DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, FATEHGARH SAHIB.
Consumer Complaint No.35 of 2014
Date of institution: 14.03.2014 Date of decision : 22.07.2015
Dr. Gurpreet Kaur wife of Dr. Satpal Singh resident of Battan Lal Road, Mandi Gobindgarh, District Fatehgarh Sahib.
……..Complainant
Versus
- United India Insurance Co. Ltd.(Branch Office), Leela Bhawan, Patiala through its Senior Branch Manager.
- United India Insurance Co. Ltd.(Registered & Head Office), 24,Whites Road, Chennai-600014 through its General Manager.
- United India Insurance Co. Ltd.(Branch Office), G.T.Road, Mandi Gobindgarh through its Branch Manager
…..Opposite Parties
Complaint Under Sections 12 to 14 of the Consumer Protection Act
Quorum
Sh. Ajit Pal Singh Rajput, President Smt. Veena Chahal, Member
Present : Sh.A.K.Sofat Adv. Cl. for the complainant Sh. Narinder Kumar Sharma, Adv. Cl. for the OPs.
ORDER
By Sh. Ajit Pal Singh Rajput, President.
Complainant, Dr. Gurpreet Kaur, wife of Dr. Satpal Singh resident of Battan Lal Road, Mandi Gobindgarh, District Fatehgarh Sahib, has filed this complaint against the Opposite parties (hereinafter referred to as “the OPs”) under Sections 12 to 14 of the Consumer Protection Act. The brief facts of the complaint are as under:
2. The complainant is M.D. in Gynae and Obs and is running Gurpreet Nursing Home since 1990 for earning her livelihood being self employed. The complainant purchased a Color Doppler Ultrasound Scanner Model SA X8LV with accessories from Medison Systems India Pvt. Ltd. New Delhi on 28.10.2010 for Rs.19,00,000/- and got insured the same from the opposite parties for the period from 04.11.2010 to 03.11.2011 under Electronic Equipment Insurance Policy for the sum of Rs.18,05,000/- and paid an amount of Rs.20,905/- as premium. The insurance was further extended from 2011 to 2012 and subsequently from 2012 to 2013 and from 2013 to 2014 by paying appropriate premium amount as asked and demanded by the opposite parties. The complainant also entered into an AMC for the period 2013-2014 with the Samsung Medison Ltd. On 25.12.2013 the complainant noticed that the machine suddenly broke down at 9:00 AM and she immediately contacted the Service Engineer, Senior Manager Branch office Patiala and Sh. Mal Singh. The complainant was advised to send written information about the damage and breakdown at the earliest. The complainant made a request to OP No.1 to send the surveyor for the loss assessment. On 31.12.2013, Mr. Rajesh Goel, Surveyor, and Mr. Rajinder Goel from Samsung Medison Co. reached the complainant’s clinic and inspected the machine and its accessories and assessed the loss. On the asking of Mr. Rajesh Goel, Surveyor, the complainant filled the claim form citing that there was sudden breakdown involving keyboard, Convex Probe & Sony Thermal Printer. Mr. Rajesh Goel, who was holding expired license, advised the complainant to supply him the quotations of all parts immediately and the current price of the new machine. After due inspection of the machine, Mr. Rajinder gave a Customer Service Record Card on 31.12.2013 and noted “Check and found that machine Convex Probe & Alfa Numeric Keyboard is defected. Need to replace new parts of machine. Machine handed over same condition”. The copy of this report was handed over to Mr. Rajesh Goel. About the Sony Thermal Printer, Mr. Rajesh was informed that it would be got inspected from the authorized dealer at Chandigarh and he would be informed about that. The complainant got the said printer inspected from Komatsu Image System, Chandigarh, who declared that the printer cannot be repaired, bought back or adjusted and the current price is Rs.48,000/-. The complainant informed the opposite party about the quotation of machine parts on 08.01.2014 and the Customer Service Record Card was received on the same date revealed, “ Due to electric damage, Convex Probe and Alfa Numeric Keyboard gone defective”. The said cause of damage was provided to the opposite party and rates of Convex Probe and Alfa Numeric Keyboard and Color Doppler System were also provided to them. From 16.01.2014, the complaint sent reminders to opposite parties on day to day basis and sent 21 reminders for settling the claim. On 30.01.2014 the complainant received repudiation letter that Mr. Rajesh Goel, Surveyor, had declared that the loss to the Convex Probe is due to wear and tear and not accidental in nature. Loss of Keyboard falls under the terms and conditions and scope of the policy. Mr. Rajesh Goel, Surveyor, confirmed that the Alfa Numeric Keyboard and the Sony Thermal Printer got defective by the electric damage, whereas the loss to Convex Probe was due to wear and tear. It is not gallop able to ascertain that the source of electricity is one and electric damage was of three parts. The company’s Service Engineer gave the cause of damage as electric damage and not due to wear and tear. Mr. Rajesh Goel, who is not competent, as he was working on expired license gave the version otherwise. The complainant has not been provided the adequate service by the opposite parties instead the opposite parties have repeatedly harassed the complainant. Hence, this complaint for giving directions to the OPs to pay the claim amount of Rs. 3,07,168/- and Rs.3,00,000/-, for economic loss, Rs. 2,00,000/- towards physical strain, mental agony and financial loss suffered by the complainant and Rs.25,000/- towards litigation charges.
3. The complaint is contested by the opposite parties, who filed joint written reply. In reply to the complaint the opposite parties took preliminary objections that the complainant does not come under the ambit of ‘Consumer’ as defined under the Consumer Protection Act,1986 as the product(Color Doppler Ultrasound Machine & accessories) purchased by the complainant were used for commercial purpose and the hospital was also run by the complainant in the name of “Gurpreet Nursing Home” having more than 10 people employed therein with the purpose to earn profits. It is further stated that the Colour Doppler Ultrasound Machine was not being used by the complainant in normal working conditions and the same was used in a negligent manner without any care of product and the loss to the Convex Probe is not accidental in nature as the same was in wear and tear condition of the piezoelectric crystals of the probe and thus the loss does not fall within the scope of policy and hence the claim of Convex Probe is not payable as per terms and conditions of the policy of Insurance. The opposite parties further stated that they appointed its panel Surveyor namely Sh. Rajesh Kumar Goel (Electronics Engineer), who inspected the machine on 31.12.2013 after informing the complainant and the repairer found that the Ultrasound Machine and its Keyboard was not working and also while scanning with its Convex Probe, a very thin line appears on the monitor screen. The surveyor duly inspected the machine and other parts in the presence of complainant and service engineer and at the checking of captioned machine by service engineer of repairer it was found that due to sudden short circuiting of any component within the Keyboard, the Keyboard had gone dead whereas the appearance of thin line during scanning with Convex Probe was due to damage of any Piezoelectric crystal inside the Probe Head and Convex Probe was in normal working order. As the loss to the Convex Probe is not accidental in nature and it is due to wear and tear of the piezoelectric crystals of the Probe and thus the loss did not fall within the scope of the policy of insurance, hence the claim of Convex Probe was not payable as per the terms and conditions of the policy. The opposite parties recommended replacement of faulty Keyboard replaced with the new one and passed a claim of Rs.5703/- for Alpha Numeric Keyboard for SAX8 machine. It is further stated that after expiry of the earlier license of Mr. Rajesh Goel, Surveyor, the same is renewed under terms and conditions and he is competent experienced surveyor having Electronics Engineer and is competent for survey of medical equipments having license No.SLA-62823 valid upto 16.02.2018. After denying the other averments made in the complaint, they prayed for dismissal of the complaint.
4. In order to prove the case, the complainant tendered copies of certificates Ex. C-1 and Ex. C-2, copy of retail invoice Ex. C-3, copies of cover notes Ex. C-4, copy of Labour Equipment Maintenance Service Agreement Ex. C-5, copy of letter dated 26.12.2013 Ex. C-6, copy of claim form Ex. C-7, copy of Customer Service Record Card Ex. C-8, copy of letter dated 08.01.2014 regarding quotations Ex. C-9, copy of customer service record card along with quotations Ex. C-10, copy of customer service record card Ex. C-11, copies of reminders Ex. C-12 (coly), letter dated 23.01.2014 Ex. C-13, letter dated 27.01.2014 Ex. C-14, copy of letter dated 23.01.2014 Ex. C-15, letters regarding claim Ex. C-16, copy of cheque dt. 10.02.2011 Ex. C-17, reminders Ex. C-18, copies of photographs Ex. C-19, affidavit of complainant Ex. C-20, statement of Mr. Ratanjot Ex. 21, insurance policy Ex. C-22 and closed the evidence. In rebuttal the opposite parties tendered affidavit of Ms. Uma Dhir Ex. OP-1, insurance policy Ex. OP-2, copy of letter dated 19.03.2014 Ex. OP-3, copy of remarks Ex. OP-4, copies of photographs Ex. OP-5 to OP-16, copy of quotations Ex. OP-17 to OP-19, copy of retail invoice Ex. OP-20, copy of claim form Ex. OP-21, copy of customer service record card Ex. OP-22, copy of labour equipment maintenance service agreement Ex. OP-23, copy of sales contract Ex. OP-24, copy of cover note Ex. OP-25, copies of letters and reminders Ex. OP-26 to OP-39, copy of survey reports of Rajesh Kr. Goel Ex. OP-40 and OP-41, copies of renewal licence Ex. OP-42 & OP-43, copy of letter dated 25.01.2014 Ex. OP-44 and closed the evidence.
5. The ld. counsel for the complainant has submitted that complainant is a consumer as she is a self employed doctor and is earning her livelihood from her profession. He stated that the complainant had been operating the Colour Doppler Ultrasound Machine herself and no employee was deputed to operate the said Machine, thus she is a consumer. The ld. counsel further argued that the report of the surveyor is arbitrary and biased one. He stated that complainant had approached the manufacturing Company’s authorized franchise, Sale & Service and the said company in its customer service record i.e Ex-C10, C-11(colly) had ruled out that “due to electrical damage convex probe and keyboard gone defective. This fault not occurred due to wear and tear”. The ld. counsel pointed out that in the surveyors report i.e Ex. OP-40, Ex. OP-41 the surveyor has stated that the said machine got defective due to wear and tear and has further mentioned that the surveyor had a discussion with Rattan Jot of the repairer Company and after detailed discussion he had come to the conclusion that the damage was caused due to wear and tear. The ld. counsel pointed out that Ex. C-21 is the statement of Mr.Rattan Jot whereby he has stated “that Mr.Rajesh Goel C/o United India Insurance Co. contacted me on phone about sonoacex8 Ultra sound machine. As I am in sales department, I did not comment anything and advised him to contact Mr.Harpreet Techinical Head”. The ld. counsel argued that the repudiation letter i.e Ex.C-13 is based on false findings given by the surveyor and the same has been proved by the statement of Mr. Rattan Jot i.e Ex-C-21. He further argued that the complaint had got the Annual Maintenance from the Samsung Medison Ltd. for the period 2013-14, thus the said machine could not have got damaged due to wear and tear as the same was maintained by the manufacturing Company. He stated that the complainant also sent 21 reminders to the OPs but they failed to give any hearing to the complaint against the report of the surveyor. The ld. counsel also stated that the Mr.Rajesh Goel’s license was expired when he was conducting the survey and hence the report submitted and relied upon by the OPs is null and void. The ld. counsel pleaded that from the act and conduct of the OPs it is ample clear that they have acted in a negligent manner, while repudiating the claim of the complainant, thus the complaint of the complainant deserves to be accepted with special costs. The ld. counsel also placed reliance on the judgment passed by Hon’ble National Commission, in the case of Kiran Mishra Vs. Dentsply India Pvt.Ltd,2014(1)CLT 76,whereby it has been observed in para no.7 that “ Perusal of these pleadings clearly reveals that complainant purchased this machine for earning her livelihood and OP has not disputed this fact in written statement. There was no occasion for learned State Commission to hold that machine was purchased for commercial purposes. Learned State Commission wrongly held that there was nothing on record to prove that the complainant was using the said machine for earning her livelihood because paragraph one of the complaint clearly reveals that complainant was running Dental Lab for earning her livelihood, which has not been denied by OP”.
6. On the other hand, the ld. counsel for the OPs has submitted that alleged allegations of the complainant are baseless and the survey reports submitted by the surveyor i.e Ex. OP-40, Ex. OP-41 are valid as Mr. Rajesh Goel was having a valid license i.e Ex. OP-42 and Ex.OP-41.The ld. counsel argued that the complainant is not a consumer as the said machine was being used for commercial purpose and the Hospital was also run by the complainant in the name of “Gurpreet Nursing Home” having more than 10 employees therein for the purpose of earning profit. He further argued that the nursing home being run by the complainant is providing 28 kinds of services as mentioned on the letter heads placed on record by the complainant. The ld. counsel also pointed out that the complainant had retired from the Government Service and had been receiving pension which is enough for earning her livelihood. He submitted that the said nursing home was only being run for the purpose of earning profits thus her complaint is not maintainable before this Forum. The ld. counsel also stated that since the keyboard of the machine was found to be defective the same was replaced as per the terms and conditions of the Policy. The ld. counsel also cited following judgments,
1) Oriental Insurance Co. Ltd Vs. B. Ramareddy, II(2006)CPJ 339(NC);
2) New Horizon Sugar Mills Ltd. Vs.United India Insurance Co. Ltd & Ors., IV(2003) CPJ 81(NC);
3) M/s Curewell Hospital Private Limited Vs.M/s Kohli Medical Gases Pvt. Ltd. & Anr., II(1992)CPJ 413(NC);
4) Synco Textiles Pvt. Ltd. Vs. Greaves Cotton & Company Ltd. , I (1991)CPJ 499 (NC); and
5) Sterling Computer Ltd. Vs. P.Raman Kutty, I (1996)CPJ 118 (NC).
7. After hearing the Ld. Counsel for the parties and going through the pleadings, evidence produced by the parties and the oral arguments and written submissions, we find that there is force in the submissions of the Ld. Counsel for the complainant. The complainant has tendered in evidence AMC of the said machine for the period 2013-2014 i.e Ex.C-5. It proves that the said machine was being regularly maintained. Customer service record dated 31/12/2013 i.e Ex.C-8, wherein it has been mentioned in the repair report “check and found that machine Convex Probe & Alphanumeric keyboard is defective”. Customer service record dated 08/01/2014 i.e Ex.C-11, it is mentioned in repair report that “due to electrical damage convex probe and Alphanumeric keyboard gone defective. This fault not occurred due to wear and tear” .It is well evident from the reports of the surveyor i.e. Ex. OP-40, Ex.OP-41 the relevant part is reproduced “Later, the repair estimate was received to me from your office. After getting, the repairer estimate, I contacted the representative, Mr. Rattan Jot of the repairer on telephone (Ph. No.09899111828) and discussed the loss with him. On discussion, Mr. Rattan Jot told me that the average normal working life of the Convex Probe is about 4 years, which may vary depending upon the frequency of its usage. About the problem with Convex Probe of insured machine, Mr. Rattan told me that due to frequent usage and with the passage of time, few of the piezoelectric crystals inside the probe get weakened and thus couldn’t fire with full strength and so the line started appearing on the screen. He further told me that this type of problem don’t occur all of a sudden and once it started it further increases gradually due to weakening of other crystals with the passage of time. Then I contacted Dr. Sat Pal Singh and discussed the matter with him and told him that the loss to Convex Probe is not accidental in nature and it is due to wear and tear of its piezoelectric crystals, which is not covered under the scope of the insurance policy and hence the claim of same is not payable as per terms and conditions of the policy. I requested Dr. Sat Pal to get the faulty Keyboard replaced with the new one and inform me accordingly”, from the perusal of the survey report it is clear that the surveyor had come to the said conclusion only after discussion with Mr.Rattan Jot of the repairer Company and the OPs had repudiated the claim i.e Ex.C-13 on the findings of the surveyor report. The complainant had also placed on record statement of Mr.Rattan Jot i.e Ex.C-21, wherein he has certified that “Mr.Rajesh Goel C/o United India Insurance Co. contacted me on phone about sonoacex8 Ultra sound machine. As I am in sales department, I did not comment anything and advised him to contact Mr.Harpreet Techinical Head ”. In our view OPs have miserably failed to rebut the case of the complainant and repudiated the claim of the complainant on the arbitrary and false findings submitted by the surveyor, appointed by the OPs. The OPs have raised an objection with regard to maintainability of the present complaint claiming that the complainant is not a consumer as the complainant has employed 10 employees and is offering 28 kind of services in her nursing home. Complainant in para no.1 of her complaint has pleaded that “she is self employed lady Doctor and is earning her livelihood from her profession”. Further the complainant in her evidence has also stated that “the said Ultra Sound Machine is being operated by deponent herself only and the deponent is well versed”. The OPs have failed to rebut the aforesaid pleadings of the complainant. The OPs are also not able to prove on record that employee of the complainant were operating the said machine. The judgment relied upon by the ld. counsel for the complainant is fully applicable to the facts of the present case, in case of Kiran Mishra Vs. Dentsply India Pvt.Ltd. (supra).The case laws cited by the ld. counsel for the OPs are not applicable to the facts of the present case. The plea of the complainant that the surveyor Mr.Rajesh Goel was not possessing renewed license has been rebutted by the OPs by placing on record the renewed licenses i.e Ex-OP 42 & Ex-OP 43.
8. Accordingly in view of our aforesaid discussion, we are of the opinion that the survey reports have been proved to be arbitrary and based on false facts thus the same cannot be relied upon. We are of the opinion that the OPs have acted negligently, while repudiating the claim of the complainant, thus, they have committed deficiency of service. We direct the OPs to make the payment for the replacement of parts as advised in the Customer Service Record Cards of the repairing Company i.e Ex. C-10 & Ex.C-11 alongwith 6% interest from the date of repudiation of the claim till its realization. The complainant is held entitled to a sum of Rs. 10000/- on account of suffering of mental agony and harassment and also held entitled to a sum of Rs. 5000/- as litigation cost. The OPs are directed to comply with the order of this Forum within a period of 45 days from the date of receipt of this order, in case the OPs fails to comply with this order the OPs shall also be held liable to pay 6% interest till its realization. The present complaint is allowed.
9. The arguments on the complaint were heard on 17.07.2015 and the order was reserved. Now the order be communicated to the parties. Copy of the order be sent to the parties free of cost and thereafter the file be consigned to the record room.
Pronounced
Dated:22.07.2015
(A.P.S.Rajput) President
(Veena Chahal) Member
