RAMPION PHARMACEUTICALS Vs. PREETAM SHAH

JUDGEMENT

(1.) RAMPION Pharmaceuticals, Ahmedabad are the appellants and Dr. Preetam Ratanchand Shah, Kolhapur, is the respondent in this appeal which is against the Order dated 15.7.93 in Complaint Case No. 82/ 92 of the Maharashtra State Commission directing the appellant to pay Rs. 71,000/ - with interest at the rate of 18% per annum from 21.10.91 till realisation, to the respondent on account the price of one KOI 3000 x Ultrasonic Pachymeter Lot No. 1047 holding that the said machine was defective and did not serve the purpose for which it was bought by the respondent. The appellants have urged that the submissions made by them in reply to the complaint of Dr. Shah were not considered by the State Commission while considering the complaint and hence the order passed by it deserves to be set aside. They have reiterated the same issues in appeal, as they claimed to have urged before the State Commission. These are in regard to jurisdiction of the State Commission of Maharashtra, the purpose for which the machine was bought, the machine being defective in its performance and the responsibility of the appellants in regard to any liability for this machine.

(2.) THIS is admitted that the machine was purchased by Mr. Shah of Kolhapur from the appellants for the professional purpose of his practice as an eye surgeon in the hospital run by him. Dr. Shah, the complainant -respondent, is based at Kolhapur which is in the State of Maharashtra. The territorial jurisdiction of the Consumer Disputes Redressal Agencies covers a complaint filed at a place where the cause of action wholly or in part arises vide Section 11(2)(c) of the Consumer Protection Act. Clearly the cause of action as far as the complainant -respondent is concerned arose at Kolhapur where he has his hospital and, therefore, the Maharashtra State Commission was within its right to entertain this complaint and make an appropriate order.

(3.) TO make the point that the machine was not defective but the complainant -respondent was incompetent to use and maintain it, the appellants have stated that a foreign expert, namely, Mr. Jeorge Brisco, who had taken it to Australia and sent it back/after servicing, has certified that the Pachy Meter was working perfectly and what is needed is the proper maintenance of its battery which the respondents failed to ensure. The appellants also produced an extract from a book to urge that such instruments and more specifically the very instrument in question viz., KOI 3000 x Ultrasonic Pachymeter required proper recharging and maintenance of batteries and that the problems could arise in the absence of such maintenance. The literature also indicates that storage above 100 ° F should be avoided and the preferred storage is at 70 ° F. which requires an air -conditioned room all the time. The main point in this regard urged by them is that the instrument is not defective because it has been used by the respondent for more than a year. Had it been a defective instrument how could the respondent use it at all ? On the other hand it has been pointed out by the State Commission that the complainant purchased the machine on 5.10.88 when it was in - stalled at his hospital and that it was found to be not working even on that day. According to the respondent the machine was redelivered to him on 20.10.91 after servicing in Asutralia and even after that it was not working. The respondent was promised replacement of the machine by the opposite party but, the same was not done and, therefore, a complaint was filed on 11th March, 1992, within the limitation period if taken from 21.10.91 when the machine was redelivered after servicing. It is also mentioned that Mr. Joshi, a representative of the appellant replaced the circuit after the instrument completed reading when tested on the test box supplied by the appellant. However, when the respondent tried to take readings on the patients the instrument refused to show any reading and, therefore, the machine failed to give the promised results as per the representation made by the opposite parties. It is not clear to us as to why a professional medical practitioner would not maintain an instrument in proper condition particularly when such an instrument is of great help and assistance to him in pursuing his practice. Nor can it be believed in the absence of any cogent evidence, that a Doctor would like to return such an instrument without reason in case its performance is satisfactory for his professional purposes. The allegation that it has not been maintained properly has not been supported by any evidence. A certificate from a foreign expert and that too in the nature of an advice only, that the battery should be charged and maintained properly cannot be taken as conclusive evidence that it was not being maintained by the respondent in the manner required by the manual. We, therefore, agree with the findings of the State Commission that the machine supplied to the respondent was defective inasmuch as it did not render the service for which it was purchased even after it had been sent to Australia for repair and, thereafter delivered to the respondent.