State Consumer Disputes Redressal Commission
Gian Sagar Educational & Charitable ... vs M/S Blue X Imaging on 20 December, 2013
2nd Additional Bench
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB
DAKSHIN MARG, SECTOR 37-A, CHANDIGARH
Consumer Complaint No. 68 of 2010
Date of institution: 27.9.2010
Date of Decision: 20.12.2013
Gian Sagar Educational & Charitable Trust, Ram Nagar, Tehsil Rajpura,
District Patiala through its President.
.....Complainant
Versus
1. M/s Blue X Imaging through its Managing Director, Headquarters
at Via Idiaomi, 1/8-33 20090 Assago (MI) Italy.
2. Bergen Healthcare Private Limited through its Managing Director,
H.O. 305-306, Magnum House-1, Karampura Commercial
Complex, New Delhi - 110015
.....Opposite Parties
Argued By:-
For the complainant : Sh. O.P. Sharda, Advocate for
Sh. B.S. Walia, Advocate
For opposite party No.1 : Ex.-parte.
For opposite party No. 2 : Sh. Vishal Gupta, Advocate
Consumer Complaint under Section 17 of the
Consumer Protection Act, 1986.
Quorum:-
Shri Gurcharan Singh Saran, Presiding Judicial Member
Shri Piare Lal Garg, Member
Shri Jasbir Singh Gill, Member
ORDER
Gurcharan Singh Saran, Presiding Judicial Member The complainant has filed the present complaint under Section 17 of the Consumer Protection Act, 1986 (in short 'the C.P. Act') on the allegations that the complainant is an Educational and Charitable Trust (hereinafter referred to as 'Trust') situated at Ram Nagar, Tehsil Rajpura, District Patiala and it has established amongst other institutions Gian Sagar Dental College and Harnam Singh being CONSUMER COMPLAINT NO. 68 OF 2010 2 President of the Trust is fully acquainted with the facts of the case and it has been alleged that the complainant required Pentos DGXP Ceph Digital Panoramic Dental X-ray equipment with Cephalostat and quotations were invited. Quotation No. 70002 BHC INR dated 4.1.2007 given by OP No. 2 Distributor of OP No. 1, whose cost were quoted as Rs. 25,75,000/- i.e. Euro 32000 was stated to be State of Art in latest technology for digital imaging in dental radiology for being a high performance system equipment with two specific imaging detectors designed for the finest results in panoramic and cephalometric modes of the unit provided the quickest way to perform cephalometric analysis and measurement of imaging sensors being so fixed that there was no slow scanning of the patient involving no risk of movement, no image distortion. Vide letter of authorization and distribution dated 5.1.2007, OP No. 1 specifically authorised OP No. 2 to sell the aforesaid equipment as also to give after sales service and technical support while assuring technical support and supply of spare parts for 10 years from the date of supply of the equipment manufactured by it and accordingly, the quotation given by OP No. 2 was accepted. As per the terms and conditions of supply of the aforesaid equipment (in short referred as 'Unit'), provided warranty of the unit for a period of three years, labour service to maintain the unit for another two years and the suppliers ensuring satisfactory availability of repair and regular back and service for 10 years. Vide letter dated 18.4.2007, OP No. 2 informed the complainant that the ordered machine was ready for shipping and that the complainant should get ready as per the instructions contained in the aforesaid CONSUMER COMPLAINT NO. 68 OF 2010 3 communication. Accordingly, the above mentioned unit was supplied to the complainant by OP No. 1 through OP No. 2 and accordingly, it was installed in the premises of the complainant from 21.5.2007 to 29.5.2007. However, since its inception, the unit was creating/plagued by problems one after the other, which was duly brought to the notice of OP No. 1 and OP No. 2, who thereupon deputed the Service Personnel on 1.9.2007, problem was identified as pertaining to resetting of positioning. The Panorex tube head component of the unit, which takes X-ray images by revolving around the patient's head and thereafter come back to its position, the said problem was temporarily resolved by the Service Personnel in September, 2007. After sometime, the Unit again developed problem and stopped working. The Service Personnel of OP No. 2 found the unit non-functional in January, 2008 due to problem in the X-ray, which was duly replaced by OP No. 2, free of cost. Then it was found that power supply card was also damaged. OP No. 2 assured to replace the power card on receipt of the same from the manufacturer. However, at no point of time was the requirement of installing anti- virus in the unit. In February, 2008, the Unit was lying in non-working condition was attended by Service Personnel of OP No. 2, who replaced the power supply board and power switching board. It has been further stated that from the date of installation till February, 2008 control methods stated to be required to be installed were not informed to the complainant by either of the opposite parties. The power supply card which was to be imported was not received till 13.3.2008 rendering the unit non-functional till that date. Resultantly, CONSUMER COMPLAINT NO. 68 OF 2010 4 the detailed note was addressed by the complainant to OP No. 2 about the broken down status of the unit of the same having gone out of order on a number of occasions. Due to non-receipt of the defective parts, the Unit continued to be non-working on 14/15.3.2008, the machine was not working yet some repairs was carried out by Service Personnel of OP No. 2 resulting the unit becoming temporarily functional but with recurrent problems i.e. Condoyle i.e. part for imaging the right side of the face in the X-ray not working properly as image evidencing proper working of X-ray unit was not released by the Unit. Then the PAN part although working needed to be fine tuned in respect of Ceph part and OP No. 2 stated that the same would have been taken up and resolved by OP No. 1. It has been further alleged that on 6/7.5.2008 the Service Engineer of Op No. 2 recorded that there was communication problem in the unit resulting in the image quality not being upto the mark. However, whole digital Ceph imager was replaced with new one and the USB was also replaced but the image quality still remained below the required standard, despite complaint to OP No.
2. So far as precaution required to be taken i.e. installing of anti-virus, Windows with UPS, equipment to be handled by skilled staff, comments were given by the complainant that the OPG/Ceph Machine was already being handled by qualified Doctors and already used with Stablizer. However, the queries raised by the Doctors of the complainant Trust needed to be answered at the earliest. The unit again did not function on account of proper image not being released by it and OP No. 2 was also informed, who deputed their Engineer on CONSUMER COMPLAINT NO. 68 OF 2010 5 13.8.2008 and his remarks on the service report reveal that the images were not coming properly, that blank images were being retrieved from the unit, detailed response had been preserved in B/W Pl/C and M/C. The complainant also expressed surprise to the personnel of OP No. 2 as to why the chin rest had not been recommended for OPG since the chin rest stabilized the patients chin resulting in proper smile curve and that in the absence of the same, the images released were defective. The unit remained in perpetual state of malfunctioning due to one defect or the other. The Unit was again inspected by the Service Engineer of OP NO. 2 on 22.1.2009 and it was found that Ceph and TMJ were not working and it was detected that Ceph sensor card had to be replaced to run the Ceph mode of the machine and Service Personnel of OP No. 2 stated that it is required to be informed to OP No. 1 to send the requisite card. It was also recorded that TM joint setting would also be done inside the machine after clarification with OP No. 1. Although Ceph was replaced on 6/7.5.2008 but service report dated 17/22.1.2009 showed that the said component was defective and required replacement. It has been further alleged that on 17.2.2009, the Ceph part was received by Op No. 2 from OP No. 1 but it was found that the one of the component of the Power Supply of the Ceph was broken, therefore, the said component was required to be replaced and OP No. 2 stated that he would get it back after Ceph card was repaired and on 20.2.2009, the Service Personnel of Op No. 2 replaced the damaged Ceph Card. On 10.3.2009, in response to persistent problem of Ceph being non-functional, the Service Personnel of OP CONSUMER COMPLAINT NO. 68 OF 2010 6 No. 2 recorded that new Software and Driver supplied by OP No. 1 had been installed and code generated and through the said code of OP No. 1 would send licensed drivers for Ceph components. However, till the last week of March, 2009, the representative of OP No. 1 informed that Digital Cephalograph of which some part required replacement would take some time. On 2.5.2009, in response to the complaint of Ceph part being non-functional, the Service Personnel of OP No. 2 carried out inspection and found that Ceph part was not working. On 30.9.2009, during the routine visit of Service Personnel of OP No. 2, it was detected of line coming on the right side of ceph image whereupon the OP No. 2 undertook to discuss the same with Engineers of OP No. 1 and informed with reference to the action taken. On 22.12.2009, the initial problem, which was taken note by representative of Op No. 2 on 1.9.2009, it was again pointed out by the complainant and the same was again temporarily attended to by OP No. 2 with the remarks that the Cephalographic programme was required to be checked again. On 15.1.2010, recurrent setting problem was detected in the unit and earlier error was found despite trying to reset the machine. After checking and necessary adjustments, unit was again temporarily made workable by representative of OP No. 2. On 20.1.2010, recurrent resetting problem was again detected and on inspection by Service Personnel of OP No. 2, the unit was detected as showing a particular error, which required position sensor to be replaced. Vide letter dated 21.1.2010, communication was addressed to Op No. 1 with copy to OP No. 2 that ever since the installation of the unit, the same was not CONSUMER COMPLAINT NO. 68 OF 2010 7 working properly and the various parts have been replaced on number of occasions and that presently also the sensor of OPG machine needed to be replaced. The said component was also not working properly since long, therefore, defective unit has been supplied to them and accordingly, it was requested to replace the unit. On 2/3.2.2010, Service Engineer of OP No. 2 again found that machine was not resetting, resultantly, position sensor was replaced while Ceph mode still needed some clarification after discussion with Op No. 1 the unit was kept under observation. On 20.2.2010, OP No. 2 was again informed that OPG and Ceph machine had stopped working and that the Ceph image was not upto the mark. The perusal of the above mentioned details reveal beyond doubt that a defective machine was supplied by the Ops, thereby causing incalculable loss as well as harassment to the complainant, which is running Charitable Hospital as well as Educational Institutions, causing harassment to the patient from rural background, and the patients of the surrounding area. Ops failed to repair the unit to make it functional, to replace the unit with new unit, complainants served legal notice dated 26.4.2010 whereas OP No. 2 responded to the legal notice in which he has wrongly justified the unit supplied to the complainant was not defective, hence, the complaint with the direction to the Ops to replace the defective unit, award compensation of Rs. 5 lacs to the complainant on account of deficiency in service and cost of the complaint. However, in the alternative, opposite parties be directed to refund the cost of the unit CONSUMER COMPLAINT NO. 68 OF 2010 8 i.e. Euro 32000 alongwith interest @ 18% per annum and compensation quantified at Rs. 50 lacs.
2. Whereas the complaint was contested only by OP No. 2 and OP No. 1 did not appear despite service, therefore, OP No. 1 was proceeded ex-parte vide order dated 25.11.2010. Opposite party No. 2 in his written statement have taken preliminary objections that the unit was purchased by the complainant for commercial purpose and are charging fee for the treatment as well as X-ray from the patient, therefore, the subject matter does not fall within the jurisdiction of the State Commission; no cause of action has accrued for filing the complaint because the warranty period had already expired before claiming the replacement of the machinery, as per quotation, warranty was mentioned as under:-
"The system is warranted for the period of 36 months for any kind of manufacturing defect from the date of supply."
The quotation was accepted by the complainant and purchase order was placed on 13.1.2007 and by virtue of the purchase order, the system was supplied to the complainant as per invoice dated 21.4.2007, therefore, no cause of action has accrued for filing the present complaint; OP No. 2 is not an Agent of OP No. 1, therefore, no cause of action has accrued for filing the present complaint against Op No. 2; the complainant is estopped from filing of the present complaint due to his own act and conduct because from time to time whenever the services were provided by OP No. 2, the complainant has shown full satisfaction towards proper functioning of the System, the machine in dispute was one of the integral and CONSUMER COMPLAINT NO. 68 OF 2010 9 necessary equipment for renewal of license to run the Dental College of the complainant, for complete three years the complainant had given assurance and undertaking to the Dental Council of India that they have system in order and claim the renewal of the license to run Hospital and Dental College and that the complaint involves complicated questions of law and facts, therefore, the matter is required to be relegated to the Civil Court. On merits, the purchase of the unit by the complainant has been admitted. It has been further stated that complete demonstration and operational training was imparted to the complainant at the time of installation of the system and immediately after finding that the software arrived with the machine was demo version, full version of the software was arranged and loaded and new future complaints of the machine were received and attended. The complainant had not been operating the system as per the manual of instructions as well as it was not being operated through trained personnel, which was requirement for the proper functioning of the system. The system was checked by officials of OP No. 2 on 21.6.2007 when it was found that system was not properly handled by the complainant and warning was given to the effect that the customer is recommended to take care of the M/C mechanical and software setting. Minor defects, which subsequently occurred were rectified by OP No. 2, which were mainly due to mis-handling of the system. It has been denied that the complainant was not made aware of installing anti-virus in the unit. The use of anti-virus while using computer devices is a common masses, who are using computer and software related gadgets. Further the snag occurred as CONSUMER COMPLAINT NO. 68 OF 2010 10 the PC was not dedicated for the machine and initially it was equally being used as common PC for net surfing and other official or personal requirements by the officials of the complainant and was not with anti-virus software. Initially no provision was made for stabilization of power supply and installation site was not dust free. During the inspection by officials of OP No. 2, it was found that the sweepers who used to clean the installation site every morning used to push the vulnerable parts of the machine forcibly to make space for his cleaning requirement. The system never remained non-working any point of time. It has been denied that control method stated to be required to be installed were not informed to the complainant. Required information was imparted at the time of installation of the unit and user manual was also supplied. Whenever any problem arose it was immediately handled and serviced by OP No. 2 and parts, which were required to be changed were changed immediately on the asking of the complainant. The problems being projected by the complainant are due to either mis-handling of the system and due to minor wear and tear, which is always expected due to use of the system. The system was never in defunct condition. It has been further stated that defective image was due to imperfect posture while taking the picture. The system never remained non-function at any point of time. There were minor defects i.e. in a particular application, which were due to mishandling and improper use of the system inspite of various warnings. Whenever any short coming was pointed out to OP No. 2, the same were rectified by OP No. 2. The system worked for more than 3 years properly and in the meantime the CONSUMER COMPLAINT NO. 68 OF 2010 11 complainant never asked for its replacement. It was only after the expiry of warranty period they asked for refund of money. The unit is not a defective one, therefore, the same cannot be replaced and there is no merit in the complaint and the same be dismissed.
3. The parties were produced evidence alongwith the complaint and written statement.
4. In support of his allegations, the complainant had produced evidence affidavit of Sh. Harnam Singh, President Gian Sagar Education and Charitable Trust, Ex. C-A alongwith documents Authorization letter dated 08.09.2005 Ex. C-B, quotation dated 04.01.2007 Ex C-1, Letter of authorization and Distribution dated 05.01.2007 Ex C-2, Letter dated 13.01.2007 Ex. C-3 letter dated 18.04.2007 Ex. C-4, letter dated 01.09.2007 Ex. C-5, service report dated 13.02.2008 Ex. C-6, letter dated 13.02.2008 Ex. C-7, service report dated 14/15/3/2008 Ex. C-8, service report dated 6/7/5/2008 Ex. C-9, service report dated 13.08.2008 Ex. C-10, service report dated 17.01.2009 Ex. C-11, service report dated 22.01.2009 Ex. C- 12, service report dated 17.02.2009, Ex. C-13, service report dated 20.02.2009 Ex. C-14, service report dated 10.03.2009 Ex. C-15, service report dated 30.09.2009 Ex. C-16, service report dated 15.1.2010 Ex. C-17, service report dated 20.01.2010 Ex. C-18, letter dated 20.01.2010 Ex. C-19, service report dated 2/3/2/2010 Ex. C-20, letter dated 20.02.2010 Ex. C-21, Legal notice dated 26.04.2010 Ex. C-22, Postal and Courier report dated 26/27/4/2010 Ex. C-23, letter dated 08.05.2010, Ex. C-24, Installation/Commission report dated 21.05.2007 till 29.05.2007 Ex. C-25, OPD card dated 08.03.2011 Ex. CONSUMER COMPLAINT NO. 68 OF 2010 12 C-26, Test receipt dated 30.10.2010 Ex. C-27/1, General Receipts Ex. C-27/2 and Ex. C-27/3. The opposite party No. 2 had produced evidence affidavit of Sh. Bidhan Chandra Debnath, son of late Sh. K.C. Debnath, General Manager, Ex. R-A alongwith documents copy of the OPD card dated 17.01.2011 Ex. R-1, Copy of the receipt dated 17.01.2011 Ex. R-2, Copy of the invoice dated 21.04.2007 Ex. R-3, Copy of installation and commissioning report Ex. R-4, copy of letter dated 22.01.2009 Ex. R-5, copy of service report dated 04.10.2008 Ex. R-6, copy of service report dated 12.11.2008 Ex. R-7, copy of service report dated 19.11.2008 Ex. R-8, copy of the authority letter dated 24.1.2011 Ex. R-9.
5. We have heard the learned counsel for the parties, perused the allegations in the complaint, written reply filed by OP No.2 and documents and evidence brought on the record.
6. A preliminary objection has been taken by the counsel for the opposite parties that the machine was purchased by the appellant, who are running an educational institute to earn profits, therefore, the machine was purchased for commercial purposes, therefore, the complainant does not fall within the definition of 'consumer' as defined under Section 2(1)(d) of the Act. To support this proposition, he has referred to the judgment of the Hon'ble Supreme Court "Birla Technologies Limited versus Neutral Glass and Allied Industries Limited", (2011) 1 SCC 525. In that case, the services were obtained for commercial purpose, therefore, it was observed that the complaint is not maintainable. Whereas the counsel for the complainant has contended that the appellant is Charitable CONSUMER COMPLAINT NO. 68 OF 2010 13 Educational Institutional Trust and it is not being run to earn profits, therefore, the machine in question was not purchased for commercial purposes. To support this proposition, he has referred to the judgment of the Hon'ble National Commission "M/s Sarat Equipments versus Interuniversity Consortium", 1997(2) CPC
400. In that case, Chilling Unit was purchased for X-ray Generator by Education Society. It was said that purchase of equipment cannot be said to be for commercial purpose merely that it is being used by students paying certain amount of fee. He has referred to some other judgment of the Hon'ble National Commission "Kurji Holy Family Hospital versus Boehringer Mannheim India Ltd. & Ors.", 2007(2)
487. In that case, machine was purchased by the hospital found to be non-functional during warranty period. It was observed that plea that machine was purchased for commercial purpose cannot absolve respondent from its liability as defect was deducted during warranty period. Another judgment of Hon'ble National Commission was "Larsen and Toubro Ltd. versus Krishan Kumar Dhanker & Ors.", 2009(2) CLT 359 wherein it was again observed that even if the machine is purchased for commercial purpose, the purchaser will be consumer under Section 2(1)(d) during the period of warranty. Another judgment referred by the complainant of the Hon'ble National Commission is "Viewtech Imaging Equipment Pvt. Ltd. & Anr. Versus C.M.C. Ltd. & Anr.", 2008(2) CPC 660. In that case, a Projector was purchased by CMC, which is Public Sector Undertaking, which failed to function after purchase. The complaint was opposed on the ground that machine was purchased for CONSUMER COMPLAINT NO. 68 OF 2010 14 commercial purpose. Since it was observed that defect had occurred during warranty period, objection raised in this regard is not maintainable. Whether any article was purchased for commercial purpose, it will depend upon the facts and circumstances of the each case. It has been clearly stated by the complainant in his complaint that the complainant is Educational and Charitable Trust and it is not being run to earn the profits. Therefore, in the strict sense it cannot be said to have been purchased for commercial purpose. Then as per the pleadings on the record, the machine was purchased vide invoice dated 21.4.2007 and it was installed during the period 21.5.2007 to 29.5.2007 and as per the terms and conditions of the invoice, it was mentioned that the system is warranty for the period of 36 months for any kind of manufacturing defect from the date of supply, therefore, three years will be taken from 21.5.2007 i.e. upto 20.5.2010. The machine developed defects during the operation and it was attended by the Service Engineer of OP No. 2 on several dates, which will be discussed in the later part of the order but for the purpose of warranty period lastly the letter was written on 20.2.2010 that the machine has stopped working and the quality of Ceph Imager are also not upto the mark and on 26.4.2010 legal notice was given and as per the documents placed on the record lastly the machine was attended by the Service Engineer of OP No. 2 on 3.2.2010, therefore, within the warranty period, it was intimated to the Ops that the machine had developed defect and it was not working, therefore, Ops were bound to rectify the defects in the machine. Therefore, in view of the judgments referred above even if the machine was purchased for CONSUMER COMPLAINT NO. 68 OF 2010 15 commercial purpose during the warranty period, the Ops are under legal obligation to rectify the defects.
7. The next proposition is whether there is any manufacturing defect in the machine purchased by the complainant from the Ops. Defect has been defined under Section 2(d)(f) of the CP Act as under:-
(f) "defect" means any fault, imperfection or shortcoming in the quality, quantity, potency, purity or standard which is required to be maintained by or under any law for the time being in force under any contract, express or implied or as is claimed by the trader in any manner whatsoever in relation to any goods;
8. The definition of the defect will disclose that in case any part has imperfection or shortcoming in the quality, quantity, potency, purity or standard it is the defect. The complainant had purchased one machine Pentos DGXP Ceph Digital Panoramic Dental X-ray equipment with Cephalostat and in the complaint it has been detailed as referred above that it developed defects from time to time and it was attended by the Service Engineer of OP No. 2 but they are unable to rectify the defects, therefore, there is inherent defect in the machine. To support this proposition, there is affidavit of Harnam Singh, who is President of the Complainant Trust, who has been authorized vide resolution Ex. C-B. There is no dispute with regard to purchase of the machine from the Ops. Otherwise quotation is Ex. C- 1 and it was installed on 21.5.2007. The Service repair reports are Ex. C-5 dated 1.9.2007, Ex. C-6 dated 13.2.2008 and Ex. C-7 is a letter written by the Principal of the complainant to OP No. 2 that the machine has gone out of order number of times and not it is not CONSUMER COMPLAINT NO. 68 OF 2010 16 functioning for the last three months and that three months time/period will not be considered in the warranty period. Then there is another Service Report dated 14-15.3.08 Ex. C-8, Ex. C-9 dated 6&7.5.2008, Ex. C-10 service report dated 13.8.2008, Ex. C-11 service report dated 17.1.2009, Ex. C-12 service report dated 22.1.2009, Ex. C-13 service report dated 17.2.2009, Ex. C-14 service report dated 20.2.2009, Ex. C-15 service report dated 10.3.2009, Ex. C-16 service report dated 30.9.2009, Ex. C-17 service report dated 15.1.2010, Ex. C-18 service report dated 20.1.2010 and then there is letter dated 21.1.2010 written to OP No. 1 that the machine is not working properly since long, therefore, it is required to be replaced. Again Service Report dated 2-3.2.2010 and then there is letter dated 20.2.2010 that the machine has stopped working again and quality of ceph images are not upto the mark. Whereas on the other side, the evidence of the respondent is affidavit of Bidhan Chandra Debnath, General Manager of OP No. 2. He has placed on the record Ex. R-1 P{D Card of the complainant, one receipt charging Rs. 25/- from the patient, Ex. R-3 is invoice dated 21.4.2007, Ex. R-4 is installation/commission report. Ex. R-5 vide which the complainant had requested OP No. 2 to shift and install the machine to their new Radiology Department. Ex. R-6 Service Report dated 4.10.2008, Ex. R-7 service report dated 12.11.2008, Ex. R-8 service report dated 19.11.2008, Ex. R-9 letter of OP No. 2 vide which Bidhan Chandra Debnath is authorised to appear on behalf of OP No. 2. The large number of Service Reports as stated above show that from inception of the machine, it was not working properly and it has been under CONSUMER COMPLAINT NO. 68 OF 2010 17 repair for one reason or the other. It is clear from letter Ex. C-7 dated 13.2.2008 in which it was stated that the machine is lying out of order for the last three months. In service report Ex. C-8 dated 14/15.3.2008 it was observed that 'images were coming in Pan part, updated M/C Software version, Calibrated the Regulation Board, Found due to virus in machine, P.C., bug was entered inside the machine control unit which deleted reference value. On 6/7.5.2008, job description was as under:-
"Description of Job:
- New Digital Ceph imager was installed replacing the old one
- General checks & settings of the unit were performed
- Full check of Power and Data cable performed
- Since there was virus in the computer of customer, so it was got free of virus through their computer engineer and was got reformatted.
- USB Box has been replaced as probably it was affected with the presence of virus since long in the computer
- Further, the operation of the machine was informed to all concerned.
- Regarding the image quality, they were informed about to position the patient rightly.
- Machine has been handed over in perfectly & satisfactory working condition."
9. On 13.8.2008, job description is as under:-
"Checked the M/C found white image or Blank via Retrieved last memory image and found image OK.
But not as per actually (bcoz of positioning). Taken two images for observation from Blue X (Also Delayed response observed b/w pl/c & M/C) as time to time we have to retrieve last image.
Now M/C working fine and Images are coming OK"
10. On 17.1.09, job description is as under:-
"Checked M/C and found Ceph not working.
Done some settings and checked connections found error in Ceph Mode.CONSUMER COMPLAINT NO. 68 OF 2010 18
Took image of error and have to review this error with Blue X Italy. PAN Park Working OK."
11. Therefore, it is clear that the machine is suffering from various defects. A plea has been taken by the Ops in the written statement that the warranty period is over. However, we do not agree with this proposition raised by the counsel for the Ops because machine was installed on 21.5.2007 to 29.5.2007 and warranty period was three years from the date of supply, therefore, it was upto 20.5.2007 but before that a letter was written on 20.2.2010 but it was not attended to by the Ops and then legal notice was given on 26.4.2010, therefore, the defect, if any, reported to the Ops was within the warranty period and the Ops were under legal obligation to rectify the defect. The Ops had been repairing the machine from time to time but they were unable to do the service to the satisfaction of the complainant. Another plea was raised that the machine was not being handled by the professionals but it was stated that the machine is handled by the qualified Doctors. It is medical institution, therefore, certainly, the professional Doctors will be there, therefore, it cannot be said that the machine is not being operated by the qualified professional persons. In case the Ops have not attended to the service to rectify the defect in the machine, certainly there is deficiency in services on their part.
12. It has been further contended by the counsel for OP No. 2 that OP No. 2 had just supplied the machine. But documents on the record i.e. quotations and invoices is from OP No. 2, therefore, he is not just supplied the machine but is the Distributor of OP No. 1, CONSUMER COMPLAINT NO. 68 OF 2010 19 therefore, manufacturer and the Distributor both will be jointly and severally liable for the deficiency in services.
13. Accordingly, in view of the above discussion, it is proved that there is manufacturing defect in the machine, therefore, the complaint is allowed and the Ops are directed as under:-
"(a) to replace the defective parts of the machine within a period of one month from the receipt of the certified copy of the order with fresh warranty of three years from the date of replacement to the satisfaction of the complainant to be judged by an independent Technical person; in case the defective parts are not replaced within the specified period then the Ops will replace the machine with new one and on supplying the new machine the complainant will deliver back the old machine or the Ops will pay back a sum of Rs. 25,75,000/- to the complainant alongwith interest @ 9% per annum from the date of purchase of the machine till its realization;
(b) to pay Rs. 2 lacs as compensation on account of harassment and effecting the educational service to the Students through this machine;
(c) to pay Rs. 11,000/- as litigation expenses.
12. The arguments in this consumer complaint were heard on 10.12.2013 and the order was reserved. Now the order be communicated to the parties as per rules.
13. The consumer complaint could not be decided within the statutory period due to heavy pendency of Court cases.
(Gurcharan Singh Saran) Presiding Judicial Member (Piare Lal Garg) Member December 20, 2013. (Jasbir Singh Gill) as Member CONSUMER COMPLAINT NO. 68 OF 2010 20