State Consumer Disputes Redressal Commission
Sun Medicine Private Limited vs First Medical Service on 5 February, 2008
STATE CONSUMER DISPUTES REDRESSAL COMMISSION:ORISSA:CUTTACK STATE CONSUMER DISPUTES REDRESSAL COMMISSION:ORISSA:CUTTACK C.D. CASE NO.115 OF 2004 Sun Medicine Private Limited, Plot No.B, Unit-1, Rajpath, Bhubaneswar-751009, Represented by its Director, Dr. Dipak Mitra, S/o. Dr. Sukumar Mitra, Complainant. -Versus- First Medical Service, 125/L/85 Govind Nagar, Kanpur-208006, represented through its Owner, Piyush Seth. Opposite Party. For the Complainant : M/s. S. Kar & Assoc. For the Opposite party : M/s. V. Nigam & Assoc. M/s. B.N. Panda & Assoc. P R E S E N T : THE HONBLE SMT. BASANTI DEVI, MEMBER A N D SHRI SUBASH MAHTAB, PRESIDENT IN-CHARGE. O R D E R
DATE: - 05TH FEBRUARY, 2008.
Actually complainant Sun Medicare Private Limited and not Sun Medicine Pvt. Limited has filed this case under Section 17(i) of the Consumer Protection Act, 1986, hereinafter be called as C.P. Act to direct opposite party First medical Service to pay to the complainant rupees 71,75,600/- as per the schedules A, B, C and D of the complaint petition and to return him the cost of the C.T. Scanner machine, litigation cost and interest thereon alleging unfair trade practice and deficiency in service, though complainant has been described in the cause title of the complaint as Sun Medicine Pvt. Limited.
2. The case of the complainant stated in brief is as follows that complainant viz. Sun Medicare Private Limited, represented by its Director Sri Dipak Mitra is a company under the Companies Act, 1956. This Company provides different types of medical service to the patients using modern diagnostic equipments and is treating patients by qualified doctors and Technicians. The opposite party, who is a supplier of machine Computer Topography Scanner, submitted his quotation (Annexure-1) on 13.12.2001 to the complainant to supply Topography Scanner with total lending price rupees 32,00,000/- at Bhubaneswar in response to the quotation invited by the complainant for supply of this machine. The complainant signed Memorandum of understanding, in short M.O.U. (Annexure-2) with the opposite party on 24.01.2002, agreeing to accept the quotation of opposite party. The M.O.U. contained the description of system configuration, the total price rupees 26,00,000/- with conversion price as on 24.01.2002 including cost of system, customs clearance etc. and payment terms viz. to book the order on initial payment of rupees 5,00,000/- after dispatch of the machine, rupees 15,00,000/- to be remitted against documents through Bank, rupees 3,00,000/- be given to Government of India as customs duty and rupees 3,00,000/- be paid after installation. It was stipulated as per M.O.U. that the Scanner machine is to be despatched by ship.
3. The specific case of the complainant is that advance of rupees 5,00,000/- vide cheque drawn on UCO Bank was paid to opposite party on 10.04.2002. Invoice was raised by the opposite party indicating value of such goods at rupees 32,00,000/- on 09.05.2002. Besides payment of advance, rupees 5,00,000/- as aforesaid, petitioner paid rupees 10,00,000/- to opposite party. Complainant issued a letter on 03.10.2002 to Union Bank of India, Chandrasekharpur Branch to release rupees 17,00,000/- in favour of opposite party towards full and final payment of CT Scanner. On 05.10.2002, the CT Scanner equipment / system arrived at the site of the petitioner company for installation. Though as per MOU, CT Scanner machine is to be delivered within 4 to 6 weeks after advance remittance and advance remittance was made on 10.04.2002, yet the machine was delivered much later than the agreed time. Fax letter dated 17.10.2002 (Annexure-4) was issued by the complainant to the opposite party for deputing Engineer to install the machine at complainants site. Though Engineer reached at the site on 17.01.2003, yet he could not install the CT Scanner machine as it was found damaged during installation and the machine was to be replaced. Accordingly, complainant intimated the same on 20.01.2003 (Annexure-5) to the opposite party. Complainant issued reminder (Annexure-6) dated 29.01.2003 to the opposite party to install the machine by 10.02.2003 or else to refund the entire money. The opposite party admitted about damage of the machine during transport and assured complainant on 30.01.2003 to install the machine by 15.02.2007 (Annexure-7). Though complainant had completed all necessary arrangements like power supply and civil work from 31.10.2002 yet the petitioner created problem for which there is delay in installation of the machine. On 27.02.2003, the replacement of the Gantry arrived at the site of the complainant and on 22.04.2003, the Engineer of the opposite party installed the machine. The complainant started preliminary operation. Though the optimum capacity of the machine was much high, yet due to lower rate of performance, the complainant did not derive much benefit in operating the machine, complainants work load on the machine was very low at the initial stage. While management with the machine was like this, the machine went completely out of order in the meantime which complainant intimated opposite party vide letter dated 05.05.2003 (Annexure-8). Opposite party however rectified the defect on 30.06.2003. Complainant used said machine in providing medical services to the patients. Soon thereafter complainant faced technical problems in machine regularly which was being intimated time to time to the complainant. But even though the opposite party has obligation under warranty to remove such defects in the machine, yet he avoided to remove such defects by sending his technical persons and only went on advising over telephone. This continued till June, 2004. The machine went completely out of order in the month of June, 2004 and when complainant intimated about this to opposite party, opposite party vide letter dated 14.06.2004 (Annexure-9) informed him that he is not obliged to repair the same on free of cost as warranty period has expired since 21.04.2004 and offered an annual maintenance contract @ rupees 50,000/- restricting technical expert charges for four visits without covering warranty for replacement of spare parts. Later on complainant and opposite party on discussion settled the warrantee period valid upto 20.09.2004 (Annexure-10) dated 16.06.2004. In spite of this and in spite of repeated request by the complainant, the opposite party did not rectify the mistake. Thus due to deliberate inaction and negligence of the opposite party, complainant suffered financial loss, loss of goodwill and mental agony. The complainant had to pay all its expenses due to default of the opposite party during the period from 31.10.2002 till 22.04.2003 and sustained huge loss of rupees 18,22,000/- as per schedule A of the complaint due to delay in delivery of the machine and installation in between 25.05.2002 to 22.04.2003. Complainant sustained loss as per schedule B of the complaint rupees 3,40,600/- after installation of machine from 05.05.2003 to 30.06.2003 and loss of rupees 22,80,000/- due to running breakdown in between 30.06.2003 to 30.05.2004 as per schedule C of the complaint. He also sustained loss of rupees 27,33,000/- as per schedule D of the complaint due to total breakdown of the machine from 01.06.2004 to 20.09.2004. The specific case of the complainant is that with some malafide intention, opposite party has supplied him a defective machine which from the beginning gave low performance viz. the time taken for each job was more than three times in comparison to other machine of same make and model. Due to poor performance and defects, the complainant did not get reasonable return from the resources invested for starting business with this machine. Therefore, he has been compelled to file the case.
4. As per his written version, the opposite party has challenged the locustandi of Dr. Dipak Mitra in filing the C.D. case. He has challenged the maintainability of the case as Sun Medicare Private Limited has purchased the C.T. Scanner machine for commercial purpose to run a multi-utility diagnostic centre and not to earn livelihood. Opposite party has stated through the written version that 5th page of the quotation (Annexure-1) contains the terms and conditions of the transaction. But complainant has purposefully withheld said important page and only filed four pages of the quotation which should not be taken into consideration. The M.O.U. (Annexure-2) is not complete and accepted. Therefore, it is not binding on either of the parties. After the M.O.U. was signed by the representative of the opposite party when tendered for signature of the complainant, complainant has returned back to the opposite party without signing suggesting modification of certain condition. Thus, none of the parties would be bound by said M.O.U. The entire transaction between them is in accordance with quotation. The specific case of the opposite party in brief is that initial payment of rupees 5,00,000/- was made on 10.04.2002 according to the quotation. After this, complainant paid rupees 10,00,000/- in September, 2002. Commercial Invoice dated 13.09.2002 for rupees 3,20,000/- (Annexure-3) is never issued by the opposite party and is a forged one as the value of the machine projected and accepted is rupees 32,00,000/- and invoice was only raised on May, 2002. Opposite party admits receipt of rupees 17,00,000/- from the complainant through his Banker and about arrival of the machine on 05.10.2002 at the site of the complainant where it was to be installed. According to the opposite party, after booking amount was deposited with him, opposite party booked order of the specified machine with their principal without making delay which was despatched by the principal in time. The machine reached Indian store in the month of May, 2002. But due to laches of the complainant to release funds towards invoice, there is delay in delivery of the machine to the complainant through Bank. As complainant could not release said amount through its Bank, opposite party was to pay heavy demurrage to the customs department where the consignment was detained for very long time. Thus, there is no laches of the opposite party in respect to timely delivery of the machine to the complainant. The opposite party admits about the letter dated 17.10.2002 (Annexure-4) of the complainant. Opposite party has stated that though an article of the machine was damaged during transport, yet installation of the machine was least affected. His installation Engineer had visited the place of installation prior to 17.01.2003, but found complainant has not made the place of installation suitable, for which the installation Engineer had left the place advising to make the site suitable. But the complainant made much delay. In this respect, opposite party refers to letter dated 20.01.2003 (Annexure-5) filed by the complainant. Opposite party does not admit in respect to complainants letter dated 29.01.2003 (Annexure-6) and denied to have written letter dated 30.01.2003 to the complainant admitting that the Gantry has been damaged during transportation which opposite party would replace and promised to complete installation by 15.02.2003 and asked complainant to complete the civil work by the date of installation. However, installation of the machine took place on 22.04.2003 and warranty period ended by 21.04.2004, stipulation in the quotation being twelve months from the date of installation. At no point of time, the warranty period was extended upto September, 2004 and Annexure-10 relied by the complainant is a forged one. It is stated by the opposite party that the machine is highly sensitive and exorbitant. Therefore, unless, machine is properly handled by owned technician, it will not give better performance. The machine is such that it virtually stops and would never given poor performance. After installation, there was no technical fault in the machine, whatever problem arose in respect to the machine due to human error during the warranty period have been rectified by his skilled engineer free of cost. But, charges would be demanded in case any repair to be made beyond warranty period. Otherwise the machine was running perfectly will to the satisfaction of the complainant, whereas the complainant is unnecessarily complaining for facing problems. He has never complained about poor quality performance of the machine. The complainant has made out facts by concoction and fabrication and exaggeration only for the purpose of making out a case to claim huge amount towards loss, interest and compensation as per schedule A, B, C and D of the complaint petition. Thus, there is no fault, deficiency in service or deficient performance of the C.T. Scanner machine. For these grounds, the opposite party claims for dismissal of the C.D. case.
5. Heard the learned counsels appearing from both sides. Perused the complaint petition, written version and rejoinder affidavit in reply to the written version filed by the complainant through Dipak Mitra. We also went through the xerox copies of documents including Annexures 1 to 10 and Annexure-11 the xerox copy of the complete quotation and Annexure-12 the xerox copy of M.O.U. and Annexure-13 the xerox copy of letter dated 13.09.2004 filed on behalf of the complaint.
6. On total reading of the pleadings of the parties and the documents and correspondence with opposite party filed in this case, there is no ambiguity that the complainant is Sun Medicare Private Limited, represented by its Director Dr. Dipak Mitra which is being recognized as such by the opposite party also. Moreover, though opposite party does not admit binding effect of M.O.U. (Annexure-2) on either of the parties, yet both parties rely upon the Quotation (Annexure-1) in respect to the General Electric C.T. Scanner model C.T. Pace with 3M952 with other affixture is the machine to be sold by opposite party to the complainant at Bhubaneswar for a price of rupees 32,00,000/- (rupees thirty two lakhs). In the complaint petition, complainant also admits the price of this machine as rupees 32,00,000/- by way of disbursement of money.
7. The complainant has brought up this case against the opposite party to be compensated by him for the loss sustained as have been enumerated in schedule A, B, C and D of the complaint petition and to get refund the price of the said C.T. Scanner machine with interest and cost of litigation alleging deficiency in service and unfair trade practice on the following reasons ;
(i) Though stipulated in the M.O.U. has been made that delivery of the C.T. Scanner machine of the site of the complainant is to be made for installation within 4 to 6 weeks after advance remittance of rupees 5,00,000/- is made and complainant made advance remittance of rupees 5,00,000/- on 10.04.2002, yet after causing much delay the machine was delivered at the complainants site on 05.10.2002 (after about 24 to 25 weeks).
(ii) That though complainant wrote opposite party on 17.10.2002 (vide Annexure-4) to install the machine at his site yet the opposite party caused delay in installing the machine on 22.04.2003 only and had failed to provide him a perfect C.T. Scanner machine whose Gantry was found damaged by the time said machine was delivered at his site.
and
(iii) That, though at the initial stage work load in the machine was very small, yet there was lower rate of performance of the machine, as a result of which complainant did not get much benefit.
(iv) That, while giving lower performance, the machine went out of order which of course opposite party rectified on 30.06.2003. But soon thereafter during warranty period, though there was regular technical problem in the machine, yet the opposite party, in spite of rectifying the same by his technician went on advising over phone till June, 2004 and later on vide letter dated 14.06.2004 (Annexure-9), intimated complainant that charges would be levied upon for repair, since warranty period has expired since 21.04.2004. Due to defect in the machine which was not being rectified by the opposite party, complainant was to bear all its expenses and there was loss of business, goodwill and financial loss of the complainant.
8. The opposite party has not only challenges all the aforesaid allegation, but also challenges the maintainability of the consumer case on the ground of locustandi, the machine being purchased for commercial purpose, for which consumer case cannot be filed and jurisdiction of the Consumer Commission to try the dispute is ousted, as opposite party has no branch office or business in the State of Orissa. These being the main attack to the case filed by the complainant need consideration in this case.
9. In respect to aforesaid allegation No.(i) of the complainant, there is no doubt about it that M.O.U. (Annexure-2) was never given effect to and, therefore, is not binding on either of the parties. While filing Annexure-2 along with the complaint, it did not bear the signature of the complainant whereas when later on another copy of Annexure-2 was filed as Annexure-12 by the complainant, it contained complainants signature. This shows that after opposite party pointed out about inapplicability of M.O.U., for which complainants signature on Annexure-2, is absent. Complainant some how managed to cause appearance of his signature in Annexure-12 and filed the same later on. At the same time, complainant has filed the complete quotation later on marking it as Annexure-11. The payment term in M.O.U. (Annexures-2 and 12) when is for rupees 26,00,000/-, it is rupees 32,00,000/- in the undisputed quotation (Annexures-1 and 11). This is a clear case of malafide intention of the complainant while making out a case of default by the opposite party at the initial stage of transaction. No doubt in view of the condition as per the quotation the machine was to be given delivery to the complainant approximately 3 to 6 seeks after advance remittance. Here complainant made advance remittance of rupees 5,00,000/- on 10.04.2002 whereas long thereafter opposite party has made delivery of the machine at complainants site on 05.10.2002. Opposite parties denies issuing commercial invoice dated 13.09.2002 (Annexure-3) and says that complainant paid rupees 10,00,000/- in September, 2002 and as against the invoice raised in May, 2002 admits to have received rupees 17,00,000/- from the complainant through his Banker after which the machine reached at the site of the complainant for installation. Thus after dispatch of the machine by the manufacturing company only after complainant remitted the amount as per quotation, the machine was delivered to the complainant. Therefore, opposite partys case is that complainant made too much delay to remit the amount, for which the consignment was declaimed in the customs department seems believable as nothing have been produced by the complainant to falsify this plea of the opposite party. Moreover, the complainant has never complained about delay in delivery of the machine to the opposite party. Therefore, we are reluctant to hold that opposite party committed fault causing too much delay in delivery of the machine.
10. In respect to aforesaid ground No.(ii), admittedly vide letter dated 17.10.2002, complainant had requested opposite party to depute his Engineer to install the machine. But, it is seen from the letter dated 30.01.2003 (Annexure-7) of opposite party addressed to the complainant that, by the time and till the month of January, 2003, complainants site for installation of the machine was not ready till then. The opposite party while promising to bring a Gantry soon from the principal manufacturer to replace the Gantry which was damaged during transportation provided that complainant is to issue a way bill, opposite party told complainant to complete the installation by 15.02.2003. In this respect, when complainant issued way bill is not known. Complainant has not made out that he has complied with all the condition of replacement as per the clause for replacement in the quotation. In this end of the view, opposite party cannot be called as a defaulter the machine being installed on 22.04.2003. Complainant no where established that Gantry is an important and indispensable part in absence of which the machine cannot be installed. Undisputedly this part was damaged during transportation by ship. Therefore, due to damage of this part, the C.T. Scanner machine cannot be called strictly as defective. The complainant had never complained before the opposite party about this and demanded either for replacement of the machine or refund of its price and instead went on using the machine after it was installed and Gantry was replaced.
11. Coming to aforesaid ground No.III, the machine admittedly was installed since 22.04.2003 and complainant operated the same. But complainant has not discharged his burden in any manner that said machine initially gave lower rate of performance depriving him from expected benefit.
12. In respect to aforesaid ground No.(IV), it may be stated that admittedly machine was installed on 22.04.2003. But complainant has not stated or produced any materials to show the type of defects noticed in the machine and the period showing regular technical problems after rectification of defects by opposite party on 30.06.2003. The complainant is a big company and has undertaken to provide medical service to different types of patients in aid of modern, sophisticated diagnostic costly machine like the C.T. Scanner through qualified doctors. But strange enough, it has not produced a scarp of official paper or register to show regular technical problems in the m machine or inadequate performance of this machine giving him loss, benefit and profit. Therefore, it appears highly improbable that the machine very often was suffering from mechanical / technical defect soon after it was installed and opposite party has neglected to rectify the same during the period of warranty. In this end of the view, opposite partys plea of handling the machine by inexperienced and untrained person cannot be ruled out. This also find sufficient support from the letter dated 10.01.2004 of Sri S.C. Singh, Chief Executive of the complainant requesting opposite party to arrange with an organization having the similar made of C.T. install for training of his Technician Mr. Surendra Barik or in alternative, to give detail address of such organization, so that complainant can contact for the purpose. He has at the same time requested opposite party to fix up with the organization by recommending his candidate for C.T. operation training treating this as urgent. This letter is written after 30.06.2003 and before June, 2004. It seems in spite of lower performance and defects in the machine in the meantime, the business relationship between complainant and opposite party was good till January, 2004 and whatever defect was experienced through said machine by the complainant were due to mishandling of the machine by person having no sufficient technical experience to handle the machine. Therefore, the loss of business and profit alleged by the complainant has no basis at all.
13. Moreover, the warranty period in view of the quotation is 24 months from the date of the arrival of the machine in customs. Annexure-10 is challenged by the opposite party as a forged one. Without making any comment in respect to genuineness at Annexure-10, we can safely conclude that there was no occasion for extension of the period of warranty since no major defects or manufacturing defects in the C.T. Scanner in the meantime after its installation has been complained by the complainant. On the other hand, it is felt that the complainant suffers from running the said machine smoothly due to non-availability of experienced technician. Therefore, complainant appears to have come up with a concocted case that the opposite party is negligent in removing technical and mechanical defects in the machine even during the period of warranty. For these reason, we find complainant has not come up with clean hand and, therefore, is not entitled to claim any loss and damage from the opposite party and to get refund of the value of the C.T. Scanner.
14. Further, articles purchased for commercial purpose comes within the purview of C.P. Act, if it is purchased and used exclusively for the purpose of earning his livelihood by self employment in view of insertion of Explanation to Section 2(1)(d)(i) and (ii) of the C.P. Act as per Consumer Protection amendment Act 2002 (Act 62 of 2002) with effect from 15.03.2003. But on total reading of the complaint petition, it is understood that the complainant had bought the machine and was hiring service of installation of the same at his site to earn profit as a mater of trade and commerce and not to earn his livelihood. Therefore, the C.D. case is not maintainable. Moreover, the opposite party might not have Branch Office or business in the State of Orissa, but the agreement to sale, the machine and delivery of the machine took place at Bhubaneswar. Therefore, irrespective of the cause of action at Bhubaneswar, as complainant is not a consumer, the Consumer Commission has no power to entertain the dispute complained as per the complaint petition. Therefore, the contention in this respect of the opposite party has no merit.
15. However, taking into consideration the different aspects of the case as per the complaint petition and the written version with reference to the documents referred to above, we find that the complainant has miserably failed to establish a case of deficiency in service and unfair trade practice against the opposite party. The complainant has also miserably failed to make out a case that due to deficiency in service and unfair trade practice, he was put to financial loss, loss of goodwill and profits in aid of the C.T. Scanner and was put to mental agony due to fault and negligence by the opposite party. In these circumstances, we find no merit in the complaint case, for which the complainant is not entitled to get any relief at all against the opposite party.
16. In the result, the complaint is dismissed on contest without cost.
BASANTI DEVI MEMBER SUBASH MAHTAB PRESIDENT IN-CHARGE Samal