ELECTROCOM MARKETING AND MANAGEMENT SERVICES vs DEPARTMENT OF HOSPITAL AND CLINICAL PHARMACY SERVICES MEDICAL COLLEGE HOSPITAL

-THE above appeal is preferred from the order dated 31. 5. 2001 passed by CDRF, Thiruvananthapuram in O. P. No. 551/1999. It was filed by the respondent herein as complainant against the appellants as opposite parties claiming replacement of the defective UPS or in the alternative refund the price of the UPS with 18% interest and also for compensation for on the ground of deficiency in service on the part of the opposite parties. The claim put forward was denied and disputed by the opposite parties. It was contended that his complaint is bad for non-joinder of necessary party. Thus, the opposite parties repudiated claim put forward by the complainant. But the lower Forum accepted the case of the complainant to a greater extent and thereby the opposite parties are directed to pay Rs. 58,261 representing the price of the UPS with 16. 5% interest. The complainant has also been awarded a sum of Rs. 75,000 as compensation with cost of Rs. 1,000. Aggrieved by the said order the present appeal is preferred by the opposite parties.

WE heard the Counsel for the appellants/opposite parties and respondent/complainant. The learned Counsel for the appellants argued this case based on the grounds urged in the appeal memorandum and submitted that the UPS had manufacturing defect and so the manufacturer is to be made liable. But the complainant failed to implead the manufacturer as a party to the complainant. It is further submitted there was no deficiency in service on the part of the appellants/opposite parties. On the other hand, the learned Counsel for the respondent/complainant supported the finding and conclusions of the lower Forum. He further relied on Ext. P1 document produced from the side of the complainant. The respondent requested for the dismissal of the present appeal. The points that arise for consideration are: (i) Whether the complainant in O. P. 551/1999 is bad for non-joinder of necessary parties? (ii) Whether there was any sort of deficiency in service on the part of the appellants/opposite parties in connection with the supply and installation of UPS at the premises of the complainant in O. P. No. 551/1999? (iii) Is there any sustainable ground to interfere with the impugned order passed by the lower Forum in O. P. No. 551/1999? point Nos. 1 to 3 :

There is no dispute that the appellants supplied 2 UPS systems and the same were installed at the premises of the respondent/complainant. The two UPS systems were purchased at a cost of one amount. It was purchased on the basis of the quotation submitted by the appellants/opposite parties and accepted by the respondent/complainant. It is true that the quotations invited by the Principal of Medical College Hospital. Thiruvananthapuram and that the quotation submitted by the appellants/opposite parties was accepted by the Principal. But there is no dispute that the complainant is the Head of this department of hospital and clinical pharmacy services, Medical College Hospital, Thiruvananthapuram and that the UPS were installed in that department. The aforesaid department is represented by its Chief and Head of the Department Mr. K. G. Ravi Kumar. The complainant in O. P. 551/1999 is the department representd by the head of department. There can be no doubt that the UPS systems were purchased for that department. The complainant can be treated as the beneficiary. Moreover, the two UPS systems were purchased with the Government money and the Head of the Department being Government official is duty bound to protect the interest of the Government. Thus, in all respects the complainant was competent to file the complaint in O. P. 551/99.

THE fact that the one of the two UPS systems was found defective on the very first day of its installation at the premises of the complainant. The price of one UPS is Rs. 58,261 Ext. P1 document would make it clear that the UPS were supplied by the appellants/opposite parties and that they themselves gave the guarantee was for the smooth functioning of the same. The guarantee was for 2 years with an annual maintenance contract. P1 document would negative the case of the appellants that the warranty for the UPS were given by the manufacturer. On the other hand it would show that the guarantee was given by the appellants/opposite party themselves. Ext. P4 document would support the case of the respondent/complainant. The lower Forum justified in realising on P4 issued by the managing partner of the first opposite party firm. The complainant has produced Exts. P1 to P5 in support of his cases. Ext. P1 is copy of the supply order. Ext. P2 is the letter informing that the opposite party is planning to instal the machine. Ext. P3 is copy of the bill and P4 is the receipt. Ext. P5 is the reminder letter sent by registered post with AD. The evidence on record would make it clear that one UPS was found defective and there was improper on malfunctioning on the date of installation. It would also make it clear that the opposite party readily agreed to rectify the mistake and return the unit without delay. But the appellants/opposite parties failed to keep up the assurance given by them. It is further to be noted that till this day the appellants/opposite parties could not rectify the mistake. They also failed to return the UPS, which was taken by the appellants/opposite parties with this assurance that the same will be returned after rectifying the defects. The aforesaid failure and omission on the part of the appellants/opposite parties is to be treated as deficiency in service on their part. The lower Forum is perfectly justified in directing the appellants/opposite parties to refund the price of that UPS with interest at the rate of 16. 5% per annum. Lower Forum has also awarded Rs. 1,000 by way of cost to the respondent/complainant.

THE next aspect for consideration is regarding the compensation of Rs. 75,000 awarded by the Forum below. It is to be noted that the appellants/opposite parties are directed to refund the price of the UPS to the respondent/complainant. It is also to be noted that the lower Forum has also ordered interest @ 16. 5% on the said sum of Rs. 58,261. Thus, the respondent/complainant is adequately compensated. We are of the view that the further compensation of Rs. 75,000 ordered by the lower Forum is unwarranted. Thus the order passed by the lower Forum regarding payment of compensation of Rs. 75,000 is liable to be set aside. Hence we do so. The case of the appellants/opposite parties that the complaint is bad for non-joinder of necessary party cannot be accepted. A perusal of the written version filed by the appellants/opposite parties would make it clear that they have no case that the UPS was having manufacturing defect. There is no whisper in the version regarding manufacturing defect for the UPS. On the other hand the opposite parties were of the view that there was no manufacturing defect in the UPS which was supplied to complainant. The opposite parties in express and clear terms opined the said system has only curable defects. Hence we hold that the complaint in O. P. 551/1999 is not bad for non-joinder of necessary parties. In the result, the appeal is allowed partly. The order dated, 31. 5. 2001 passed by CDRF, Thiruvananthapuram in O. P. 551/1999 is modified. Thereby the order passed by the lower Forum regarding payment of compensation of Rs. 75,000 is set aside. In all other respects the impugned order is confirmed. Considering the facts and circumstances of the case the parties to this appeal are directed to suffer their respective costs. Appeal partly allowed.