KODY ELCOT LTD Vs. C P GUPTA

JUDGEMENT

(1.) THIS is an appeal against the order passed by the U.P. State Consumer Disputes Redressal Commission at Lucknow, by which it allowed the complaint filed by the present respondent, Dr. C.P. Gupta, against the present appellant, M /s. Kody Elcot Ltd. By the impugned Order the State Commission asked the Opposite Party i.e. the present appellant to remedy the defect in the Ultra Sound Scanner machine by 15th March, 1993 failing which the Opposite Party was asked to take back the defective machine from the Complainant and pay him the price of the machine which is Rs. 3,85,000/ -. The Complainant was also allowed Rs. 50,000/ - as compensation.

(2.) THE facts leading to this appeal are that the present Respondent had filed a complaint before the District Forum, Aligarh. As the amount involved in the complaint was above the pecuniary jurisdiction of the District Forum the complaint was returned to the complainant for presentation before the appropriate forum. According to the Complainant he is engaged in medical profession and is having Surgical Protection Nursing Home and Emergency Surgical and Accidents clinic. For better medical treatment of patients, he had purchased from the Opposite Party the said machine at a price of Rs. 3,85,000/ - in July, 1990 with a warranty. The machine stopped functioning from 22nd March, 1991 and he had made a complaint to the opposite party who sent his service engineer on 9th April, 1991 for repairing the machine. The engineer tried his best to repair it, but he was unsuccessful and he gave an assurance that he would rectify the defects in future. Since March, 1991 the machine is lying idle and he is suffering a loss of Rs. 1,000/ - per day. On 15th May, 1991 the opposite party again sent his service engineer for repairing the machine but this time the engineer could not rectify the defects and the machine could not start functioning in a normal way. The service engineer issued a certificate to that effect on 15th May, 1991. The complainant informed the opposite party on 17th May, 1991 that the machine was defective and was not functioning in a usual manner and he was losing Rs.1,000/ - per day but the opposite party did not pay any attention to its letter. On 3rd June, 1991 a registered notice was sent by the complainant to the opposite party, but, the opposite party has not repaired the machine nor paid damages. The survey of the machine was conducted by the Surveyor of the Oriental Insurance Company in August, 1991 and the machine was found to be defective. The Insurance Company with whom the machine was insured cancelled the policy in respect of the machine on 28th August, 1991. The complainant prayed for replacement of the machine and also claimed Rs. 1 lakh as compensation for the loss incurred by him and for the mental agony. The complaint was contested by the appellant herein who had been arrayed as opposite party before the State Commission. It was not disputed that the opposite party has supplied the Ultra Sound Scanner IMEX -501 to the complainant on 13th July, 1990. However, it was pleaded that the complainant is not a 'consumer' as he has purchased the machine for making profits and for the purpose of his business. It was further averred that the machine was functioning satisfactorily from july,1990 to April, 1991 and the opposite partys engineer had attended and repaired the problem on 9th April, 1991 by changing the electronic board and filing the sector probe for better performance. Some other problem was rectified on 15th May, 1991 and also on 8th October, 1991 and subsequently on 22nd December, 1991. On 8th October, 1991 the complainant himself had stated that the machine was working properly and signed service report. On 9th January, 1992 the complainant had paid Rs. 5,400/ - and the opposite party has sent the Service Engineer to rectify the defect. The complainant would not have paid for the repairs if there was any defect in the machine. The repair to the machine had arisen only due to the wrong handling of the machine and the service engineer of the opposite party had taught the complainant how to operate the machine. The complainant had not specified any particular problem in the machine. Other allegations were also challenged.

(3.) FEELING aggrieved of that Order of the State Commission, the Opposite Party has come before us by way of this appeal. The main plea of the Opposite Party is mat the unit was purchased by the Complainant for his professional work and is earning much profit as is clear from the fact that he is claiming Rs. 1,000/ - per day.