National Consumer Disputes Redressal
Dr. Vijai Prakash Goyal vs The Network Limited on 11 August, 2005
Equivalent citations: IV(2005)CPJ206(NC)
ORDER
K.S. Gupta, J. (Presiding Member)
1. This revision is directed against the order dated 15.7.1998 of Consumer Disputes Redressal Commission Uttar Pradesh, Lucknow allowing appeal against the majority judgment dated 16.11.1996 of a District Forum and dismissing complaint filed by the petitioner.
2. Petitioner filed complaint, inter alia, alleging that he along with his wife has been running a maternity home at 10/60, Katar Madari Khan, Agra. Petitioner placed an order on 22.2.1994 for supply of Ultrasound Scanner Model 212 on the respondent opposite party. Respondent supplied the machine on 31.3.1994. Warranty was of one year. It was alleged that after installation, the machine went out of order. Engineer deputed by the respondent on checking found that the machine needed to be replaced, if being defective. Respondent had not replaced/repaired the machine despite repeated requests including service of legal notice dated 5/8.12.1994 by the petitioner. It was stated that petitioner has suffered professional loss of Rs. 1,50,000 in addition to loss of Rs. 50,000 on account of mental agony. It was prayed that respondent be directed to remove the defects in the machine supplied and if those could not be removed, then to replace the machine and pay said amount of Rs. 2 lakh by way of damages. Respondent contested the complaint by filing written version. Purchase of Ultrasound Scanner model 212 by the petitioner was not denied. However, it was pleaded that petitioner is not a consumer as defined in Consumer Protection Act, 1986 (for short the Act). There was no agreement between the parties for rendering any services. Sum of Rs. 30,000 towards principal amount was still due from the petitioner. It was denied that petitioner has suffered loss of Rs. 2 lakh as alleged.
3. President of the District Forum dismissed the complaint while the Members of Forum allowed it with direction to the respondent to repair the machine, pay Rs. 20,000 as compensation and extend the warranty period by another 12 months. In the alternative, respondent was to pay amount of Rs. 1 lakh with 18% p.a. interest w.e.f. 31.3.1994 towards damages to the petitioner. State Commission allowed the appeal against the majority judgment filed by the respondent on the ground of petitioner being not a consumer under the Act.
4. Order dated 19.4.2002 notices that the view taken by State Commission in regard to petitioner not being a consumer, prima facie, cannot be justified as the machine developed defects during warranty period. However, instead of remanding the matter to State Commission, it was thought proper to decide the case on merits itself. Contention advanced by Ms. Poonam Gupta for respondent was that petitioner is not a consumer nor did the respondent agree to render any service qua the machine. Part of sale consideration of Rs. 30,000 was still due from the petitioner and, therefore, no relief can be granted to the petitioner. Notice dated 5/8.12.1994 which was replied to by the respondent was got served through Counsel by the petitioner during the warranty period of one year which was to expire on 17.4.1995 itself. In Jay Kay Puri Engineers and Ors. v. Mohan Breweries and Distilleries, I (1998) CPJ 38 (NC) and many other decisions, this Commission held that purchaser of a machine would be a consumer if the defect in machine develops within warranty period even though the machine was purchased for commercial purpose. Therefore, the contention of petitioner not being a consumer is repelled being without any merit. Further, as Ultrasound Scanner purchased by petitioner developed defects within warranty period, the respondent was obliged to remove that defect despite there not being a separate agreement for service thereof.
5. In regard to alleged non-payment of Rs. 30,000, it was pointed out by Mr. P.K. Seth for petitioner that the amount pertained to another transaction. Copy of affidavit of Raja Raman, Company Secretary filed by way of evidence by the respondent is placed in Vol. II at pp 30-38. Bare reading of para No. 29 of this affidavit would show that amount of Rs. 30,000 pertained to invoice No. MD/94-95/00022 dated 20.7.1994 for Rs; 1,50,000 towards supply of a probe. Copy of invpice-cum-challan of this case is placed at p 2 in said volume II. In this document, the particulars of invoice is noted as MD/994/00073 dated 11.3.1994. This invoice is different from said invoice dated 20.4.1994. Obviously said amount did not pertain to this transaction.
6. As noticed above, majority judgment of District Forum was for repairs of the machine by the respondent and, in alternative, for payment of amount of Rs. 4 lakh with interest from date of supply of machine i.e.. 31.3.1994. Ultrasound Scanner in question was supplied in the beginning of 1994 and in 2005 after more than 10 years, it will not be just and proper to ask the respondent to make it functional after repairing it. In support of the allegations made in complaint, the petitioner filed his affidavit by way of evidence before the District Forum. Needless to repeat that petitioner has sought compensation of Rs. 1,50,000 on account of professional loss and Rs. 50,000 as compensation for mental agony and, in alternative, District Forum directed payment of Rs. 1 lakh with interest @ 18% p.a. w.e.f. 31.3:1994 by the respondent. In our view, in the facts and circumstances of case, award of consolidated amount of Rs. 1.75,000 would meet the ends of justice.
7. Resultantly, while allowing revision, said order dated 15.7.1998 of the State Commission is set aside and respondents directed to pay Rs. 1,75,000 as compensation within six weeks to the petitioner. No order as to cost.