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2007(3) CPR 7 (NC)
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION,
NEW DELHI
M.B. Shah, President and Rajyalakshmi Rao, Member
M/s. Kurji Holy Family Hospital—Appellant
versus
M/s. Boehringer Mannheim India
Ltd. & Ors.—Respondents
First Appeal No. 23 of 2001
Decided on 6-8-2007
Held: Firstly, it is to be stated that this Commission has taken a consistent view that even if the goods are purchased for commercial purpose, which have become defective during the warranty period, then complaint before the Consumer Fora is maintainable, because warranty agreement is ‘service agreement’. (Para 10)
Held further: This would mean that prior to the coming into force of the amended provision, a person would be a consumer for the services which are to be rendered for commercial purposes. Admittedly, the complaint was filed in the year 1998 i.e. much prior to the amendment of the Act in the year 2003. (Para 13)
Held thereafter: Similar is the position in the present case. Admittedly, the ‘Swelab’ was not functioning since the initial stage. Therefore, the Respondents replaced it by another ‘Swelab’. That also was not functioning despite its being repaired by the respondents’ mechanics on a number of occasions. And, in such cases it would be a deficiency in service as defined in Section 2(1)(g) of the Consumer Protection Act, 1986. It is also to be stated that the Swelab Auto Counter AC. 920-11 Haematology Analyzer cannot be used by the hospital, if it is defective or not functioning properly, because, in such case, the pathological reports will be inaccurate which will have adverse effect on diagnosis and treatment. (Para 24)
(ii) Consumer Protection Act, 1986—Sections 19(a)(i) and 21(a)(ii)—Machine purchased for commercial purpose by Hospital—Warranty for one year—Machine defective during warranty—Defect not removed—Whether entitled to refund of price? (Yes)—Complaint filed—Dismissed as not maintainable—Appeal—Allowed—Complaint found maintainable—Whether compensation be given? (Yes)—What?—Refund of price with interest—Complaint also allowed.
Held: In such a situation compensation is required to be awarded and measurement of the compensation would be the price of the machine. Hence, there is no alternative but to direct the refund of the amount paid by the complainant for purchase of the Swelab Auto Counter AC 920-11 Haematology Analyzer. That price is mentioned in the complaint at Rs.9.99.000. (Para 25)
In the result, the complaint is allowed. The Respondents are directed to refund the amount of Rs.9,99,000 with interest at the rate of 10% p.a. from the date of the order of the State Commission, i.e. 28.2.2000 till the date of payment. There shall be no order as to costs. (Para 26)
Result: Appeal allowed, allowing the complaint.
M.B. Shah, President—As agreed between the learned Counsel for the parties, the only question requiring consideration in this appeal is: —Whether M/s. Kurji Holy Family Hospital (Appellant) is entitled to file a complaint under the Consumer Protection Act, 1986 in case the machine (Swelab Auto Counter AC 920-11 Haematology Analyzer, in short ‘Swelab’) purchased by it, is found to be non-functional during the warranty period?
2. It is contended that the complaint was not maintainable as the machine is used for commercial purpose.
2A. As against this, it is contended by the Appellant that complaint is maintainable during the warranty period because for effective functioning of the machine, there is a warranty to provide services for its repair or replacement.
3. In our view, considering the facts of the case for the reasons recorded hereinafter the complaint is maintainable in the present case.
Facts:
4. In the present case, it is not disputed that on the basis of the agreement to purchase the Swelab entered into between Appellant/Complainant and the Respondents (Opposite Parties), the Respondents have installed Swelab Auto Counter AC 920-11 Haematology Analyzer (in short Swelab), in the hospital of the Complainant on 18.9.1996. Within a few days i.e. on 25.9.1996, the Complainant informed the Opposite Parties that the machine was not working properly. As the mechanics sent by the Respondent could not repair the machine, a stand-by machine was supplied to the Complainant on 30.1.1997. The stand-by machine was also defective. Hence, a number of complaints were lodged with the manufacturer with regard to the defective functioning of the machine before the expiry of the warranty period in respect of the machine supplied. A notice (letter dated 12.8.1997) was sent on 12.8.1997, requesting the Opposite Parties to refund the sum of Rs.9,99,000, failing which they might be compelled to take the matter to the law courts. Thereafter, letter dated 17.9.1997, was also sent by the Complainant to the same effect, and further reiterated that it would resort to legal action in case there is no positive response from the Opposite Parties. On 18.9.1997 the warranty period was to expire.
5. As there was no proper response, the Complainant approached the State Consumer Disputes Redressal Commission, Bihar, by filing Complaint Case No. 13 of 1998 on 16th September, 1997 and prayed that purchase price be refunded with interest and compensation. The State Commission dismissed the complaint by order dated 28.2.2000 on the. ground that the complaint is not maintainable as the Complainant is not a consumer within the meaning of the term as defined in Section 2(1)(d) of the Consumer Protection Act, 1986.
6. Thereafter the Revision Petition No. 6/2000 filed by the Complainant for review which was also dismissed by the State Commission by order dated 4.1.2001. Against that order, the Complainant filed First Appeal No. 23 of 2001 before this Commission. That appeal was dismissed vide order dated 15.3.2002 on the ground that it was barred by limitation as it was filed after a delay of 314 days.
7. Feeling aggrieved, the Complainant filed Civil Appeal No. 9879 of 2003 before the Hon’ble Supreme Court of India. The Apex Court vide judgment and order dated 15.12.2003 allowed the appeal and remanded the matter to the National Commission to dispose the same in accordance with law after giving opportunity to the parties.
Findings:
8. At the outset, it is to be stated that all throughout in the service reports dated 5.10.1996, 21.12.1996, 14.1.1997, 26.2.1997, 30.5.1997, 6.6.1997, 19.6.1997, 25.7.1997 and 8.11.1997 given by the mechanic of the Respondents, it is mentioned that service was carried out during the warranty period and in the reports it is mentioned ‘under warranty’.
9. Further, at the time of hearing of this appeal, learned Counsel for the Respondents had conceded that the complaint was filed within the warranty period. Therefore, the only questio
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