Mr. Justice G.G. Loney, President— In this complaint, the complainant alleged that a Konica Automatic Processor Model QX-40 for processing X-ray and sonography films was purchased by the complainant from the opposite party was defective.

2. The complainant alleged that on 4.10.1990 the O.P. 1 sent a proforma invoice for Rs. 44,000/- dated 1.10.90 from Konica Corporation, Tokyo Japan vide Exhibit B-I and B-II. On 31.12.90, the opposite party informed the complainant that the machine has been shipped for delivery. On 15.1.91; the Opposite Party (O.P.) No. 1 again informed the complainant to extend the date for delivery as goods were not in stock for Indian Market and they would produce the machine in March, 1991. The relevant X-Ray is DID-II. The complainant had also paid Rs. 4,000/- as service charges for the import of the said machine on 24.4.91 vide Ex. E. The complainant cleared the custom duties on 21.5.91 by paying Rs. 82,590/- vide Ex. ’F’. When Carton was opened, the complainant found that the machine was inspected on November, 1987 indicating that it was an old machine. After installation on 29.5.91 by O.P. 1, the machine was found defective and not in proper working order. It was accordingly informed to the opposite party by letter dated 9.6.91, followed the reminder on 16.7.91 vide Ex.I and I-a. The complainant, therefore, claimed replacement of the machine by 1991 Model suited to Indian conditions and also expenses incurred by the complainant in transporting the said machine.

3. Notice u/Sec. 13 of the Consumer Protection Act was issued to the Opposite Party dated 29.1.1992 with a copy of the complaint As there was no response another notice u/Sec. 13 was sent to the Opposite Party by hand delivery which O.P. 1 received on 6.3.1992. The acknowledgment of the Opposite Party of having received the said notice is on record at Ex-A. There is seal of Choksi Brothers Ltd. having initial and the date of having received the said notice. It was clearly stated in the said notice that the complaint is fixed on 6.4.92 before the State Commission for hearing.

4. On 6.4.92 complainant was present in person and opposite party remained absent. We, therefore, proceeded ex-parte against the opposite party.

5. In support of his allegation, the complainant filed his affidavit dated 7.4.92 verifying the allegations made in the complaint. Since the Opposite Party did not controvert the allegations in the complaint despite the notice, we accept the allegations of the complainant as correct.

6. The complainant has claimed the replacement of the said machine with compensation of Rs. 1,00,000/-. As regards the compensation amount is concerned we find that the complainant was put to inconvenience for want of machine but there is no material on record to substantiate the claim of compensation of Rs. 1,00,000/-. However, under these circumstances, we accept the loss of complainant for Rs. 36,990/- (the expenses of Rs. 4,400/- towards payment of service charges and Rs. 82,590/- for paying custom duties.) Hence, we pass the following order : —

ORDER

7. The complaint is allowed. The Opposite Party 1 is directed to replace the present Konica Automatic Processor machine bearing No. 13530059 with the new machine Model QX-40 which was ordered by the complainant. After the receipt of the new machine, the complainant shall return the old machine to the O.P.I. The expenses required for service charges and custom duties will be borne by the complainant. The Opposite Party No. 1 is also directed to refund to the complainant Rs. 86,990/towards the service charges and custom duties paid by him for the old existing machine with the complainant. The complainant also be paid Rs. 1,000/- as costs.

Complaint allowed with costs.

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