Punjab

StateCommission

A/961/2015

Dr. K.S. Behgal - Complainant(s)

Versus

Varian Medical Systems International India Pvt. Limited - Opp.Party(s)

Rajeev Anand

21 Dec 2016

ORDER

                                                               FIRST ADDITIONAL BENCH

 

STATE  CONSUMER  DISPUTES  REDRESSAL COMMISSION, PUNJAB

          SECTOR 37-A, DAKSHIN MARG, CHANDIGARH.

                                     

                   First Appeal No.961 of 2015

 

                                                          Date of Institution: 25.08.2015     

                                                           Date of Decision  : 21.12.2016

 

Dr. K.S Behgal Radiology Oncologist, Sole Proprietor, Behgal Institute of IT and Radiation Technology, F-431, Phase VIII B Industrial Area SAS Nagar.

 

                                                                            Appellant/Complainant      

               Versus

 

1.      Varian Medical Systems International India Pvt. Ltd, Unit          No.33, Kalpataru Square, Andheri Kurla Road, Andheri (E),                       Mumbai, through its Managing Director.

2.      Vasrian Medical Systems International India Pvt. Ltd, Ist Floor,         Southern Park, D-2, District Centre, Saket, New Delhi, through          its Regional Head, Mr. Nakul Verma.

 

                                                              Respondents/Opposite parties                                                                                               

First Appeal against order dated 24.07.2015 passed by the District Consumer Disputes Redressal Forum,  SAS Nagar (Mohali).

Quorum:-

          Shri J. S. Klar, Presiding Judicial Member

                      Shri. H.S. Guram, Member

 

Present:-

          For the appellant                       : Sh.Rajeev Anand, Advocate

          For the respondents                 : Sh.Navin Mahajan, Advocate

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

 

 J.S KLAR, PRESIDING JUDICIAL MEMBER :-

         

          The appellant of this appeal (the complainant in the complaint) has directed this appeal against order dated 24.07.2015 of District Consumer Disputes Redressal Forum Mohali, dismissing the complaint of the appellant as not maintainable and returning it with original documents in original with endorsement of date of institution and date of return for invoking the jurisdiction of State Commission. The appellant of this appeal is the complainant in the complaint and respondents of the appeal are opposite parties in the original complaint before District Forum and they be referred as such hereinafter for the sake of convenience.  

2.      The complainant has filed the complaint U/s 12 of the Consumer Protection Act, 1986 (in short, "the Act") against the OPs on the averments that complainant is a Radiation Oncologist in the field of treatment of cancer disorders and running the institute under name and style of Behgal Institute of IT and Raidiation Technology. For treatment of cancer patients, the complainant required 'Linear Accelerator Unique Performance Machine' and for the purpose to purchase this machine, the complainant applied for license under the provisions of Atomic Energy (Radiation Protection)  Rule, 2004, which was granted to him. The complainant sought quotation from the OPs for supply of the aforesaid machine. The OPs stated that before issuance of quotation, the complainant had to deposit Rs.42 lac with them. OPs also assured that the machine would be supplied as single unit and installed by them in the premises of the complainant. It was averred that the complainant paid Rs.42 lac to OPs on 12.02.2012. The complainant booked the machine, vide receipt order dated 15.02.2012. The OPs promised to send the machine only after opening of the letter of credit to enable the complainant to verify the genuineness and quality of the machine. The complainant specifically kept the term that the equipment should ship within one month from the date of letter of credit. It was further averred that the OPs assured that machine would be supplied in a time bound manner as one composite unit and in case of delay, the complainant would be entitled to cancel or amend the order. Thereafter, OPs took stand that machine would be allocated for shipping in 180 days ARO. The OPs also sent parts in utter haste without allowing the complainant to review the order after receipt of quotation. The OPs supplied base plates, Sf6 Gax X 2 costing, mini chiller with dual compressor without the consent of the complainant. From this conduct of the OPs, the complainant decided to cancel the order and sought refund of the deposited amount, vide letter dated 19.12.2012 with a request to take back the parts through the shipment arranged by the OPs. After lot of discussions, the OPs sent cheque of Rs.21 lac to the complainant with assurance that the balance would be refunded after collecting the unused base plate and deducting transportation charges. It was averred that on repeated requests of the complainant, the OPs have taken back SF6 Gas having pirity 99.99% in cylinder and Air cooled Mini Chiller with dual compressor with the assurance that the remaining parts should also be taken by them and balance amount would be refunded. The complainant agreed that transportation charges of Rs.86,000/- could be deducted from the balance amount. But the OPs had not taken back the balance base plate and ultimately the complainant sold it in scrap for Rs.11,500/-. The complainant sent detailed notice to the OPs to refund him the balance amount, but till date no refund has been made by the OPs. The complainant has, thus, filed the complaint directing the OPs to pay Rs.16,00,000/- plus interest till 10.10.2012 with interest @ 18% per annum from the date of filing the complaint till date of actual payment, besides Rs.2 lac as compensation for mental harassment  and Rs.55,000/- as costs of litigation.

3.      Upon notice, OPs appeared and filed written reply and contested the complaint of the complainant vehemently. It was averred that the complainant approached the OPs for purchase of machine in question and purchase order mentioning the final price of the machine. Vide email dated 26.03.2012, the OPs informed the complainant that base frame installation would be completed on 02.04.2012 and the same was duly completed. Due to consideration of site readiness and approaching close of the financial year was accounted for, some materials were delivered to the site directly. The OPs had already incurred expenditure of Rs.74 lacs to facilitate the order. It was averred that on the request of the complainant, the OPs agreed to refund 50% of the advance payment amount of Rs.21 lacs to the complainant to assist in overcoming the financial troubles. Rest of the averments have been denied by OPs and it prayed for dismissal of the complaint.

4.      The complainant tendered in evidence his affidavit Ex.CW-1/1 along with copies of documents Ex.C-1 to Ex.C-6.  As against it; OPs tendered in evidence affidavit of Ashok Kakkar Authorized Signatory of OPs Ex.OP-1/1 along with copies of documents Ex.OP-1 to Ex.OP-9. On conclusion of evidence and arguments, the District Forum Mohali dismissed the complaint of the complainant by virtue of order dated 24.07.2015. Dissatisfied with the order of the District Forum Mohali dated 24.07.2015, the complainant now appellant, carried this appeal against the same.

5.      The case is fixed at admission stage in this appeal. We have heard learned counsel for the parties at considerable length and also examined the record to find out whether appeal is liable to be admitted or not. Originally, this complaint on the same cause of action was instituted before this Commission, as is evident from perusal of copy of order of this Commission in CC No.178 of 2014, instituted on 22.10.2014 and decided on 01.12.2014. This complaint originally filed by the complainant now appellant before this Commission was dismissed as withdrawn with liberty to file fresh complaint on the same subject matter with elaborate facts. This liberty was granted to the complainant/appellant to file fresh complaint on the same subject matter with elaborate facts. The complainant cannot now reduce the cause of action without any specific order from the State Commission after order dated 01.12.2014, when this order was passed on the same subject matter with elaborate facts. He was authorized to file fresh complaint, which was to be filed before this State Commission only by all necessary implication of law. The complainant has not complied with the order of this Commission dated 01.12.2014 in CC No.178 of 2014, instituted on 22.10.2014 and decided in limine on 01.12.2014 and instead filed the present complaint before District Forum without obtaining any specific order in this regard. The District Forum held the complaint to be not maintainable in view of this specific order passed by State Commission, where the complaint was originally lodged by the complainant now appellant. The complainant rather filed this complaint on the same cause of action before the State Commission at his own whims.

6.      As gathered by us, the complainant is the sole proprietor of Behgal Institute of technology being an Oncologist for the treatment of cancer patients. The complainant paid Rs.42 lac to the OPs on 12.02.2012 for purchase of machine to run his hospital. On account of some deficiency in the machine, this complaint was filed before District Forum, instead before the State Commission, for which the specific permission was granted by the State Commission to complainant to file complaint with elaborate facts on the same cause of action. On this premise, the District Forum held that once the complainant has instituted the complaint before State Commission and sought order from State Commission to file fresh complaint with elaborate facts on the same subject matter, hence complainant could not  institute the complaint before District Forum thereafter without obtaining specific order from the State Commission. The State Commission has not returned the complaint to the complainant on the point of pecuniary jurisdiction of District Forum only and rather allowed the complainant to institute fresh complaint on the same subject matter with elaborate facts impliedly before it. The complaint was not returned on account of lack of pecuniary jurisdiction by the State Commission to him, so as to seek the jurisdiction for redressal of his grievance from the District Forum. The complainant also mentioned the fact of filing complaint no.178 of 2014 before State Commission in para no.18 of the complaint. The District Forum correctly observed that complainant was given liberty to file the fresh complaint on the same subject matter by the State Commission impliedly before it with elaborate facts and not before District Forum. The complaint was, thus, returned by the District Forum on this correct reasoning in our opinion.

7.      As a result of our above discussion, we find that order of the District Forum is correct. There is no ground to admit the appeal against the order of the District Forum for further hearing in this appeal. Resultantly, appeal is not admitted and stands dismissed in limine.

8.      Arguments in this appeal were heard on 20.12.2016 and the order was reserved. Copies of the order be communicated to the parties as per rules.

9.      The appeal could not be decided within the statutory period due to heavy pendency of court cases.

 

                                                                          (J. S. KLAR)

                                                          PRESIDING JUDICIAL MEMBER

                       

                                                         

                                                                  

                                                                        (H.S.GURAM)

                                                                           MEMBER

 

December 21,  2016                                                           

(ravi)