ASHOK M.MAINKAR vs ATL (INDIA) LIMITED

THE appellant is challenging the order of dismissal of his complaint passed by the Addl. District Forum, Pune in C. No. 67/98.

THE complainant''s case in brief before the Forum was that he purchased Ultra Sonography machine from the respondents for an amount of Rs. 2,50,885/-. He received the delivery of the machine on 20.5.1997 and the respondent''s Service Engineer installed the said machine at Dr. Mainkar''s Hospital at Saswad in Pune District. THE appellant has stated that Mr. Selva Ganapathy of the respondent had promised to visit his Hospital within 3 weeks after the installation. But attended much later i.e. after 3 months after the installation. THE complainant made correspondence with the opponent''s Madras H.O. and even sent a registered letter on 17.7.1997 with a stand that the machine had defects and, therefore, it is giving sub-standard quality out put. He had requested the respondents to replace the transducer (sic) on 16.5.1997 during the warranty period. THE component transducer of the machine had developed cracks and thereby it was providing signals from the patient''s body not upto the mark and despite its replacement twice, the defect continued and the complainant was convinced that the machine supplied to him was of substandard. THE complainant filed affidavit on 7.10.1998 and also filed a supplementary affidavit and claimed Rs. 2.52 lakhs on account of financial loss suffered by him @ Rs. 1,000/- per day during the period from 1.5.1998 to 7.10.1998 since he could not examine the daily patients numbering 5-6. He also requested the District Forum to direct the respondent to replace the defective machine by new one. THE opposite party and the present respondent did not appear before the District Forum although the complaint was adjourned 3 times after due service of notice to him. THErefore the Forum proceeded ex-parte against the opposite party. The Forum observed that the daily income of Rs. 1,000/- by taking up Sonography of 5-6 patients per day amounted to a commercial purpose and relying upon the decision of the Haryana State Commission in I (1993) CPJ 522, Dr. B.S. Singla v. Chairman Managing Director, Indchem ATL Ltd., held that the complainant was not a consumer since he was using the ultra sonography machine for commercial purpose and, therefore, the complaint came to be dismissed.

In this appeal also, we had sent notice to the respondents Hamdast through the Advocate of the appellant. The original acknowledgement of the receipt of our Notice has been placed on record by the learned Advocate Mr. Pandit. The same has been received by the respondent on 25.6.1999 and one Shashadri has received it on behalf of the ATL Industries Ltd. Interestingly enough, they had chosen to remain absent before the District Forum also though 3 adjournments were granted for their benefit. Since the respondents have chosen to remain absent inspite of notices, this appeal is being decided on its merits in the absence of the respondents.

THE learned Counsel for the appellant has submitted his written notes of argument. He has forcefully submitted that the main part of the machine viz. transducer which takes signals from the main part of the machine, was found to be defective within a few days of using the machine. Inspite of the replacement of the transducer twice during the warranty period, the defects till persisted and the quality of the output was sub- standard. THErefore, the appellant could not use the machine during the period from 1.5.1998 to 7.10.1998. Further, the replaced transducer also developed cracks and, therefore, the replacement was requested. But the respondents neglected and failed to do the needful and, therefore, the appellants suffered a loss of practice of Rs. 1,000/- per day during the above mentioned period. THE learned Counsel further submitted that the Addl. District Forum, Pune has relied upon an old ruling given by the Haryana State Commission. He has drawn our attention to the judgment of the Supreme Court in Laxmi Engineering Works v. PSG Industrial Institute, reported in II (1995) CPJ 1 (Supreme Court) and has submitted that the law is now well settled on the issue and in view of the Certificate issued by the Bank of India to the effect that the appellant Doctor had obtained a loan of Rs. 1,87,500/- for the purchase of Ultra Sonography machine for self employment, well supports the contention of the appellant. It is further argued before us that the appellant and his wife are the only two persons using the machine and the same has been purchased for their self employment and earning their livelihood. Our attention is also further drawn to National Commission''s decision in Amtrex Ambience Ltd. v. M/s. Alpha Radios & Anr., reported in I (1996) CPJ 324 (National Commission), and argued that where the manufacturer fails to rectify the machine during the warranty period, the same amounts to deficiency in service irrespective of the position whether the machine was used for commercial use or not. It is further argued that the Doctors couple purchased the machine in discharge of their professional work and the same does not amount to commercial use by any stretch of imagination. Mr. Pandit, Advocate has further submitted that ultra sonography machine is supposed to give accurate results otherwise the readings will go wrong and the Doctor will land in trouble for giving wrong reports. It is an expensive machine costing about Rs. 2,50,000/- and it was used for their professional purpose and it was definitely an error committed by the Addl. District Forum which is relied upon an out dated decision of a State Commission ignoring the decision of the Supreme Court and the National Commission. Coming to the relief sought by the appellant, the learned Counsel has submitted that they have paid a price of Rs. 2,50,885/- be ordered to be refunded with 18% interest, the appellant had raised a loan from the Bank which is supported by the Certificate given by the Bank of India. The appellant is also seeking a compensation of Rs. 1 lakh for the loss of their professional income for a long period and mental anguish and agony and Rs. 25,000/- towards legal cost and expenses. We have carefully considered the entire case. There is absolutely no doubt in our mind that the appellant/ complainant is a consumer. He purchased the ultra sonography machine for self employment to earn his livelihood. The Doctor and his wife wanted to use the machine for their professional purpose. The machine remained idle for a long period from 1.5.1998 to 7.10.1998. The loss has to be compensated. The Doctor couple must have spent some anxious moments and definitely lost their professional income on account of the defective functioning of the machine. Therefore, the appellant needs to be adequately compensated. If the average of 5 patients is taken per day, the appellant would have earned around Rs. 1,000/- per day and the machine could not be used for more than 5 months. Even taking an average of Rs. 1,000/- per day, the amount comes to Rs. 1,50,000/- as professional loss. In addition, they suffered mental agony and anguish. The learned Counsel for the appellant has asked for compensation of Rs. 1 lakh on account of this. We treat it as a reasonable and fair request and, accordingly, the same is allowed.

AS regards the cost and expenses, the appellant has asked for Rs. 25,000/- which, in our view, is quite high. Since he has to approach, both the District Forum as well as the State Commission, a cost of Rs. 10,000/- in our view will meet the ends of justice. As regards the replacement of the machine, since it is a sensitive machine and no sub-standard quality out put can be accepted at any rate, the same has to be replaced by the respondents or in the alternative, they will have to refund the amount with interest as requested by the appellant. Therefore, the following order : ORDER "The order of the District Forum is set aside. The complaint is allowed. (1) The respondent/opposite party is directed to replace the Ultra Sonography machine by a same or similar type of machine within a period of 2 months after the receipt of this order. In case of failure to do so, the respondent/opposite party is directed to refund the amount of Rs. 2,50,885/- from the date of complaint till the date of realisation with interest @ 18%. (2) The respondent/opposite party is further directed to pay a compensation of Rs. 1 lakh to the appellant for the loss of professional income as well as mental anguish and agony and Rs. 10,000/- towards cost of the litigation. Order set aside.