THUKARAM NEURO DIAGNOSTIC CENTRE vs NICCO CORPORATION LTD

THIS is a complaint under Section 17 read with Section 12 of the Consumer Protection Act.

THE complainant is running a Diagnostic Centre. It placed an order with the opposite parties for the purchase of one "Elisa Reader Model STAT FAX-307 for the special test of Tuberculosis, IgG., IgM., Measles and Mumps and other infectious diseases. THE instrument was installed in the complainant''s centre on 24.1.1992. THE case of the complainant is that the opposite party agreed to install one standby Elisa Reader at its branch office at Madras to meet the immediate requirements in case of any problem in the Elisa Reader installed at the complainant''s place but the opposite party failed to do so. THE other grievance against the opposite party is that it failed to supply the necessary. Test Kits for mumps and measles. Hence this complaint claiming compensation in the sum of Rs.2,80,000/- as compensation and future damages at Rs. 30,000/- per mensum. The complaint is resisted by the opposite party. It is contended that as this system has been purchased by the complainant for commercial purpose, therefore the complaint is not maintainable. According to the opposite party, it is keeping the Standby Elisa Reader at its Branch in Madras but no occasion has arisen for using it. It is further contended that the opposite party has supplied to the complainant tuberculosis, Kits at concessional rate, but the complainant failed to make the payment against those supplies. It has also supplied Kits including Toxoplasma and infectious disease, Kits without receiving payment against the earlier supplies. According to the opposite party, the complainant has still to clear the balance of Rs. 14,000/- payment towards the Elisa Reader supplied and cheques issued by the complainant were dishonoured. With a view to avoid any action by the opposite party for recovery of the balance, the complainant has filed this frivolous complaint.

Exhs. A1 to A12 and B1 to B12 are marked. Proof affidavits are filed. No oral evidence has been let out.

THE first point before us is that whether this complainant is a consumer within the meaning of Consumer Protection Act. THE complainant has purchased from the opposite party one Elisa Reader for conducting special tests for tuberculosis, measles, mumps and other infectious diseases. If is for a commercial purpose, as the complainant is Diagnostic Centre and receives charges for the test conducted. But the claim of the complainant is not that there are defects in the machinery supplied but only that there is deficiency in service. Hence the complainant is not a consumer within the meaning of Section 2(1)(d)(i) of the Consumer Protection Act, but it is a consumer within the meaning of Section 2(1)(d)(ii) of the Consumer Protection Act. The allegations against the opposite party are this : (1) The opposite party did not as promised keep the Standby Elisa Reader in his branch at Madras to meet the urgent requirements of the complainant in case any problem arise in the Elisa Reader installed its place. According to the opposite party, such a Standby Elisa Reader is kept in his branch office but no occasion has arisen for its user. It is not the case of the complainant that the Elisa Reader installed in its premises went out of order at any time necessitating the user of the Elisa Reader at the premises of the opposite party at Madras. In the absence of any such allegation of break down of the Elisa Reader purchased by the complainant, there is no question on claiming any compensation from the opposite party for not keeping the Standby Elisa Reader in its branch office, even assuming that the opposite party has not kept such a standby machinery.

THE second allegation is that the opposite party failed to supply Kits for mumps and measles as promised. Exh. A10 is the letter of the opposite party dated 27.2.92 wherein it is stated that test kits for measles and mumps were not available and inspite of best efforts they could not send it. It is on the basis of this letter, the complainant urges that there was a promise on the part of the opposite party and it railed to do so. THEse Kits are supplied by the opposite party not free but for a price and since these Kits have not been available, the opposite party could not supply them, as it is seen from Exh. A10. THE non-availability of these kits in the market is no ground to hold that the opposite party is guilty of negligence or deficiency of service. May also pointed out that the complainant has not paid in full the price for the installation of the Elisa Reader and there is still a balance of Rs. 14,000/- cheques issued therefore have been returned. There is therefore considerable force in the contention advanced on behalf of the opposite party that this complaint is intended only to thwart any possible action by the opposite party for the realisation of the balance of the cheque consideration. We find no merit in this complaint. The result, The complaint fails and is dismissed with cost of Rs. 500/-. Complaint dismissed with costs.