Jaddu Bhagat vs Wipro G E Medical System Ltd

THIS revision petition has been filed by one Jaddu Bhagat (hereinafter referred to as the ''Petitioner'') being aggrieved by the order of the State Consumer Disputes Redressal Commission, Uttar Pradesh (hereinafter referred to as the ''State Commission'') in Appeal No. 2799/2003 in which Wipro G.E. Medical System Ltd., Lucknow, Wipro G.E. Medical System Ltd., Bangalore and M/s. Rai Enterprises (hereinafter referred to as Respondent Nos. 1, 2 and 3 respectively) were Respondents.

THE facts of the case according to the Petitioner who was the original complainant before the District Forum are that he had approached Respondent No. 1 for purchase of an X-ray Machine for his livelihood which was a unit of Respondent No. 2. The Respondents gave a quotation of Rs. 4,94,000 for the machine which was to be purchased through Respondent No. 3, M/s. Rai Enterprises who was the dealer of Respondent No. 1. Petitioner accordingly prepared a bank draft in the name of Respondent No. 2 for which he took a bank loan and deposited the same with Respondent No. 3 after which the X-ray machine was installed on 25.6.2000. After using the machine for two or three days, it started giving trouble and the Petitioner noticed that the telescopic arm/ MC rod of the machine had been rusted and other parts of the machine also appeared to be old and used. A complaint was made to the Respondents and the engineer of Respondent No. 2 inspected the machine and replaced this and some other different parts also but the machine continued to give trouble and despite several complaints thereafter made to the Respondents by the Petitioner, the machine was not satisfactorily repaired. In the meantime, the Petitioner also came to know that the Respondents had sold an identical machine to one Dr. Kedia for Rs. 4,10,000 i.e. for Rs. 84,000 less than what the Petitioner was charged for the same machine. Being aggrieved by both deficiency in service and the unfair trade practice, Petitioner filed a complaint before the District Forum requesting that the Respondents be directed to refund the Petitioner Rs. 84,000 along with interest @ 18%, , Rs. 60,000 towards delay in repairing the machine, Rs. 1 lakh for mental agony and harassment and Rs. 5,000 as litigation cost.

RESPONDENT Nos. 1 and 2 did not appear before the District Forum. Respondent No. 3 who appeared before the District Forum admitted that he had installed the machine after taking the bank draft from the Petitioner. He further stated that he had not received any complaint regarding the X-ray machine and there was no deficiency in service on his part. If at all there was any deficiency in service it was against Respondent Nos. 1 and 2. Respondent No. 3 further stated that he had supplied the machine for a total consideration of Rs. 4,10,000 which was the price of the machine at the time of installation and the Petitioner had purchased accessories worth Rs. 84,000 separately.

THE District Forum after hearing Petitioner and Respondent No. 3 and considering the evidence on record allowed the complaint by observing that there was documentary evidence in the form of a certificate issued by State Bank of India, Jhungia Branch stating that a bank draft No. 582921 dated 28.3.2000 for Rs. 4,94,000 was issued in the name of M/s. Wipro G.E. Medical System Ltd. which clearly showed that the Petitioner had paid Respondents Rs. 4,94,000 for the X-ray machine. Further, there is also documentary evidence to the effect that Respondents had issued a Challan for Rs. 4,10,000 for the X-ray machine to the Petitioner vide Customer Order dated 30.3.2000 and this fact is also reflected in the Sales Tax Form 32. There is also proof to the effect that the machine was sold for Rs. 4,10,000 to one Dr. Kedia vide receipt dated 21.1.2000. All this clearly indicates that the cost of X-ray machine was Rs. 4,10,000 whereas the Petitioner has been charged Rs. 4,94,000 for the same which he paid through a bank draft. The contention of Respondent No. 3 that accessories worth Rs. 84,000 had been sold separately to the Petitioner was not supported by any bill/receipt or other credible evidence to this effect. Under the circumstances, the District Forum observed that this is a clear case of unfair trade practice as well as deficiency in service. The operative part of the order of the District Forum reads as follows: "It is unfair trade practice to charge price more than the fixed price. This is a case of deficiency in service. Besides this if there was some defect in the machine and the said defect has been removed by the respondent by replacing defective material from the machine, they have not given any evidence to this effect. The respondent Nos. 1, 2 had charged excess amount of Rs. 84,000 since the complainant had paid the draft directly in the name of the respondent No. 2 hence, it is their liability only. It is also their liability to repair the machine since they have sold the machine to the complainant through Respondent No. 3."

THE District Forum, therefore, directed Respondent No. 2 to refund Rs. 84,000 along with interest @ 9% per annum from the date of complaint and also repair/replace the defective parts of the machine immediately. Rs. 500 were awarded as litigation cost.

AGGRIEVED by this order, Respondents filed an appeal before the State Commission. Respondent Nos. 1 and 2 submitted before the State Commission that they had not received any notice from the District Forum with the result they could not appear before it to defend their stand. However, they submitted that as per the service report dated 22.2.2001 to be taken on record it was proved that the telescopic arm of the machine was changed on 22.2.2001 and from time-to-time whenever required, services were provided and the machine was kept in working order. Thus, there was no deficiency in attending to the machine which was maintained in working order. Further regarding overcharging for the machine from the Petitioner, Respondent Nos. 1 and 2 stated that Respondent No. 3 gave a wrong deposition which was also not believed by the District Forum that the machine was sold for Rs. 4,10,000 and accessories worth Rs. 84,000 was purchased by the Petitioner. In fact, the machine was sold for Rs. 4,94,000 to the Petitioner. Further under Section 2(1)(c)(iv) of the Consumer Protection Act, 1986 disputes pertaining to pricing do not fall within the purview of the Consumer Fora and a complaint of unfair trade practice on this ground is tenable if the price has been agreed between the parties which was so in the instant case. This interpretation has been confirmed by the National Commission in its various rulings. The State Commission after hearing both parties and considering the evidence on allowed the appeal and observed as under: "The X-ray machine was installed on 25.6.2000 and it is clear from the evidence that on 2.7.2000 Vaki Handle and side cover were replaced and on 2.7.2000, 21.8.2000, 26.12.2000, 24.2.2001, 22.2.2001, 28.2.2001, 7.4.2003 and 13.6.2003 at the request of the complainant the machine was serviced. The Counsel for the appellant had argued that since same machine has been sold to some other person for Rs. 4,10,000 only, it cannot be ordered to refund Rs. 84,000. The respondents are bound by the conditions of the quotation since it was agreed to purchase the X-ray machine for Rs. 4,94,000 and complainant had also made the payment through bank draft and as per the conditions of the quotation machine was installed. The services were provided within the limitation period, he further urged that the District Forum cannot decide the value of the machine. On these grounds the appeal is likely to be admitted and the order of the District Forum is liable to be rejected."

Hence, the present revision petition.

COUNSEL for parties made oral submissions. Counsel for Petitioner stated that the District Forum on the basis of credible evidence produced before it including the bank draft of the Petitioner for Rs. 4,94,000 in favour of the Respondents being the cost of the X-ray machine as well as the documents indicating that the actual cost of the machine was Rs. 4,10,000, had rightly concluded that the Respondents were guilty of unfair trade practice by overcharging the Petitioner for the X-ray machine. The State Commission on the other hand erred in not taking; into account the above two documents which clearly proved that the Respondents had not only overcharged the Petitioner for the X-ray machine but were refusing to refund the excess amount paid by him.

COUNSEL for Respondents contended that the documents indicating that the cost of the machine was Rs. 4,10,000 appear to be manipulated/fabricated and probably were not produced before the District Forum. The cost of the X-ray machine was in fact Rs. 4,94,000 which was the amount sought and paid by the Petitioner and, therefore, there was no unfair trade practice or deficiency in service on their part.

WE have heard learned Counsel for both parties and have carefully gone through the evidence on record. The facts regarding the purchase of machine by the Petitioner through Respondent Nos. 1 and 2 which was installed by Respondent No. 3 and for which Rs. 4,94,000 was paid through a bank draft is not in dispute. There is also documentary evidence before us in the form of a receipt from Respondent Nos. 1 and 2 indicating that the price of the machine at the time of its installation was Rs. 4,10,000. The contention of the Counsel for Respondent Nos. 1 and 2 that the bill indicating this amount was manipulated and was not produced before the District Forum is obviously not a correct statement since the District Forum in its order has taken cognizance of this bill for Rs. 4,10,000 and it was on this basis that the refund of Rs. 84,000 had been ordered by the District Forum. While, it is fact that under the Consumer Protection Act, 1986 the fixation of price of a product per se is not within the purview of unfair trade practice as defined in Section 2(1)(d)(iv), in the instant case the issue pertains to overcharging by the Respondents based on their own documents., It is on record and not disputed that the Petitioner paid Rs. 4,94,000 through a bank draft for the X-ray machine. However, at the time of installation the cost of the machine was Rs. 4,10,000 as indicated in the receipt issued by the Respondents to the Petitioner as well as in the Sales Tax form also indicating the same price. There is also documentary evidence that the said machine was sold for Rs. 4,10,000 to another consumer, further confirming that at the time of installation the cost of the machine was not Rs. 4,94,000 but was reduced to Rs. 4,10,000. Respondent No. 3 tried to explain this difference by stating that the Petitioner had been rightly charged Rs. 4,94,000 because while the machine cost Rs. 4,10,000, he had also purchased accessories worth Rs. 84,000. This fact is not proved by any credible evidence, e.g. any bill or receipt thereof. Under these circumstances, we agree with the Petitioner that the State Commission gave an erroneous finding by not taking into account all the documents produced in evidence before it including the bank draft through which a payment of Rs. 4,94,000 was made to the Respondents. In view of these facts, we have no option but to set aside the order of the State Commission. The revision petition is allowed and the order of the District Forum is restored. Respondents are directed to pay the relief as directed by the District Forum to the Petitioner within six weeks from the date of receipt of this order. Revision Petition allowed.