N.A. Britto, President:
1. This is a Complainants appeal and is directed against order dated 18/02/2014 of the Lr. South Goa District Forum, by which the complaint filed by the Complainant on 03/02/2006 has been dismissed with costs of Rs.5,000/-.
2. We have heard the Complainant in person, at length.
3. Some facts are required to be stated to dispose off this appeal.
4. The Complainant purchased from the OP a semi automated Spectro photometer AE 600 made in Japan by ERMA Inc. for a sum of Rs.1.7 lacs. The said instrument was installed on 24/11/04 and had a warranty of one year, upto 23/11/05. After the instrument was installed, the Complainant signed an endorsement on the warranty card stating that the instrument was installed properly; its performance was within the specifications and that the Complainant was shown how to change the peristaltic pump tube, fuse and lamp. After the said endorsement was signed by the Complainant, the Complainant also scribbled a note below it, stating that the back light of LCD screen is poor, viewing is difficult from 1 foot distance; to rectify the brightness of the LCD screen by 90 days positively by 20th February, 2005.
5. The OP is a division of Lilac Medicare (P) Ltd. The warranty had several terms and conditions, including:
œ5. If the product is found defective within the warranty period, the items will be repaired, or may be replaced the defective parts with replacement parts provided by manufacturer or in case where this is not possible, Aster Biologicals, India may request that the product under warranty be shipped to manufacturer, for repair or replacement, as the case may be.
7. The warranty shall not be valid if the product has been handled or used incorrectly. Instructions for use of product must strictly adhered to.
8. User must obtain written consent from manufacturer/Aster Biologicals, India for any modification to ensure the product complies with safety or technical standards. If said written consent is not previously obtained, then the warranty is not valid.
10. The warranty does not cover the following:
a) Routine maintenance and repair or substitution of parts due to normal use and wear and tear.
c) Adaptation or manipulation to change the effectiveness of the product, altering its characteristics from those described in its instructions for use.
e) Improvements to the product or addition of new characteristics.
15) All legal matters arising out of this contract is subjected to Mumbai jurisdiction."
6. The instrument was serviced on 22/04/04 and the service report shows that on that day the instrument was working fine after it was checked for proper functioning. It was also noted that the display contrast in dark place, in case it had to be modified, Companys suggestions were required to be taken. It was again serviced on 31/05/05 and the service report shows that the problem was solved and preventive maintenance service done. The instrument was again serviced on 19/08/05 and the service report shows that the performance of the instrument was observed and found good. However, the Complainant put a remark on this service report stating that no preventive maintenance was done and it was part of break down call.
7. Earlier, the Complainant wrote a letter dated 02/04/05 to the OPs Subhir Dey stating that the inherent defect in the instrument which was pointed out during installation i.e. back light should have been more brighter or back light panel should have yellowish background so that the instrument would be clearly and easily visible from reading distance of about a meter was not rectified at the first servicing and in case it was not rectified by 21/04/05, the matter would be taken to the Consumer Forum for the redressal of the Complainants grievance. This was followed by another letter dated 26/12/05 stating that the Complainant was entitled to 3 free preventive maintenance services for a period of one year and during the warranty period the instrument had broken down twice and one free maintenance call was still pending. The OP was informed that the matter would be taken to the Consumer Forum. This was followed by another letter dated 05/01/06 which was followed by filing the complaint on 03/02/06. A letter also appears to have been written by the Complainant to the manufacturer ERMA, Inc. at Tokyo, Japan which was replied to stating that they were not sure of the problem but there appeared to be some problem with the lamp of AE “ 600.
8. The complaint was filed with a prayer to do last preventive service on an urgent basis and warranty be extended by 12 calendar months to monitor the performance of the instrument in view of the breakdown of the instrument during the warranty period and the said warranty should be given in writing and also the rates for annual maintenance service for single breakdown call and punitive damages of Rs.2,000/- and in case the OP was unwilling to agree to the said two reliefs sought by the Complainant, the instruments should be taken back on payments of Rs.1.7 lacs with 18% interest.
9. The complaint was then amended by virtue of application filed on 27/04/06 and the order passed thereon on 17/08/07 and by virtue of the application the Complainant sought for providing a halogen lamp system and a rectification of poor back light illumination as pointed out during installation to be followed up regularly by the OP with the parent Company and for providing extended warranty of 12 calendar months after rectification of the illumination system and in case the said two conditions were not met the instrument should be taken back and Rs.1.7 lacs with 18% interest to be refunded and Rs.2,000/- punitive damages be paid.
10. OP contested the complaint stating that the Forum had no jurisdiction and any jurisdiction had to be exercised by the Forum in Bombay; that the Complainant was not a consumer within the meaning of Section 2 (d) of the Consumer Protection Act, 1986 as the instrument was purchased by the Complainant to carry out large scale commercial activity for the purpose of earning profits and the complaint is false, frivolous and vexatious and therefore ought to be dismissed.
11. The issue of jurisdiction was decided by the Lr. District Forum by order dated 11/08/06 in favour of the Complainant but even without looking into two decisions cited on behalf of the OP i.e. Balaji Traders vs. Indian Bank, 1996 (2) Mh.L.J. 561 and Balasaheb S. Landge vs. Gurudayal Singh Mander and ors. 2002 (4) Mh.L.J. 562. The issue that the Complainant was not a consumer was left out being decided by the said order dated 11/08/06 and has been decided now by the impugned order.
12. There is no appeal filed by the OP against the orders dismissing the said two objections raised by the OP.
13. On merits, the Lr. District Forum, in dismissing the complaint, has observed, and in our view rightly, that the complaint came for final adjudication after 8 years of the purchase of the machine. This is rather unfortunate. The Lr. District Forum referred to the note scribbled by the Complainant on the warranty card and observed that the same could not be termed as a defect as the OP pointed out in their affidavit that they had not received any complaint from similar machines sold and had agreed to verify the same from their end, and that the OP had also pointed out that the said noting made was at Complainants behest and not because of any representation made by the OP, and, that nowhere it was established whether the visibility was consequent to the inadequacy of the light or due to the inadequacy of the viewer. The Lr. District Forum also noted, as regards the claim that the Complainant was entitled to 3 preventive maintenance calls, that the instrument was attended to on 22/04/04, 31/05/05 and 19/08/05 which coupled with the service report showed that 3 free preventive maintenance services were carried out within the warranty period, and, 2 preventive maintenance services were done at the time the unit was attended to as a consequence of the unit developing some problem. The Lr. District Forum also observed that only complaint of the Complainant which is constant is that of low lighting consequent to which the visibility is from one foot distance which ought to have been from a distance of one meter. The Lr. District Forum also observed that the Complainant did not state that there was any misrepresentation from the OP that the instrument was to be fitted with a halogen lamp and what infact was ordered was delivered to the Complainant and the Complainant did not in any way controvert the fact that what was ordered by the Complainant was with a light system without halogen lamp and as such the complaint of the Complainant with respect to light visibility is unwarranted and cannot be termed to be deficiency in service.
14. The Complainant has submitted before us that AE “ 600 was fitted with a tungsten bulb which is of the first generation lighting technology. Complainant would submit that the instruments are fitted with halogen lamps which is the second generation lighting technology and now with LED bulbs which is third generation technology. The Complainant would submit that the instrument AE “ 600 sold to him is a third generation semi automated spectrophotometer and as such ought to have had atleast a halogen lamp which is very bright. Complainant would submit that Secomam spectrophotometers are provided with pulsed chords “ halogen lamps 6 W/10 W and the AE “ 600 spectrophotometer ought to have had the said lighting system.
15. The Complainant has also submitted that he had written to ERMA Inc., Japan, which would show how serious he was and therefore ought not to have his complaint dismissed with costs.
16. It is now well settled that the Indian Contract Act applies to all including the consumers under the C.P. Act, 1986 (See Marine Container Services South Pvt. Ltd., AIR 1999 SC 80). The Complainant had purchased AE “ 600 spectrophotometer with certain specifications and one of the specifications regarding light source is that it had a tungsten bulb of 6 V 0.5A (see page 18) which according to the Complainant enabled to see the readings from a distance of about one foot. The Complainant accepted the delivery of the said instrument, allowed it to be installed, and then certified that its performance was within the specifications and thus there was a concluded contract between both the parties. In case the Complainant wanted a different source of light i.e. a halogen lamp of 6 V/10W the Complainant ought to have purchased a spectrophotometer from Secomam manufactured by the œSociety of the Studies and of construction of medical materials? or in case the Complainant wanted a light source of halogen lamp of 12 V/25 W then the Complainant ought to have purchased ERBA Chem “ 5 supplied by Transasia Biomedical Ltd. Did anyone accept the condition scribbled by the Complainant at the foot of the warranty card that brightness of LCD screen should be rectified by 90 days? The Complainant is totally silent on this aspect in his complaint but for the first time the Complainant stated in his application dated 3/07/06 that Mr. Subhir Dey had agreed orally to rectify the lighting of the instrument. In our view, this is a clear case of an afterthought. Moreover, it can be seen from letter dated 3/01/06 addressed to the Complainant that the instrument was neither under company warranty nor under annual maintenance contract, but they inorder to honour the request and in anticipation of future business had decided that their engineers would carry out the preventive maintenance of AE “ 600 free of cost and in case any consumable or spare parts were required they were to be arranged by the Complainant. The claim of the Complainant that he was told that AE “ 600 spectrophotometer was a third generation instrument stands falsified by letter dated 26/05/04 by which the OP had conveyed to the Complainant the technical specifications of AE “ 600 spectrophotometer and nowhere it is stated therein that it was a third generation spectrophotometer. Nobody had agreed to the condition imposed by the Complainant, after the Complainant accepted the delivery of the instrument and certified that the instrument supplied had performed within its specifications. The Complainant certainly could not insist that the features of some other spectrophotometer should be fitted to the AE “ 600 purchased by him. There was no defect at all in the instrument supplied to the Complainant. After having accepted the instrument the Complainant could not have unilaterally imposed a condition that the instrument be rectified with more brightness of the LCD screen and that too by giving a time limit or by providing halogen lamp or for that matter a LED lamp. One does not even know whether it was technically possible to provide a halogen bulb or a LED bulb to AW “ 600 purchased by the Complainant by replacing the tungsten bulb, in as much as the said condition at no time was accepted by the OP supplier or for that matter the manufacturer who was not a party to the complaint. The condition imposed by the Complainant that the LCD screen should be brighter, after accepting the instrument as per specification, was most unreasonable apart from the fact that the said condition was never accepted either by the supplier or the manufacturer. The complaint was therefore but frivolous. The Complainant has put the OP into unnecessary expenditure in defending the complaint. Costs as a general rule should follow the event. In our view the complaint was rightly dismissed with costs.
17. We find there is no merit in this appeal and accordingly the same is hereby dismissed.