SQUAREM TECHNICAL SYSTEM PRIVATE LIMITED vs Bireswar Sarkar

HEARD learned Lawyers for both sides. The Appeal is directed against the order dated 26.10.1998 directing the opposite party/ appellant to supply a new and proper Bipap Machine alongwith warranty certificate from the manufacturing company to the complainant within a period of 30 days from the date of the order. Alternatively, the Forum also directed to make refund of the entire price of the aforesaid machine amounting to Rs. 1,40,000/- within the aforesaid period. There was a direction for payment of interest @ 12% p.a. from the date of the order till the payment of entire money in the event there is a failure on the part of the opposite party in replacing the machine and/or making refund of Rs. 1,40,000/-. Learned Lawyer appearing for the appellant submits that the machine is perfectly all right and the same type of machine was used by renowned Doctors for the treatment of their patients without any complaint whatsoever. It appears that the main grievance of the complainant was that hot air was coming out of all the machines causing inconvenience to the user, viz. the complainant. It is accepted that it is a life supporting machine and used by patient suffering from breathing problem. The complainant complained of breathlessness even after using the same machine and that is why he approached the opposite party time and again for replacement. It is accepted that the said machine was replaced on a number of occasions and in fact five numbers of such machines were replaced one after another on the complaint of the complainant. Even then the difficulty persisted compelling the complainant to approach the opposite party for replacement. The complainant is the best expert to certify the usefulness of the machine and any certificate by any purported expert on the subject is of no use. During argument it transpires that the main complaint regarding use of the machine was that hot air was coming out from the machine making it unfit for use by the user. It is contended that normally the said machine is required to be used at the outlet 10 to 12 degrees Centigrade warmer than room temperature specially if the machine runs throughout the night. Learned Lawyer for the respondent points out that this stipulation was not specifically mentioned in the literature/booklet entitled Bipap-S Air Way Management System and user guide. As pointed out earlier the machine has become thoroughly useless to the person who had spent money to acquire it. It is noticed that it is a life supporting system requiring cent per cent fitness of the machine. In the circumstances, we think that the Forum was quite justified in allowing the claim of the complainant and making the directions which have been challenged here. We find no merit in the appeal which is hereby dismissed on contest. Appeal dismissed.