CHAIRMAN, TRANSASIA BIO-MEDICALS LTD. vs Ashok Kumar Singhal

THIS is an appeal by the opposite party against the order of the District Forum, Sambalpur directing payment of Rs. 2,05,000/- along with interest at the rate of 12% per annum with costs of Rs. 1,000/-. Complainant''s case is he purchased one Urima CD Analyser and accessories with Diagnostic equipment namely Clinical Chemist Analyser with Built-in-Printer, Mode.-BHBA CHEM-5 plus for Rs. 75,000/- and Rs. 1,30,000/- respectively on 29.2.2000. The equipment was transported by M/s. Gati Cargo. The camplainant though received the machine but the machine could not be installed in the absence of any technical personnel from the Company. They remained idle. In April, 2001 the O.P.-Company was informed through their representative who came to Sambalpur. THIS fact was noted by them and they promised to take up the matter with the Company. Before installation the complainant because of the delay in performing their part of this contract wrote letter on 18.5.2001 to the O.P. to take back the machine and refund him the price of it Rs. 2,05,000/- with interest on it i.e. 18% per annum. It is further his case when second reminder was received by the Company, it took out a false plea that the complainant could not provide the site for installation. When there was no fruitful result complainant filed this case.

THE O.P. filed a written version in which they took various stands including the complainant being deficient in not providing the site for installation, secondly giving training and installation was not obligatory under the contract but as a friendly gesture, the same was offered, and that the machine was purchased for commercial purpose, etc. The District Forum gave a finding that complainant did not mention as to what loss he sustained for non-installation of the machine in question by the Company. Though, he waited for about a year after which he took up the matter with the Company that the machine had not still been installed and was laying idle. In para 34 of the judgment, the District Forum held that no document was filed from the side of the O.P. to establish that at any point of time they deputed their service personnel for installation of the machine and that due to non-cooperation and refusal of the complainant the same could not be installed. The plea taken by the O.P., according to the District Forum that the A.M.C. had to be renewed for installation of the machine could not be accepted. It further held that the letter of the complainant dated 18.5.2001 about non-installation of the machine was within warranty period. But still then the O.P. did not instal the same and thus failed to perform their part of the liability as per the terms of the warranty and in the opinion of the District Forum this was clear negligence and deficiency in service. The District Forum did not accept the case of the complainant that he sustained any loss in the absence of any material and refused to award any compensation. Holding as such, has allowed the complainant''s prayer directing the appellant to refund the amount of Rs. 2,05,000/- along with interest at the rate of 12% per annum from 1.6.2001 till payment and Rs. 1,000/- towards costs. This was a majority view of the Forum. The Male Member differed and held that the machine was purchased for commercial purpose because it is to be used in a Nursing Home. He relied on the decision of the Laxmi Engineering Works v. Industrial Institute of the Apex Court to sustain this reasoning. The second reason given by the Male Member is that so far as installation of the machine was concerned, the O.P. had offered the services as a gesture of goodwill and this was only complementary. For this the Male Member relied on the case and decision of the Apex Court in Stereocraft v. Monotype India Ltd. However, the reference has not been given.

We have heard the learned Counsels for both sides who submitted in support of their respective cases. We do not agree with the view expressed by the Male Member. In various cases we have held that when there is a case of the trader in either retaining the money of the customer without supplying the article and without any just cause, the same amounts unfair trade practice. In such a situation whether the articles were purchased for commercial purpose or not is not material or relevant because the deficiency in service is having received the money not supplying the goods and still keeping aback money of the customer. That apart when the machine had not been installed at all and has not been used it would be difficult to conclude whether the same could be used for commercial purpose in future. We have no dispute with regard to the judgment referred by the Single Member in the case of Laxmi Engineering Works v. Industrial Institute. But then whether it was purchased for the commercial purpose or the same was for the purpose of self-employment is a question of fact to be established on materials, in each individual cases. But in the present case we hold that the O.P. committed deficiency in service, when as a part of the transaction, it was their duty to see the machine installed with the assistance of their own agencies. Reference is made to Annexure-4 letter of the appellant dated 2.6.2001 in reply to the complainant''s letter dated 10.5.2001 about non-installation of the machine by technical personnel of the O.P. It has been clearly mentioned that they had advised to the Calcutta office to look into the matter on top priority basis and depute a mechanic. In subsequent letter dated 18.7.2001 the complainant again mentioned that 50 days had already passed from the time of their letter dated 2.6.2001 but still no personnel were deputed and in this letter the complainant requested to take back the machine which was still in a packed condition and refund the price thereof. In these two letters the appellant did not take the stand that there was no contractual obligation to instal the machine from their side with their agencies and that its installation with their assistance would be a friendly gesture. We find there is no infirmity in the order though it is an unnecessary lengthy judgment and lot of time and energy have been spent only by narrating the cases of the respective parties. This should be scrupulously avoided. The appeal is dismissed. We confirm the majority opinion of the Forum below. The amount be paid within a period of two months from the date of communication of the order. Mr. P.N. Das, Member.-I agree. Appeal dismissed.