ANIL KUMAR vs VIPRO G.E. MEDICAL SYSTEM LTD.

THIS is an appeal by the complainant against the order of the District Forum, Bikaner dated 5.9.92 dismissing Complaint Case No. 250/92 filed by him.

COMPLAINANT Dr. Anil Kumar runs a Private Hospital in front of Sadul School, Bikaner. On 14.5.91, the complainant had placed an order with Vipro G.E. Medical System (Pvt. Ltd.) for 20 AM-A(P) X-ray system. Price of this X-ray system was quoted as Rs. 74,888/- F.O.R. Bikaner inclusive of Central Sales Tax @ 10% and installation. An amount of Rs. 15,000/- was given as advance by a cheque. According to the complainant, this X-ray system was to be supplied by respondent No. 1 upto 30.6.91 and the balance of the price was to be paid by the complainant on receipt of the goods receipt through State Bank of India, Dauji Road, Bikaner. The X-ray system was not received by the complainant upto 30.6.91. The complainant, therefore, cancelled the order by sending a telegram on 13.8.91 and demanded refund to the amount. After considerable delay, a letter was received from respondent No. 2 dated 7.1.92 informing that the X-ray machine had been sent by respondent No. 1 on 31.7.91 through Transport Corporation of India Ltd., Pune. According to the complainant, he never received the goods receipt and nor any intimation from the Bank. The complainant alleged that on account of non-sending and non-delivery of the X-ray machine by 30.6.91, the complainant suffered loss of Rs. 100/- per day. In his complaint, he claimed for refund of the amount of Rs. 15,000/- which he had advanced with interest @ 18% per annum. He also claimed compensation of Rs. 30,000/- for the loss suffered by him on account of non-supply of the X-ray machine and Rs. 50,000/- as compensation for mental distress and agony. The version of the opposite parties was that it was not stipulated that the X-ray machine would be supplied by 30.6.91. It was stated that the X-ray system was sent on 31.7.91 through Transport Corporation of India to Bikaner, but delivery was not taken by the complainant. The X-ray machine was lying with the Transport Corporation and there was apprehension that owing to delay in taking the delivery, the opposite parties may suffer damages. Opposite parties have sustained loss of interest in the purchase of X-ray machine. The claim of the complainant for refund of the amount and for compensation were denied.

The District Forum, Bikaner held that the complainant had placed order for the purchase of the X-ray machine for commercial purposes and, therefore, he was not a ''consumer''. It also held that it was not established that there was an agreement with the respondents would supply the X-ray machine by 30.6.91. It held that the complainant had changed his intention and for personal reasons, he did not want to take the X-ray machine which was lying with the Transport Company. On the basis of these findings, the District Forum, Bikaner dismissed the complaint. Aggrieved by this order, the complainant has filed this appeal before the State Commission.

APPEARANCE had been put by both the sides before the State Commission on 8.7.93 as well as on 23.2.94. On 19.7.94, appellant''s Counsel was present, but none appeared for the respondent. Arguments were, therefore, heard. It is clear from the averments made in the complaint that the entire case of the complainant was that he had placed an order for supply of X-ray system with respondent No. 1 on 14.5.92 and advanced Rs. 15,000/- as advance money. According to him, the X-ray system was to be supplied by 30.6.91, but the same was not supplied. Due to this the complainant cancelled the order. He claimed refund of the advance amount of Rs. 15,000/- with interest economic loss suffered by him on account of on-supply of the X-ray system and contention for mental distress and agony.

IT is thus clear that it was not the case of complainant that there was any defect in the goods. No question of any defect in the goods has involved for the simple reason that no goods has delivered to the complainant according to the terms of the contract. The averments made by the complainant only pleaded a case of breach contract for supply of X-ray system and compensation for that breach of contract. No complaint under Consumer Protection Act, 1986 as for any compensation based on allegations of breach of contract or repudiation of contract, the case of the complainant was not at all that of deficiency in service. No services were hired for the complainant to the respondents. The complaint being based solely on breach of con-or repudiation of contract by the complain on account of non-delivery of the X-ray system upto 31.6.91, the remedy of the complainant lay in a Civil Court by a Civil Suit and that for compensation as against the respondents under the provisions of the Consumer protection Act, 1986. The case of the complainant being neither that of complaining defective goods and nor of deficiency in service, the complaint was not maintainable. On this ground alone we dismiss the appeal filed by the complainant. Appeal dismissed.