LALITA BADHWAR vs PRADEEP KUMAR KUMRA

BRIEFLY the facts of the case are, that respondent No. 2 M/s. Delhi Hospital Supply Corporation is carrying on the business of Hospital and Medical Equipment supplies in Delhi and respondent No. 1 is its President. The complainant purchased one Karl Storz End vision Camera from the respondent on 13.5.91 for a consideration of Rs. 2,69,036.25 (Rupees Two Lacs Sixty Nine Thousands Thirty Six and Twenty Five Paise only). It is pleaded, that the complainant is invited to national and international conferences to deliver lectures and read papers on her research on the new technique in pelvis copy surgery and the camera was purchased by her for research work mainly.

THE camera carried a warranty for a period of one year. However, it developed defects in late Feb. 1992 and went out of order on 10.3.92. On her complaint to the respondents their Technical Manager, Mr. Surinder Mehta examined it and said that it was required to be sent back to Germany for repair/replacement. He later took delivery of the camera for replacement/repairs, on 27th March 1992. In the end of April 92 respondent No.l informed her that the Camera had manufacturing defects and therefore, the model had been withdrawn from the market and she would be provided with a different model (Endovision 9050 from M/s. Karl Store, Germany) at no extra cost within 20 days. It is further pleaded that inspite of the assurances that a service camera would soon be sent to her to tie over the warranty period, it was supplied late but that Camera also developed the same defects after some time. It is averred that the new model sought to be given to the complainant suffers from inherent defects and it is not meant for sale in U.S.A., Europe and other advanced countries. Consequently, she has claimed for the refund of the price of the camera with interest on that amount @ 18% p.a., escalation in price of the Camera and compensation for mental agony and suffering.

The complaint has been contested on behalf of the respondents; They have inter-alia pleaded that the Camera was purchased by the complainant for commercial purposes and therefore, she is not a Consumer. It is, however, admitted by them that the Camera supplied to her had gone out of order. They have pleaded that they have procured a new equipment and informed the complainant vide the letter dated 2nd Jan., 1993 about it. She intentionally and deliberately did not take delivery and was putting the respondents to harassment. The first question that arises for determination is, whether the complainant is a consumer. It is mentioned in the complaint by her that she purchased the camera in furtherance of her research work and it was used by her for that purpose mainly. She, further, stated that she was invited to national and international conferences, where she read papers on her research work. The allegation of the respondent that it was purchased for business purposes was denied by the complainant. From the pleadings and affidavit of the complainant it is evident that the main purpose for which the camera was bought and being utilized by her was research work. In case some operation was performed by her for the purpose of research, it cannot be said that it was being used for commercial purpose. She is self employed Doctor and no evidence has been led to the effect that she was running a hospital or nursing home.

A reference has been made by the respondent to two cases namely Abhey Chemicals Limited v. Kantibhai D.Patcl I (1993) CPJ 17 (NC) and Swaraj Mazda Ltd. v. Mohan Kumar Bhandari & Anr, I (1993) CPJ 54(NC). We have gone through the judgments of both the cases. In Abbey''s case (Supra) the machinery purchased was of the value of more than Rs. 10) Lacs and it had been purchased for starting manufacturing activity at a large scale. In those circumstances, it was held that the machinery had been purchased for commercial purpose. In Swaraj Mazda''s case (Supra) the complainant had deposited a sum of Rs. 3,87,000/- with M/s. Golden Automobiles for purchase of a mini bus manufactured by Swaraj Mazda. The bus was not available with the dealer. Consequently M/s. Golden Automobiles returned the amount deposited by the complainant. It was observed by the learned National Commission that the amount of Rs. 3,87,000/- was deposited for the purpose of a mini bus. The complainant was therefore, not a ''Consumer'' since he had neither purchased any goods nor hired any service for consideration. The facts of the above cases also are thus distinguishable and therefore, the ratio in those cases are not applicable to the facts of the present case. Consequently, we are of the opinion that the complainant is a consumer. The second question that arises for determination is, whether the complainant is entitled to refund of the price of camera. It is not disputed that the respondent found the model of the Camera given to the complainant, a defective model that that model had been withdrawn from the market, and that they agreed to provide her another camera of different model. The allegation of the complainant is that the model which is being given to her, is not meant for sale in advanced European Countries and therefore, it is to be assumed that it is a substandard model. This allegation has not been denied by the respondent. In our opinion, the complainant is justified in saying so. If a model is not acceptable in advanced countries, why such a model has not been withdrawn from the market and is being supplied in India. Consequently, we are of the opinion that the complainant is entitled to refund of the price.

THE 4th question that arises for determination is, whether the complainant is entitled to interest if so, at what rate? She has deposed that she is paying interest to the bank @ 18% p.a. In our opinion, she is entitled to the interest at that rate from the respondent, from 1.5.92 till the date of repayment. The 5th question that arises for determination is, whether the complainant is entitled to damages for mental agony and suffering. We think in the facts and circumstances of the case, she is entitled to damages to this count. We assess the damages at Rs. 15,000.00. She has further claimed escalation in the price of the Camera. We are not impressed with this claim of the complainant. Consequently, we reject the same. For the aforesaid reasons we accept the complaint with costs and direct the respondents to pay the amount of Rs. 2,69,036.25 Ps., say Rs. 2,69,000.00, the price of the Camera, with interest @ 18% p.a. from 1.5.92 till the date of payment and Rs. l5,000/- on account of damages within 3 months of the date of the order, failing which action shall be taken against them under Section 27 of the Consumer Protection Act. Costs Rs. 2,000/-. Complaint allowed with costs. _____________