PICKER INDIA LTD vs JAMAL ARA

APPELLANT was the opposite party before the State Consumer Disputes Redressal Commission, Orissa (hereinafter referred to as State Commission), where the respondent/complainant had filed a complaint alleging deficiency in service on the part of the appellant.

THE basic facts leading to filing the complaint, as alleged in complaint, were that the respondent/complainant who is a doctor by profession, decided to purchase a Laparoscopy Set, Type-III, Model 3, from the appellant/opposite party for use in her operation theatre to give better service to the patient. Invoice was provided by the Regional Sales Manager Mr. Ghosh. The equipment was supplied. But it was the case of the complainant that certain parts such as Silicon Tube, Carbon Dioxide Cylinder and Spatula were never supplied despite having received full payment by the appellant. The complainant approached their Kolkata Office but when the complainant''s representative reached to Kolkata Office to find out about the details of supply of these parts, he came empty handed as the appellant''s office had shifted its known address to some other place without giving out the new address. In such circumstances, the matter was taken up with the appellant''s head office at Delhi requesting for re-sale the machine and refund the complainant''s money with interest as the equipment was not demonstrated within two months from the installations and Kolkata Office has been closed. It is only on 22. 2. 1997 that the Regional Kolkata Office informed them about the new address in which they also informed that on 10. 2. 1997 they have sent silicon tube through one Dr. Samal of Bhubaneswar. According to the complainant an assurance was given that the appellant''s engineer Mr. Arijit Ghosh will meet the complainant on 26. 2. 1997 and give the demonstration of the machine. No one turned up on that date. As per the complainant Mr. Ghosh informed her on phone to arrange a patient on whom he will demonstrate. The demonstration was given on 4. 4. 1997. During the demonstration of the machine CO2 ''insulfulator'' did not work, causing a great damage and loss of credibility. This CO2 ''insulfulator'', as advised by Mr. Ghosh, Engineer of the appellant company, was sent for replacement on 5. 4. 1997 which was received by the appellant on 7. 4. 1997. Till the date of filing of the complaint this CO2 ''insulfulator'' was not replaced. It is in these circumstances, that a complaint was filed praying for taking back the machine and refund the money with interest @ 18% p. a. along with cost of CO2 Cylinder, Colour TV and loss of credibility and litigation cost. The matter was contested by the appellant before the State Commission on several grounds. The State Commission after considering all the grounds and perusal of material on record allowed the complaint in following terms : "in the result the O. P. is directed to refund a sum of Rs. 6,00,000 along with interest from the date of payment to the O. P. till realisation. Besides the O. P. do pay an amount of Rs. 1,33,452 as calculated above. The entire amount be paid within eight weeks from the date of communication of this order. "

Later on an application made by the complainant, the State Commission by order dated 6. 9. 2001 passed the following order : "heard Mr. Jena the learned Counsel for the complainant and Mr. Paikray the learned Counsel for the O. Ps. in the matter of correction of the judgment. So far rate of interest is concerned, this has been already mentioned in the original judgment. The portion, i. e. , quotation in page 5 of the judgment be substituted as follows : "if any anti situation arises in between and you are not able to start by 12 months, we also assured you to resale the equipment at a good price. " judgment be corrected accordingly. Corrected judgment be supplied to the parties at our cost. "

Aggrieved by this order this appeal has been filed before us.

WE heard the learned Counsel for both the parties at considerable length and perused the material on record. It is important to note that this is a second round of litigation. Earlier aggrieved by order dated 13. 11. 1997 passed by the State Commission, the appellant had filed an appeal before this Commission and after hearing the parties the matter was remanded back to the State Commission after imposing a cost of Rs. 15,000 on the appellant. On being remand and after hearing the parties the impugned order was passed by the State Commission. The learned Counsel for the appellant took four pleas. Firstly, no expert inspection report is on record despite request from the appellant; secondly, after having passed the order, the State Commission could not pass a subsequent order by way of clarification; thirdly that the complainant has shown complete ''rigidity'' by not allowing inspection of the equipment despite directions of this Commission resulting in the Commission not getting a first hand report of the status of the machine in order to appreciate the status of the machine and fourthly, there is no allegation on the point of machine being defective.

AS far as the first plea is concerned, we see on record an application by the appellant made before the State Commission for production of the machine for examination which was opposed and objected to by the respondent/complainant, hence the State Commission by two different orders decided to pass orders on merit and deal with this point at the time of passing final order. We appreciate that it would have helped the State Commission to arrive at the more realistic conclusion, had the machine been got inspected through an ''expert''. This is a fact that the State Commission has not passed any order on this point. As far as the second plea is concerned, we see that as per settled law the State Commission could not have entertained the application for clarification and subsequently passed the order but as we see that no damage seemed to have been caused to the appellant which affecting the right of the appellant hence we see no merit in this plea as well. Dealing with the third and fourth pleas together, we find that the complainant''s case in the complaint was that certain parts had not been supplied and subsequently when the ''insulfulator'' was supplied, it did not work in view of which the machine was not demonstrated, hence by an letter dated 20. 2. 1997, the complainant asked for refund of money. But before that, we see that when the equipment was delivered to the respondent/complainant, a certificate dated 18. 12. 1996, was signed by the complainant as well as by the engineer of the appellant, which reads as under : "laparoscopy set delivered, installed and tested found OK. "

WE have no manner of doubt that once this letter of satisfaction and installation has been given/signed on 18. 12. 1996 by the complainant and further payment of Rs. 5,50,000 made on 9. 12. 1996, we are in no doubt that the total equipment with the parts were delivered and the signature on the installation report as also the payment of the balance amount of Rs. 5,50,000 is testimony to this effect. We have seen the affidavits of Mr. Arijit Ghosh as also affidavits fled by the complainant as also by Dr. Samal as well as their cross-examination. In the worst case scenario, even if we accept that these parts, namely, ''insulfulator'', silicon tube, CO2 cylinder were not supplied with the machine, but when we see the affidavit of the said Mr. Ghosh-who has since changed his job and working with a competitor company-even he states in his affidavit that ''insulfulator'' was supplied albeit with some delay. There is no dispute that as per affidavit filed by Dr. Samal, silicon tube was brought by him in February, 1997 and given over to the complainant. In the affidavit filed by Jai Singh George, G. M. (Tech.) of the appellant, he clearly states that the ''insulfulator'' supplied to the complainant was found to be having some problem. In early April 1997 it was called back for replacement after it was found that the ''insulfulator'' is not helping pass the CO2 for which a replacement was sent only in May, 1997, i. e. , after a delay of a month or more thus depriving the complainant the use of the equipment, which again as per the affidavit of the appellant developed some problem in June 1997, upon which the respondent/complainant insisted on returning the entire set. There is no material on record that any replacement or any engineer, was sent to remove these defects. There is only a statement on oath by the appellant that they were ready to replace the ''insulfulator'' and asked the respondent to return the same in terms of warranty. No positive action appears to have been taken by the appellant to make the equipment functional by way of repairing or replacing the ''insulfulator'' and demonstrate its functioning at the site, i. e. , the premises of the complainant.

WE also see that admittedly the equipment was having warranty of one year. As per the material on record, we also see that an inspection report from the appellant''s side dated 17. 6. 1997, about ''insulfulator'', reads as under : "insulfulator'' (LMS 930) is not working since beginning. ''insulfulator'' taken back to office and repaired it, tested with ovt gas. But, here with CO2 gas it tested and found no gas flow from ''insulfulator''. The total set is not used. No surgeons are ready to operate by this set. So, customer is in trouble. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Re-service status-not working. . . . . . . . . Customer is not willing to use this set. She wants to return it back. "

Chronologically, if we see even according to the appellant the first time ''insulfulator'' went ''bad'' in early April 1997, which was sent to the appellant and they took almost one and a half months to replace it with a new one. There is no dispute that without the ''insulfulator'' the equipment cannot be put to any gainful use, thus, depriving the user/buyer of the benefit of the costly equipment. This is also not in dispute that as per the affidavit of GM (Tech) of the appellant, the ''insulfulator'' again developed defects in June, 1997, which is born by the report of 17. 6. 1997 reproduced earlier. This is a costly equipment and perhaps could be damaged in transit. In our view, it was the responsibility of the appellant to have sent service engineer to collect the equipment and then send it back after repairs or supply a new one by way of replacement, and test/demonstrate the equipment on the site. This is the least which can be expected from a seller of sensitive and sophisticated equipment. On our record, there is nothing to show that any effort was made by the appellant to repair or replace the ''insulfulator'' and make it work on the site. What was expected was that the complainant will send the defective equipment to the appellant, which we are unable to accept. Chronology and history of working of ''insulfulator'' leaves much to be deserved on the part of the appellant. When a person buys costly equipment he or she does not buy a headache. Undisputedly the complainant is in Orissa and the appellant is in Kolkata. It is also not in dispute that the appellant has Service Engineers. Frequent breakdown of insulfulator within six to seven months of the purchase of the equipment and non-replacing it or demonstrating its functioning properly at the premises of the complainant is a clear case of deficiency in service on the part of the appellant. The plea of the appellant that the complainant was not qualified or adept at handling the equipment, does not wash with us. We have seen the affidavit and cross-examination of the complainant. In our view, the appellant has failed to prove the allegation with the help of any material on record. There is no dispute that all these activities were within the warranty period. Delayed supply, in the first instance, delayed replacement, in May/june 1997 and again non-replacement of ''insulfulator'' after June, 1997 has resulted in depriving the respondent/complainant use of the equipment worth Rs. 6 lakh.

On the other hand we also see there are mitigating circumstances, in favour of the appellant. Firstly, there is his written application filed before the State Commission for production of machine so that the truth could come out but it was opposed by the complainant on account of reasons best known to her. We are constrained to derive adverse inference from this fact.

VIDE our order dated 20. 4. 2004, we passed the following order : "learned Counsel for the appellant states that appellant would send expert from Delhi to examine whether the machine, which was purchased by the complainant, can be made workable. He further states that the expert would report the defects, if there are any, in the said machine and report the same to this Court. Learned Counsel for the respondent states that respondent would fully co-operate in inspection of the said machine or making the same in workable condition. Learned Counsel for the appellant states that expert would visit the premises of the complainant where the machine is lying either on 7th or 8th May, 2004. For this purpose prior telephonic information would be given to respondent. "

To which the follow-up action is summarised vide our order dated 21. 5. 2004, which reads as under : "learned Counsel for the appellant submitted that the expert who was sent by them to inspect the machine was not permitted to inspect the machine except allowing him to see it from a distance. Learned Counsel for the appellant has submitted an application for direction. Learned Counsel for the respondent seeks time to file reply. List for disposal of the application and for arguments on 7. 10. 2004 before the Bench presided over by the Hon''ble President of this Commission. "

The above series of actions on the part of the complainant lead us to conclude that they were not ready to cooperate. In the aforementioned circumstances, while equipment supplied had developed defect within the warranty period and taking almost month and a half for replacement and that too, not found working within a short span, reflects upon the quality of the material supplied, which in our view, was not up to the mark because we cannot accept that any good equipment can develop defects within a short time. This happened not once but twice within a period of 6 months of its installation and then lack of effort on the part of the appellant to send their own engineer to repair or to transport for replacement, is a clear case of deficiency in service on the part of the appellant as far as the question of ''insulfulator'' is concerned.

WE see that the order passed by the State Commission is entirely based on non-supply of the three parts mentioned earlier, which in our view, is belied by the ''certificate'' given by the complainant on the point of ''delivery installation and test, and the equipment was found to be OK and secondly at best it could be said that ''insulfulator'' was supplied albeit with some delay and when it was found to be not working in April 1997, replacement was also sent, with which the equipment started functioning but it again developed some defects in June 1997. As already mentioned silicon tube was carried in the month of February 1997 by Dr. Samal and delivered to the complainant. The entire order of the State Commission which is based on non-supply of these items, does not stand the scrutiny as per material on record, in view of which, it cannot be sustained. As discussed in earlier part of the order, while holding the appellant deficient in rendering service limited to non-repair/non-supply of workable ''insulfulator'' to the complainant, depriving her of the use of the equipment and in view of the mitigating circumstances enumerated earlier, we are not inclined to order refund of whole amount at which machine was purchased. As per the quotation on record, the digital ''insulfulator'' is priced at Rs. 1,88,843, to which, in our view, the complainant is entitled. Hence the appellant is directed to pay Rs. 1,88,843 being the cost of the ''insulfulator'' along with interest @ 10% p. a. from the date of filing of the complaint till the date of payment and the respondent/complainant shall return the ''insulfulator'' lying with her after receiving the awarded amount. The respondent/complainant is also entitled to compensation which we fix at Rs. 50,000 in view of the fact that the complainant was deprived of use of equipment for a long period. All the above payments be made by the appellant to the respondent/complainant within six weeks from the date of passing of this order failing which the complainant shall be at liberty to proceed against the appellant under Sections 25/27 of the Consumer Protection Act, 1986. Appeal dismissed.