PARUL URESH DALAL vs INDIAN DENTAL TRADERS

THE complainant is a practicing Dental Surgeon having her clinic at 195 Manekbag Society, Ambawadi, Ahmedabad. THE opposite party is designated as Indian Dental Traders and are selling and repairing dental equipments themselves or through their agents at Bombay. It appears that the complainant had purchased one Dental X-ray Chirana Mobile Model for Rs. 18,700/- on 31.7.1989 from the opposite party which was delivered by the opposite party through Saurashtra Roadways at Ahmedabad. THE complainant appears to have paid the cost for delivering the X-ray machine at Ahmedabad.

THE complainant has also purchased one Airotor Hand Piece in June 1(?) from M/s. Bhagadia and Sons at Ahmedabad who are the dealers of the opposite party. THE Airotor Hand Piece (hereinafter referred to as Hand piece) was not giving proper service and, therefore, the same was sent to the opposite party for repairing on March 29, 90 for check up and repairs. THEreafter the X-ray machine was found defective and required repairs and, therefore, the complainant sent the said machine for repairs on January 10, 91 to Bombay to the opposite party. Though the Hand piece was sent in March 90, the same was not returned by the opposite party. THE complainant had sent Rs. 520/- to the opposite party towards reparation charges as demanded by them. THE Hand piece having not been returned even though it was promised to be repaired within 10 to 15 days, the complainant sent reminders dated 29.3.90, 6.4.90, 23.5.90, 4.6.90, 17.7.90, 17.8.90 and lastly on 25.8.90 and ultimately the reply was received and the Hand piece was returned on 26.9.90 and on trial it was found unrepaired and, therefore, the complainant sent the Hand piece back within 3 days again for repairs. So far the X-ray machine is concerned the opposite party has not repaired the same till the filing of the complaint. The complainant therefore served a notice through her advocate to the opposite party dated 27.3.91 complaining that she had purchased the X- ray machine for Rs. 18,700/- from the opposite party and she further stated that the Hand piece has been sent for repairs again on 6.6.90 for which the complainant had paid the reparation charges of Rs. 520/- in advance. She further informed that the value of the Hand piece on the date of notice was Rs. 6,000/-. She had therefore alleged that on account of the negligence of the opposite party she was facing difficulties in her profession without these two machines and inspite of repeated reminders the opposite party had failed and neglected to return the same to the complainant.

She by notice therefore called upon the opposite party to return the aforesaid two machines in proper working condition. No reply was received even to the advocate notice.

IT appears that the opposite party sent a reply dated 9.4.91 stating that they had repaired the machine first time and invited the complainant to visit Bombay or depute someone on her behalf for testing the Hand piece but she had not come and delay is on her part. They have further stated that the complainant had visited Bombay from 19 to 22 January, 91 but their offices were closed due to international conference and it was not possible for them to attend to the individual problem. The opposite party had further stated that they had handed over the Hand piece and X-ray machine after due testing. It appears that the complainant gave a second notice through her advocate dated 19.4.91 in reply to the letter of the opposite party dated 9.4.91 stating that the letter of the opposite party was written clearly with a view to avoid legal consequences flowing from total inaction and negligences and was containing concocted facts. She had quoted several letters and reminders and further stated that the Hand piece which was returned was unrepaired and, therefore, the same was sent back on 29.9.90 (in complaint the date is written as 6.6.90 out of mistake). She had drawn the attention that not only letters were written but telephone calls were made and representatives were sent including her husband but the opposite party has totally ignored and did not repair the machine in question within the specified time. If the opposite party was not ready to repair the machines within the period of 10-15 days she would have got the same repaired from someone else. She had pointed out the facts and gave notice to the opposite party. She had further stated that she had informed the opposite party that she was coming to Bombay and asked them to keep the machines ready for delivery but when she reached Bombay on 17.1.91 and contacted the opposite party on telephone, the opposite party deliberately avoided the tonic and delivery of the machines. If the opposite party were genuine and was interested in repairing the machine they could have delivered the same inspite of the conference as alleged. She has in this letter clearly alleged negligence of the opposite party and has claimed damages of Rs. 2,00,000/- for loss of practice, reputation etc. on account of the negligence of the opposite party.

THE complainant waited for a month and no reply was received and therefore filed this complaint in May 1991. In pursuance of our summons a reply in the form of letter was received by this office from the opposite party contending that the notice was illegible as it was in a language they did not understand and, therefore, they had to translate it to understand. In the said reply the opposite party contended that the sale transaction was completed in Bombay and their office is also in Bombay the complainant cannot be entertained. That the notice was posted not on 18.6.91 but on 25.6.91 wherein it was written that the reply should be sent within one month but the date of hearing was fixed earlier which was not justified. The opposite party therefore requested us to withdraw the notice and also to transfer the case to Bombay office. They further promised that they were ready to finalise the matter to the satisfaction of the complainant but she has chosen to reject our offer. Thereafter the complainant appears to have filed a reply that what was stated in their reply was wrong. She also filed documents and affidavit in support of her claim. On account to the objections raised by the opposite party the matter was adjourned from time to time but the opposite party has not remained present though informed to remain present on 10.9.91. We had therefore given one more chance to appear before us and fixed 27.9.91 and sent the intimation by registered post.

ONE Mr. P.S. Kothari appeared on behalf of the opposite party on 27.9.91 and filed a further reply. However, in this reply also the opposite party has not written anything regarding the reparation of the X-ray machine. Thereafter on 7.10.91 the opposite party has sent an estimate of Rs. 1,000/- towards the reparation charges of the X- ray machine for complete overhaul and servicing etc. Thereafter the Hand piece was returned to the complainant on or about in October 1991. But according to the complainant the same is not repaired satisfactory in as much as it is not cutting the tooth i.e. the drill is not cutting the tooth but merely sprays water. She has also produced certificate of two doctors.

THE opposite party has not chosen to remain present since Mr. Kothari attended the Commission. THE evidence of the complainant herself was recorded on 12.11.91 and, thereafter next day. Even then the opposite party has not remained present. THErefore we shall have to give our judgment on the basis of evidence produced before us. It may also be noted that the opposite party has not filed any regular written statement of verification supported by evidence. All the written statements are in the form of letters addressed to us. With the last letter dated 15.10.91 the opposite party has sent one certificate of Dean of Nair Hospital Dental College dated 12.10.91 which is on plain paper. He had taken on record also the certificates of Dr. J.H. Vasavada and Dr. S.J. Shah, Dentists who had examined the Hand piece and had given their opinion which are produced by the complainant alongwith the application (letter) and a copy thereof has been sent to the opposite party. The complainant has proved by her own evidence and the production of the copy of the bill that the X-ray machine was purchased from the opposite party and was delivered at Ahmedabad through transport and the payment was made by draft from Ahmedabad. Therefore the cause of action for defective X-ray machine had arisen at Ahmedabad which was sent for repairs from Ahmedabad and which was to be delivered to the complainant at Ahmedabad through road transport or post. With regard to the Hand piece the argument of the complainant is that the same was sent by post and the opposite party was supposed to return the same to Ahmedabad to the complainant. In fact, previously the same machine was sent to Ahmedabad by post at the cost of the complainant and, therefore, the contention of the opposite party that sale transaction was completed in Bombay is not true. The same was completed at Ahmedabad when X-ray machine was delivered at Ahmedabad through road carrier and payment was made by draft. We think that there is some substance in the contention of the complainant. In any case the machine was to be repaired by the opposite party and as promised by them the same was to be repaired within 10 -15 days and was to be sent to the complainant by road transport or post at the cost of the complainant. The advance payment for the reparation of Hand piece was also made. The opposite party has not denied that the same was not to be sent to the complainant by road transport or by post as was done for Hand piece previously. In absence of the denial regarding the delivery of the X-ray machine and Hand piece we have to accept the evidence of the complainant that the cause of action has arisen in Ahmedabad because the machines were to be delivered at Ahmedabad.

With regard to the merits of the case there is no doubt that after recovery of reparation charges for the Head piece the opposite party has not cared to repair it and send it back within 10-15 days as promised. In the absence of other evidence we have to believe the contention of the complainant that the machine was to be delivered within 10-15 days. Even though the opposite party is posing themselves as reputed traders they did not care to give any reply to the number of letters written by the complainant. Even there is no proper reply to the first notice and no reply at all for the second notice.

THE complainant is a practicing doctor and these two machines are everyday requirement which the opposite party knows. A dental surgeon do his or her practice with the held of X-ray and drilling machines. Both these instruments are very important for everyday practice. THE opposite party therefore, is, found to be quite negligent in so much so that even the estimate of reparation of X- ray machine has not been sent prior to the filing of this complaint. It is not denied by the opposite party that they have not accepted these machines for reparation. On the contrary the letter dated 9.4.91, the only letter written by the opposite party acknowledges both the Hand piece as well as the X-ray machine and puts the blame on the complainant for delay. THE opposite party has not traversed the allegations of the complainant and I has filed a totally evasive reply. Most of the contentions of the complainant have remained un- answered and on the basis of the available evidence we shall have to come to the conclusion that the opposite party is totally negligent in repairing the machines which they had accepted for repairs. THE letter dated 9.4.91 clearly shows that they have failed to attend to the complainant and promised to hand over the same at any time after due testing. If the machines are accepted for repairs and they are not returned within a reasonable time of 10-15 days will amount to negligence in performance of service within the meaning of Section 2(1)(g) of the Consumer Protection Act, 1986 and the opposite party is liable to return the machines and/or the price and also is liable for damages to the complainant on account of their negligence. It is on record that the cost of the machine was Rs. 18,700/- and the market price of the Hand piece was Rs. 6,000/- on the date of notice. THE prices might have increased during these two years to great extent. THErefore the opposite party are liable to return the same duly repaired and in the alternative they are liable for the payment of the market rate prevailing today for these two machines. The opposite party were negligent in re- pairing the machines and sending the same to the complainant within the promised time and on account of non-receipt of both the machines the complainant has claimed damages of Rs. 2,00,000/-. From the evidence available with us and considering her deposition we find that she has suffered in her practice so much so that she has to send the patients to another doctor for X-ray and also has suffered on account of not having the sophisticated Hand piece with her which has resulted in some loss of practice. Though she has claimed a very large amount which is not sufficiently supported by proper evidence we have therefore to arrive at a rough estimate on surrounding circumstances including loss of practice as deposed by her. We are of the opinion that the complainant has suffered loss of practice to great extent but we assess the damage at Rs. 10,000/-. ORDER The opposite party is directed to return the Hand piece and X-ray machine sent by the complainant satisfactorily repaired to the complainant within 4 weeks from the receipt of the copy of the decision failing which the opposite party shall pay Rs. 18,700/- for the X-ray machine and Rs. 6,000/- for the Hand piece with running interest @18% from the date of complaint till the actual payment. The opposite party will pay Rs. 10,000/- less Rs. 1,000/- towards reparation charges to the complainant for financial loss suffered and injury with running interest @18% p.a. from the date of the decision. The opposite party will pay Rs. 500/- by way of cost. The above payment shall be made within a period of 4 weeks from the date of decision. Complaint partly allowed