, 7088, 7094, 7328 & 7331
08	Ex-A-8:-	Letter from Deputy Manager-Chennai dated 03.05.2017
09	Ex-A-9:-	Notice dated 08.05.2017
10	Ex.A-10:	3 RPAD receipts
11	Ex.A-11:-	2 postal acknowledgements
12	Ex-A-12:-	CD
13	Ex-A-13:-	Certificate of Registration

Documents marked on behalf of OPs:

01	Ex-B-01:-	Board resolution
02	Ex-B-02:-	Corporate profile of Toshiba of 2017
03	Ex-B-03:-	Final Quotation dated 01.09.2016
04	Ex-B-04:-	Sales Confirmation dated 01.09.02016
05	Ex-B-05:-	Tax invoice dated 30.09.2016
06	Ex-B-06:-	Delivery Challan dated 30.09.2016
07	Ex-B-07:-	E-Sugam Form
08	Ex-B-08:-	Installation report dated 05.10.2016
09	Ex-B-09:-	Warning message
10	Ex-B-10:-	Preventive Maintenance Check list dated 30.01.2017
11	Ex-B-11:-	Field Service report bearing No.KA/7041
12	Ex-B-12:-	Field Service report bearing No.KA/6999
13	Ex-B-13:-	Field Service report bearing No.KA/7088
14	Ex-B-14:-	Field Service report bearing No.KA/7094
15	Ex-B-15:-	Field Service report bearing No.KA/7328
16	Ex-B-16:-	Field Service report bearing No.KA/7331
17	Ex-B-17:-	Letter dated 07.04.2017 addressed by the complainant
18	Ex-B-18:-	Letter dated 03.05.2017 addressed by the ERBIS
19	Ex-B-19:-	Legal notice dated 08.05.2017
20	Ex-B-20:-	Reply letter of ERBIS dated 12.06.2017

 

 

 

MEMBER                                                            PRESIDENT

Rhr**