DATE OF DISPOSAL: 20.05.2019
Sri Karuna Kar Nayak, President.
The complainant Smt. Geetarani Panda has filed this consumer complaint Under Section 12 of the Consumer Protection Act, 1986, alleging deficiency in service against the Opposite Parties ( in short the O.Ps) and for redressal of her grievance before this Forum.
2. Briefly stated the case of the complainant is that she is a graduate unemployed lady and for her earning and livelihood she has opened the above orthopedic centre at Berhampur for diagnosis the orthopedic treatment. She has purchased the Image Intensifier for her unit from the O.P.No.1 in the year 2005 by paying a sum of Rs.6,00,000/- so also she has undertaken the AMC Agreement for the 1st year by paying a sum of Rs.19,780/- on date d 18.06.2012 and in that agreement condition clause No. 1(b) it has been clearly mentioned that two preventive corrective maintenance is to be given by the O.Ps within the agreement period but none of the service personnel has visited for the Periodic PCM and to that instead of Rs.17,978/- AMC fee the O.Ps has collected Rs.19,780/-the excess amount of Rs.1802/- from the complainant. After competition of the AMS period the complainant again undertaken the 2nd year AMC agreement with the O.Ps on dt.11.06.2013 by paying a sum of Rs.17,978/- for period of one year commencing from 18.06.2013 to 17.06.2014. Again on the 2nd AMC visit dt.2.8.2013 by the service personal of the O.Ps one named Mr. Umesh Kamat of Medilink Info service on his service report he found the Image intesifier TV power supply is not working and the same is to be replaced for which he was charged a sum of Rs.5000/- from the complainant as the courier charges for sending the power supply part of the machine to their company for repair, as there is no such condition under the warranty. As per the company’s norms the O.Ps are to submit a copy of the estimate for the repairing and replacement to the complainant. On 17.08.2013 the O.Ps asked the complainant to deposit a sum of Rs.1,50,000/- in the account of the O.P.No.2 who is the service dealer of O.P.No.1 and on their advise complainant has deposited a sum of Rs.1,50,000/- in the account of O.P.No.2 after that the O.Ps has not replaced the TV power supply part of the complainant, inspite of several reminder of the complainant, the O.Ps did not respond to replace and repair the same. After one month payment made to the O.Ps, the complainant asked to submit a way of bill for the same machine without furnishing a proforma invoice. After so many request made by the complainants to the O.Ps send the proforma invoice through e-mail for an amount of Rs.2,91.638/-for which the complainant has spend a sum of Rs.3,602/- to get the same through speed post from O.P.No.2 on dated 18.09.2013 but no correspondence has been made by the O.Ps after receipt of the amount and way bill and kept silent over the matter. The O.Ps on 30.09.2013 through their dealer personal has installed the power supply unit in the machine of Image Intensifier 6” TOSHIBA MODEL E-5794-SD-533 for which the O.P.No.1 company has charged a sum of Rs.2,75,000/- to the complainant which is cost of Rs.40,000/- more than the Thales place which was initially fitted with the Image Intensifier machine. The O.Ps has not taken the written consent from the complainant for replacing the Toshiba power supply unit and without her consent the O.Ps has replaced the same arbitrarily which cost more than the machine cost which was ideal for a couple of month without functioning. After paying a sum of Rs.1,50,000/- and keeping the machine ideal for a period of two month the complainant has sustained heavy financial loss could not earn her livelihood and she assessed a sum of Rs.3,00,000/- income loss due to the deficiencies of service as render by the O.Ps and whey the same shall not be collected from them. The complainant has issued a legal notice to the O.Ps to pay the loss of Rs.3,00,000/- towards the income loss made to the complainant within 15 days after receipt of this notice but the O.P.No.1 has issued a reply notice denying the facts and deficiency of services made by them and in return they have demanded a sum of Rs.1,40,000/- towards the repair and replacement costs of the ITV power supply parts of the machine. The complainant being the consumer and paid the annual maintenance charges for covering the service warranties of the machine is entitled to get the benefit of the service warranty norms and he repair replacement of the machine parts on FOC. But the O.Ps has collected Rs.1,50,000/- from the complainant and again demanding the rest amount of Rs.1,40,000/- towards the costs of the ITV. The O.Ps are miserably failed to discharge their services to the complainant and due to deficiencies of services rendered by the O.Ps the complainant has suffered severe mental agony and financial loss of not getting the machine repair and replacement of the ITV on time and also fitted a costly part without taking consent from the complainant. Alleging deficiency in service on the part of the O.Ps the complainant prayed to direct the O.Ps to pay a sum of Rs.3,00,000/- towards the income loss for none functioning of the machine for a couple of month , compensation of Rs.30,000/- towards the expenses for mental agony and deficiencies of services, litigation expenses etc. in the best interest of justice.
3. Upon notice the O.P.No.1 filed version through his advocate. It is stated that the present complaint filed by the complainant is not maintainable at all and is wholly misconceived, baseless, frivolous, untenable, vexatious, unjustified and pure wastage of time and is liable to be dismissed. The complainant’s only source of livelihood is not the orthopedic centre opened up by her. The complainant’s husband Dr. Sisir Sahu is a renowned doctor in MKCG MCH, Berhampur. The contents of the paragraph 1 are incorrect and hence denied. The transaction entered between the parties to the above dispute is a commercial one and the complainant cannot claim any relief from this authority. In paragraph No.2 are admitted to the extent that in 2005 complainant purchased image intensifier and she undertook the AMC for the first year, rests of the averments are incorrect, untenable and vehemently denied and the complainant be put to strict proof. After lapse of 7 years, complainant showing her willingness to sign AMC, approached the answering respondent with respect to the C-arm machine purchased by complainant in the year 2005 and accordingly AMC dated 18.06.2012was entered into between the parties for a period of one year ending on 17.06.2013 for an amount of Rs.17978 only opting for option 1 i.e. labour only, spares on chargeable basis for receiving services for the equipment. In paragraph No.4 are incorrect, wrong and hence denied. It is submitted that in the month of August 2013, upon a received grievance regarding the working of the machine, answering respondents concerned personnel at Bhubaneswar office visited complainant’s center on 2.08.2013 and on an inspection it was found that there is a defect in the IITV causing no image on TV monitor. The defected part of the equipment was sent to the factory at Derabassi for repair. It is pertinent to mention here that reference to the terms and conditions of the service agreement would make it very clear that there was no such liability undertaken by the answering respondent to bear the courier charges in case the machine or any part thereof is required to be inspected or replaced. It is relevant to clarify here that as alleged, the sum of Rs.5000/- was paid courier service facility availed by your client. In paragraph number 5 are incorrect, wrong and hence denied and for the same, complainant be put to strict proof. In response that on receipt of IITV at factory in Derabassi on an inspection it was recommended that the equipment needs to be replaced and cannot be repaired. The complainant was contacted educating her regarding the defect making the repair impossible and the cost of the replacement was also communicate d and thereafter, on a telephonic material request raised (to save delay since it was urgently required as per the complainant) by the complainant at the agreed price on 17.06.2013 and further on receipt of part payment of Rs.1,50,000/- on 19.08.2013 made by the complainant, the new IITV for the C-arm machine costing Rs.2,91,638/- was despatched on 26.08.2013 through DTDC. In order to resolve the issue and make available the material at complainants doorstep paid the penalty on complainants behalf of Rs.18,000/- towards the failure to provide way-bill, a copy of the receipt for release of goods on payment of Rs.18,000/- by the answering respondent dated 15.09.2013. It is to be noted that the courier cost was also borne by the complainant. The answering respondent after enabling the release of the material handed over the material in working condition to the complainant and also installed the same to her satisfaction. On a telephonic material request raised (to save delay since it was urgently required as per the complainant) by the complainant at the agreed price on 17.08.2013 and further on receipt of part payment of Rs.1,50,000/- on 19.08.2013 made by the complainant, the new IITV for the C-arm machine costing Rs.2,91,638/- was despatched on 28.03.2013 through DTDC. In paragraph No.9 are absolutely denied. In Paragraph No.10 is matter of record and needs no reply. In paragraph No.12 are incorrect, frivolous and hence denied. The answering respondent not only paid the way bill out of his pocket and inspite of having raised false claims in legal notice and the instant complaint, provided all the services in time. Sadly, complainant served the complaint with false claims with an ulterior motive to get away with the pending payment towards the answering respondent. In paragraph no.15 are incorrect, frivolous and hence denied. The complainant be put to strict proof. Infact it is the answering respondent who reserves the right to sue the complainant legally for not only towards the pending payment of an amount of Rs.1,41,638/- plus Rs.18,000/- paid against the way bill, a total of Rs.1,59,638/- but last not the least compensation defaming the company with such false accusations/claims. In paragraph no.16 are incorrect and hence denied. The complainant has already availed the AMC period during which the answering respondent has repaired/replaced the goods in question. All the submissions made in the instant complaint are absolutely wrong and is emphatically denied. Complainant is not entitled to any relief whatsoever as stated in the prayer clause and is not entitled to claim any recover anything from the answering respondent in the light of what is stated above. The complaint itself is not maintainable and liable to be dismissed.
4. Upon notice the O.P.No.2 filed version/written argument through his advocate. In the above case the complainant is a customer of O.P.No.1. The O.P.No.1 is the company who supplied the equipment to complainant and the O.P.No.2 is the authorized service contractor of O.P.No.1 for Odisha, who provide annual maintenance and service as per the condition of the AMC. The O.P.No.1 being the company is responsible for any financial transaction, the O.P.No.2 has nothing to do regarding claim or finance, he is only responsible for service and maintenance so if the O.P.No.2 has not performed his duty properly then he will be held responsible for deficiency of services also he is accountable to the company not to the customer. The complainant in her petition has not specifically complained against the O.P.No.2 regarding his deficiency of service or negligence in his duty rather the O.P.No.2 by the instruction of the company visited the spot on 02.08.2013, when there was no A.M.C. and informed the complainant regarding the defect of IITV. The real fact is that the O.P.No.2 being the authorized service contractor of the company has done his duty properly and sincerely to the satisfaction of the customer. Hence during first AMC i.e. from 18.06.2012 to 17.06.2013 the O.P.No.2 has done his duty without delay. Long before the end of first A.M.C. the company has informed the complainant to extend the A.M.C. for another one year. But the complainant has not extended her A.M.C. so also the cheque given by the complainant for 2nd A.M.C. was bounced on dated 03.08.2013. Knowing this one day before bounce, the complainant informed O.P.No.1 regarding the defect of power supply unit on dated 02.08.2013. Though there was no A.M.C. the O.P.No.2 by the instruction of the O.P.No.1 visited the spot and after through check up informed the customer and the company regarding the defect of IITV and required to be repaired at factory level. After knowing this the O.P.No.2 with consent of complainant sent the IITV to Chandigarh via Rail, for such transportation the complainant deposited Rs.5000/- to O.P.No.2. After thorough investigation, the company through phone informed the complainant regarding the defects of the part which could not be reparable and needs substitution. The complainant accepted the proposal of the company and gives her consent. As such the O.P. No.1 sent an Invoice in favour of the complainant on dated 22.08.2013 and the complainant deposited Rs.1,50,000/- through cheque in favour of the O.P.No.1 and also agreed to give the rest amount of Rs.1,41,638/- only after delivery of the machine. Accordingly the O.P. sent a new IITV vide DTDC Courier Docket No.D14563163which was detained at Bhubaneswar by Sales Tax Deptt. as there was no road permit. It is also informed to complainant by O.P. immediately and also requested the complainant to issue a road permit against the goods. During these process, twenty to thirty days, delayed which is neither intentional nor preplanned. In these happening the O.P.No.2 has no role to play. The O.P.No.2 is only to provide services in time which he done to his best. When the complainant accepted the proposal of the company and deposited Rs.1,50,000/- only towards part cost of the machine, she can not take such a plea of delay in delivery of machine to avoid the payment of balance cost and in this process, the O.P. No.2 is in no way liable for any penalty as he is only concerned with services, which he had done properly and sincerely. Rather in other way for no fault of O.P.No.2 he has suffered financially and mentally which can not be compensated by any means. Hence the O.P.No.2 prayed to dismiss the case.
5. On the date of hearing of the case, both complainant and O.Ps are absent as it is a year old case as such it is decided on merit. We perused the complaint petition, written version, written arguments and documents placed on the case record. It reveals that the complainant is running an Orthopedic Centre at Berhampur but it is impossible to run the said centre without the assistance of Technical and other person. Further, it reveals from the Job Card dated 02.08.2013 filed by the complainant wherein the customer’s name has been mentioned as “Kiran N.Home, At: New Bus stand Road, Berhampur”. As such it cannot be accepted that she is running the Units for earning her livelihood.
6. On foregoing discussion it is clear evident that the complainant is running the Orthopedic Centre for commercial purpose with an intent to earn profit. The Hon’ble National CDR Commission, New Delhi has held in case of M/s Wimco Ltd. versus Ashok Sekhon and Ors reported in 2008 (2) CPR 124 that “ Where goods were purchased not for self consumption or in self employment but for commercial purpose to earn profits, person could not be said to be a consumer”. And also another citation the Hon’ble National CDR Commission, New Delhi has held in case of Milan Barot & Ors versus Mukesh Haridat Bhatta & Anr reported in 2011 (2) CPR 12 that “Business disputes is to be adjudicated in a Civil Court and not in a consumer court”. In the light of the above decision of law this case is not maintainable before Consumer Forum.
6. Considering the factual position of the case, the complainant’s case is dismissed against the O.Ps and the complainant is at liberty to file her complaint before any other Forum having competent jurisdiction for redressal of her grievance and she may avail the benefits under Section 14 of the Limitation Act 1963 in the best interest of justice.
The order is pronounced on this day of 20th May 2019 under the signature and seal of this Forum. The office is directed to supply copy of order to the parties free of cost and a copy of same be sent to the server of www.confonet.nic.in for posting in internet and thereafter the file be consigned to record room.
