State Consumer Disputes Redressal Commission
Dr. D. J. De Souza vs Managing Director, Cpc Diagnostics ... on 8 July, 2016
1
BEFORE THE GOA STATE CONSUMER DISPUTES
REDRESSAL COMMISSION,
PANAJI - GOA
FA No. 17/2016
Dr. D. J. De Souza
C/o Luz Lab, Margao - Goa. ... Appellant
v/s
Managing Director,
CPC Diagnostics, Chennai - 600, 086. ... Respondent
Appellant in person.
Shri. N. G. Kamat, Lr. Counsel for the Respondent.
Coram: Shri. Justice U. V. Bakre, President
Smt. Vidhya R. Gurav, Member
Dated: 08/07/2016
ORDER
[Per Justice Shri. U. V. Bakre, President] This appeal is directed against the order dated 29/02/2016 passed by the Lr. Consumer Disputes Redressal Forum, South-Goa ("Forum", for short) in Complaint No. 15/2016, whereby the said Complaint has been dismissed at the stage of admission. The Appellant was the Complainant whereas Respondent was the Opposite Party (OP) in the said Complaint. Parties shall hereinafter be referred to as per their status in the said Complaint.
2. The Complainant had filed the said Complaint with a prayer to direct the OP to take back the instrument (TurboChem 100, Automated Random Access Analyser) from his premises and to refund to him Rs. 3,50,000/- with 9% interest from 1/12/2015 till date and for punitive damages of Rs. 50,000/- for mental torture and harassment. The case of the Complainant, in short, is as follows:
He had placed an order for TurboChem 100 unit with the Respondent by dispatching Rs. 3,50,000/- by cheque drawn on Axis 2 Bank, Margao Branch from Account No. 121010100086745 and sent by speed post to the Respondent at Chennai. The Respondent sent to him quotation by email in the second week of August 2015 and promised to install the instrument by the second last week of September or first week of October. One Mr. Prashant, in-charge of Sales and Marketing had given the said assurance on mobile. No brochures were sent and no visits were given by the Service Engineer prior to the delivery of the instrument at his laboratory. The instrument was delivered on 30/09/2015. In the second week of October, Mr. Sandeep, Service Engineer of the OP visited his laboratory and opined that 1000mv/650 watts, UPS of APC company was not suitable for the said instrument and advised him to get 1 KWA online UPS for usage during power failure, in which the line voltage would be between 220-230 volts, which was procured from APC power company, and manufactured by MNC company Schindler Electric. The Complainant had 1KWA online UPS installed by M/s. Megatrends, Margao - Goa on 23/10/2015, and had Declaration letter from Ms. Peggy Loewe of M/s Awareness Technologies, California, USA, approving the online UPS of 1KWA from Schindler Electric. But the Respondent was hell bent on installing the isolation transformer to rectify the damage to the instrument. Presently, the Complainant is using 650 watts (1000mv off line UPS) from APC Company for powering his automated biochemistry analyser, coralyser which has got the onboard laundry plus cooling system, during power failure, along with his 1200 watts Genset. No mention of isolation transformer is mentioned on email brochure nor any mention of absence of on-board laundry system in the instrument was mentioned. All the requirements of 1KWA online UPS, along with Air Conditioned premises and internet facilities were available with the Complainant and were presented to the OP but still the instrument was not installed due to insistence of isolation transformer by the OP which was supplied at the cost of Rs. 12,000/-. The instrument was not installed and no sample was 3 run on it. On 24/11/2015 the Service Engineer told him that onboard laundry was not existing in the instrument and this was a huge set back. The instrument was thus rejected due to non-availability of the on-board laundry. Instrument was then put back in the packing box and sealed to be taken to Chennai with a letter addressed to transport company. Legal notice dated 03/01/2016 was sent to the OP. Since the requirement in notice was not complied with, the Complaint was filed.
3. Upon hearing the arguments of the Complainant on admission, the Lr. Forum did not find any reason to admit the Complaint as there was no allegation of any manufacturing defects or in any deficiency in service.
4. Heard arguments. The Complainant argued in person whereas Mr. N. G. Kamat, Lr. Counsel argued on behalf of the OP. Both the parties have also filed written submissions.
5. The Complainant submitted that this is a case of restricted unfair trade practice. He contended that he was well aware of the quality of the products of M/s Awareness Technologies Inc U.S.A. from 2006 which prompted him to place the order for the subject- instrument. He submitted that he already had four analyzers and also four UPS. He submitted that he had purchased 1 KVA online UPS on 19/10/2015. He submitted that he being MD knows as to what he requires. According to him all the requirements for installation were provided. He submitted that the OP wanted to sell isolation transformer and therefore they were not willing to install the instrument. He read out the correspondence between him and one Ms. Peggy Loewe dated 29/10/2015 and 30/10/2015, wherein the said Peggy who is the representative of the OP has specifically stated that the UPS purchased by the Complainant will be good provided the TurboChem item is the only item hooked up to the UPS. He also read out the letter dated 18/01/2016 addressed by the 4 OP to him, wherein according to him, the OP insisted for isolation transformer. He contended that isolation transformer is not at all required for such instrument and pointed out that the brochure also does not contain the same as requirement. The Complainant further submitted that all his other instruments have on-board laundry system but the present instrument did not have the same and therefore he did not want the instrument. The Complainant therefore urged that there was restricted unfair trade practice of selling the instrument which did not have onboard laundry system and further promoting isolation transformer without need. He therefore submitted that the impugned order is bad in law and the Complaint ought to have been admitted.
6. On the other hand, Mr. Kamat, Lr. Counsel for the OP submitted that the Complainant, already, was aware of the quality of the products of the OP and had four other machines which were supplied by the same OP and therefore the Complainant cannot question the reputation of the OP. He invited our attention to the brochure of the OP in respect of the instrument TurboChem 100, wherein there is absolutely no mention of any on-board laundry system. He further pointed from the brochure that the pre- installation requirements are mentioned in the terms and conditions wherein, inter alia, there is mention of 1 KVA online UPS. He contended that other machines in market may be having various facilities including on-board laundry system but that does not mean that the subject instrument should also have the same. He further contended that on account of problems of fluctuations in electricity in Goa and in view of the insistence of the Complainant to use the 'ACP' UPS which he had with him, the isolation transformer was required and this was as per the experience of the OP. He submitted that the Complainant had refused to get it installed and that the real reason for refusal was nothing but non-availability of on-board laundry facility. He submitted that there is neither any allegation of 5 any manufacturing defect nor any deficiency in service in the complaint and looking at the fact and circumstances of the case, the impugned order thereby dismissing the complaint at admission stage cannot be questioned. He therefore urged that the appeal be dismissed.
7. Records and proceedings of complaint No. 50/2016 were called for. We have gone through the entire material on record.
8. The records reveal that soon after the Complainant had made inquiry about automated biochemistry analyzer, the OP had enclosed their best offer for TurboChem100 Fully Automated Random Access Biochemistry Analyzer and had also enclosed the brochure for reference. This was prior to the payment of 50% made by the Complainant. The said cheque for 50% amount was encashed by the OP on 07/10/2015. In the said brochure, every detail of the said instrument was specifically mentioned. There is mention of on- board cooling facility etc. as some of the features. However, there is no mention of on-board laundry facility. Again, in the terms and conditions, there is specific mention of requirement of 1 KVA online UPS for running of the equipment. But the Complainant had with him the APC brand of UPS and he was insisting for using the same. The OP had written to the Complainant that the Awareness Technology Inc had authorized them to recommend to their customers the power supply regulating equipment and that the APC brand of UPS was not suitable for TurboChem100. It was informed that the APC had confirmed to the Complainant that there is a floating voltage between Neutral and Earthing and that there is involvement of a relay to prevent feedback protection current flow. The OP had informed the Complainant that with the above limitations, delay time during Relay operations and floating voltage fluctuations may sometimes cause malfunctions of operation of liquid level sensing and light barrier sensors, of TurboChem100 which employs micro voltage for these functions. No doubt, there is 6 no mention in the brochure about the requirement of isolation transformer. But the OP has explained in their letter dated 18/01/2016 that since the Complainant had purchased the APC UPS manufactured by Schneider Electric contrary to the advice of the OP, the OP had to install the isolation transformer, with the consent of the Complainant. There is therefore no substance in the allegation of the Complainant, in this regard.
9. Another grievance of the Complainant is about lack of on-board laundry facility in the instrument. The Complainant wants the OP to state in the brochure about the absence of on-board laundry facility. This is ridiculous and not possible since only that which is available in the instrument will be stated in the brochure and whatever is not stated in the brochure should be deemed to be not existing in the said instrument. Thus, the foundation for the Complaint laid by the Complainant to the effect that the brochure should have mentioned the absence of on-board laundry facility is itself weak and not tenable. It is seen that the Complainant himself refused to get the said instrument installed. The real reason for the Complainant to refuse installation is the absence of on-board laundry facility in the instrument. The Complainant, who being MD, knew what he wanted and ought to have been careful before placing order and ought to have confirmed whether there is on-board laundry facility in the instrument or not. Merely saying that all his other instruments have such facility does not mean that all the instruments in the world will have the said facility. The main reason for not admitting the Complaint is because the Complainant could not place before the Forum any order placed by him for unit having on-board laundry facility.
10. The Complainant had purchased the APC UPS manufactured by Schneider Electric. Merely because he spent Rs. 23,000-/ for the same, it does not mean that the same is suitable for the TurboChem100 supplied by the OP. Again, merely because 7 according to the Complainant, he has been using similar UPS for his other instruments that also does not mean that the same will be suitable for the subject-instrument supplied by the OP. What was required for the subject-instrument was specifically mentioned in the brochure and it was 1 KVA online UPS. It was the duty of the Complainant to have fulfilled the said requirement for the installation of the instrument. The Complainant cannot expect the OP to mention in the brochure all that is not there in the instrument. The Complainant cannot refuse the instrument on the ground of non availability of on-board laundry. The case of the Complainant cannot come under the definition of unfair trade practice which, inter alia, means making of false or misleading representation concerning the need for, or for the usefulness of, any goods or services. The Complaint has been rightly rejected at the stage of admission and no purpose would have served by admitting such a Complaint which has no merits.
11. The appeal, therefore, deserves to be dismissed and is accordingly dismissed. Parties to bear their own costs.
[Smt. Vidhya R. Gurav] [Justice Shri. U. V. Bakre]
Member President
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