BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SAHIBAZDA AJIT SINGH NAGAR (MOHALI)
Consumer Complaint No. 18 of 2015
Date of institution: 08.01.2015
Date of Decision: 24.07.2015
Dr. K.S. Behgal Radiology Oncologist, Sole Proprietor, Behgal Institute of IT and Radiation Technology, F-431, Phase-VIII B Industrial Area, SAS Nagar.
……..Complainant
Versus
1. Varian Medical Systems International India Pvt. Limited, Unit No.33, Kalpataru Square, Andheri Kurla Road, Andheri (E) Mumbai through its Managing Director.
2. Vasrian Medical Systems International India Pvt. Limited, 1st Floor, Southern Park, D-2, District Centre, Saket, New Delhi through is Regional Head Mr. Nakul Verma.
………. Opposite Parties
Complaint under Section 12 of the
Consumer Protection Act, 1986.
CORAM
Mrs. Madhu. P. Singh, President.
Shri Amrinder Singh Sidhu, Member
Mrs. R.K. Aulakh, Member.
Present: Shri Rajeev Anand, counsel for the complainant.
Shri Navin Mahajan, counsel for the OPs.
(Mrs. Madhu P. Singh, President)
ORDER
The complainant has filed the present complaint seeking following direction to the Opposite Parties (for short ‘the OPs’) to:
(a) pay Rs.16.00 lacs plus interest till 10.10.2012 with future interest @ 18% per annum from the date of filing of the complaint till actual payment.
(b) pay Rs.2,00,000/- as damages for harassment, inconvenience due to malafide act of the OPs.
(c) pay Rs.55,000/- as costs of litigation.
The case of the complainant is that he is Radiation Oncologist in the field of cancer treatment. He is earning his livelihood by running the institute under the name and style of Behgal Institute of IT and Radiation Technology. For the 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) Rules, 2004 which was granted to the complainant. In the advertisement issued by the OPs they claimed themselves to be big reputed manufacturers. 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.42.00 lacs with them. The Ops also assured that the machine shall be supplied as single unit and shall be installed by them in the premises of the complainant and the order will be applicable/operative after issuance of letter of credit. Accordingly, the complainant paid Rs.42.00 lacs to the OPs on 12.02.2012. The complainant booked the machine vide booking receipt/order dated 15.02.2012. The OPs has 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. The OPs assured that the machine shall be supplied in a time bound manner as one composite unit and in case of delay, the complainant shall be entitled to cancel or amend the order. Thereafter, the OPs took a stand that the 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.21.00 lacs to the complainant with the assurance that the balance would be refunded after collecting the unused base plate and deducting transportation charges. On the 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 shall also be taken by them and balance amount would be refunded. The complainant agreed that transportation charges of Rs.86,000/- can be deducted from the balance amount. The OPs did not take back the balance base plat and ultimately the complainant sold it in scrap for Rs.11,500/-. The complainant sent a detailed notice to the Ops to refund him the balance amount but till date no refund has been made by the OPs.
2. After admission of the complaint, notice was sent to the OPs. The OPs pleaded that the complainant is not a consumer as per Section 2 (1) (d) of the Consumer Protection Act. This Fo9rum has no territorial jurisdiction to deal with the present complaint. The complainant has already instituted the proceedings in Chandigarh and the complainant is a serial litigant. The complainant is guilty of suppression very and suggestion falsi. The complainant approached the OPs for purchase of the machine in question and the purchase order mentions the final price of the machine. Vide email dated 26.03.2012 the OPs informed the complainant that as discussed, 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, some materials were delivered to the site directly. The OPs had already incurred expenditure of Rs.74.00 lacs to facilitate the order. However, on the request of the complainant, the OPs agreed to refund 50% of the advance payment amount of Rs.21.00 lacs to the complainant to assist in overcoming the financial troubles. Denying the averments of the complainant the OPs have sought dismissal of the complaint.
3. To succeed in the complaint, the complainant proved on record affidavit Ex.CW-1/1 and tendered in evidence documents Ex.C-1 to C-6.
4. Evidence of the OP consists of affidavit of Ashok Kakkar, their authorised signatory Ex.OP-1/1 and documents Ex.OP-1 to OP-9.
5. We have heard learned counsel for the parties and have also gone through written arguments filed by them.
6. The grievance of the complainant in the present complaint is that the complainant being a Radiation Oncologist running his own cancer institute for earning livelihood was allured to purchase of ‘Linear Accelerator Unique Performance Machine’ claiming to be imported and supplied by the OPs. The complainant has agreed to pay Rs.42.00 lacs to the OPs before issuance of quotation for the machine and it was represented by the Ops that the machine shall be supplied in one single unit and the same shall be installed by the OPs in the premises of the complainant at his institute at Mohali. It is undisputed fact that the complainant has paid Rs.42.00 lacs in advance to the OPs and the OPs have agreed to supply the complete machine within 15 months from the date of order and further supply and install the part plates being part of the whole machine within one month from the date of opening of letter of credit. The grievance of the complainant is that without his consent and without opening the letter of credit, the OPs on their own volition have installed the base frame plates of the machine at the premises of the complainant and the complainant when objected to the act of the OPs, the OPs raised a dispute. Finally some compromise struck between the parties and the OPs have agreed to refund Rs.21.00 lacs to the complainant and allow him to revise or cancel the order in case the OPs fail to get the letter of credit. Further it was agreed that the base plates so installed by the Ops shall be taken back by the OPs and the transportation expenses shall be borne by the complainant. The OPs have failed to remove the complete base plate sets and partially removed burdening the complainant with some left over plate remained installed at his premises. Finding no forthcoming conduct of the side of the OPs to remove the balance plates the complainant sold the same as scrap and retrieved Rs.11,000/- some odd amount. The grievance of the complainant is twofold i.e. non adhering to the terms of agreement by OPs and supply of parts without opening letter of credit, not removing the remaining parts and transportation thereof despite accepting the transportation charges from the complainant and non refund of the remaining amount of Rs.20.00 lacs after deduction of transportation charges ad amount realized upon sale of remaining parts as scrap by the complainant, is an act of unfair trade practice having been indulged by the OPs.
7. The OPs in their reply have denied their conduct of unfair trade practice and rather took a stand that it was the complainant who failed to pay the remaining amount of the whole machine which led to the dispute between the parties. In fact the cost of the machine was USD 104100 out of Rs.42.00 lacs was paid as advance order confirmation and the balance was to be paid partially at the shipment date and partially after 15 months from the date of bill of lading. Further as per the OP, the purchase order was non cancelable and did not contain any provision for refund of advance money. Still keeping healthy consumer relations the OPs agreed to return 50% of the deposited amount and that is why the complainant was allowed to revise the order after the opening of letter of credit.
8. Before we look into the merits of the complaint, the counsel for the Ops at the very outset have drawn our attention to the order passed by the Hon’ble State Commission in complaint No.178 of 2014 instituted by the complainant against the OP. We have perused the order and found that the complainant has availed the remedy of redressal of his grievance against the OPs before the Hon’ble State Commission. As per the orders of the Hon’ble State Commission, the complaint was dismissed as withdrawn with the liberty to file afresh complaint on the same subject matter with elaborate facts. As per the OPs the complaint is not maintainable before this Forum as the complainant has been given liberty by the Hon’ble State Commission to file complaint before the Hon’ble State Commission with elaborate facts. Therefore, the complaint is not maintainable as the complainant has approached this Forum without remedying the issue raised before the Hon’ble State Commission.
9. In para 18 of the complaint, the complainant has mentioned about filing of the complaint No.178 of 2014. However, in order to bring the complaint within the pecuniary jurisdiction of this Forum, the complainant has filed a fresh complaint before this Forum.
10. We are of the view that once the complainant has approached the Hon’ble State Commission and has also got the liberty to file afresh complaint on the same subject with elaborate facts, the right of the complainant is well preserved by the order of the Hon’ble State Commission and the complainant is not entitled to invoke fresh jurisdiction of this Forum for redressal of his grievance. The complaint, therefore, in the light of order passed by the Hon’ble State Commission has the remedy before the Hon’ble State Commission, Chandigarh.
11. Therefore, the complaint is not maintainable before this Forum in the light of order passed by the Hon’ble State Commission. Thus, the complaint is hereby returned to the complainant alongwith documents, in original, with endorsement of date of institution and date of return for invoking the jurisdiction of the Hon’ble State Commission. Photocopies of the complaint and documents be retained by the Forum for office record.
Pronounced.
July 24, 2015.
(Mrs. Madhu P. Singh)
President
(Amrinder Singh Sidhu)
Member
(Mrs. R.K. Aulakh)
Member
