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Judgment
Briefly stated the facts relevant for the disposal of this revision petition are that Dr. S.K. Gupta filed a consumer complaint No. 61/05 before District Forum-II, Agra alleging that he had given one Spectralab-1 machine worth Rs.2,20,000/- to the petitioner for repairs and that he had paid the estimated cost of repair of Rs.32000/- vide cheque drawn at PNB Agra. It is the case of the complainant that petitioner instead of returning the same machine after repairs, has replaced it with some other machine. The basis for this allegation is that the machine which was given for repairs had sticker bearing no.00101604 but the machine delivered after repairs by the petitioner does not have that sticker, which indicates that petitioner / opposite party has replaced the machine. The allegations in the complaint were denied by the petitioner /opposite party. The petitioner / opposite party also took a preliminary objection that the services of the petitioner were availed for commercial purpose. As such, the respondent is not a consumer as envisaged under section 2 (1) (d) of the Consumer Protection Act, 1986.
The District Forum on consideration of the pleadings came to the conclusion that the petitioner / opposite party has failed to return the same machine which was submitted for repairs and as such, the petitioner has committed deficiency in service. The District Forum, accordingly, allowed the complaint and directed the petitioner / opposite party to return the same within a month, failing which to pay Rs.2,20,000/- besides compensation of Rs.1500/- was awarded as cost of litigation.
Being aggrieved of the order of the District Forum, the petitioner preferred an appeal. The State Commission, however, dismissed the appeal of the petitioner with further cost of Rs.10,000/-.
Mr. Ravinder Kumar K., Advocate for the petitioner has contended that the impugned orders of the foras below are based upon incorrect appreciation of facts. He has contended that foras below have failed to appreciate that the onus of proving that the machine given for repairs was substituted by the petitioner, lies squarely on the respondent / complainant which he has not been able to discharge. It is contended that admittedly, the machine after repairs was delivered at the premises of the complainant and merely because the sticker pasted on the machine was not there, cannot be taken as a proof for substitution of the machine by some other machine. Learned counsel h as thus urged that revision petition be allowed and complaint be dismissed.
Mr. B L Kapoor, Advocate for the respondent has argued in support of the impugned order. Learned counsel for the complainant has drawn our attention to endorsement dated 31.10.2004 on the letter head of Gupta Pathology Centre wherein the complainant has given a receipt of having received a machine spectralab-1 without number pasted on it whereas machine given by him for repairs on 27.10.2004 was having serial no. 00101604. It is also recorded in the said receipt that complainant has kept the said machine with no number to be returned on receiving the original machine. Learned counsel has contended that from this it is clear that the complainant made it clear that the machine returned after repairs by the petitioner was not the same machine.
The short point which requires consideration is whether or not, the petitioner has substituted the machine for repairs by some other machine? The onus or proving this allegation lies squarely on the complainant. The basis of the complainant for disputing the identity of the machine returned by the petitioner is that there was a sticker bearing no. 00101604 pasted on the back of the machine given for repairs whereas the machine which was returned did not have said sticker. The record contains a certificate issued by UV-VIS Metrolab S.A. which reads as under: "We hereby confirm as follows: That the Semi Automatic Bio-Chemistry Analyzer Model named as Spectralab-1 is originally manufactured by us.
That this machine bears the serial number printed on a normal paper sticker and pasted on the rear side of the machine.
That we never engrave the serial no. mark on any of the machines manufactured by us . Also we never use metal no. plate."
On reading of the above, it is clear that Spectralab-1 machine manufactured by the said company does not have engraved serial number or mark but the machine bears serial number printed on a normal paper sticker pasted on the rear side of the machine. Admittedly, the machine was purchased by the complainant in April 2001 and it was sent for repairs to the petitioner almost three years later in the year 2004. Therefore, a possibility cannot be ruled out that the paper sticker pasted on the rear side of the machine got removed because of usage due to wear and tear. Therefore, absence of paper sticker on the returned machine cannot be taken as a proof for replacement of machine by the petitioner. The complainant but for his suspicion has not led any other cogent evidence to establish that the machine was actually substituted by the petitioner. Therefore, in our opinion, the complainant has failed to discharge his onus and, as such, it cannot be said that he has proved deficiency in service on the part of the petitioner. It may not be out of place to mention that on perusal of the receipt dated 31.10.2004 given by the complainant, it transpires that the complainant endorsed his protest in the receipt and recorded that machine with nil number was kept as security till the return of the original machine. According to the petitioner, the machine was returned after repairs in perfect working order. Therefore, in all probabilities, the complainant must have used the machine in the pathology lab. There is no allegation that the said repaired machine was not in working order. On this count also, the petitioner cannot be held deficient in service. Both the foras below have failed to appreciate the factual aspects f the case. Therefore, their orders cannot be sustained.
In view of the discussion above, we are of the opinion that impugned orders of the foras below cannot be sustained. Revision petition, is therefore, allowed; orders of the foras below are set aside and the complaint is dismissed.