DR VIJAI PRAKASH GOYAL Vs. NETWORK LIMITED

JUDGEMENT

(1.) THIS revision is directed against the order dated 15.7.1998 of Consumer Disputes Redressal Commission Uttar Pradesh, Lucknow allowing appeal against the majority judgment dated 16.11.1996 of a District Forum and dismissing complaint filed by the petitioner.

(2.) PETITIONER filed complaint, inter alia, alleging that he along with his wife has been running a maternity home at 10/60, Katar Madari Khan, Agra. Petitioner placed an order on 22.2.1994 for supply of Ultrasound Scanner Model 212 on the respondent opposite party. Respondent supplied the machine on 31.3.1994. Warranty was of one year. It was alleged that after installation, the machine went out of order. Engineer deputed by the respondent on checking found that the machine needed to be replaced, if being defective. Respondent had not replaced/repaired the machine despite repeated requests including service of legal notice dated 5/8.12.1994 by the petitioner. It was stated that petitioner has suffered professional loss of Rs. 1,50,000 in addition to loss of Rs. 50,000 on account of mental agony. It was prayed that respondent be directed to remove the defects in the machine supplied and if those could not be removed, then to replace the machine and pay said amount of Rs. 2 lakhs by way of damages. Respondent contested the complaint by filing written version. Purchase of Ultrasound Scanner model 212 by the petitioner was not denied. However, it was pleaded that petitioner is not a consumer as defined in Consumer Protection Act, 1986 (for short the Act). There was no agreement between the parties for rendering any services. Sum of Rs. 30,000 towards principal amount was still due from the petitioner. It was denied that petitioner has suffered loss of Rs. 2 lakh as alleged.

(3.) ORDER dated 19.4.2002 notices that the view taken by State Commission in regard to petitioner not being a consumer, prima facie, cannot be justified as the machine developed defects during warranty period. However, instead of remanding the matter to State Commission, it was thought proper to decide the case on merits itself. Contention advanced by Ms. Poonam Gupta for respondent was that petitioner is not a consumer nor did the respondent agree to render any service qua the machine. Part of sale consideration of Rs. 30,000 was still due from the petitioner and, therefore, no relief can be granted to the petitioner. Notice dated 5/8.12.1994 which was replied to by the respondent was got served through Counsel by the petitioner during the warranty period of one year which was to expire on 17.4.1995 itself. In Jay Kay Puri Engineers and Others v. Mohan Breiveries and Distilleries, I (1998) CPJ 38 (NC) and many other decisions, this Commission held that purchaser of a machine would be a consumer if the defect in machine develops within warranty period even though the machine was purchased for commercial purpose. Therefore, the contention of petitioner not being a consumer is repelled being without any merit. Further, as Ultrasound Scanner purchased by petitioner developed defects within warranty period, the respondent was obliged to remove that defect despite there not being a separate agreement for service thereof.