State Consumer Disputes Redressal Commission
Estate India (N.S.) Ltd. vs Dr.K.Gurunath on 14 January, 2016
CHHATTISGARH STATE
CONSUMER DISPUTES REDRESSAL COMMISSION,
PANDRI, RAIPUR (C.G).
Appeal No.FA/15/554
Instituted on : 07.11.2015
Esaote India [N.S.] Limited,
Having Sales Office at C-1, Sneha Enclave,
Shrinagar Colony Road, Yellareddy Guda,
Hyderabad [Andhra Pradesh]
Having its Registered Office at B-604/704,
Oxford Tower, Gurukul Ahmedabad (Gujrat)
Having its Regional Office at A-1, "Anugraha"",
41, Nugumbakkam, High Road,
Chennai (Tamilnadu)
Through : Its duly authorized person Holder
Shri C.S. Vijayachandra Reddy, Aged about 45 years,
Occupation : Senior Manager Service,
Add : Office at C-1, Sneha Enclave,
Shrinagar Colony Road, Yellareddy Guda,
Hyderabad [Andhra Pradesh] ... Appellants.
Vs.
Dr. K. Gurunath, S/o Late Shri Palni Swami
Chokalingam Kandaswami, Aged 60 years,
Occupation : Doctor, R/o : 19, Priyadarshni Parisar
(East), Supela, Bhilai,
Tehsil Bhilai, DistrictDurg (Chhattisgarh) ...Respondent.
PRESENT: -
HON'BLE JUSTICE SHRI R.S.SHARMA, PRESIDENT
HON'BLE SHRI D.K. PODDAR, MEMBER
HON'BLE SHRI NARENDRA GUPTA, MEMBER
COUNSEL FOR THE PARTIES: -
Shri M.K. Afzal, for the appellant.
Shri Mohit Diwan, for the respondent.
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ORDER
Dated : 14/01/2016 PER :- HON'BLE SHRI JUSTICE R.S. SHARMA, PRESIDENT. This appeal is directed against the order dated 14.08.2015, passed by District Consumer Disputes Redressal Forum, Durg (C.G.) (henceforth called "District Forum") in Complaint Case No.C.C./15/320. By the impugned order, the District Forum, has allowed the complaint of the respondent (complainant) and directed the appellants (OPs) a sum of Rs.15,45,000/- after obtaining the machine in question from the respondent (complainant) and will also pay interest 18% p.a. on the above amount from the date of filing of the complaint i.e. 29.06.2015 till date of payment. The appellants (OPs) have further been directed to pay a sum of Rs.4,00,000/- as compensation for loss suffered by the respondent (complainant) due to providing defective instrument, a sum of Rs.50,000/- towards compensation for mental agony and Rs.5,000/- as cost of litigation.
2. Briefly stated the facts of the case are that the respondent (complainant) is a highly qualified Doctor in the field of Cardiology and he runs his hospital for his livelihood. He had purchased on 21.01.2014 on MYKAB50 X-VISION, Sr. No.6032, Color Doppler Ultra Sound Scanner along with two probes 19" LCD Monitor with articulated Arm and Standard Accessories including Adult Cardiac // 3 // Probe and Stress Echo System (hereinafter for the sake of brevity be referred to as "the machine") from the appellants (OPs) after payment of sale consideration of Rupees 15,45,000/- (Rupees Fifteen Lakhs Forty Five Thousand Only) bearing invoice No.EI/SA/13-14/0245 and is a Consumer under the Consumer Protection Act, 1986. The installation of the machine was after considerable delay on 27th March, 2014 delivered in K. Gurunath Cardiac Centre, Bhilai of the respondent (complainant) by the concerned staff of the appellants (OPs) - Engineer Kamlesh Nanawe. The respondent (complainant) was communicated that he has to pay advance sum of Rs.12,00,000/- for getting the machine in two instalments by Cheque No.100668 dated 14.11.2013 of Rs.2,00,000/- of Dena Bank and second instalment by Cheque No.100669 dated 04.01.2014 of Rs.10,00,000/- of Dena Bank, but even after payment of the total amount of Rs.12,00,000/- (Rupees Twelve Lakhs) in advance as per the directions of the appellants (OPs), the machine was not delivered to the respondent (complainant). Thereafter even after repeated reminders and after pursuing the concerned officers for about 5 months, the respondent (complainant) was communicated that machine will be delivered only after the payment of full cost of the machine. Thereafter the respondent (complainant) told the appellants (OPs) to deliver the machine and to take the balance amount on delivery and on installation of the machine. Thereafter the machine was delivered and on the same day // 4 // the cheque for the balance amount of Rs.3,45,000/- was given to the appellants (OPs), but the respondent (complainant) was shocked and surprised to know that even after payment of the full amount, the appellants (OPs) did not bring the main part of the machine - the Adult Cardiac Probe which is mentioned in the Installation Report dated 27.03.2014 in his own hand writing, which is always a part of the entire machine deliberately with malafide intentions of extracting the balance of the amount giving good quality machine which clearly amounts to deficiency in service. The Stress Echo Licence was not there despite the same being a part of the machine but it was provided deliberately for a few hours after which it stopped functioning because the functioning was actually for only a few hours but the respondent (complainant) was falsely told and wrongly explained and cheated stating that the Stress Echo system is there and is fully functional. This was done by the appellants (OPs) deliberately which itself goes to show the conduct of the appellants (OPs) to harass and cheat the respondent (complainant), which amounts to unfair trade practice and deficiency in service. Thereafter, after about one week on 05.04.2014 they brought the Adult Cardiac Probe and then started the machine. The performance of the machine was not at all satisfactory from the beginning and due to this the respondent (complainant) wrote that one more visit by the Application Engineer is required along with the Installation Engineer. But till date no // 5 // Application Engineer has come to the Hospital to remove the defects in the performance of the machine. The respondent (complainant) is entitled to interest @ 18% on Rs.12,00,000/- for detaining the amount for about 5 months from the date of first payment i.e. 14.11.2013 till 05.04.2014. Right from the beginning the machine was not functioning properly and the complaint was not able to use the machine for the purpose for which it was purchased. The lapses/lacunas/shortcomings in the functioning of the machine were immediately reported to the appellants (OPs) for curing the defects in the said machine at the earliest as the same is required daily in the Cardiac centre of the respondent (complainant) for examining the patients, but no Engineer or staff of the Opposite Party came to cure the lapses/lacunas/shortcomings in the said machine which clearly amounts to deficiency in service and unfair trade practice and it also clearly establishes that the said machine has manufacturing defect which cannot be repaired as the appellants (OPs) have failed to repair it till date and they also never came to rectify the machine. The Service Engineer of the appellants (OPs) on 05.04.2014 after inspection took few scan probes which were not coming properly along with the other functions of the machine which were not function properly, surprisingly and astonishingly even during the warranty period. The respondent (complainant) on 5th April, 2014 when the report was prepared by the Engineer of the appellants (OPs) clearly mentioned // 6 // that some parts of the machine are still not working properly which are yet to be opened for which the visit of the Application Engineer in that regard is indispensible which could not be done by the Service Engineer who came on 05.04.2014. The respondent (complainant) had also clearly mentioned that he required with stressed Echo System which was not functional in the machine totally after some time. Thus, the Inspection Engineer was unable to cure lapses/lacunas/shortcomings in the said machine and also mentioned that some parts of the machine are still not working properly which are yet to be opened for which the visit of Application Engineer in that regard is indispensible. The respondent (complainant) also vide written communication dated 10.10.2014 wrote to the Opposite Party regarding the grievances faced in respect of the machine but despite receipt of the said written communication no action was at all taken by the Opposite Party which clearly and cogently amount to deficiency in service and unfair trade practice beside supplying defective goods having manufacturing defect. Thereafter, despite several reminders, no Engineer / representative of the Opposite Party has visited the K. Gurunath Cardiac Centre of the respondent (complainant) where the machine is installed and the same cannot be used by the respondent (complainant) since it is not functioning properly and due to this reason, the respondent (complainant) even after paying full consideration is unable to use the machine which // 7 // clearly amounts to deficiency in service and unfair trade practice and supply of defective product by the appellants (OPs) under the Consumer Protection Act, 1986. Hence the respondent (complainant) filed consumer complaint before the District Forum and prayed for granting reliefs as mentioned in prayer clause of the complaint.
3. Before the District Forum, none appeared for the appellants (OPs) inspite of service of notice, therefore, they were proceeded ex-parte.
4. Learned District Forum after having considered the material placed before it by the respondent (complainant) allowed the complaint and directed the appellants (OPs) to pay compensation to the respondent (complainant) as mentioned in para 1 of this order.
5. The respondent (complainant) filed documents. Annexure 1 is Invoice dated 21.01.2014, Annexure 2 is Application Demo, Annexure 3 is Machine Installation Report, Annexure 4 is Report of Machine, Annexure 5 is email sent by the respondent (complainant) to the appellants (OPs), Annexure 6 is item catalogue attached with machine.
6. In the instant case, the appellants (OPs) have filed an application under Order 41 Rule 27 CPC along with Purchase Order No.E1/SA/13-14/0245 dated 21.01.2014.
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7. We have heard the parties on the application filed by the appellants (OPs) under Order 41 Rule 27 CPC.
8. The appellants (OPs) sought permission to file Purchase Order No.E1/SA/13-14/0245 dated 21.01.2014. The above Purchase Order has been typed in the letter head of K. Gurunath Cardiac Centre, Bhilai (C.G.). In the above Purchase Order, Order No. is mentioned E1/SA/13-14/0245 dated 21.01.2014 and the respondent (complainant) pleaded in para 2 of his complaint that he had purchased on 21.01.2014 one MYLAB50 X-VISION, Sr. No.6032, Color Doppler Ultra Sound Scanner along with two probes 19" LCD Monitor with articulated Arm and Standard Accessories including Adult Cardiac Probe and Stress Echo System vide Invoice No.E1/SA/13-14/0245. It appears that the Invoice or Purchase Order is the same which is mentioned by the respondent (complainant) in his complaint, therefore, if the above document is taken on record as additional evidence at appellate stage, it will not cause any prejudice to the respondent (complainant).
9. Therefore, we allow the application filed by the appellants (OPs) under Order 41 Rule 27 CPC and the above document, is taken on record as additional evidence at the appellate stage.
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10. Shri M.K. Afzal, learned counsel appearing for the appellants (OPs) has argued that the impugned order passed by the District Forum is erroneous. As per purchase order dated 12.11.2013, it was specifically agreed between the respondent (complainant) and appellants (OPs) that after full and final payment, the machine will be delivered to the respondent (complainant) and the term of the payment was specifically enumerated in the purchase order dated 12.11.2013. The respondent (complainant) did not pay the full amount to the appellants (OPs) before delivery of the machine. Actually the machine was delivered by the appellants (OPs) to the respondent (complainant) before receiving full amount from the respondent (complainant). The respondent (complainant) suppressed material facts and filed consumer complaint against the appellants (OPs). In Service Report dated 05.04.2014, it is specifically mentioned that the machine was in good condition and was working properly. The signature of the Service Engineer, who examined the machine, was affixed in the Service Report dated 05.04.2014. According to the purchase order, the respondent (complainant) only paid a sum of 2,00,000/- on the date of purchase order and after couple of month, respondent paid part payment of Rs.10,00,000/- by way of cheque. The appellants (OPs) have supplied the machine to the respondent (complainant) although the respondent (complainant) did not honour the terms of the purchase order. The appellants (OPs) delivered the // 10 // machine to the respondent (complainant) in good condition and the appellants (OPs) have not breached any of the conditions of the purchase order. The respondent (complainant) did not file any expert report, but learned District Forum, did not follow the mandatory provisions of Section 13 of the Consumer Protection Act, 1986. Learned District Forum, Durg has no territorial jurisdiction to decide the matter. Shri Afzal has further argued that the District Forum has erred in entertaining the matter, as the instant matter comes under Arbitration and Reconciliation Act, 1996. As per terms and conditions agreed between the parties, all disputes will be resolved at Ahmedabad, and Ahmedabad Court has jurisdiction to decide the matter therefore, the impugned order passed by the District Forum is without jurisdiction and the same is liable to be set aside. He further argued that the learned District Forum has arbitrarily awarded compensation of Rs.4,50,000/- to the respondent (complainant) towards mental agony and interest awarded on the awarded amount is also on higher side, therefore, the appeal of the appellants (OPs) may be allowed and the impugned order be set aside.
11. Shri Mohit Diwan, learned counsel appearing for the respondent (complainant) has supported the impugned order passed by the District Forum and submitted that the impugned order passed by the District Forum is just, proper and reasonable and does not // 11 // suffer from any infirmity or illegality and does not call for any interference by this Commission. The purchase order was sent by the respondent (complainant) from Bhilai, District Durg (C.G.) and the machine was delivered at Bhilai, District Durg (C.G.), therefore, learned District Forum, Durg (C.G.) has jurisdiction to decide the matter. So far as arbitration clause is concerned, even if it is assumed that there is Arbitration Clause, alternative remedy provided in Section 3 of the Consumer Protection Act, 1986 can be availed by the respondent (complainant) because he falls within the definition of "consumer". The appellants (OPs) did not appear before the District Forum and written statement has also not been filed by thee appellants (OPs), therefore, the appellants (OPs) have no right to challenge the order passed by the District Forum on merits, therefore, the appeal filed by the appellants (OPs) is liable to be dismissed. Shri Mohit Diwan, learned counsel for the respondent (complainant) further argued that on 05.04.2014, the Service Engineer of the appellants (OPs) after inspection took few scan probes which were not coming properly along with the other functions of the machine which were not functioning properly, surprisingly and astonishingly even during the warranty period. On 05.04.2014 when the service report was prepared by the Engineer of the appellants (OPs), the respondent (complainant) clearly mentioned that some parts of the machine are still not working properly which are yet to be opened for which the visit of Application // 12 // Engineer in that regard is indispensible, which could not be done by the Service Engineer, who come on 05.04.2014. The respondent (complainant) had also clearly mentioned that he required with stressed Echo System which was not function in the machine totally after some time. Thus, the Inspection Engineer was unable to lapses/lacunas/shortcomings in the said machine, therefore, the impugned order passed by the District Forum is just and proper and does not suffer from any infirmity or illegality hence the appeal of the appellants (OPs), is liable to be dismissed.
12. We have heard the learned counsel for both the parties and have also perused the record of the District Forum.
13. Firstly, we have to examine whether merely presence of remedy of Arbitration under Arbitration and Conciliation Act, 1996 bars jurisdiction of the District Forum to take cognizance in the matter ?
14. In the case of M/s National Seeds Corporation Ltd. vs. M. Madhusudhan Reddy, 2013 (4) CPR 345 (SC), Hon'ble Supreme Court has observed thus :-
"29. The remedy of arbitration is not the only remedy available to a grower. Rather, it is an optional remedy. He can either seek reference to an arbitrator or file a complaint under the Consumer Act. If the grower opts for the remedy of // 13 // arbitration, then it may be possible to say that he cannot, subsequently, filed complaint under the Consumer Act. However, if he chooses to file a complaint in the first instance before the competent Consumer Forum, then he cannot be denied relief by invoking Section 8 of the Arbitration and Conciliation Act, 1996 Act. Moreover, the plain language of Section 3 of the Consumer Act makes it clear that the remedy available in that Act is in addition to and not in derogation of the provisions of any other law for the time being in force. In Fair Air Engineers (P) Ltd. v. N.K. Modi (supra), the 2 - Judge Bench interpreted that section and held as under :-
"the provisions of the Act are to be construed widely to give effect to the object and purpose of the Act. It is seen that Section 3 envisages that the provisions of the Act are in addition to and are not in derogation of any other law in force. It is true, as rightly contended by Shri Suri, that the words "in derogation of the provisions of any other law for the time being in force" would be given proper meaning and effect and if the complaint is not stayed and the parties are not relegated to the arbitration, the Act purports to operate in derogation of the Arbitration Act. Prima facie, the contention appears to be plausible but on construction and conspectus of the provisions of the Act we think that the contention is not well founded. Parliament is aware of the provisions of the Arbitration Act and the Contract Act, 1872 and the consequential remedy available under Section 9 of the Code of Civil Procedure, i.e., to avail of right of civil action in a competent court of civil jurisdiction. Nonetheless, the Act provides the additional remedy.
// 14 // It would, therefore, be clear that the legislature intended to provide a remedy in addition to the consentient arbitration which could be enforced under the Arbitration Act or the civil action in a suit under the provisions of the Code of Civil Procedure. Thereby, as seen, Section 34 of the Act does not confer in automatic right nor create an automatic embargo on the exercise of the power by the judicial authority under the Act. It is a matter of discretion. Considered from this perspective, we hold that though the District Forum, State Commission and National Commission are judicial authorities, for the purpose of Section 34 of the Arbitration Act, in view of the object of the Act and by operation of Section 3 thereof, we are of the considered view that it would be appropriate that these forums created under the Act are at liberty to proceed with the matters in accordance with the provisions of the Act rather than relegating the parties to an arbitration proceedings pursuant to a contract entered into between the parties. The reason is that the Act intends to relieve the consumers of the cumbersome arbitration proceedings or civil action unless the forums on their own and on the peculiar facts and circumstances of a particular case, come to the conclusion that the appropriate forum for adjudication of the disputes would be otherwise those given in the Act."
15. The remedy of the Arbitration is not only the remedy available to the parties, it is an optional remedy that either party can seek reference to Arbitrator for passing award or to file a consumer complaint under the Consumer Protection Act, 1986. If one of the parties opts for remedy of Arbitration, then it may be possible to say that he cannot subsequently file complaint under the Consumer // 15 // Protection Act. If he chooses for arbitration proceedings in the first instance, then he cannot file a complaint before the Consumer Forum, but if the arbitration clause was not chosen by any of the party, the complainant can file consumer complaint before the District Forum under the Consumer Protection Act, 1986. Section 3 of the Act, is worded in widest terms, and leaves no manner of doubt, that the provisions of the Act, shall be, in addition to, and not in derogation of any other law, for the time being, in force. The mere existence of an Arbitration Clause, would not oust the jurisdiction of the Consumer Fora, in view of Section 3 of the Consumer Protection Act, 1986. Therefore, in the instant case, the respondent (complainant) chose to file complaint before the District Forum and the matter was not referred to the Arbitrator by the appellants (OPs), therefore, learned District Forum, Durg (C.G.). has jurisdiction to decide the matter.
16. Now, we shall examine whether the District Forum, Durg (C.G.) has territorial jurisdiction to decide the matter ?
17. Sub section 2 of Section 11 runs as follows :-
"(2) A complaint shall be instituted in District Forum within the local limits of whose jurisdiction -
(a) the opposite party or each of the opposite parties, where there are more than one, at the time of the institution of the complaint, actually and voluntarily resides or carries on business or has a branch office or personally works for gain, or // 16 //
(b) any of the opposite parties, where there are more than one, at the time of institution of the complaint, actually and voluntarily resides or, carries on business or has a branch office, or personally works for gain, provided that in such case either the permission of the District Forum is given, or the opposite parties who do not reside, or carry or business or have a branch office, or personally work for gain, as the case may be, acquiesce in such institution; or
(c) the cause of action, wholly or in part, arises."
18. In the case of Santa Banta Com. Limited & Anr. vs. Porsche Cars & Ors , I (2014) CPJ 516 (NC), Hon'ble National Commission has observed thus :-
"15. As regards the decision of the Supreme Court in Sonic Surgical (supra), on which reliance has been placed in the impugned order, it is clearly distinguishable on facts. In that case, insurance policy had been taken at Ambala; the fire broke out in godown at Ambala and claim for compensation was also made at Ambala, which, as noted above, is not the case here. In the light of those facts it was held that no "cause of action" arose at Chandigarh, where the complaint under the Act was filed.
16. For the foregoing reasons, the appeal succeeds and is hereby allowed with no order as to costs. The impugned order is set aside and the complaint is restored before the State Commission, UT, Chandigarh for being decided on merits. The State Commission is requested to dispose of the complaint as early as possible."
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19. In the case of Tata Coffee Ltd. vs. N. Sreenivasalu, N. Murari, N. Venkatesh, N. Balaji, II (2014) CPJ 207 (NC), Hon'ble National Commission has observed thus :-
"11. The issue of territorial jurisdiction is again raised in the revision petition. But, we find that the petitioner / OP has solely relied upon a stipulation in the purchase bill stating ''all disputes are subject to Bangalore jurisdiction'. In support, the revision petition contends that when two Courts have concurrent jurisdiction to entertain and try a dispute, the parties can by consent confer exclusive jurisdiction on one of the two Courts. This is factually incorrect. No evidence was led before the Fora below to show that the two sides had 'mutually consented' to keeping the jurisdiction in Bangalore. On this issue District Forum has relied upon the provisions in Section 12(1)(a) in the Act to hold that as the goods were delivered in Bellary, the jurisdiction lay with the District Forum at Bellary. We may add here that in terms of the provision in Section 11(1)(c) the jurisdiction would lie with the District Forum where the cause of action has arisen, whether wholly or in part. In the present case, the cause of action arose in Bellary, where the goods were physically received and utilized. It arose when the block boards used in making of the furniture items were found to be infested with the borer pest. We, therefore, hold that the District Forum, Bellary has rightly exercised jurisdiction over the consumer complaint in this case.
In the light of the details considered above, we find no justification to interfere with the concurrent findings of the Fora below, in exercise of powers under Section 21(b) of the Consumer Protection Act, 1986. The revision petitions are held to be devoid of merit and are dismissed as such."
20. In the case of Monto Motors Ltd. vs. Sri Sai Motors & Anr. IV (2013) CPJ 372 (NC), Hon'ble National Commission has observed thus:-
// 18 // "10. Learned Counsel for the petitioner further submitted that District Forum, Bellary had no jurisdiction to entertain the complaint as disputes were subjected to jurisdiction of Delhi Courts as per letter of intent dated 17.9.2002. We do not agree with this submission as dealership was granted for Bellary and showroom was also opened at Bellary and security amount was also given for running dealership at Bellary. In such circumstances, cause of action had also arose at Bellary and as per Section 11 of Consumer Protection Act; complaint can be filed within the local limits of District Forum in whose jurisdiction cause of action arises. Merely by mentioning that all disputes are subjected to jurisdiction of Delhi Courts in the letter of intent, jurisdiction of Court at Bellary is not ousted."
21. In the case of Neha Singhal Vs. Unitech Limited and Abhishek Singhal vs. Unitech Limited, II (2011) CPJ 88 (NC), Hon'ble National Commission has observed thus :-
"3..............
In a similar case FA No.425 of 2010 - Munish Sahgal v. DLF Home Developers Limited, the State Commission had taken the same view. The above mentioned appeal was allowed by this Commission, vide order dated 9th February, 2011, based on the decision dated 11th April, 2002 of a 3 - Member Bench of this Commission in FA No.142 of 2001, Smt. Shanti v. M/s. Ansal Housing and Construction Ltd. The only point of some relevance in this case is that the house property in question is located in NOIDA, Gautam Budh Nagar, Uttar Pradesh. However, that fact alone cannot suffice to oust the territorial jurisdiction of the (Delhi) State Commission to adjudicate upon the complaint, in view of the specific provisions of Section 11(2)(b) of the Consumer Protection Act, 1986 ('the Act'). To emphasise the clause relating to jurisdiction of "Courts" in the agreement between the parties cannot by itself over-ride the statutory // 19 // right of the appellant / complainant conferred by the above mentioned provision of the Act - that would defeat the purpose and object of the Act. This view is also in accord with the provisions of Section 28 of the Indian Contract Act, 1872 (as amended with effect from 8th January, 1997)."
22. From the above cited judgments, it appears that merely by mentioning that all disputes are subjected to jurisdiction of Ahhmedabad Court, in the Purchase order, the jurisdiction of District Forum, Durg is not ousted. In the instant case, the purchase order was sent by the respondent (complainant) from Bhilai, District Durg (C.G.), and the machine was delivered at Bhilai, District Durg (C.G.), therefore, cause of action was accrued at Bhilai, District Durg (C.G.), hence District Forum, Durg has jurisdiction.
23. According to the respondent (complainant), the machine was installed after a considerable delay on 27.03.2014 whereas the machine was purchased on 21.01.2014 and the amount was paid by the respondent (complainant) to the appellants (Ps). The Stress Echo Licence was not there despite the same being a part of the machine and it was provided deliberately for a few hours after which it stopped functioning because the functioning was actually for only a few hours.
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24. The respondent (complainant) purchased the Machine vide Invoice Annexure 1 dated 21.01.2014 and according to the respondent (complainant), the Machine was delivered to him by the appellants (OPs) on 27.03.2014 i.e. after near about 2 months. It is the duty of the appellants (OPs) to deliver the Machine to the respondent (complainant) within time. It was also duty caste upon the appellants (OPs) to keep satisfaction that the respondent (complainant) is well qualified Cardiologist and he expended huge amount for purchasing the Machine, therefore, it is obligation on the part of the appellants (OPs) when they issued invoice dated 21.01.2014 to immediately supply above machine along with Adult Cardiac Probe from which the treatment of the serious patient would have been done but from the act of the appellants (OPs) it is proved that after the month of January, 2014, the machine without any defect was not provided to the respondent (complainant) in the month of April, 2014 because in Annexure A-2 in customer comments the respondent (complainant) told that there is requirement of visit of the Application Engineer because Stress Echo Licence was not opened. Naturally when the Stress Echo Licence was not opened then the machine could not start and in that circumstance if in the document, the Engineer has mentioned under the comments that the machine was in good condition even then the appellants (OPs) will not get any benefit. Thus in Annexure A-3 Installation Report it is mentioned that Machine // 21 // Adult Cardiac Probe, was not supplied. Annexure 4 is the picture of the defects in the machine, but the appellants (OPs) have not filed any evidence in rebuttal of above. Annexure A-5 is the complaint sent by the respondent (complainant) to the appellants (OPs) that the machine is defective in which in detail the appellants (OPs) gave reference to examine the machine. In Annexure A/5/2, the respondent (complainant) mentioned that the appellants (OPs) did not reply the phone and emails, even he mentioned that he is going to Consumer Forum, but the appellants (OPs) did not take any action regarding the machine. In Service Report (Annexure 2) dated 05.04.2014, the respondent (complainant) specifically mentioned that "Stress Echo Licence yet to be opened - one more visit by Application Engineer". In Installation Report (Annexure 3) it is mentioned that : "Adult Cardiac Probe Short Shipment". On the basis of above facts it appears that the proper machine was not delivered by the appellants (OPs) to the respondent (complainant). , therefore there is no need of expert report. On the basis of above facts, it is safely established that machine which was delivered to the respondent (complainant) by the appellants (OPs) was defective.
25. In the above circumstances, it appears that the appellants (OPs) supplied defective machine to the respondent (complainant) and defects in the machine were not cured by the appellants (OPs), // 22 // therefore, the finding recorded by the District Forum, is just and proper.
26. Learned District Forum has awarded interest @ 18% p.a. on the 15,45,000/-, which is on higher side. Looking to the facts and circumstances of the case, it is just and proper to award interest @ 9% p.a. on Rs.15,45,000/- from the date of filing of the complaint i.e. 29.06.2015 till date of payment.
27. Learned District Forum has directed the appellants (OPs) to pay a sum of Rs.4,00,000/-as compensation for loss suffered by the respondent (complainant) due to providing defective machine. The above amount is also on higher side. Looking to the facts and circumstances of the case, it is just and proper to award a sum of Rs.1,00,000/- (Rupees One Lakh Only) instead of Rs.4,00,000/- (Rupees Four Lakhs Only), under this head. The rest part of the order is just and proper and does not suffer from any infirmity or illegality and does not call for any interference by this Commission.
28. Therefore, the appeal of the appellants (OPs) is partly allowed and it is directed that the appellants (OPs) will pay within a period of two months a sum of Rs.15,45,000/- (Rupees Fifteen Lakhs Forty Five Thousand Only) to the respondent (complainant) after obtaining the machine in question from the respondent (complainant) and will pay interest @ 9% p.a. on the above amount instead of 18% p.a. from the // 23 // date of filing of the complaint i.e. 29.06.2015 till realisation. The appellants (OPs) are also directed to pay a sum of Rs.1,00,000/- (Rupees One Lakh Only) to the respondent (complainant) instead of Rs.4,00,000/- (Rupees Four Lakhs Only), as directed by the District Forum towards compensation for loss suffered by the respondent (complainant) due to providing defective machine. Remaining part of the impugned order is affirmed. No order as to the cost of this appeal.
(Justice R.S. Sharma) (D.K. Poddar) (Narendra Gupta)
President Member Member
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