PREM KISHORE AGARWAL Vs. ESTATE OFFICER HUDA

JUDGEMENT

(1.) The two opposite parties who are the Sales Officers of M/s. Superior Air Products Ltd. , are the appellants. The complainant, Vimala Hospitals (P) Ltd. , Dindigul (respondent herein) purchased from the opposite parties an Anaesthetic machine for a sum of Rs.1,25,606/- and the machine was installed in the complainant hospital on 5.3.92. According to the complainant, the machine was found to be defective and inspite of requests made to the opposite parties they failed to rectify the same. On 8.2.93, the complainant wrote to the respondent pointing out the defects. On 11.2.93, the 1st opposite party sent a reply promising to depute their engineer to service the equipment, but they did not do so. Because of the delay on the part of the opposite parties in rectifying the defective machine the complainant purchased a new machine on 31.10.92 for Rs.35,600/- from M/s. Sophy Surgical Company, Madurai. On these grounds the complaint has been filed for directing the opposite parties to pay the complainant hospital a sum of Rs.2,00,000/- and for the costs of the complaint.

(2.) In the written version filed by the opposite parties it is contended that the Anaesthetic machine was purchased for commercial purpose of the complainant and therefore the complainant is not a consumer within the meaning of the Consumer Protection Act, 1986 and hence the complaint is not maintainable. The opposite parties denied that the Anaesthetic machine supplied to the complainant was defective. It is then contended that after the installation of the machine, the opposite parties visited the Hospital on 16.4.92 and 27.7.92 and during those visits the complainant told them that the machine has been handled by an unqualified person. The complainant in its letter dated 7.9.92 raised some complaints which were in no way connected with the working of the machine. Even then, the opposite parties attended on the machine on 3.11.92 and looked into the alleged defects. On that day, i. e.3.11.92 the complainant has given a Certificate that the opposite party serviced the equipment to its entire satisfaction. Thereafter in January, 1993, the complainant made some complaints in its letter dated 20.1.93 to which the opposite parties sent a reply on 28.1.93 and they visited the hospital on 18.2.93, but the complainant prevented the opposite parties from attending on the machine and in this regard, the opposite parties have sent a letter dated 22.2.93 which has been marked as Ex. B-2 and this clearly substantiates this version of the opposite parties. The opposite parties have even stated that they were prepared to extend the warranty period by another 12 months and replace any components if found defective, as a special gesture. It is then contended that as per the terms and conditions of supply, the guarantee period is only 12 months from the date of supply for doing any service by the opposite parties, and during that service period, the opposite parties have been visiting the hospital and inspecting the machine. Therefore there is no deficiency in the machine or in the service of the opposite parties and thus the complaint is not maintainable and it has to be dismissed.

(3.) The District Forum, on a consideration of the evidences, came to the conclusion that the complainant is certainly a consumer within the meaning of the Consumer Protection Act and therefore the complaint is maintainable and that the machine was defective. In the result, the lower Forum ordered directing the opposite parties to take back the machine and refund the sale price deducting tax and other incidental expenses incurred by them, less 10% depreciation, with interest thereon @ 18% on the sale price from 5.3.92 till payment, and to Rs.20,000/- as damages for pain and sufferings.