Per Shri S.R. Khanzode, Hon’ble Presiding Judicial Member
These two appeals are disposed off by this common order since they are in the nature of cross appeals arising out of one and the same order and dealing with same facts and question of law. Hereinafter reference to the parties is made with their respective status in the consumer complaint.
2. These appeals arise out of order dated 19/10/2010 passed in consumer complaint No.534/2005, Dr.Prakash Trivedi V/s. Wipro GE Medical Systems Pvt. Ltd. & Ors., by Addl. District Forum, Mumbai Suburban. It is a consumer complaint making grievance about defective sonography machine i.e. Colour Doppler Sonography machine. It is the case of the complainant-Dr.Prakash Trivedi, who is a leading Obstetrician and Gynaecologist practicing in Mumbai that he was in need of LOGIQ-3 CL Colour Doppler Sonography machine (hereinafter referred to as ‘sonography machine’) for his IVF In Vitro Fertilization Centre at Ghatkopar, Mumbai. He, therefore, on the information supplied by opponent No.1-Wipro G Medical Systems Pvt. Ltd. (hereinafter referred to as ‘Company’) agreed to purchase the same for a total package of `14.70 Lakhs. The terms inter alia include –
“a) Delivery of sonography machine on or before 2nd Dec. 2003 with installation and demonstration.
b) After the expiry of 1 year routine warranty, 2 yrs additional comprehensive service contract. Thereafter 4th and 5th year extended labour contract in the same cost.
c) 1 week free training for 1 consultant at Mediscan, Chennai with all expenses paid,
d) Equipment package to include: Ultrasound Machine Logic 3 CL colour Doppler with 2 probes with Biopsy guide, Inkjet Printer and CD writer.
e) For a total cost of `14.70 (Rs. Fourteen Lacs, Seventy Thousand only) which included taxes but not the octroi.”
The machine was accordingly delivered on receiving part payment on 12/12/2003. However, it was not made functional and therefore, opening ceremony planned by the complainant could not be held. The complainant wrote to opponent Company on 17/01/2004, 05/02/2004, 05/03/2004 since machine was not made functional and ultimately sent a legal notice on 04/06/2004. It is also submitted on behalf of the complainant that the machine supplied is a refurbished and passed of as new. There is deficiency in service on the part of the Company since it failed to install and made operational the sonography machine and therefore, assessing the loss to the extent of `16,49,671/- filed a consumer complaint inter alia claiming reliefs, a compensation of `16,49,671/- with interest @ 12% p.a. Further direction to the Company to collect the sonography machine. Bifurcation of the compensation amount is as under :-
“Advance payment made to Wipro GE on 8th Nov. 2003
`3,68,000.00
Octroi paid on 12th Dec. 2003 `84,942.00
Paid till date to ICICI `6,96,729.00
Written down loss in practice pro-rata
to subsequent income tabulation (approx) `5,00,000.00
TOTAL = `16,49,671.00”
3. Opponents denied the claim in toto. According to them, sonography machine was installed and made commissioned and even a complaint which arose after running the machine for a few days regarding monitor, the monitor was replaced. Job Card and the Delivery Note affirmed this particular fact. The complaint is misconceived. The complainant is not a consumer since sonography machine was purchased for commercial purpose. There is no deficiency in service on their part at any point of time.
4. The District Forum partly allowed the consumer complaint and gave directions to opponent Nos.1,2,4,5,6&8 to make the sonography machine in good working condition and it be attached with Colour Doppler. It further directed the Company to give additional warrantee of one year from the date the order was complied with. `1 Lakh were awarded as compensation making it payable jointly and severally by opponent Nos.1,2,4,5,6&8 and so the cost of `5,000/-. However, not satisfied with the reliefs granted, complainant preferred Appeal No.1241/2010 while feeling aggrieved by the impugned order, opponents preferred Appeal No.02/2011.
5. We heard Dr.G.N. Shenoy, A.R. for the complainant and Advocate Mr.Lalit Nair for opponent Nos.1,2,4,5,6&8. Perused the record.
6. It may not be out of place to mention here that both parties relied upon the affidavits which were in the nature of verification of complaint or written version. Complainant filed affidavit evidence which is practically nothing but reproduction of complaint dated 09/08/2006. Both parties relied upon correspondence exchanged between them. Complainant tried to dispute stating that some of the Job Cards are fabricated but, nevertheless, Job Cards and Attendance Report produced on record, some of which bear the signature of the complainant are referred by both the parties and complainant did not dispute the signature on the Job Cards and Attendance Report dated 12/10/2004. These cannot be taken as fabricated documents.
7. As far as grievance of the complainant that sonography machine was simply delivered though without printer and not made functional, is disproved from the Attendance Report dated 12/10/2004 which recorded as under :-
“Optimised 2D, Color Doppler - spectrum parameters for all applications. Demonstrated features and different optimization parameters too.”
The feedback recorded on the same by the complainant is as under:-
“Machine installed and understood the ………………..”
Further, it appears that Job Card dated 11/10/2004 which is signed by the complainant in respect of service performed is as under :-
“Opened the machine. Connected all the boards properly. Checked & found OK. Handed over the machine in good working condition.”
Then on 13/10/2004 another Job Card recorded as under :-
“Checked & found that the images appear on the monitor is slightly in greenish shade. Cross checked with another monitor and confirmed the problem with monitor. Needs to be replaced.”
It relates to problem with the monitor and which was accordingly replaced by the Company on 07/12/2004, the fact which was recorded as per Job Card of the even date. The printer was installed on 16/10/2004 and it was made operational also. Job Card of the even date signed by the complainant as a customer records this position.
8. It appears that as per request of the complainant, demonstration of the sognography machine was given to the doctors explaining all the features thereof. Job Card of the even date signed by the complainant as a customer records the position as under :-
“Given the demonstration to doctors. Explained full nobology. Explained CD writing procedure. Handed over the m/c in good working condition.”
Thus, cumulative effect of all these documents on record, established and corroborated the case of opponents on the point that they were never deficient in service and that supplied sonography machine was made operational and defective monitor was replaced by them.
9. Complainant wanted to rely upon one notarized affidavit of expert Mr.Lalit Bhawsar. It is notarized on 02/08/2006. However, said affidavit lacks verification and as such reduced its evidentiary value. Besides this, Mr.Lalit Bhawsar submitted that in the month of October 2004 he saw the sonography machine functioning but its monitor was defective. As earlier observed, said monitor was already replaced on 07/12/2004 by the Company. However, one thing which he affirmed is that he saw the sonography machine functional except for defect of monitor. Therefore, if at all this affidavit is to be given any value, it only corroborates the case of the opponents that the machine was made functional by them and accordingly used by the complainant for all these years. There is hardly any evidence to show that sonography machine has any manufacturing defect or that it is either refurbished machine.
10. Considering all these aspects, complainant miserably failed to establish that the sonography machine supplied has any manufacturing defect or otherwise it is a defective goods and/or opponent/company and for that purpose all the opponents were deficient in service within meaning of Consumer Protection Act, 1986. It may be further pointed out that opponent No.2,4,5,6&8 are either Chair person of the Company or employees of the Company. There is no personal allegation levelled against either of them to show that they were deficient in service in their personal capacity in either supplying defective sonography machine or rendering after sales service. Opponent No.1-Company is a private limited Company thus, an independent jurisdic person itself. It being a private limited Company, responsibilities and obligations of its Directors including Chair Person are limited and nothing has been alleged referring to their respective obligations or responsibilities. Same is the case in respect of employees who are impleaded as one of the opponents. Therefore, fastening any joint and several liabilities on opponent Nos.2,4,5,6&8 is, per se, illegal and improper which cannot be supported in the eyes of law.
11. It is also alleged that the complainant is not a consumer. Admittedly, the complainant has lucrative practice and there is lot of flow of the customers/patients for use of sonography machine. He has not made clear at what scale he has carrying out his practice and at what scale his income from his endeavour as a professional carrying the practice. Mr.Lalit Bhawsar’s affidavit reads as under :-
“This is to inform that I, Mr.Lalit Bhawsar have met Dr.Prakash Trivedi many times at Aakar IVG Centre and for a long period at Dr.P.A. Dadia’s Clinic in Ghatkopar (W), where he used to do sonography on the ALOKA machine as well other machine.”
12. Thus, besides this IVF Centre at Ghatkopar, complainant is also rendering his services at Dr.P.A. Dadia’s Clinic. So, it is not the case that he is working only at his IVF Centre. In his complaint, a bare statement is made that the complainant is carrying on his profession for his sustenance and has been sold for consideration a non-functional sonography machine which is potentially disastrous to the patients on whom it is used; the complainant is, therefore, a consumer and so can avail of the provisions of the Consumer Protection Act, 1986. The word “sustenance” as per Little Oxford English Dictionary, Indian Edition, means, “the food needed to keep someone alive”.
13. Thus, this particular statement referred above in the complaint does not qualify itself to bring the case into the explanation to Section 2(1)(d)(ii) of the Consumer Protection Act, 1986. To attract the provision, the complainant himself alleged and established, particularly, when the opponents disputed his status as a ‘consumer’ since the machine was purchased, per se, for commercial purpose; that the goods bought by him exclusively for the purpose of earning his livelihood by means of self employment. Both these conditions must simultaneously co-exist. There is neither any case pleaded or established by the complainant to that effect. Since sonography machine is, per se, used for running IVF Centre, it is purchased for commercial purpose and it is for the complainant to establish otherwise which he failed to do. Thus, the complainant being not a consumer, consumer complaint would not lie and the impugned order vitiated on that ground too. The impugned order, thus, cannot be supported in the eyes of law. We hold accordingly and pass the following order :-
-: ORDER :-
1. Appeal No.1241/2010 filed by the complainant stands dismissed.
2. Appeal No.02/2011 filed on behalf of opponents is allowed. The impugned order dated 19/10/2010 is set aside. In the result, consumer complaint No.534/2005 stands dismissed.
3. In the given circumstances, both parties to bear their own costs.
4. Copies of the order be furnished to the parties.
Pronounced
Dated 18th June 2013.
