State Consumer Disputes Redressal Commission
M/S A & A Overseas, Wx-100/4, Titarpur, ... vs Director, Pt. B.D. Sharma, Pgims, ... on 2 May, 2012
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, HARYANA, PANCHKULA First Appeal No.554 of 2009 Date of Institution: 24.04.2009 Date of Decision: 02.05.2012 M/s A & A Overseas, WX-100/4, Titarpur, Tagore Garden, New Delhi-110027. Appellant (OP) Versus Director, Pt. B.D. Sharma, PGIMS, Rohtak. Respondent (Complainant) BEFORE: Honble Mr. Justice R.S. Madan, President. Mr. B.M. Bedi, Judicial Member. For the Parties: Shri N.K. Malhotra, Advocate for appellant. Shri Ajay Chaudhari, Advocate for respondent. O R D E R
Justice R.S. Madan, President:
This appeal has been preferred against the order dated 06.03.2009 passed by District Consumer Forum, Rohtak whereby the complaint filed by the complainant (respondent herein) was accepted with the following direction to the appellant-opposite party:-
.we hereby allow the complaint with direction to the opposite party to remove the inherent defects of the Holter Analysis System and also to pay Rs.5000/- (Rupees five thousand only) as litigation expenses to the complainant maximum within one month from the date of decision.
The case of the complainant before the District Consumer Forum was that a supply order bearing No.PA-11/01/2818 dated 30.03.2001 was placed to the appellant-opposite party with the terms and conditions as mentioned in para No.1 of the complainant for supply of Complete Holter Analysis System @ Rs.7,00,000/-.
The opposite party executed the supply on 31.01.2002 and installed the equipment in Department of Medicine of complainant-Institution on 04.02.2002. Complainant further stated that as per the terms and conditions of the supply order, the firm was provided CDEC (Custom Duty Exemption Certificate) and NMIC. Complainant made the payment to the opposite party after deducting penalty @ 2% on account of delay in the supply. According to the complainant, the complete Holster Analysis System was having warranty of 24 months from the date of installation and the firm had undertaken the responsibility for availability of necessary spares for maintenance of the equipment for next ten years and also agreed to AMC for next five years after the warranty period as per rules approved and incorporated in the supply order. These rules could be negotiated further after completion of five years of AMC. Complainant vide letter dated 28.01.2003 informed that the equipment was not functioning properly and for that reason the Engineer of the opposite party had taken the equipment for repairs in August, 2002 and retuned the same on 08.01.2003. Complainant further wrote a letter dated 30.01.2003 to the opposite party to replace the Hard Disk stating the same to be not functional properly upon which the Engineer visited on 18.02.2003 and intimated that the hard disk needed replacement as the same was not repairable. Complainant further stated that the opposite party vide its letter dated 14.03.2003 had affirmed that if the hard disk effected the working of the equipment, the would also be replaced and the system would be kept in perfect working condition but the opposite party did not replace the damaged part of the equipment like Hard disk etc and during that period, the warranty period expired. Complainant in its complaint alleged that the equipment was still lying ideal and un-functional which adversely affected the care of patients. Thus, alleging deficiency in service on the part of the opposite party, the complainant invoked the jurisdiction of the District Consumer Forum seeking direction to the opposite party firm to put the complete Holter Analysis System in working order, to replace the Hard disk and Flash memory card as free of cost and also to pay compensation to the extent of rupees five lacs.
Upon notice, the opposite party appeared and contested the complaint by filing written statement stating therein that the complainant was fully responsible for delay in installation of Stress Test machine. The complainant has thus rendered himself liable for causing loss to the opposite party as on account of delay caused by the complainant in installing the Stress Test System as the warranty period was thus extended by more than 10 months a sum of Rs.60,969/- paid as customs duty and Rs.28,000/- deposited with the complainant as security was to be refunded to the opposite party as the time of expiry of warranty period. Since the warranty period in respect of machine of Stress Test System was extended by more than ten months on account of delay on the part of complainant, the said amount was illegally and without any justification detained by the complainant and till that date even the extended warranty period had elapsed the complainant has not refunded the said amount. There were two machines of Stress Test System supplied by the opposite party to the complainant, one of them was installed within time but even in regard to the said machine neither the amount of security deposit in respect thereto nor the Customs duty was reimbursed to the opposite party as per terms and conditions of contract and rules and regulations framed in respect thereto on the false plea that since the contract was for supply of two machines the security amount and customs duty deposited in respect of machine installed with in time cannot be refunded. The complainant cannot reap benefit out of its own fault. The interpretation given to clause 4 of supply order has been misinterpreted and contrary to para No.3 of the Note Sheet of tender form issued by the opposite party in respect of contract under reference. The second unit of Stress Test System was installed on 04.06.2002 in Department of Cardiology of the complainant Institution due to the delay in providing space for installation of the said machine in Cardiology Department but this fact was intentionally concealed by the complainant that any Annual Maintenance Contract could have been entered into just after the expiry of warranty period. However, the machine in the institution of the complainant was installed on 02.12.2001 and the warranty period expired on 4.6.2004. It was stated that the standby equipment was provided when the equipment under reference was taken for repairs and no amount was charged for the same and in view thereof there should have been no grouse for the complainant in respect to the matter in issue. Thus, denying any kind of deficiency in service on its part, the opposite party prayed for dismissal of the complaint.
On appraisal of the pleadings of the parties and the evidence adduced on the record, District Consumer Forum accepted the complaint and issued direction to the opposite party as noticed in the opening para of this order.
Aggrieved against the order of the District Consumer Forum, the opposite party has come up in appeal.
We have heard learned counsel for the parties and perused the case file.
On behalf of the appellant-opposite party it has been argued that there the defects in the machine which were pointed out by the complainant during the warranty period were got rectified by deputing the engineers of the Company and now after expiry of the warranty period, the appellant-opposite party cannot be forced to rectify the defects in the machine. More so the complainant has not complied with the mandatory provisions of Section 13 of the Consumer Protection Act by not inspecting the machines from some expert engineer. Learned counsel for the appellant has further argued that the machines purchased by the complainant-Institution were for commercial use and therefore, the complaint before the District Consumer Forum was not maintainable.
We find force in the arguments raised on behalf of the appellant. Admittedly, the machines were purchased for using the same in the respondents Institution where fee is charged from the students as well as the treatment is given to the patients against charges. Thus, on this ground the complaint of the complainant is not maintainable.
The other aspect of the case is that the complainant has not produced any evidence to prove that the alleged defect in the machine had developed during the warranty period. Rather, from the record it is established during the warranty period, the defects were rectified in the machines and standby machine was supplied to the complainant for the said period. Complainant has not led any cogent and convincing evidence to prove that the machine is having any inherent defect. Merely that some defect had developed in the machine during the warranty which was later on rectified by the Engineer of the opposite parties, the same cannot be termed as a manufacturing defect without leading any cogent and convincing evidence. It has also come on the record that during the period the machine was taken away for removing of the defect, a standby machine was provided to the complainant for the said period and therefore, no inconvenience was caused to the complainant-Institution during the period the defect was rectified in the machine. Once, the warranty period has expired, the opposite parties cannot be forced to repair the machine without there being any AMC contract between the parties. Thus, no case of deficiency in service and unfair trade practice against the appellant-opposite party has been made out. District Consumer Forum has failed to appreciate the above stated facts. Hence, the impugned order is not sustainable in the eyes of law.
As a sequel to our aforesaid discussion, this appeal is accepted, impugned order is set aside and the complaint is dismissed.
The statutory amount of Rs.2500/- deposited at the time of filing the appeal be refunded to the appellant against proper receipt and identification in accordance with rules, after the expiry of period of appeal and revision, if any filed in this case.
Announced: Justice R.S. Madan 02.05.2012 President B.M. Bedi Judicial Member