Kerala

StateCommission

A/14/104

P.V GOVINDAN NAIR - Complainant(s)

Versus

THE GENERAL MANAGER, PHILIPS - Opp.Party(s)

UNNIKRISHNAN .V

14 Jan 2015

ORDER

KERALA STATE CONSUMER DISPUTES REDRESSAL

COMMISSION VAZHUTHACAUD, THIRUVANANTHAPURAM

 

APPEAL NO.104/2014

JUDGMENT DATED 14/01/2015

 (Appeal filed against the order in CC No.556/2007 on the file of CDRF, Thrissur dated, 30/10/2013)

 

PRESENT:

 

SMT. A. RADHA                                       :         MEMBER

SHRI. K. CHANDRADAS NADAR           :        JUDICIAL MEMBER

SMT. SANTHAMMA THOMAS              :        MEMBER

 

APPELLANT:

 

          Dr. P.V. Govindan Nair,

S/o. Late Meloth Kunhambi Nair, Gopika Scan Centre,

Thiruvambady P.O.,Thrissur-680 022.

 

 (By Adv:  Unnikrishnan.V.)                   

 

                   Vs

 

RESPONDENTS:

 

1. The General Manager,

Philips Medical System (PVT) Ltd., (ATL India),

Technopolis Knowledge Park,

Mahakali Caves Road, Chakkala,

Andheri East, Mumbai-400 069.

 

1. Sri. G. Mohan, Regional Manager,

(Customer Support),

Phylips Medical System (PVT) Ltd.,

(ATL India), Southern Regional Office,

Temple Towers, 5^th Floor, Old No.476,

New No.672, Anna Salai,

Nandanam, Chennai-600 002.

         

(By Advs:  Sathish Murthi & C.S. Bhagavath Singh)                     

                                      

JUDGMENT

 

SMT. A. RADHA  :  MEMBER

 

          Dis-satisfied by the dismissal order in C.C.No.556/2007 on the file of CDRF, Thrissur the complainant preferred this appeal.

          2.  The crux of the case of the complainant is that he purchased the medical equipment APOGEE-800 in the year 2014 for Rs.6,50,000/-.  It is the definite case of the complainant that he was using the equipment for his livelihood being a Doctor by profession specialized in Radiology.  The complainant started his residential practice for which an ultra sound scanning machine was highly necessary.  The complainant purchased APOGEE-800 + machine which was replaced with an APOGEE-800 with single mechanical probe ultra sound scanning machine by availing a Bank loan and the annual maintenance contract for 5 years covering service and maintenance.  The machine mal-functioned several times and while the engineers inspected it is also reported that expert technical assistance is required.  It is also stated in the complaint that the Doctors who visited the premises and inspected the machine expressed that the machine endorsed negative opinion of the functioning.  The opposite parties were reluctant to take back the APOGEE-800 machine or to return the cost of the machine.  The complainant had to dispose off and sold the machine for Rs.40,000/- and alleged that the opposite parties are liable for the damages caused to the complainant.  The complaint is filed for refund of the value of machine with 12.5% interest and cost of the proceedings.

          3.  The 1^st respondent filed version contenting that the complainant is not a consumer as he purchased the equipment APOGEE-800 for commercial purposes.  The complainant is running a Scanning Centre which is a commercial concern cannot be termed as a ‘consumer’ within the definition of Consumer Protection Act.  No part of cause of action took place within the jurisdiction of the Consumer Forum.  The complainant himself admitted in the complaint that he had sold the equipment for Rs.40,000/- and claimed the deducting balance of re-sale price.  The complainant claimed for return of the price to the tune of Rs.6,10,000/-, compensation for the loss suffered due to the negligence of the respondents with interest @ 12.5% and cost of the proceedings.  It is very clear from the pleadings that the complainant is no more a consumer as he had already sold the equipment and he is not in possession of the equipment.  Further contention raised by the opposite parties is that the evidence adduced as expert opinion was by some of the Doctors known to him.  As per Consumer Protection Act Section 13(1)(c) is to be appointed by the Consumer Forum and report the expert opinion.  The opinion of the Doctors cannot be taken as an expert opinion.  The complainant had not produced any proof showing that the equipment was not in working condition.  Mere allegation of non-functioning of the equipment cannot be treated as a defect in the machine.  The other allegation regarding the purchase of another equipment “ENVISOR” on pressure was objected by the opposite party.  The warranty of the APOGEE-800 expired on 10/01/2005 whereas the complainant had not taken any AMC for that equipment.  The opposite parties are not liable for defects in the equipment already sold by the complainant before filing the complaint and the complaint is only to be dismissed.

          4.  Both parties filed proof affidavit and examined as PW1, PW2 and PW3 and Exbts. P1 to P15 were marked on the side of complainant.  On the part of opposite parties RW1 was examined and Exbts.R1 and R2 were marked.  On appreciating the evidence and documents the District Forum dismissed the complaint.

          5.  It is vehemently argued by the counsel for the appellant that the complainant purchased an equipment APOGEE-800 for Rs.6,50,000/- availing loan from the Bank and was using the equipment for his livelihood being a Doctor in profession.  It is true that the complainant sold the equipment for Rs.40,000/- as he could not use the equipment for the purpose envisaged for it.  The appellant was not in a position to use the equipment and he was compelled to sell the equipment for a meagre price of Rs.40,000/-. The complainant suffered a loss of Rs.6,10,000/- and also claimed compensation for the loss suffered by him and interest @ 12.5%.  The franchisee of the equipment had already certified that the equipment was beyond repair and the equipment had to be sold for Rs.40,000/-.  Hence the respondents are liable to pay the damages and cost to the appellant.

          6.  Heard the counsel in detail and on going through the documents we find that the complainant had already admitted in the pleadings that he had sold the equipment before filing the complaint.  The complaint is filed for the balance amount of Rs.6,10,000/- as he had already in receipt Rs.40,000/- as resale value of the equipment. From the pleadings itself it is clear that the complainant is not a consumer while filing the complaint.  We would like to point out that though evidence adduced by the complainant and witnesses the complaint lacks expert opinion.  As per Section 13(1)(c) of the Consumer Protection Act an expert is to be appointed by the Forum and the expert opinion is to be adduced by the Commissioner appointed by the Forum.  Even if the technicality is overlooked, the complainant is not in a possession of the equipment and the cause of action does not arise to file this complaint.  The replacement or refund of the amount can be ordered only based on expert opinion adduced by the Expert Commissioner.  In the instant case there is no valid expert opinion regarding the equipment of the complainant.  The Forum Below rightly observed that the complaint is not maintainable and dismissed the complaint.  We are of the considered view that the complaint is not maintainable before the Consumer Forum.

          In the result, appeal is dismissed and we uphold the order passed by the Forum Below.

The office is directed to send a copy of this order to the Forum Below along with LCR.

 

 

A. RADHA           :        MEMBER

 

K. CHANDRADAS NADAR  :        JUDICIAL MEMBER

 

 

SANTHAMMA THOMAS     :        MEMBER

 

 

 

Sa.

 

 

 

 

 

 

 

 

 

 

 

KERALA STATE CONSUMER

                                                                  DISPUTES REDRESSAL

                                                           COMMISSION

THIRUVANANTHAPURAM

 

 

 

 

 

 

APPEAL NO.104/2014

JUDGMENT DATED 14/01/2015

 

 

 

Sa.