HARSHAL DAFFAL Vs. KODY ELCOT LTD

JUDGEMENT

(1.) This is a complaint under Sec.17 (i) (a) of the Consumer Protection Act, 1986 (for short the 'act') for deficiency in service in not supplying the Trans Vaginal Probe of the value of Rs.1,87,234/- with interest thereon at the rate of 24 percent and compensation for the loss suffered of Rs.6,00,000/- at the rate of Rs.1,000/- per day from 27.8.1994 to 3.8.1996 and further a sum of Rs.1,00,000/- for mental pain, inconvenience and harassment along with the costs of the proceedings.

(2.) The case of the complainant in brief is thus : The complainant placed an order on 9.4.1994 for supply of FF Sonic UF 4500 Ultra Sound Machine made in Japan along with Microcon Vaginal Probe 3.5 MHz and Trans Vaginal Probe 7.5 MHz. The complainant paid the purchase price of Rs.6,50,000/- including 47% customs duty. The delivery was to be made within four months from the date of the order by the opposite parties. The machine was supplied on 27.8.1994 without Trans Vaginal Probe 7.5 MHz (for short TVP) which was assured to be supplied in September, 1994. Inspite of repeated correspondence, the TVP was not supplied, hence the complainant purchased the same for Rs.1,87,234/- on 3.8.1996. For non-supply of the Trans Vaginal Probe 7.5 MHz the complainant suffered loss at the rate of Rs.1,000/- per day from 27.8.1994 to 3.8.1996 at their Ultra Sono Centre run by the complainant and his wife Dr. Anuradha Dafal, therefore, this complaint to claim the amount of the TVP of the value Rs.1,87,234/- with interest thereon at the rate of 24 percent and the loss suffered of Rs.6 lacs with compensation of Rs.1,00,000/- for mental pain, inconvenience and harassment along with the costs of the proceedings.

(3.) The opposite parties filed preliminary objections and submitted that the complaint is barred by limitation as not presented within a period of two years from the date of arising out of cause of action as the machine was supplied on 27.8.1994 while the complaint was filed on 12.9.1996. The complainant is not a consumer as defined under Sec.2 (1) (d) of the Act as the machine was purchased for his Ultra Sono Centre run by the complainant and his wife exclusively for the purpose of putting it for commercial use for earning large profits, objection to territorial jurisdiction was also raised as the Delivery Note mentioned that "any dispute which may arise out of this transaction will be to Madras Jurisdiction only".