DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, BATHINDA.
CC.No. 49 of 8-2-2012
Decided on 17-07-2012
Goyal Clinical Laboratory, through its Prop. / Dr. Ashok Kumar Goyal, 1-C Veer Colony near Urang Cinema, Amrik Singh Road Bathinda.
........Complainant
Versus
Vector Biotek Pvt. Ltd. through its Chairman/ M.D. # 425, New Gidc Kabilpore, Navsari-396424( Gujrat).
Vector Biotek Pvt. Ltd. through its Manager,# 425, New Gidc Kabilpore, Navsari-396424( Gujrat).
.......Opposite parties
Complaint under Section 12 of the Consumer Protection Act, 1986.
QUORUM
Smt. Vikramjit Kaur Soni, President.
Sh. Amarjeet Paul, Member.
Smt. Sukhwinder Kaur, Member
Present:-
For the Complainant: Sh. N.P Singh, counsel for the complainant.
For Opposite parties: Sh. Rajiv Kumar Goyal counsel for opposite parties.
ORDER
VIKRAMJIT KAUR SONI, PRESIDENT:-
1. The complainant has filed the present complaint under section 12 of the Consumer Protection Act, 1986 as amended upto date (Here-in-after referred to as an ’Act’). The brief facts of the complaint are that being an employee, the complainant decided to start his own business of clinical laboratory for earning his livelihood by way of self employment at Bathinda. The complainant purchased a machine/instrument BC 2300 Hematology Analyzer, Sr. No. RT 8C101383 for a sum of Rs.2.5 lac vide bill No.97 from the opposite parties in the month of Feb/March 2009 for earning his livelihood. The opposite parties have given full guarantee/warranty of 24 months for the said machine/instrument to the complainant and assured for its best service. The opposite parties also assured/agreed to carry out the annual maintenance of the said machine/instrument. The complainant has used the said machine/instrument in his laboratory as per instructions and recommendations of the opposite parties. After the expiry of the guarantee/ warranty period, in the month Feb,2011, the opposite parties executed an agreement for annual maintenance of the said machine/instrument and charged Rs.11000/- vide cheque No.762467 dated 14.2.2011 from the complainant. The opposite parties assured the complainant that they will provide better and quick services of maintenance of the said machine/instrument and assured that he will not suffer any problem or loss due to any defect in the said machine/instrument during the period of Annual Maintenance Contract(A.M.C). The complainant further alleged that the opposite parties assured the complainant that in case they failed to remove the defect in the said machine/instrument within 4 days of the complaint, they will provide him demo machine. The Annual Maintenance Contract (A.M.C) was valid up to 14th Feb,2012. In July,2011, the said machine/instrument was not working properly and it became defective. The complainant lodged the complaint to the opposite parties for its immediate repair through mobile phone. On 8.8.2011, service engineer of the opposite parties Mr. Azad Brar visited the complainant and clean the said machine/instrument and its parts only and could not detect the main problem in the said machine/instrument and promised the complainant that he will inform the opposite parties and send the senior engineer. The complainant further alleged that the opposite parties failed to remove the defect in the said machine/instrument properly and in the 2nd week of September 2011, the complainant again approached opposite parties and requested them to remove the defect and requested to provide demo machine. On 17.9.2011, Mr. Pawan Kumar service engineer of the opposite parties visited the complainant and found that there was platelet variation problem and clean the said machine/instrument but the same was not working properly. On 20.9.2011 service engineer of the opposite parties again visited the complainant and found the same problem of platelet variation in the said machine/instrument and blamed that earthing of power is not properly done and failed to detect the main problem in the said machine/instrument. Again on 25.9.2011, service engineer of the opposite parties visited the complainant but the said machine/instrument was abnormal and he tried to remove the fault but he could not detect the main problem in the said machine/instrument. The complainant further alleged that the service engineer of the opposite parties wasted the chemicals worth about Rs.10,000/- of the complainant while removing and setting right the problem but he has failed to detect the main problem and failed to remove the fault in the said machine/instrument. The opposite parties did not provide the demo machine/instrument despite various requests and demands of the complainant. On 4.10.2011, the complainant again requested to the opposite parties for the removal of the defect and the service engineer of the opposite parties Mr.Azad Brar again visited the complainant and replace the bath(Part of the said machine/instrument) which was not a new one rather it was already used. The said machine/instrument was kept under observation but its working was not satisfactory because the main problem in the said machine/instrument was not detected nor removed. The said machine/instrument was abnormal and giving false reports of platelets Despite the various requests, the opposite parties have failed to rectify the defect in the said machine/instrument. The complainant has requested for the refund of amount of annual maintenance charges i.e Rs.11,000/- alongwith interest and compensation. Hence, the complainant has filed the present complaint filed by the complainant for seeking the directions of this Forum to the opposite parties to refund the amount of Rs.11,000/- paid for annual maintenance charges alongwith interest, cost and compensation.
2. The notice was issued to the opposite parties. The opposite parties after appearing before this Forum have filed their joint written statement. The opposite parties have taken the legal objection that the complainant is not a consumer as he has been using the abovesaid machine/instrument for commercial purpose to earn huge profits. The opposite parties further pleaded that the complainant himself is negligent in not maintaining the said machine/instrument in a good condition. On all the occasions whenever their service engineer visited to attend the complaint regarding the said machine/instrument it was found dirty and poorly maintained. Every time the service engineers of opposite parties found that there were complaints/problems in the machine due to improper maintenance by the complainant and no complaint was related to the problems of working, functioning or performance. The opposite parties further pleaded that complainant has not purchased the said machine/instrument from the opposite parties and rather the opposite parties have only provided Annual Maintenance and has changed Rs.11,000/- as Annual Maintenance Charges, but they never agreed to provide demo machine/ instrument as alleged by the complainant. The opposite parties always attended the complainant’s calls and complaints as well as the routine service visits as per the Annual Maintenance Contract. The opposite parties always educated the complainant to keep the said machine/instrument well maintained and well preserved and replaced the parts when found defective. The opposite parties further pleaded that complainant has filed the complaint with mala-fide intention of not releasing the legal dues of Rs.14,432/- of the opposite parties. The complainant has established his laboratory around 14 to 16 years back and prior to the purchase of the said machine/instrument in question by the complainant, he has already been using two other instruments costing around Rs.5 lacs and therefore, the laboratory was already a well established laboratory and thereby the owner of the laboratory Dr. Ashok Kumar Goyal had became a well established businessman before purchase of the said machine/instrument under reference. The opposite parties are trading the said machine/instrument manufactured and supplied by M/s Spenzhen Mindray Bio-Medical Electronics Company Limited, China, so they are the manufacturer of the said machine/instrument BC 2300 and the manufacturer has not been impleaded as party. The alleged bill No.97 does not belong to the opposite parties. The opposite parties have no direct business transaction with the complainant. The engineer of the opposite parties visited in routine and the complainant had not called the opposite parties for resolving any complaints, on his visit the engineer of the opposite parties found that the said machine/instrument was dirty and was not well maintained by the complainant. The said engineer of the opposite parties cleaned the various parts and did necessary checks. In the technical service report dated 8.8.2011, the complainant has not mentioned any negative point in his regard, which shows that he was satisfied with the service. On 17.9.2011, the complainant had complained for platelet variation problem for the first time. The engineer of the opposite parties found that the bath was dirty and the said machine/instrument was not well maintained by the complainant, he cleaned the bath, run the sample and observed that the results were matching. The complainant was satisfied and signed the technical service report, engineer put a remark “the said machine/instrument properly working”. The complainant signed the report in token of his satisfaction. He did not put any adverse remark or any complaint in the report. Hence, no question of provide demo unit arises as no such terms were ever admitted. On 20.9.2011, the complainant called the engineer of the opposite parties for platelet variation problem. The engineer of the opposite parties observed that EDTA vials, earthing and reagents were having problem. So, he advised the complainant to use good quality EDTA vials, improve earthing and change reagents and submitted the report to the complainant, who countersigned the report in token of his satisfaction. No remark was put on the report by the complainant. The complainant’s call dated 24.9.2011 was duly attended by the engineer and 25.9.2011 and found background abnormal so he cleaned the said machine/instrument. For the first time since entering into the A.M.C, the complainant had a serious complaint and a problem was detected in a part and the complainant agreed and asked to replace the part on chargeable basis. On 4.10.2011, the old part was replaced with a brand new part and the problem was solved as per technical service report No.10100310 dated 4.10.2011. The said machine/instrument was made fully operational, but at complainant’s request, the said machine/instrument was kept under observation. After 10 days, engineer visited the customer and inquired about performance of the said machine/instrument and the customer expressed his satisfaction. The engineer of the opposite parties asked for the payment since 4.10.2011 till the filing of this complaint, but neither the payment has been done nor the complainant has complained about the performance of the said machine/instrument. The opposite parties have pleaded that the complaint has filed the present complaint with mala-fide intention for not paying Rs.14,432/-. Thus, this complaint is liable to be dismissed.
3. The parties have led their evidence in support of their respective pleadings.
4. Arguments heard. The record alongwith written submissions submitted by the parties perused.
5. Admittedly, the complainant has entered into an agreement of Annual Maintenance Contract for the abovementioned machine/instrument BC 2300 Hematology Analyzer for one year at Bathinda with opposite parties and paid Rs.11,000/- vide cheque No.762467 dated 14.2.2011 to the opposite parties. In July,2011 the said machine/instrument was not working properly and became defective, the complainant lodged the complaint to the opposite parties on 8.8.2011. The opposite parties have sent their service engineer to visit the complainant, he cleaned the said machine/instrument and its parts and could not detect the main problem in it and promised him to send his senior engineer. In the September,2011 the complainant again requested the opposite parties to remove the problem and requested to provide demo machine. On 17.9.2011, Mr. Pawan Kumar service engineer of the opposite parties visited the complainant and found that there was platelet variation problem, he cleaned the parts of the said machine/instrument but the same was not working properly. On 20.9.2011 service engineer of the opposite parties again visited the complainant and found the same problem of platelet variation in the said machine/instrument and blamed that earthing of power is not properly done. On 25.9.2011, service engineer of the opposite parties visited the complainant but the said machine/instrument was abnormal and he tried to remove the defect but unable to remove the main problem in the said machine/instrument. The complainant alleged that the service engineer of the opposite parties wasted the chemicals worth about Rs.10,000/- for removing and setting right the said problem. On 4.10.2011, the problem occurred again, on the repeated request of the complainant, the service engineer of the opposite parties Mr. Azad Brar again visited the complainant and replace the bath(Parts of the said machine/instrument) which was not a new one rather it was already used. After the replacement of the parts the said machine/instrument was kept under observations. The complainant purchased the said machine/instrument BC 2300 Hematology Analyzer manufactured by opposite party No.1 and the same was supplied by M/s Spenzhen Mindray Bio-Medical Electronics Company Limited, China, Sr. No. RT 8C101383 for a sum of Rs.2.5 lacs vide bill No.97 in the month of Feb/March 2009 for earning his livelihood against the full guarantee/warranty of 24 months for the said machine/instrument to the complainant. The complainant has submitted that despite repeated repairs the said machine/instrument has not been repaired till date as the opposite parties were unable to detect the main problem in the said machine/instrument. The opposite parties urged that the complainant is not the consumer as he had purchased the said machine/instrument for commercial purpose to earn huge profits. The opposite parties submitted that the complainant himself is negligent in maintaining the said machine/instrument in a good condition and on all the occasions whenever the service engineer visited to check the said machine/instrument it was found dirty and poorly maintained and the problems were not related to working, functioning or performance of the said machine/instrument. The said machine/instrument has never been purchased by the complainant from the opposite parties as the alleged bill No.97 does not belong to the opposite parties. The opposite parties further submitted that every time the complaints lodged by the complainant were duly attended. The part of the said machine/instrument was changed which were subject to payment but the complainant had not paid Rs.14,432/- till date.
6. The opposite parties have taken the legal objection that the complainant is not consumer as he has purchased the said machine/instrument for the commercial purpose. The complainant has specifically mentioned in his complaint that he has purchased the said machine/instrument for earning his livelihood. Moreover, the opposite parties have not placed on file any evidence regarding the commercial activity.
7. The opposite parties denied that the bill No.97 belong to opposite parties. The opposite parties have admitted that the annual maintenance charges are taken from the complainant to the tune of Rs.11,00/- for the servicing and to check and remove the defect in the said machine/instrument. All the complaints and calls of complainant were duly attended by the opposite parties.
8. On 8.8.2011 the complainant lodged the complaint with the opposite parties as there was some problem regarding the working of the said machine/instrument. The complaint was duly attended by service engineer Mr. Azad Brar, he cleaned the said machine/instrument and its part vide job sheet No.907224 vide Ex.C2, the observations and action taken recorded in Ex.C2:-
“Observations:- (i) Dirty Bath
(ii) Gain Voltage High.
Action Taken:- (i) Clean the Bath,
(ii) Clean V6, V7, V8, V9.
(iii) Clean the vaccum pump.
(iv)Clean the inner and outer of instrument.
(v) Do E-z clean & check background”.
The complainant again complained on 17.9.2011. His complaint was attended by Er. Pawan Kumar, he checked the defect in machine/instrument and recorded the problem, reported, observation and action taken in service report No.11051730 dated 17.9.2011 vide Ex.C3:-
“Problem Reported:- Platelet Problem Variation.
Observations:- Dirty Bath.
Action Taken:- (i) Clean the bath.
(ii) Sanle run and check cross matching, Instrument proper working”.
On 20.9.2011 the complainant again complained regarding its working, Er. Pawan Kumar visited the premises of the complainant to check the defect in the said machine/instrument and the problem reported, observations and action taken were recorded in service report No.11051735 dated 20.9.2011 in Ex.C4:-
“Problem Reported:- Platelet Problem Variation.
Observations:- (i) EDTA While.
(ii) Earthing Regent.
Action Taken:- (i) I advise to customer using for properly EDTA while.
(ii) Earthing properly.
(iii) Lyse bottle change in new lyse bottle attached”.
Vide Job sheet No.11051742 dated 24/25.9.2011 vide Ex.C5, the said machine/instrument was checked and the problem reported, observations and action taken given in Ex.C5 are:-
“Problem Reported:- Background abnormal.
Observations:-
Action Taken:- (i) Do sodium hypo cleaning procedure
(ii) Clean the apratus, Vio”.
On the job sheet dated 25.9.2011 the remarks have been given by the complainant Dr.Ashok Goyal
“Back-ground Problem........ Fault not rectified”.
Vide service report No.10100310 dated 4.10.2011 vide Ex.C6, the machine/instrument was checked by Er. Azad Brar and the problem reported, observations and action taken given in Ex.C6:-
“Problem Reported:- Background abnormal.
Observations:- Nil
Action Taken:- Replace the bath”.
The bath was replaced by Er.Azad Brar. On Ex.C6 the comments have been written by Dr.Ashok Kumar Goyal that part replaced but still machine is under supervision until satisfaction. After the replacement of the bath the said machine/instrument was kept under the observations despite that the said machine/instrument was not working properly. Ex.C6 shows that the bath was replaced for Rs.14,432/-. Nothing has been mentioned in this service report Ex.C6 that the amount of Rs.14,432/- was not paid by the complainant. The complainant has obtained the annual maintenance for his said machine/instrument for one year from Bathinda after paying Rs.11,000/- vide cheque No.762467 dated 14.2.2011. During this period the abovesaid machine/instrument has contacted many problems. Although, the problem has been rectified many times yet the same problems reoccurred meaning thereby the said machine/instrument was not repaired/rectified properly despite changing of bath. The complainant has alleged that opposite parties have wasted the chemical worth Rs.10,000/- in rectifying the problem but no such evidence has been placed on file. Hence, no direction can be given to the opposite parties in this regard.
9. Therefore, from the facts, circumstances and evidence placed on file, this Forum concludes that there is deficiency in service on the part of the opposite parties. The opposite parties have denied the bill No.97 as well as purchase of the said machine/instrument from them, but admitted the annual maintenance contract. During the annual maintenance period of one year, the various service engineers failed to rectify the defect. Hence, this complaint is accepted with Rs.3,000/- as cost and compensation and the opposite parties are directed to refund the amount of Rs.11,000/- charged on account of annual maintenance charges so that he can get his machine repaired from some other service station. The compliance of this order be done within 45 days.
10. In case of non-compliance, the interest @ 9 % will yield on Rs.11,000/-till realization.
11. A copy of this order be sent to the parties concerned free of cost and file be consigned to the record room.
Pronounced in open Forum:-
17-07-2012 (Vikramjit Kaur Soni)
President
(Amarjeet Paul)
Member
(Sukhwinder Kaur)
Member
