State Consumer Disputes Redressal Commission
A. N. Enterprises vs Dr. Hemant Kulkarni on 22 June, 2015
1
BEFORE THE GOA STATE CONSUMER DISPUTES
REDRESSAL COMMISSION,
PANAJI - GOA
FA No. 62/2014
A.N. Enterprises,
office at B-1-6 Sterling Towers,
Shahupuri Kolhapur,
Maharashtra 416001 ........Appellant
V/s.
Dr. Hemant Kulkarni
Major in age,
102, Pacheco Complex,
Behind Police Station,
Margao, Goa 403 601. .........Respondent
Appellant/OP is represented by Adv. Shri. N. Fernandes.
Respondent/Complainant is present in person.
Coram: Shri. Justice N.A. Britto, President
Shri. Jagdish G. Prabhudessai, Member
Dated: 22/06/2015
ORDER
[Per Justice Shri. N. A. Britto, President] This appeal is filed by the Opposite Party in C.C. No. 29/10 and is directed against order dated 27/6/14.
2. Some facts are required to be stated to dispose off this appeal and for that the parties to this appeal are being referred to in the names as they appear in the cause title of the complaint.
3. The complainant is a medical practitioner having his medical practice and the consulting room at the address given in the cause title, for about 15 years. The complainant also claims that he holds a 2 diploma in occupational health from the year 1998. The complainant also works on a regular and retainership basis, as a factory medical officer, with Abbott, India, a pharmaceutical Company at Verna.
4. The OP has its business at Kholapur and manufactures and supplies accoustics products including cabins to reduce noise levels to conduct audiograms.
5. In the year 2008 or thereabout the OP had supplied to the said Abbott Laboratories an audiometry testing cabin to do audiograms and while the said cabin was being installed by the OP at the said Abbott Laboratories, the complainant came across OP's technician one Sagar Patil and having seen the cabin supplied by the OP asked the said Mr. Patil whether they could manufacture and supply audiometry testing cabin smaller in size as the complainant did not want to compromise on the sitting capacity of the waiting area of his office/consulting room. The said Mr. Patil visited the complainant's consulting room and opined that a smaller cabin could be set up without reducing the sitting capacity area but advised the complainant to contact Mr. Atul Bhende who would be in a better position to confirm the same and as such the said Mr. Atul Bhende visited the complainant's consulting room and confirmed what Mr. Patil had stated.
6. Accordingly, and after negotiations, the complainant agreed to purchase from the OP an audiometry testing cabin to conduct audiograms at a price of Rs. 80,000/- which was inclusive of taxes, freight and installation charges. As per the complainant, the complainant was to pay to the OP initially Rs. 25,000/- only and the balance as an when it was possible for the complainant to pay the same as the OP would never ask for release of payment of their own, 3 but, according to the OP the balance amount was to be paid upon installation of the said audiogram cabin. Other details regarding payment to be made have been mentioned by the Complainant in para 8 of his complaint.
7. The complainant then paid an amount of Rs. 25,000/- to the OP by DD dated 29/3/08 drawn on Bank of Maharashtra, and, the cabin was brought on or about 5/5/08 and installed (not in late April as contended by the complainant) and the complainant paid to the OP Rs. 7,000/- towards freight charges against receipt issued by the said Mr. Patil, and, on installation of the said audiogram cabin, the complainant issued to the OP satisfactory installation/completion certificate or report in his own handwriting dated 08/05/08 (job order as the complainant would call it in para 12 of the complaint) a copy of which has neither been produced by the complainant nor by the OP. Complainant claims that the audiogram cabin could not be checked for want of cables, a fact which has been denied by the OP.
8. The complainant then sent three letters to the OP dated 28/11/08, 2/3/09 and 2/7/09. In the first letter dated 28/11/08, the complainant informed the OP that the noise level in the cabin is not considerably less than that of the room outside and the exhaust fan increases the ambient sound in the cabin considerably and asked the OP to (i) send to the complainant a receipt for the payment of Rs. 32,000/-; (ii) to demonstrate by measuring the noise level in the cabin;
(iii) to paint the cabin properly to prevent easy rusting of the same and (iv) to restore the sitting capacity of his clinic as earlier; and in case he was not willing to do the same, to refund the money paid by him and to take back the cabin.
9. In the letter dated 2/3/09 the complainant specified for the first time that the level of noise in the cabin should be less than 40 dB and 4 that the cabin should be adjusted suitably so as to restore the sitting capacity of his clinic. In the third letter dated 2/07/09 the complainant requested the OP to reduce the noise level in the cabin by providing sound bafflers for the exhaust vent and to paint the cabin properly and also to assure to rectify the defects that may appear in the cabin in future or to take the cabin back, after refunding the amount of Rs. 32,000/- paid to the OP.
10. The complaint came to be filed on or about 18/5/10 seeking a direction to the OP (a) to issue a proper stamped receipt for the payment of Rs. 32,000/-; (b) to make arrangements to reduce the sound level inside the cabin to less than 40 dB by providing sound bafflers to the exhaust fan vent and by other suitable means; (c) to paint the cabin properly with rust proof paint and (d) to make whatever adjustments are required to restore the sitting capacity of the complainant's office; or for a direction to the OP to take back the cabin and refund to the complainant the sum of Rs. 32,000/- with interest at the rate of 12% p.a. in case the complainant was not willing to comply with aforesaid four prayers.
11. The complaint was resisted by the OP, and the OP pleaded that the cabin supplied to Abbott Industries at Verna was perfectly working well till date and the complainant is happily making use of the same for the purpose of its employees. The OP stated that the complainant had made clear to them that the audiometry cabin which would be installed in the clinic would be for commercial purposes and that the complainant was on his heels to get the cabin ready from 24/4/08. As per the OP, the complainant visited the office of the OP and some other places where such audiometry cabins were installed and only after satisfying himself, ordered for such an audiometry cabin to be installed in his existing clinic. The OP stated that the 5 complainant agreed to pay the amount of Rs. 80,000/- upon installation of the cabin but retracted from his promise and started giving different types of silly excuses for delay in payment. The OP stated that it was never agreed that in the event the complainant was unhappy, the cabin would be taken back by refunding the amount and that the complainant had agreed to pay the balance amount of Rs. 48,000/- on installation of the cabin in the clinic of the complainant and the complainant inspite of having giving a satisfactory report by letter dated 8/5/08, the complainant failed to fulfill his promise of paying the legally recoverable dues of the OP. The OP has stated that there was no question of any connecting cable being arranged by the complainant once the unit was installed in perfect working condition without any defect. The OP has stated that the complainant, on his own, upon full satisfaction of installation of the said Audiometry cabin unit gave a satisfactory report on his own letter head and in his own handwriting and that the technicians of the OP have never insisted on any job order which they did not require for the installation of the cabin. The OP has stated that the complainant had never informed about the malfunctioning of the cabin but the complainant was showing his happiness to the persons/workmen of the OP whenever he met them at the said pharmaceutical Company at Verna. The OP stated that the cabin was working to its perfection and during Mr. Bhende's visit the complainant showed his full satisfaction and promised payment within 15 days as the complainant was going through some financial crises due to some unexpected family problems and the said Mr. Bhende had full opportunity to check the performance of the unit and the same was in good condition and was appreciated by the complainant. The OP stated that it was not the case of the complainant that any electrical panel needed any change and the OP had not promised nor agreed to replace the same as there was no defect. The OP stated that as the Complainant did not 6 clear the payment, the OP was forced to send request letter and make phone calls demanding payment. The OP has stated the complainant has been making false and baseless allegations as far as the noise level is concerned and the noise inside the cabin is always related to the noise level that is prevailing outside the cabin and that there was no understanding between the OP and the complainant about the specific noise level or a particular dB. The OP stated that the complainant never gave any standard nor agreed upon any type of standard in his purchase order nor at the time of the installation nor after the installation but now is coming out with a unique idea with the sole intention to evade the payment. The OP stated that there are no defects at all in the cabin unit supplied to the complainant and hence the question of replacing any part did not arise. The OP stated that the letters are creation by the complainants only to avoid the actual payment to the OP and that there were no defects at all in the said unit installed at the clinic of the complainant. The OP stated that it is the complainant who has to pay to the OP Rs. 48,000/- with interest at the rate of 18% from 24/4/08 till its actual and final payment as the cabin unit has been used by the complainant for commercial purposes.
12. The Lr. District Forum referred to the brochure provided by the complainant. We assume that it is the copy of the web page of the OP, produced by the complainant, for the first time as Exhibit A1 with his affidavit-in-evidence and to which, according to complainant himself, he had referred to, subsequently, not at the time of placing the order. The Lr. District Forum referred to the letter dated 28/11/08, Exhibit B, and concluded that the OP had installed the cabin but had not commissioned the same which act amounted to deficiency in service, forgetting that the complainant had given a satisfactory report dated 8/5/2008 in his own letter head and in his own handwriting after 7 installation and commissioning of the cabin. The Lr. District Forum accepted the self-serving version of the complainant that the cabin had started rusting, and if continued further, the cabin would become useless and as such it was incumbent that the cabin should be coated with proper rust proof paint to preserve the cabin against climatic conditions. The Lr. District Forum also took note of the fact that the complainant had stated that he would definitely pay the amount due of Rs. 48,000/- after the deficiencies are attended and the audiogram cabin could be used for the purpose for which it was purchased. The Lr. District Forum therefore directed the OP, within 15 days, to rectify all the deficiencies in the said cabin and its equipment and make the same workable and upon the complainant being satisfied with the working and with the rectification of the deficiencies, the complainant should pay the balance amount of Rs. 48,000/- to the OP and in the event the OP failed and neglected to comply with the order within 30 days from the receipt of the order the OP was directed to refund the sum of Rs. 25,000/- only with interest at the rate of 9% p.a. and after payment the complainant was directed to handover the audiogram cabin back to the OP. One does not know what happens to the balance amount of Rs. 7000/- which the complainant had paid towards freight charges.
13. The complainant in support of the complaint produced the said three letters and filed his say on innumerable occasions. Complainant also filed his affidavit in evidence. The complainant did not produce any expert evidence to support his say that the noise level inside the cabin was around 60 dB, which is 20 dB more than maximum prescribed norms nor applied to the Lr. District Forum to get an expert appointed to find out the noise levels in the said cabin, when in operation. The OP filed his own affidavit in evidence.
814. Therefore, before this Commission, on 25/11/14 the parties were called upon to suggest ways and means to sort out the controversy and both agreed for the appointment of an expert, a Commissioner, to measure the ambient noise level in the audiometric cabin. The OP suggested the name of Mahesh Mohte, audiologist from New Mumbai Municipal Corporation. The complainant not only objected to his appointment but also scuttled it. The complainant then suggested that an expert be appointed as Commissioner from the Office of the Chief Inspector of Factories and Boilers, Government of Goa, to measure the ambient noise levels. In fact, as per order dated 12/3/15, a Commissioner was appointed to find out whether the audiometric cabin meets ANSI and/or OSHA standards. The Commissioner so appointed inspected the audiometric cabin in the presence of both the parties and submitted his report dated 17/4/15. Both the parties have filed their affidavits, thereafter. The OP has accepted the report. From the said report it can be seen that the sound levels with the fan "off" are less than 40 dBs as per OSHA standard at all frequency levels. The sound levels with fan "on" appears to be little higher at 500 and 1000 frequencies, as can be seen from the said report, and, which are in any case lower than 60 dB as claimed by the complainant in his letter dated 2/7/09. The complainant now says that the noise level meter brought by the Commissioner was not capable of measuring noise levels below 40 dB. This is not at all acceptable. The complainant has signed the report. It only shows to what extent the complainant can go.
15. After the report was submitted as already stated, both the parties have filed their additional affidavits. The complainant would submit that ANSI and OSHA are both international standards for measuring ambient noise levels. Complainant submits that in the complainant's cabin/booth the noise levels at 500 and 1000 frequencies 9 are high and he requires the noise levels to be below 40 dB at all frequencies. He submits that he had placed the order on the basis of their advertisement and that the OPs should make the cabin/booth which would be usable by both the standards.
16. On the other hand, Shri. Fernandes, the lr. advocate of the OP would submit that their cabins are manufactured to meet OSHA standards and their website is only for reference and the complainant placed an order, after seeing such cabins elsewhere, and not on the website. Lr. advocate submits that with the fan "off" the cabin complies with OSHA standards, and as far as the fan is concerned, lr. advocate submits that the fan is now making a little noise probably because it has not been in use for the last seven years or so. Lr. Adv. submits that the OP gives no guarantee for the electrical components including the fan which has outlived its lifespan of its rotation cycles.
17. Be that as it may, the case of the complainant is based on his self-serving statements, and so also the case of the OP. It is word against word. The complainant claims that the complainant's case is corroborated by the letters written by him which were not refuted by the OP. Understandable; but these letters have to be seen in the overall context of the case and could also be seen as an attempt to delay major part of the payment which was due to the complainant upon installation of the cabin/booth by the OP.
18. Let us take the case of the OP, first. The OP claims the complainant had installed the audiometric cabin for commercial purpose, a self-serving statement, to oust the complainant from the jurisdiction of the District Forum. This plea taken by the OP has been rightly rejected by the Lr. District Forum and the complainant has 10 been held to be a consumer within the meaning of that expression as defined under the C.P. Act, 1986. The complainant had purchased the said audiometric cabin for his professional activity which could not be considered as commercial activity. The Lr. District Forum has rightly held that the complainant to be a consumer.
19. Let us now consider the case of payment. The Complainant had paid Rs. 25,000/- by DD and Rs. 7000/- against receipt and had to pay balance amount of Rs. 48,000/-. The complainant claims that the OP had agreed that the balance payment could be made by the complainant as and when it was possible for the complainant as the OP would never ask for the same, on their own. This is stated by the complainant in letter dated 02/07/09 as well as in the complaint. These statements of the complainant sound highly improbable, as nobody does business on these terms. The complainant's version on this score is also conflicting. At one stage the complainant says that the said balance payment was to be made within three years, and at another stage concedes that the balance amount was to be paid upon testing the said cabin (at page 101) thereby confirming the OP's stand that the balance payment of Rs. 48,000/- was to be paid upon the installation of the said cabin. This plea of the OP sounds much more probable, than the conflicting pleas taken by the complainant which cannot stand together and are highly improbable. No prudent supplier would have waited indefinitely to obtain balance payment by a prospective customer even after a cabin was installed and commissioned. It is therefore obvious that the complainant has been evading the payment of the balance amount of Rs. 48,000/- from 8/5/2008 and has deprived the OP of the same.
20. Next, the complainant claims that the audiometric cabin could not be tested or commissioned for want of connecting cable, a fact 11 which has been denied by the OP. The complainant says that it took 3 days to install the cabin. This is understandable, considering that the freight receipt was given on 05/05/08 and satisfactory completion report was given on 08/05/08. The complainant would not have given a satisfactory completion report on 8/5/08 in case the complainant was not satisfied with the installation and commissioning of the said audiometric cabin. The Complainant has twisted the facts about the said satisfactory completion report and has stated that he had given a 'job order' to be produced before the authorities at Maharashtra-Goa border. The OP says, and in our view rightly, that such a job order would not at all be required after the cabin was installed in the complainant's premises. The complainant having been caught on the wrong foot, then says that the complainant could not have noted the defects immediately and the complainant could not be left to his fate, thereafter (page 57). The fact that the complainant gave a satisfactory completion report would show that the complainant had no problem with its noise levels, its size or painting or else the complainant would not have issued such a certificate. The noise problem, if at all, appears to have occurred only in November 2008, as can be seen from letter dated 28/11/08, Exhibit B to the complaint.
21. What was the size of the cabin, the complainant wanted the OP to manufacture? What noise levels was it to reduce? It appears that the complainant did not place the order for the cabin to be of any particular size, so also to meet any particular standard of noise level. All that the complainant wanted is not to sacrifice the sitting capacity of the waiting area of his consulting room and noise levels to be reduced while doing the audiograms, but not to any particular standard. It appears that there are three standards to measure the ambient noise levels, inside an audiometric cabin, namely OSHA, 12 NIOSHA and ANSI (see page 41, appeal file). The complainant as a well-qualified consumer ought to have given specific instructions to the OP in terms of size of the cabin to be manufactured and the noise levels to be reduced inside the cabin as compared to outside the cabin. The least which was expected of the complainant was to obtain a quotation from the OP. The complainant cannot now be heard to blame the OP for not having given any quotation to the complainant when it is not the case of the complainant that the complainant had asked for any such quotation. All that the complainant wanted is that the noise level inside the cabin should be reduced so that he could prepare better audiometric reports without insisting upon the OP that the cabin had to meet any required noise levels as per any standards. It is not the case of the complainant that he had placed the order for the manufacture of the cabin after seing the website of the OP to which the Lr. District Forum has given much importance. It is the very case of the complainant that he accessed the website much later i.e. via google search engine (see pages 53, 145). Certainly, it is not the case of the complainant that he had ordered the audiometric cabin to meet the noise levels as per ANSI/OSHA standards, as reflected on the website. The complainant, in his affidavit in evidence, says that Mr. Bhende had informed him that the audiology booths are made as per ANSI standard and the same is mentioned on the website. The complainant further says that he checked their website and their cabins were supposed to be as per ANSI standard. These are nothing but improvements in the case of the complainant from the case pleaded by the complainant which was also not disclosed in letters written earlier. These statements are also contrary to the website which says that their rooms/cabins are according to ANSI/OSHA standard (page 79). The complainant now says that the booth should meet both standards. What standard did the complainant have in mind when the complainant wrote letter dated 2/7/09 asking the OP 13 to reduce the noise level inside the cabin? By what standard did the complainant find the noise level was 65 dB? By what standard has the complainant prayed, vide prayer (2) that the noise level should be less than 40 dB, if not by OSHA standard? The slash between the words ANSI and OSHA on the website is used to denote two alternatives i.e. either ANSI or OSHA standards. At one stage (page
27) the complainant even stated that if the OP could demonstrate that there is effective reduction in the noise level as per OSHA standard and paint the cabin properly, he would have no hesitation to pay OP's dues. We are inclined to believe that the complainant ordered the OP to manufacture the audiometric cabin only with the view to reduce the noise level without any specifications to improve the quality of audiogram reports. The complainant at that time did not have in his mind to what dBs the noise had to be reduce or by which standard, ANSI or OSHA. That the cabin ought to meet the noise levels as per OSHA standard is one of the subsequent demands made by the complainant. On behalf of the OP it is conceded that their cabins are as per OSHA standard.
22. The commissioner's report now shows that the noise levels at all frequencies with the fan "off" are less than 40 dBs as per OSHA standard. The complainant has signed the said report and the report has also been accepted by the OP. The problem appears to be only with the level of noise with the fan "on" at frequencies of 500 and 1000 which is 53.7 and 51.5 respectively and this is after a passage of almost 7 years after the cabin was installed and commissioned. Complainant's assertion in letter dated 2/7/09 that the noise level was 60 dBs at one time cannot be accepted as said noise level could not have decreased but only increased with the passage of time.
23. Having realized this situation, on behalf of the OP, it is submitted that the fan has out lived its life. It is also submitted that the OP does not give any guaranty towards the electrical fittings.
1424. It is also not the case of the complainant that in the last 7 years or so the complainant has not made use of the said cabin in as much as it is nobody's case the cabin could not be used at all in case it generated little more noise with the use of fan at 500 and 1000 frequencies. It is quite probable that with the passage of time the fan has started making noise for which the OP cannot be blamed. The complainant himself took two years to approach the Forum and the Forum took another 4 years to dispose off the complaint. The complainant has not paid even half of the cost price of the said cabin and has deprived the OP of its rightful dues of Rs. 48,000/-, now for more than 7 years. The complainant has sought from the OP a copy of the receipt for payment of Rs. 32,000/-. We fail to understand where there was need for such a receipt for the complainant when the complainant had paid Rs. 25,000/- by demand draft and Rs. 7000/- against the receipt and this payment has not been disputed by the OP. It appears that the complainant only wanted to make out the case for deficiency in service or anyway strengthen the same with such prayers. Complainant can always stamp the receipt given to him for the payment of Rs. 7000/-. It is not the case of the complainant that the cabin was not painted and it is difficult to accept that the cabin which was painted in May became immediately rusty soon thereafter in following October. One does not even know of what material it is made in as much as the complainant has not even produced a photograph of the said cabin to demonstrate that it has rusted. One need not believe everything stated by the complainant as gospel truth, without corroboration. The complainant has not even given the area of the cabin in the complaint vis-à-vis the area of his consulting room, though elsewhere the complainant has stated that the cabin is 2x2 ft. in area. The complainant has not produced any photographs of the cabin in relation to the consulting room. In such situation the 15 complainant would not be entitled to prayers (1), (3), (4) of the complaint and certainly not prayer (5) after the complainant had made use of the cabin for almost 7 years. As far as prayer (2) is concerned, as already stated, the cabin supplied by the OP reduces the noise inside the cabin to below 40dBs as per OSHA standard with the fan switched "off", though with the fan switched "on" the level is slightly higher and is 53.7 and 51.5 dBs as per OSHA standard.
25. With a view to balance the equities and considering the totality of the facts of the case, we hereby direct the complainant to prove his bonafides and to deposit before the Lr. District Forum the sum of Rs. 48,000/- due to the OP with pending interest at the rate of 6% to be paid to the OP and on the said deposit being made we direct the OP to provide to the complainant's cabin a new fan so as to reduce the noise level at 500 and 1000 frequencies to 40 dBs or below.
26. With the above observations we allow the appeal partly and modify the impugned order accordingly, with no order as to costs.
[Shri. Jagdish G. Prabhudessai] [Justice Shri N. A. Britto]
Member President
sp/-
16
17
18