State Consumer Disputes Redressal Commission
M/S A & A Overseas, Wx-100/4, Titarpur, ... vs Director, Pt. B.D. Sharma, Pgims, ... on 2 May, 2012
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, HARYANA, PANCHKULA First Appeal No.555 of 2009 Date of Institution: 24.04.2009 Date of Decision: 02.05.2012 M/s A & A Overseas, WX-100/4, Titarpur, Tagore Garden, New Delhi-110027. Appellant (OP) Versus Director, Pt. B.D. Sharma, PGIMS, Rohtak. Respondent (Complainant) BEFORE: Honble Mr. Justice R.S. Madan, President. Mr. B.M. Bedi, Judicial Member. For the Parties: Shri N.K. Malhotra, Advocate for appellant. Shri Ajay Chaudhari, Advocate for respondent. O R D E R
Justice R.S. Madan, President:
This appeal has been preferred against the order dated 06.03.2009 passed by District Consumer Forum, Rohtak whereby the complaint filed by the complainant (respondent herein) was accepted with the following direction to the appellant-opposite party:-
.we have come to the conclusion that complaint is tenable. Accordingly we hereby allow the complaint with direction to the complainant to deposit the AMC charges with the opposite party as per terms and conditions of the contract and further the opposite party is directed to take up the Annual Maintenance Contract and to put both the machines in working conditions. Opposite party is further directed to pay Rs.5000/- (Rupees five thousand only) as litigation expenses to the complainant and to comply the order maximum within one month from the date of decision.
The case of the complainant before the District Consumer Forum was that a supply order bearing No.PA-11/01/2818 dated 30.03.2001 was placed to the appellant-opposite party with the terms and conditions as mentioned in para No.1 of the complainant for supply of two nos of imported Dedicated computerized Stress Test System (Holland Make) @ Rs.7,00,000/-. The opposite party installed the equipment in the Department of Medicine on 02.12.2001 and on 04.06.2002 in Cardiology Department of the opposite party. Complainant further stated that as per condition No.10 of the supply order, the opposite party was assigned the Annual Maintenance Contract (A.M.C.) of the equipments vide letter dated 02.11.2004 but the opposite party inspite of following the terms and conditions of the supply order, demanded the refund of security amount deposited by them and 5% custom duty vide letter dated 15.11.2004 whereas as per terms and conditions No.3 and 4 of the supply order, the custom and clearance was to be borne by the supplier. Complainant further stated that the required CDEC (Custom Duty Exemption Certificate) and NMIC were provided to the opposite party firm vide letter dated 08.05.2001 but since the opposite party had not taken up the Annual Maintenance Contract, both the machines are out of order and caused lot of inconvenience to the Department and Cardiac effect adversely. Thus, the complainant alleged deficiency in service against the opposite party and invoked the jurisdiction of the District Consumer Forum.
Upon notice, the opposite party appeared and contested the complaint by filing written statement stating therein that the interpretation given to clause 4 of supply order had been misinterpreted and contrary to para No.3 of the Note Sheet of tender form issued by the opposite party in respect of contract under reference. The second unit of Stress Test System was installed on 04.06.2002 in Department of Cardiology of the complainant Institution due to the delay in providing space for installation of the said machine in Cardiology Department but this fact was intentionally concealed by the complainant that any Annual Maintenance Contract could have been entered into just after the expiry of warranty period. However, the machine in the institution of the complainant was installed on 02.12.2001 and the warranty period expired on 4.6.2004. It was stated that the standby equipment was provided when the equipment under reference was taken for repairs and no amount was charged for the same and in view thereof there should have been no grouse for the complainant in respect to the matter in issue. Thus, denying any kind of deficiency in service on its part, the opposite party prayed for dismissal of the complaint.
On appraisal of the pleadings of the parties and the evidence adduced on the record, District Consumer Forum accepted the complaint and issued direction to the opposite party as noticed in the opening para of this order.
Aggrieved against the order of the District Consumer Forum, the opposite party has come up in appeal.
We have heard learned counsel for the parties and perused the case file.
On behalf of the appellant-opposite party it has been argued that the machines were purchased by the complainant-Institution for commercial use and therefore, the complaint before the District Consumer Forum was not maintainable. It has further been argued that AMC charges were never deposited by the complainant with the opposite parties as per terms and conditions of the agreement executed between the parties and thus the AMC contract was not a concluded contract. Therefore, the appellant-opposite party cannot be forced to enter into an agreement for AMC and the direction issued by the District Consumer Forum is not within the ambit of the Consumer Protection Act.
We find force in the arguments raised on behalf of the appellant. Admittedly, the machines were purchased for using the same in the respondents Institution where fee is charged from the students as well as the treatment is given to the patients against charges. Thus, on this ground the complaint of the complainant is not maintainable.
So far as the Annual Maintenance Contract between the parties is concerned, from the record it is established that the AMC could have been entered into just after the expiry of the warranty period but in the case in hand, a machine was installed on 02.12.2001 the warranty of which expired on
02.12.2003. The other machine, for which the space was not provided by the complainant for installation of in the Cardiology, was installed after a delay of more than ten months on 04.06.2002 on account of negligence, callousness, lack of communication among the staff of complainant and the warranty period of the said machine had expired on 04.06.2004. The complainant failed to perform its part of contract due to non-deposit of the amount Rs.28,000/- after the expiry of warranty period and customs duty amounting to Rs.60,969/- which was payable to the opposite party. Thus, from the record it is fully established that the complainant remained negligent for not adhering to the terms and conditions of the contract between the parties and no case of deficiency in service and unfair trade practice against the appellant-opposite party has been made out. The appellant-opposite party cannot be forced to enter into an agreement for AMC. Thus, the appellant-opposite party cannot be compelled to enter into an agreement for AMC. District Consumer Forum has failed to appreciate the above stated facts. Hence, the impugned order is not sustainable in the eyes of law.
As a sequel to our aforesaid discussion, this appeal is accepted, impugned order is set aside and the complaint is dismissed.
The statutory amount of Rs.2500/- deposited at the time of filing the appeal be refunded to the appellant against proper receipt and identification in accordance with rules, after the expiry of period of appeal and revision, if any filed in this case.
Announced: Justice R.S. Madan 02.05.2012 President B.M. Bedi Judicial Member