State Consumer Disputes Redressal Commission
Dr. Neelam Chand Kothari vs Emsons Imaging on 25 July, 2011
CHHATTISGARH STATE
CONSUMER DISPUTES REDRESSAL COMMISSION,
PANDRI, RAIPUR (C.G.)
(A/11/2334)
Appeal No.53/2011
Instituted on : 02/02/2011
Dr. Neelam Chand Kothari,
S/o Shri Ashkaran Kothari, Priyanka Hospital,
In Front of Govt. Hospital, G.E. Road,
Tehsil & District - Durg (C.G.) ..... Appellant
Vs.
1. Emsons Imaging,
Through : Shri Niyogi Shah, Director,
1/A, Edena, Ist Floor-97, Maharshi Karve Road,
Mumbai (Maharastra) 400 020
2. Emsons (Agencies) Private Limited,
Room No.3, Second Floor, 10/5, 100 Feet Road,
Opposite H.D.F.C. Bank Ltd.
Pondicherry - 605 005 .... Respondents
PRESENT :
HON'BLE JUSTICE SHRI S.C. VYAS, PRESIDENT
HON'BLE SMT. VEENA MISRA, MEMBER
HON'BLE SHRI V.K. PATIL, MEMBER
COUNSEL FOR THE PARTIES
Shri R.K. Bhawnani, for appellant.
Shri B.S. Khanuja, for respondents.
ORDER (ORAL)
DATED : 25/07/2011 PER :- HON'BLE JUSTICE SHRI S.C. VYAS, PRESIDENT This appeal is directed against the order dated 13.01.2011 of District Consumer Disputes Redressal Forum, Durg (C.G.) (hereinafter called "District Forum" for short), in Complaint Case No.255/2010, whereby the complaint of the appellant herein, alleging deficiency in service on the part of the respondents and also alleging unfair trade // 2 // practice against them, has been dismissed by the District Forum on the ground that the appellant does not come in the category of "consumer", as defined in Section 2(1)(d) of the Consumer Protection Act, 1986 (hereinafter called "the Act" for short).
2. In nutshell, the facts of the case are that appellant herein, is a Orthopedic Specialist and is practicing in that field at Durg. He entered into a contract with the respondents for purchase of a Pre- owned G.E.C.T. Scanner Model Prospeed Plus Machine at the cost of Rs.15,50,000/- . The cost of the said machine was paid in advance. It was agreed that Machine will be supplied within 90 days and will be installed at the place of working of the complainant. After lapse of a lot of time, on 04.02.2010 the Machine was brought at the place of working of the complainant and was installed there. In the meantime, when contacted, the Director of the Company informed the complainant that during transportation, some defects generated in the Machine and so it is under repair. The allegation of the complainant was that the Engineers of the respondents Company were trying to install it between 04.02.2010 to 14.02.2010 unsuccessfully and then went back. Later on, on 24.02.2010, the machine was installed , but it was observed that the images obtained with the help of the Machine were not clear. When complainant met to the Engineer of the company, then he assured him that after some // 3 // time, machine will generate clear pictures. Then, a Certificate of Satisfaction was given by the complainant, but even thereafter defects in the films were continuing, then again the supply company was contacted. Engineer of the company inspected the machine but then on this pretext that period of warranty has already over, no help was provided by the respondents to the complainant. In the meantime, the maintenance contract for Rs.2,00,000/- was also executed between the parties, but even then the Machine was not properly repaired. It came to the knowledge of the complainant that at the place of imported machine from foreign, a machine, which was already being used in a clinic of a Doctor of Patna was supplied to him in defective condition. It amounts unfair trade practice, so alleging unfair trade practice as well as deficiency in service, compensation to the tune of Rs.19,80,000/- was claimed by the complainant from the respondents by filing complaint before the District Forum.
3. Respondents in the written version refuted allegations levelled by the complainant and claimed that the Machine, which was supplied and installed at the working place of the complainant was perfectly in good condition and was working satisfactorily to the satisfaction of the complainant himself, that is why he made no complaint to the Engineers of the respondents Company when they inspected the machine. After being fully satisfied from the operation // 4 // of the machine, remaining cost of the Machine Rs.2,10,000/- was also paid by the complainant and when period of warranty was over, then a false complaint on untenable grounds, has been made by the complainant. It has also been averred that the Machine was purchased by the complainant for commercial purpose and it has been used for that purpose by the complainant, so he does not come in the category of "consumer" as per definition under the Act. It has also been averred that the Machine was to be used by the complainant for the purpose of earning more profit and the machine is still functional and working properly at the place of complainant.
4. Learned District Forum, first of all has taken into consideration the question as to whether the complainant comes in the category of "consumer" as defined in Section 2(1)(d) of the Act or not and recorded the finding that complainant does not come in the category of "consumer", so his complaint is not maintainable. On the basis of this finding, the complaint has been dismissed by the impugned order.
5. We have heard the arguments advanced by both parties in detail and perused record of the District Forum.
6. Counsel for the appellant/complainant has drawn our attention towards document Annexure P-1, which appears to be a literature of EMSONS in respect of C.T. Scan Machine. He submitted that the // 5 // Machine, which was bought from this Company, was to be supplied to the complainant with the assurance that Machine would be imported from foreign and then will be supplied. He submitted that later on, it came to the knowledge of the appellant/complainant that a defective and used machine of a Doctor of Patna, has been supplied to him without informing that it was already having some defects. He submitted that this conduct of the respondents comes in the category of unfair trade practice.
7. In this regard, document Annexure P-2, appears to be a very much important and useful document to understand the terms agreed between the parties. In this document, the description of equipment sold by the respondents to the appellant/complainant, has been given and it has been clearly mentioned that the equipment was a Pre- owned/Used/GE/Prospeed Plus CT Scanner with some accessories including Patient Table etc. The total cost was agreed as Rs.15,50,000/-. Thus, from this description, it is clear that it was within the knowledge of the appellant/complainant that the equipment to be sold by the respondents to him was a used equipment and was Pre- owned by someone else and after having this knowledge, he had entered into an agreement to purchase such equipment of EMSONS (Agencies) Private Limited. When he was having this knowledge right from very beginning at the time of execution of the agreement, then // 6 // now he is under law stopped from making complaint that a used equipment was supplied to him or that it was having some defects and that the respondents committed unfair trade practice.
8. We have also taken note of some discrepancies between the same documents filed by both the parties. Photocopy of the document, which has been filed by the appellant/complainant as Annexure P-2, is not containing his signature, whereas photocopy of the same document Annexure R-1, filed by the respondents, clearly shows that the appellant/complainant has also signed that document along with seal impression. That portion of seal impression and signature of the complainant there, has been deliberately suppressed by the complainant while filing copy of this document. The reason might be to show that he was not aware that the machine was used one. This discrepancy assumes significant role, when we consider that the agreement was only for purchase of used and Pre-owned equipment with warranty for seven days only, because for such an old & used equipment, naturally warranty for a longer period, cannot be given by the supplier. There may not be any provision of warranty for a longer period or services for a longer period, as may be available in case of purchase of a new equipment. That is why, in the document, it has been stated that the Machine, will have warranty of only one week after installation of the system, as per Certified Report of the Engineer // 7 // or from date of first scan/commercial use, whichever is earlier. Thus warranty was only for a period of one week and period of warranty commences from the date of installation or from date of first scan/commercial use. Respondents has filed documents to show that from that Machine at time of inaugural ceremony, scan of as many as 20 patients were done successfully. Document (Annexure R-9) shows that on 09.03.2010, when the Engineer of the respondent Company visited the centre of the complainant to assist him during inauguration, then he has found that machine was working perfectly since installation of Machine and it was also found that complainant has successfully done 20 Scans as per attached list therewith, with date and name of patient. Another document Annexure R-8 shows that Machine was installed between the period from 03.02.2010 to 11.02.2010. It is pertinent to mention here that Service Report Installation (Annexure R-8) as well as Service Report (Annexure R-9), both are bearing signatures and seal impression of the complainant without any remark of customer/complainant, which shows that appellant/complainant was satisfied with the remark of the Engineer that the Machine was in good working condition and was working perfectly alright and successfully generating scans. These two documents show that the respondents, to the satisfaction of the appellant/complainant installed the Machine at his working place and made it functional successfully. Then, there was only requirement for // 8 // some free services. As per case of the appellant/complainant, no free services were provided to him, whereas respondents pleaded before the District Forum that those free services, were also provided and their Engineers visited centre of the complainant.
9. We find from the documents filed by the respondents that though Machine was initially installed at Dharmarth CT Scan Centre, Station Road, Behind Siddarth Hotel, Durg, but later on the Diagnosis Centre has been opened in the name of Piramal Diagnostics & C.T. Scan Centre. Place of this Diagnostics Centre, as well as CT Scan Centre, which has been mentioned in the Installation Service Report of the Engineer appears similar and both were Station Road, behind Siddarth Hotel, Durg. Appellant/complainant has not said that machine which was working at Piramal Diagnostics & C.T. Scan Centre, Durg is not the machine which was installed by the respondents. Respondents have filed copies of many CT Scan Reports generated through that machine to show that it was working successfully and was being operated by Dr. G.P. Dewangan, Radiologist. In none of these Reports, there is any remark of the Doctor that the machine was not properly functioning or the images, which were generated through the machine were not clear and were full of spots, as mentioned by the complainant in the complaint. So, // 9 // from these documents, we are satisfied that the machine is properly functioning.
10. From the other documents filed by both parties and particularly from document Annexure P-2, it is clear that the Machine was sold to the appellant/complainant for commercial purpose only, as has been mentioned in the terms and condition of Sale. From the documents, which have been filed by the respondents later on before District Forum, it again appears that the appellant/complainant is using that machine for commercial purpose. One receipt of receiving Rs.1,400/- by Piramal Diagnostics & C.T. Scan Centre, Durg has been filed by the respondents before the District Forum to show that the machine has been used for profit earning. The appellant/complainant has also not come before the District Forum with a case that he was offering services of the machine to public at large free of cost. He is Orthopaedician and it was not necessary for him to have this Machine C.T. Scanner for the purpose of earning his livelihood. It is clear that the machine was purchased by the appellant/complainant for the purpose of earning more profit by use of the machine. In document of sale also, it has been clarified that the Machine was sold for commercial purpose. Thus, from actual use, as well as from the document of sale, it is clear that machine was purchased for commercial purpose only and has been used for that purpose. If the // 10 // purchase was for commercial use and if there was some service contract also on payment for that purpose, then the services hired as well as purchase both were for commercial purpose only and so the finding of the District Forum, appears perfectly alright that appellant/complainant does not come in the category of "consumer" as per definition of Section 2(1)(d) of the Act. This question has now been dealt with by the Hon'ble Supreme Court in detail in the case of Birla Technologies Ltd. Vs. Neutral Glass & Allied Industries Ltd. (2011 CTJ 121) and this final verdict has been given that when purchase is for commercial purpose, then subsequent hire of services for such equipment will also be for the same purpose and person who purchase such article or machine or thing, & hire services will not come in the category of "consumer" under Section 2(1)(d) (i) & 2(1)(d)(ii) of the Act.
11. Thus, we do not find any such ground in this appeal, on the basis of which the order recorded by the District Forum can be interfered with. The appeal is merit-less and is hereby dismissed. No order as to the cost of this appeal.
(Justice S.C.Vyas) (Smt.Veena Misra) (V.K. Patil)
President Member Member
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