MEHUL J BHATT Vs. INDCHEM ELECTRONICS LTD

JUDGEMENT

(1.) The complainant, a medical practitioner having medical nursing home and heart hospital had purchased the equipment "d. C. Decibrillator-cum-Monitor Charger with all Access. DMS-630" from the opponent No.3 who is doing the business of selling medical equipments and having the local office at Ahmedabad and Head Office at Madras for Rs.46,536.68 for his hospital. The guarantee card was also given by the opponent No.3 providing the warranty for defective workmanship and material for the period of two months from the date of installation of the instrument or 13 months from the despatch whichever is earlier. According to the complainant, during the warranty period, defects were noticed in the working of the said machine and, therefore, oral complaints were made but nobody attended and, therefore, letter dated 9.1.92 was addressed to the opponent stating that the machine had gone out of order and immediately required to be replaced or serviced and the defects were required to be removed. The letter was responded and the complainant was informed that the machine would, be taken back by the opponent No.3 for necessary repairs and putting it in order and it was taken away on January 16,1992 and standby unit was supplied till the time the original equipment - DM5 630 was set right. It is contended by the complainant that on enquiry by the complainant with the opponent, he came to know that the equipment was not free from defect or workmanship and/ or material and, there were inherent defects in the same which could not be rectified or repaired. The complainant was informed that the equipment was required to be taken to the workshop/factory of the opponent to be delivered to the complainant when the same was set right and found to be working satisfactorily. The complainant after that sent various reminders but the equipment was not returned and satisfactory reply was also not given. According to the complainant he has suffered great hardship in treating the patients with the standby equipment which was also not satisfactorily working. According to the complainant, the facilities of the said equipment purchased by the complainant had helped to increase the practice of the complainant as he was the first in Gujarat to purchase the said equipment from the opponent and the complainant acquired the name and fame as heart specialist and patients from throughout Gujarat had started going to the hospital of the complainant for consultation. As the said equipment went out of order subsequently and stopped working somewhere in December 1989 the complainant could not attend his patients with the help of said equipment in the I. C. C. U. and the standby unit DMS 600 supplied in place of DMS 630 is of inferior quality and has no facility of DC shock and Defibillator was not working in the standby unit DMS 600 which is simple monitor. The complainant could not cope up with the work with the said standby unit. The complainant was assured the repairing of DMS-630 within 15 days but it was not repaired till the date of the complaint. The complainant accordingly prayed for the direction to replace the original equipment DMS 630 by brand new equipment immediately, and pay compensation of Rs.10,000/-from December 1991 till the date of the filing of the complaint amounting to Rs.90,000/- with 12% interest and Rs.50,000/- for the loss of prestige and professional reputation.

(2.) The opponent by reply (Exh.11) denied the allegation about the defect in the equipment and contended that the equipment carried warranty for 13 months from the despatch or 12 months from installation whichever was earlier and the equipment was working without any trouble and the complainant had not made any complaint about the equipment and was using satisfactorily for his hospital purpose without any problem. The warranty of the equipment expired on 29.9.91 and the complainant wrote the letter only on 9.1.91 stating that the machine was out of order for past 12 days and thereby the opponent attended to the service needs of the complainant and after that the equipment was found to need some refurbishing and thereby the equipment was advised to be taken back to the factory of the opponent for necessary service and in place of the original equipment taken for refurbishing a standby equipment viz. DMS 600 M/3 with patient cable was provided purely on the request even though the complainant was not entitled to that, without any charge and simply on the interest that the customers activity should not suffer. The complainant is using the standby right up from 16.1.92 when the original equipment was taken by the opponent for service and, therefore, the complainant did not suffer for want of equipment even for a day. It is also contended by the opponent that they are no longer marketing DMS-630 product and, therefore, had offered upgraded model with better facilities which would cost more, as free replacement. Inspite of the said offer extended by the opponent to the complainant he did not accept the same for the reasons best known to him. The opponent also contended that the standby unit is performing well and it had been serving the purpose of the complainant as required and he had been using the same and he had never complained the standby unit as inferior. The DMS 630 equipment was taken for refurbishing. According to the opponent they are no longer marketing the product DMS-630 and had offered upgraded model with better facilities but the complainant did not accept and insisted for the model which is not in production. According to the opponent they have decided to replace all the existing DMS-630 equipments in the market with the newly designed one and upgraded equipment with better facilities and had offered upgraded model with better facilities which would cost more, free replacement but the complainant did not accept it. The opponent denied the contention that the complainant was put to loss or his prestige was affected and, therefore, the complainant is not entitled to be compensated as claimed.

(3.) It is admitted that on being complained, the opponent immediately took away the equipment and at the same time provided for the standby which is used by the complainant since long. The opponent removed the equipment for repairing inspite of the fact that the warranty period was over. Not only that but a standby unit was also provided and the complainant used it and had not made any complaint for that. It is also clear that the DMS-630 model which was supplied to the complainant was not being produced and the upgraded and better model was put in the market by the opponent The opponent offered that newly upgraded model but curiously, the complainant did not agree to accept it. The complainant has not stated the reason for not accepting the upgraded model. On the contrary, the opponent has clearly stated that the upgraded model is a better equipment than old one. In absence of any grievance about the upgraded model the complainant should have accepted it. Sec.14 of the Consumer Protection Act states that if the goods complained against suffers from any of the defects specified in the complaint, the Commission can direct the opponent to remove the defects pointed out by replacing the goods with new goods of similar description or return to the complainant the price or as the case may be, the charges paid by the complainant or to pay such amount as may be awarded by the Commission as compensation to the consumer for any loss or injury suffered by the consumer due to the negligence of the opposite party. This Commission, therefore, can pass an order for replacement of the equipment. Shri N. M. Tailor, the learned advocate for the opponent submitted that the opponent is willing to replace and as such offered to replace the equipment by the new model and that will be done within the period of one month. We should therefore direct the opponent to replace the existing DMS-630 equipment with the newly designed and upgraded equipment with better facility.