Kody Elcot Ltd vs C P Gupta

THIS is an appeal against the order passed by the U.P. State Consumer Disputes Redressal Commission at Lucknow, by which it allowed the complaint filed by the present respondent, Dr. C.P. Gupta, against the present appellant, M /s. Kody Elcot Ltd. By the impugned Order the State Commission asked the Opposite Party i.e. the present appellant to remedy the defect in the Ultra Sound Scanner machine by 15th March, 1993 failing which the Opposite Party was asked to take back the defective machine from the Complainant and pay him the price of the machine which is Rs. 3,85,000/ -. The Complainant was also allowed Rs. 50,000/ - as compensation.

THE facts leading to this appeal are that the present Respondent had filed a complaint before the District Forum, Aligarh. As the amount involved in the complaint was above the pecuniary jurisdiction of the District Forum the complaint was returned to the complainant for presentation before the appropriate forum. According to the Complainant he is engaged in medical profession and is having Surgical Protection Nursing Home and Emergency Surgical and Accidents clinic. For better medical treatment of patients, he had purchased from the Opposite Party the said machine at a price of Rs. 3,85,000/ - in July, 1990 with a warranty. The machine stopped functioning from 22nd March, 1991 and he had made a complaint to the opposite party who sent his service engineer on 9th April, 1991 for repairing the machine. The engineer tried his best to repair it, but he was unsuccessful and he gave an assurance that he would rectify the defects in future. Since March, 1991 the machine is lying idle and he is suffering a loss of Rs. 1,000/ - per day. On 15th May, 1991 the opposite party again sent his service engineer for repairing the machine but this time the engineer could not rectify the defects and the machine could not start functioning in a normal way. The service engineer issued a certificate to that effect on 15th May, 1991. The complainant informed the opposite party on 17th May, 1991 that the machine was defective and was not functioning in a usual manner and he was losing Rs.1,000/ - per day but the opposite party did not pay any attention to its letter. On 3rd June, 1991 a registered notice was sent by the complainant to the opposite party, but, the opposite party has not repaired the machine nor paid damages. The survey of the machine was conducted by the Surveyor of the Oriental Insurance Company in August, 1991 and the machine was found to be defective. The Insurance Company with whom the machine was insured cancelled the policy in respect of the machine on 28th August, 1991. The complainant prayed for replacement of the machine and also claimed Rs. 1 lakh as compensation for the loss incurred by him and for the mental agony. The complaint was contested by the appellant herein who had been arrayed as opposite party before the State Commission. It was not disputed that the opposite party has supplied the Ultra Sound Scanner IMEX -501 to the complainant on 13th July, 1990. However, it was pleaded that the complainant is not a ''consumer'' as he has purchased the machine for making profits and for the purpose of his business. It was further averred that the machine was functioning satisfactorily from july,1990 to April, 1991 and the opposite partys engineer had attended and repaired the problem on 9th April, 1991 by changing the electronic board and filing the sector probe for better performance. Some other problem was rectified on 15th May, 1991 and also on 8th October, 1991 and subsequently on 22nd December, 1991. On 8th October, 1991 the complainant himself had stated that the machine was working properly and signed service report. On 9th January, 1992 the complainant had paid Rs. 5,400/ - and the opposite party has sent the Service Engineer to rectify the defect. The complainant would not have paid for the repairs if there was any defect in the machine. The repair to the machine had arisen only due to the wrong handling of the machine and the service engineer of the opposite party had taught the complainant how to operate the machine. The complainant had not specified any particular problem in the machine. Other allegations were also challenged. Before we proceed further we may mention here that the complaint was originally filed before the Consumer Disputes Forum, Aligarh which returned it for presentation before proper forum. The State Consumer Disputes Redressal Commission, Lucknow on 30th October, 1991 issued notice to the Opposite Party for 4th December, 1991. From the Affidavits filed by the Complainant before the State Commission and the correspondence between the parties it appears that on 8th October, 1991 the Service Engineer of the Opposite Party came to the Complainant and found that machine could not be repaired by the said Service Engineer and he took away the liner probe of the Machine to Madras for repairing on payment basis. On 12th December, 1991 the machine was returned after charging Rs. 5,400/ - for repairs. After five days of the repairing of the liner probe, the unit started giving trouble and the Complainant sent a letter to the Opposite Party on 27th December, 1991 specifically stating the defects in the machine but no reply was sent by the Opposite Party. The Complainant again wrote a letter on 13th January, 1992 requesting the Opposite Party to send the Service Engineer. On 15th February, 1992 a Service Engineer from the Opposite Party came to the Complainant and surveyed the machine and found it to be in defective condition. The said Service Engineer was not able to remove the defects and had. taken away again the liner probe of the machine to Madras on 15th February, 1992 and it has not been returned. Approximately after four months i.e. on 18th June, 1992 repaired liner probe was delivered and installed. Sector probe was also not working and it was rectified and oil was filled in. Even thereafter the repairing resolution of machine was still not proper. The Opposite Party has given an estimate for Rs. 15,000/ - for repairing for which Rs. 8;000/ - has been paid by the Complainant as advance. On 21st June, 1992 the liner probe, receiving board and sector probe again became defective and sine then the machine is not working. The Opposite Party advised the Complainant in October, 1992 to send the machine to the factory at Madras and the Complaint sent the machine to the Opposite Party in January, 1993. It has not been returned by the Opposite Party so far. On 3rd February, 1993 the Opposite Party wrote a letter (which is at page 100 of the paper book) stating that the equipment was under service and would let the Complainant know the service estimate shortly. On 7th March, 1993 the Complainant sent a letter (at page 103 of the paper book) to the Opposite Party stating that after 3rd February, 1993 there has been no further information from the Opposite Partys side and alongwith that letter the Complainant also sent a copy of the Order of the State Commission, Lucknow for information and necessary action. On 22nd March, 1993 the Opposite Party wrote a letter (at page 104 of the paper book) giving the estimate of the service charges at Rs. 16,759/ -. As the said letter was not in terms of the Order of the State Commission which was passed on 18th January, 1993 by which repairs were ordered to be effected before 15th March, 1993, the Complainant did not comply with the letter of the Opposite Party.

FEELING aggrieved of that Order of the State Commission, the Opposite Party has come before us by way of this appeal. The main plea of the Opposite Party is mat the unit was purchased by the Complainant for his professional work and is earning much profit as is clear from the fact that he is claiming Rs. 1,000/ - per day.

THE Complainant had filed an affidavit before the State Commission to the effect that the unit in question as purchased by him for his personal use and the same has to run by the skill of the Complainant. From these facts it is clear that the unit is being used personally by the Complainant for earning his livelihood. As held in Lakshmi Engineering Works v. P.S.G. Industrial Institute in Civil Appeal No. 4193. of 1995 decided on 4.4.1995 -by the Supreme Court, the question of profit is not relevant and the question to be seen is whether the goods purchased by a consumer are being used by himself. The Opposite Party has not led any evidence to the effect that the Complainant is not personally using the Unit. Therefore, it cannot be said that the Unit was purchased by the Complainant for commercial purpose. The Unit was installed in the premises of the Complainant in July, 1990 and since March, 1991 it is giving trouble. The Service Engineer of the Opposite Party tried to rectify the defects on 9th April, 1991 (Service Report is at page 64 of the paper book). Some defects could not be rectified and as is dear from the report those were promised to be rectified in future. The Service Engineer again visited the premises on 15th May, 1991 (The Service report is at page 65). Remarks column of the said Service reports show that performance of the equipment was not satisfactory. Some defects were also noted. That report is signed by the complainant as well as the Service Engineer. On 17th May, 1991 the Complainant wrote a letter to the Opposite Party regarding the unsatisfactory working of the Unit (that letter is at page 66 of the paper book). The Complainant gain wrote a letter to the Opposite Party on 3rd June, 1991 to the same effect (that letter is at page 67 of the paper book). From the counter of the Opposite Party filed before the State Commission some problem was rectified in October, 1991 and again on 12th December, 1991 and again on 9th January, 1992. Thereafter also, the Unit did not work satisfactorily as is clear from the facts already noted above. Consequently, the Unit had to be sent to the factory of the Opposite Party at Madras and it is still lying there. From the above facts it is clear that the Unit did not perform satisfactorily after about 8 months of its installation and thereafter it is giving trouble and the defects could not be rectified. Therefore, it has to be held that the machine is defective.

EVEN during the warranty period of the said unit, the Service Engineer attended the machine after expiry of many days from the date of complaint made by the Complainant as is clear from the various documents filed on the record and defects could not be rectified. The Complainant had got the Unit insured with the Oriental Insurance Co. Ltd., which had got conducted a survey effected in August, 1991 and as the machine was found defective the Insurance Company cancelled the Insurance Policy.

IN the light of the above discussions we uphold the finding of the State Commission that the Unit supplied by the Opposite Party to the Complainant was defective. As the defects have not been rectified by 15th March, 1993 as ordered by the State Commission, the Opposite Party is liable to take back the machine and refund its price amounting to Rs. 3,85,000/ - to the Complainant. As observed above, the machine is lying with the Opposite Party. Therefore, the Opposite Party is liable to comply with the alternative relief granted by the State Commission as well as pay the compensation in terms of the said order.

AS the order of the refund and payment of compensation has not been complied with so far, we further grant two months time to the Opposite Party from the date of the receipt of the copy of this order to comply with the order of the State Commission.

WE do not find any force in the present appeal and dismiss the same with the above observations. The Complainant/Respondent will be entitled to cost of the present proceedings which we assess at Rs. 2,000/ -. Appeal dismissed.