KERALA STATE CONSUMER DISPUTES REDRESSAL

COMMISSION VAZHUTHACAUD, THIRUVANANTHAPURAM

APPEAL NO.398/2012

JUDGMENT DATED 21/05/2013

 (Appeal filed against the order in CC No.165/2011 on the file of CDRF, Pathanamthitta dated, 19/03/2012)

PRESENT:

SMT. A. RADHA                                          :                    MEMBER

SHRI. K. CHANDRADAS NADAR           :           JUDICIAL MEMBER

APPELLANT:

M/s. Cizac Sales & Services Pvt. Ltd.,

Chittoor Road, Pachalam, Cochin-482 012. 

Rep. by its Managing Dairector,

Joseph Zachariah.

(By Adv:    Sri. S. Reghukumar)                   

Vs

RESPONDENT:

Thiruvalla Medical Mission,

(The Dewan Bahadur Dr. V. Varghese Hospital

Trust Association), Post Box No.50, Thiruvalla,

Rep. by its Chief Executive Officer, Mr. John V Abraham.

APPEAL NO.398/2012

JUDGMENT DATED 21/05/2013

SMT. A. RADHA  :  MEMBER

          Challenging the sustainability of the order dated 12/07/2011 in C.C.No.165/11 on the file of CDRF, Pathanamthitta, the opposite parties preferred this appeal.

2. The case of the complainant is that on 17/07/2010 complainant purchased an Usha make blower for the complainant’s hospital for an amount of Rs.85,099/-.  The blower was very essential machine for the treatment of effluent (waste water) from bio-gas plant, septic tank etc.  The purchase order was made on 29/06/2010 with a warranty for one year from the date of installation of the machine.  It is the case of the complainant that on 02/05/2011 a slight change in noise while operating the blower was noticed and it was immediately intimated to the opposite party.  It is stated in the complaint that the blower was taken for repair by the opposite party on 04/05/2011.  It was informed by the opposite party that an amount of Rs.40,000/- had to be paid for the repair of the defect. Since 04/05/2011 the blower was with the opposite party.  It is the allegation of the complainant that the defect occurred during the warranty period and the blower was lying with the opposite party till date without repairing or replacing the machine and caused loss and damage to the complainant.  As the blower was highly essential the complainant had to purchase new blower for the daily functioning of the hospital.  The opposite party failed to fulfill the terms of contract under warranty hence committed unfair trade practice which itself is deficiency in service on the part of opposite parties.  The complaint is filed for cost of blower and compensation.

          3.  In the version filed by the opposite party it is contended that after the installation of the Blower it was working satisfactorily without any complaint.  The blower was purchased by the hospital and is using for commercial purpose.  The complainant is not a consumer as per the Consumer Protection Act.  It was due to the careless and irresponsible operation of the machine and due to lack of necessary preventive maintenance the major part of the machine got damaged.  The contention of the opposite party is that while operating the machine on 30/04/2011 the operating staff noticed an abnormal sound and on receiving that information a Service Engineer inspected the machine and specific direction given to the operating staff to stop the working of the machine.  It is also contended that even after specific direction from the technical expert the operators continuously operated the Blower till 02/05/2011.  According to the Service Engineer the machine was operated without any lubricants for lubricating the bearing of the machine.  Due to the continuous running of the machine with damaged bearings caused major damage to the other components of the Blower.  It is also asserted in the version that the damage caused to the machine was not due to any workmanship or manufacturing defects but it was solely due to careless and irresponsible operation of the machine.  Further contention is that the warranty is applicable to manufacturing defects only and careless handling and lack of preventive maintenance does not come within the terms of warranty.  The Blower can be repaired on payment of actual cost of the damaged parts of the machine.  The opposite parties are not bound to do the maintenance work free of cost and the complaint is to be dismissed.

          4.  On the part of the complainant the Chief Executive Officer was examined as PW1 and the documents were marked as Exbts.A1 to A5.  On the part of the opposite party DW1 was examined and Exbts.B1 to B4 were marked. On appreciation of evidence and documents, the Forum Below came to the conclusion that the complainant is a consumer and during warranty period the opposite parties are liable to repair the Blower free of cost and also ordered compensation and cost.

          5.  The learned counsel for the appellant submitted that the complainant being a hospital which was running for profit cannot be considered as ‘consumer’ under the Consumer Protection Act.  The hospital is running for commercial purposes.  For commercial purposes the warranty does not extend as a consumer.  The counsel also argued that the respondent used the blower without using the lubricants in the bearing of the machine.  The machine was used carelessly and lack of necessary preventive maintenance by the operators damaged major parts of the machine.  Further the warranty is applicable to the damages resulted for the manufacturing defects only.  In this case the improper use of the Blower caused the damage and the appellant is not liable to repair the vehicle free of cost.  The careless handling will not come within the terms and conditions of warranty.  Further the allegation of manufacturing defect was not proved by the respondent as envisaged under Section 13(1)(c) of Consumer Protection Act.  The Forum Below on mis-appreciation of the fact, directed the appellants to repair the blower is not sustainable as warranty is not applicable for the products purchased for commercial purposes.

          6.  Refuting the arguments raised by the appellant’s counsel, the learned counsel for respondent submitted that the Blower was purchased for the exclusive use of the hospital which is essential for the functioning of the hospital.  The hospital had to use the Blower for the treatment of waste water for the day to day functioning and the blower was purchased for Rs.85,099/- on 21/07/2010 with a warranty for one year and was functioning smoothly till 02/05/2011.  The unusual noise while operating was informed to the appellant and in turn the Blower was taken for repairs by the appellant which was not returned so far.  The warranty was for one year from the date of purchase.  The appellant demanded Rs.40,000/- for the repair of the blower raising untenable arguments.  The Blower was working smoothly for more than 9 months without any problem.  The contentions raised by the opposite party that the defect occurred due to the carelessness and irresponsible operation of the machine is false and it was merely to avoid the repair works.  Since 04/05/2011 the Blower is under the custody of the appellant.  As the Blower is a inevitable machine for sewage treatment, the respondent had to purchase a new Blower causing financial loss.  Even now the same operator is operating the machine and the allegation regarding defective operating system is only to avoid the liability from repairing the Blower.  The machine is lying with the appellant and while alleging manufacturing defects the expert opinion is to be taken by the appellant itself.  The manufacturing defect is alleged by the appellant and as such the expert opinion is to be taken by the appellant.  The respondent is entitled for getting the Blower repaired free of cost as the Blower got damaged during the warranty period.

7.  Heard both sides in detail.  The defects in Blower is admitted and the defect of the Blower is also reported to the appellant.  Now the question raised before us for consideration is whether the complainant is a consumer.  No doubt the complainant is a consumer as the blower is an inevitable machine which is to be used for the day to day functioning of the hospital.  It is clear that without the blower the hospital cannot carry out its work.  Hence it does not come under commercial purposes.  Now coming to the warranty conditions, the appellant agreed for one year warranty for the defect in the machine and the appellant is liable to rectify the defects during the warranty period.  Ongoing through the documents nothing in evidence to show that the defect was caused due to the operational system.  It is to be pointed out that the Blower was working properly for 9 months without any defect which points out that the Blower was operating properly in those months.  Mere contention that the operating system was defective cannot be taken into evidence.  It is pertinent to point out that the Blower is with the appellant for repair work.  Placing reliance on the decision in the case of MRF Limited Vs. Jagadhishlal and Another II(1999)CPJ47(SC) wherein Section 13(1)(c) cannot be made applicable as the complainant was not in possession of the tyre and tube and there is no material to show that the appellant had returned the same to the complainant. The expert commission or expert opinion regarding the defect had to be taken by the appellant which was not done in this case.  Hence we are of the considered view that the defect in the Blower is to be rectified free of cost by the appellant.

In the result, the appeal is dismissed and we find no ground to interfere with the order passed by the Forum Below.

The order is to comply within 30 days on receipt of the copy of the order.

The office is directed to send a copy of this order to the Forum below along with LCR.

A. RADHA          :          MEMBER

 K. CHANDRADAS NADAR    :   JUDICIAL MEMBER

Sa.

KERALA STATE CONSUMER

                                                                  DISPUTES REDRESSAL

                                                           COMMISSION

THIRUVANANTHAPURAM

APPEAL NO.398/2012

JUDGMENT DATED 21/05/2013

                                                              sa