B.H.KERUDI vs M.D.J.MITHRA AND CO. LTD.

THIS revision petition arises out of the order of the State Consumer Disputes Redressal Commission, Karnataka, whereby the State Commission set aside the order of the District Forum and allowed the appeal of the opposite party.

THE facts in brief which led the complainant to approach the District Forum are as under. The complainant, a practising surgeon, under self employment scheme with the aid of Karnataka State Financial Corporation, purchased on 26.7.1989 an Olympus Fibre Objectives Endoscope model GIFX 120 for Rs. 2,10,000/- which carries one year warranty, i.e. from 24.6.1992 to 23.6.1993. The contention of the complainant from the beginning was that the machine was not giving proper services. Two years after the expiry of the warranty period, again the complainant entered into a service contract with the respondent on 24.6.1992. The service contract was renewed from 31.5.1993 to 30.5.1994 and from 21.11.1994 to 20.11.1995. Alleging deficiency in service for the poor functioning of the machine and the unsatisfactory services rendered by the opposite party the complainant filed a complaint before the District Forum. The District Forum upon hearing both the parties directed the complainant to pay to the complainant Rs. 2,68,993/- after taking the machine back. The District Forum had also awarded Rs. 25,000/- for the loss and mental agony and Rs. 1,000/- as costs.

FEELING aggrieved by the order of the District Forum, the opposite party went in appeal to the State Commission.

THE State Commission upon hearing the parties held that the complainant was not a consumer as he had purchased the machine for commercial purpose and the machine was not being manned by assistants and not by himself, due to which, according to the complainant, he was incurring a loss of Rs. 2,000/- per day; and that the machine was being used in a hospital which is not a charitable hospital. The State Commission while holding that during the period of warranty, there was no defect in the equipment, held as under : "A perusal of the complaint and the affidavit evidence filed by the complainant reveals that there is no reference to manufacturing defects during the warranty period. The endoscope was installed on 26.7.1989 and till 24.6.1992, he has not even gone for an annual maintenance contract. Most of the ailments attributed to the equipment including the accumulation of black spots and spider line formation have been noticed from March, 1992 onwards by which time the warranty period had expired. In the complaint it is stated that the opposite party gave one year warranty for the new NS Unit installed on 2.10.1993. But, such an averment is absent in his affidavit evidence; instead, it is stated that "the service contract was renewed by me from 31.5.1993 to 30.5.1994". If warranty was available, no service contract would be needed and, therefore, we are not convinced that the complainant had been afforded a second spell of warranty by the opposite party. Hence, it has to be held that the endoscope had warranty only from the date of installation and that during this period of warranty there was no defect noticed in the equipment. Hence, it cannot be said that the complainant is a consumer in view of defects in goods manifesting during the warranty period, despite the fact that it was purchased for a commercial purpose."

In view of the above discussion, the State Commission set aside the order of the District Forum and allowed the appeal. Heard Counsel appearing on both sides. We have also perused the orders of the District Forum as well as the State Commission. After hearing the parties, they were given liberty to file their written submissions. We have gone through the written submissions also.

THE only point that requires consideration by us, at the revisional stage, is whether the respondent is liable for the defects in the machine. On going through the documents placed before us, especially the well reasoned order of the State Commission, and upon (sic.) had developed after the expiry of warranty period and also after the maintenance contract. Therefore, no fault could be found with the respondent. Moreover, we find neither any document for continuation of the maintenance contract was produced nor the learned Counsel for the petitioner was able to draw our attention to any such document which could show that the defects had occurred during the warranty period or any document which shows that the complainant had got the warranty period extended. In this view of the matter we uphold the order of the State Commission and dismiss the revision petition. In the circumstances of the case, we leave the parties to bear their own costs.