Full Judgment
Oral Order: (S. Bhujanga Rao, Honble Member)
The unsuccessful complainant filed the appeal against the order dt.21.6.2011 of the District Forum-II, Hyderabad made in C.C.No.501/2010, which is filed by the appellant/complainant, seeking direction to the opposite parties to pay an amount of Rs.1,10,000/- towards the cost of the hearing aids and to pay an amount of Rs.2 lakhs towards compensation to the complainant and for costs.
For the sake of convenience, the parties are described as arrayed in the complaint.
The brief case of the complainant as set out in the complaint is as follows:
On 7.3.2006 he approached and consulted Dr.K.R.Meghanath, E.N.T.Specialist in Vasavi E.N.T. and Cancer Institute, Lakdikapool, Hyderabad. The Doctor tested both his ears and opined that there is no clinical problem and referred to Audiology Department. The Audiology Technician tested both the ears of the complainant and gave a report to the effect that both the right and left ears Belatural Mild Medication . The ENT doctor advised hearing aid fitting. The complainant approached and consulted the opposite no.1, the audiology technician tested both of his ears on 2.2.2008. They suggested the hearing aids ‘Bravissia make B.V.-8 type costing Rs.27,000/- per each ear totaling to an amount of Rs.54,000/-. The said amount was paid by the complainant on 15.2.2008 through a cheque.
The opposite party fitted the said hearing aid and asked to report after five days. After five days use, the complainant reported that the hearing aids are of no use and giving abnormal sounds. Then they advised to continue the same hearing aids for further more three weeks. After that period also the hearing aids continued to give abnormal noisy sounds. Then they have taken back these B-V 8 H hearing aids. After testing the ears, again they suggested flash BTE type FL-9 hearing aids, which they fitted on 2.3.2008. After observation of 10 days, again the hearing aids are tested and asked to continue to use the same hearing aids saying that they are having number of channels.
On 12.3.2008 the complainant has taken flash-9 hearing aids by paying Rs.1,10,000/- with warranty period of two years. After one month, the complainant reported that the hearing aids are giving abnormal noisy sounds and not able to talk and listen to others. They adjusted or repaired the hearing aids, assuring that there would be no problem. Even then, the complainant faced the same problem of self sound disturbances .
The complainant wrote a letter to the opposite party no.1 on 22.5.2009 narrating the difficulties he is facing by using these faulty hearing aids. There was no reply from the opposite party no.1. On 16.7.2009 he wrote another letter, but there is no reply. During this period, the complainant approached opposite party no.1 about 20 times with the same complaint of not working the hearing aids, each time they are repairing or adjusting the hearing aids. In the month of October, 2009 the authorities of the opposite party told that as there is clinical defect in the ears, their hearing aids are not suited and not working. Then, the complainant consulted Dr.E.C.Vinay Kumar, E.N.T.,Apollo Jubilee Hills hospital. On 13.10.2009, he tested both the ears and opined that there is no clinical problem and referred to their Audiology Department and the Audiology Technician tested both the ears of the complainant and gave an opinion that there was severe hearing loss in the ears, which clearly shows that in this period of using these faulty hearing aids, the complainant suffered severe hearing loss which is irrevocable in his life time.
On the frequent and repeated complaints of non working of FL-9 hearing aids, on 12.10.2009, the opposite parties have changed FL-9 hearing aids and fitted BV-8 hearing aids saying that these BV-8 aids are having more channels and definitely they will suit. After trial of one week, new aids are also found not suitable and they were taken back and fitted old FL-9 hearing aids. Disgusted with these faulty hearing aids, on 15.1.2010, the complainant sent a letter by registered post to opposite party no.1 narrating the difficulties caused by the faulty hearing aids, asking to take back their faulty hearing aids and refund the cost of Rs.1,10,000/-. On 23.2.2010, opposite party no.2 who is the head office of opposite party no.1 sent a reply letter stating that the warranty period is expired and the faulty hearing aids will not be taken back. Infact the warranty period is upto 11.3.2010.
By using these faulty FL-9 hearing aids in these two years period, as per audio test report, there is severe hearing loss by the complainant which is irrevocable loss in his life time. Due to the heavy and noisy sounds delivered by these faulty hearing aids, the complainant suffered mental agony and depression and almost became permanent deaf. He spent Rs.10,000/- towards transport charges. He is entitled to claim compensation of Rs.2 lakhs in addition to refund of instrument cost of Rs.1,10,000/- . Hence the complaint.
Resisting the complaint, the opposite parties filed counter/ written version denying the material allegations made in the complaint and contended that the complainant had obtained the hearing aids from the opposite party no.1 12.3.2008 and the same was delivered to the complainant in good order and condition. The said machine was designed and engineered specifically to the needs of the complainant. As per the Hearing Instrument Supply Form dt.12.3.2008, after delivery of the said machine on 12.3.2008, the complainant was provided two weeks trial period, during which period he could report back to the opposite party any discomfort or deficiency detected by him. The complainant would be refunded his money during such period, if he was unhappy or any such thing with the said machine. The complainant never once reported back with any such discomfort or deficiency as claimed by him.
The opposite parties further contended that it was only on 16.7.2009 and 22.9.2009 that the complainant wrote to the opposite party stating that there is problem with the said machines. The complainant had only returned to the opposite party after more than 1 ½ years of using the said machines. The complainant has/had consistently used the said machines free from any defects/problems from the date of purchase and is now simply attempting to create unnecessary issues regarding the same. Any indulgence granted to the complainant will be an abuse of the law and further arbitrary, unjust and unfair towards the opposite party. The opposite party further contended that the complainant has not once taken medical advise of the opposite parties but he has chosen to complain rather than work along with technicians and audiologists in order to resolve the problems, if any, faced by him. Keeping the above stated facts in mind and a bare perusal of the Hearing Instrument Supply Agreement, made it clear that the opposite party was not liable under the guarantee for replacement/refund, beyond two weeks free trial period. The complainant has filed the present complaint with malafide intention to extract money from the opposite parties and to cause harassment and financial loss to the opposite parties. The liability of the opposite party under the terms and conditions of the warranty is limited to the extent to set right the product by repairs or replacing the defective parts only and not refund the purchase amount etc. after it has been used for almost the entire warranty period without complaint. The complainant has not filed authenticated report of the expert from an approved laboratory in support of his allegation that the defect has occurred due to harassment defects/faults as alleged and claimed in the complaint. The complaint is therefore liable to be dismissed.
During the course of enquiry, in order to prove his case, the complainant has filed evidence affidavit reiterating the averments of the complaint and got marked Exs.A1 to A17. As against the evidence adduced by the complainant, the opposite party no.1 had filed evidence affidavit and got marked Exs.B1 to B4. .
Upon hearing the counsel for both the parties and on consideration of the material placed on record, the District Forum did not accept the contention of the complainant and consequently dismissed the complaint without costs.
Aggrieved by the said order, the complainant preferred the above appeal urging that the order under appeal is illegal, arbitrary and against the principles of natural justice. That the District Forum failed to appreciate, that due to abnormal sounds of the hearing aids , the appellant/complainant was facing many problems and he approached opposite party no.1 on 8.2.2008 i.e. within 6 days from the date of purchase and returned the instrument to opposite party no.1. That the District Forum has also failed to appreciate that the appellant/complainant, time to time, after purchase of new instrument i.e. type BRE F.L.9, approached opposite party no.1 within 10 days from the date of purchase of the new instrument i.e. 12.3.2008, but the District Forum erroneously dismissed the complaint on the ground that the appellant failed to return the instruct within 15 days from 12.3.2008 basing on Exs.A2 and A3. Infact, the District Forum ought to have allowed the complaint, basing on the several time to time approaches, made by the complainant. The Forum also failed to consider Ex.A12 wherein opposite party no.2 admitted time to time approaches of appellant to the office of the opposite party no.1.That the District Forum failed to consider the warranty card Ex.A16 in force from 12.3.2008 to 11.3.2010 i.e. for a period of two years from the date of purchase and failed to consider that the appellant/complainant made the complaints on 22.5.2009 and 16.7.2009 vide Exs.A5 and A8 to the opposite parties, within the period of guarantee, but erroneously dismissed the complaint filed by the appellant. Hence the order under appeal is liable to be set aside and the complaint filed by the appellant is to be allowed.
We heard the counsel for both the parties and we have perused the material placed on record.
Now the point for consideration is whether the impugned order of the District Forum is vitiated for misappreication of fact or law?
It is an admitted fact that the complainant approached the opposite party no.1 stating that as per the report of Audiology department of Vasavi ENT and Cancer Hospital, the hearing of both the ears of the complainant were diagnosed as belatural MILD and he required hearing aids as per doctors advise vide Ex.A1 . It is also an admitted fact that the opposite party no.1 has provided hearing aids i.e. Bravissia make B.V.-8 type which costs Rs.27,000/- and for two instruments for both the ears the total cost is Rs.54,000/-. Accordingly, the complainant had purchased the above hearing aids model, for two ears, for a total sum of Rs.54,000/- .
It is for the complainant to prove that the hearing aids supplied to the complainant by the opposite party no.1 suffered from any defect or that the services rendered by the opposite parties were in any way, negligent or inferior. A bare reading of the present complaint and the counter/written version of the opposite parties made it clear that the opposite parties 1 and 2 never refused or neglected the alleged issues raised by the complainant. The opposite parties have on every occasion addressed the grievances of the complainant without charging anything.
As seen fromEx.B1 and B2 Recommended Hearing Instruments Supply Form and Ex.B3 Hearing Instrument Purchase Agreement, the complainant was provided two weeks trial period for the two types of hearing aids supplied to the complainant, during which period he could report any discomfort or deficiency detected in hearing aids to the opposite party no.1 and the opposite party no.1 would refund the money during such period. Admittedly, during such two weeks period, the complainant has never reported any discomfort or deficiency to the opposite parties. Therefore the opposite parties are not liable to replace the machine or refund the cost of the instrument as claimed by the complainant beyond the two weeks free trial period. The goods used for entire warranty period cannot be replaced and returned thereafter.
The complainant has to show by way of expert opinion that the hearing aids supplied to the complainant by opposite party no.1 suffered from defects as alleged in the complaint. Admittedly, the complainant did not get the hearing aid machines tested by any independent expert to prove that the machines supplied by the opposite parties suffered from defects as alleged in the complaint. Further it may be true that the complainant might have suffered hearing loss, but the complainant has to establish by placing expert medical evidence to show that due to the use of the hearing aids supplied by the opposite parties, the complainant suffered hearing loss. In the absence of any expert evidence on that aspect, it is difficult to come to a conclusion, basing on the evidence adduced by the complainant that the hearing aids supplied to the complainant by the opposite parties are defective and that on account of use of such defective hearing aids, the complainant suffered hearing loss.
In view of the above facts and circumstances, we find no deficiency in service on the part of the opposite parties and we do not find any material irregularity or illegality in the impugned order of the District Forum to interfere with it .
In the result, the appeal is dismissed confirming the order of the District Forum, but in the circumstances of the case without costs.