V.S. BATTU vs AARTI GUPTA

THIS is the complainant''s appeal filed against order dated 21.11.2003 passed by District Consumer Disputes Redressal Forum-II, U.T., Chandigarh [for short hereinafter referred to as the District Forum] in Complaint Case No. 345 of 2001.

THE complaint was filed against Ms. Aarti Gupta, Proprietor, Times Halthcare, Chandigarh; M/s. Elite Orgo Chem (Pvt.) Ltd., New Mumbai and M/s. G.N. Resound (formerly Danavox), Denmark. Out of the three O.Ps. who are respondents before us, only respondent No. 1 Miss Aarti Gupta contested the complaint case filed by the appellant-Col. V.S. Battu, B.D.S., M.D.S. resident of House No. 55, Phase VII, Mohali. THE complainant was working as a Professor in Periodontics in D.A.V. (C) Dental College, Yamuna Nagar. Col. V. S. Battu was having some hearing problem. When he consulted respondent No. 1 - Ms. Aarti Gupta, Proprietor of Times Halthcare, Chandigarh who was dealing with hearing aids, the complainant purchased a hearing aid from her, which was of Danavox Make, Model 131, CD, Sr. No. 08263 for use in his right ear on 13.3.2001 and paid a sum of Rs. 15,800/-. THE said hearing aid carried a warranty of one year from the date of its purchase and the warranty was valid up to 12.3.2002. THE invoice of the hearing aid (Annexure C-1) and the cash receipt (Annexure C-2) were issued by M/s. Elite Orgo Chem (Pvt.) Ltd., New Mumbai. THE hearing aid was manufactured by the O.P. No. 3-M/s. G.N. Resound, Denmark. The appellant had problem with his hearing aid machine right from the day he purchased the same and as such, he visited the business premises of respondent No. 1 on 4th, 11th and 19th April, 2001. The respondent No. 1 advised the complainant that it being a new machine, it would take some time for him to get used to hear through it. However, the hearing did not improve. The respondent No. 1 took over the hearing aid from the complainant on 30.4.2001 for repairs. Thereafter, the complainant visited the business premises of respondent No. 1 number of times to try the hearing aid but there was no perceptible improvement in the performance of the hearing aid. The respondent No. 1 issued challan (Annexure C-4) about receiving the hearing aid from the complainant for repairs. The complainant was told that he might be having some wax in his ear, which might have hampered the proper hearing. The complainant also got his ear cleaned and waxed by Dr. Pankaj Arora an ENT specialist on 28.5.2001 vide prescription (Annexure C-5) and went to the business premises of respondent No. 1 for trying the hearing aid, which still did not improve. This led the complainant to ask for the refund of the price of the hearing aid, which respondent No. 1 initially avoided to do so. The complainant served a legal notice dated 16.6.2001 (Annexure C-6) requesting for the refund of the cost of the hearing aid and also compensation. The respondent No. 1 in the reply (Annexure C-9) denied the allegations and did not refund the price of the hearing aid and refused to compensate him.

The respondent No. 1 filed her written statement wherein, it was alleged, that the hearing aid was sold to the complainant to the specifications 100% and as required by him. It was further pleaded that the hearing aid as supplied to the complainant was perfectly fine befitting the patient''s audiogram to the mathematical precision. It was categorically denied that the hearing aid did not function properly or the respondent No. 1 did not attend to the complaints of the complainant. The respondent No. 1 alleged that she had meticulously done her duty in getting the product repeatedly checked and examined at different levels including ENT specialist (Annexure R-2) and also technical specialist and advisor at the headquarters office, Bombay (Annexure R-2/A), which certified that it is perfectly in conformity with the requirement of the complainant. It was also contended that such type of hearing aid is not sold on the counter in a casual or routine manner but there is a set procedure for it. The patient''s audiogram is thoroughly checked and examined, put in computer for perfect technical match and thereafter hearing aid is given for trial to the patient for two days in normal course.

IT was further alleged that in the present case, the complainant was given this hearing aid for trial for three days and was confirmed as all round perfect (Annexure R-3). There was no requirement to carry out any repairs of this product, as alleged in the complaint. IT was alleged that the complainant made false representation to her office assistant that he had talked to O.P. No. 1 to deposit the defective machine for repairs and on such representation, the office assistant accepted the product for repairs. IT was alleged that the complainant in the month of February 2001 had visited the premises of O.P. No. 1 and he was given another hearing aid Model 223 UT (Annexure R-5) but he returned it back after few days by saying that he was not satisfied with this product because he required another hearing aid, which could be fitted inside the ear. The respondent No. 1 accepted back the said hearing aid without deducting any costs. The complainant filed replication wherein he controverted the material pleadings of the O.P. and reiterated his earlier version. The parties led evidence. The complainant filed his affidavit. The O.P. No. 1 filed her own affidavit. The complainant also filed additional affidavit and placed on record documents referred to above.

THE District Forum held that the complainant failed to prove that hearing aid in question had any manufacturing defect or it was otherwise defective or it did not match his hearing deficiency. A finding was recorded that there was no deficiency in service on the part of O.Ps. Resultantly, the complaint was dismissed. THE costs of the complaint was, however, ordered to be borne by the parties themselves. Mr. R.D. Vinayak, Advocate learned Counsel for the appellant in the first place contended that the respondent No. 1 was having the hearing aid purchased by the complainant and has not returned the same to him nor the costs of the hearing aid has been refunded to him. Mr. Vinayak, Advocate submitted that the District Forum did not look into this aspect of the matter and no direction has been issued to respondent No. 1 to return the hearing aid, which was admittedly lying with the respondent No. 1. The learned Counsel for the respondent No. 1, Mr. G.S. Ahluwalia, Advocate, on the other hand, pointed out that the return of the hearing aid was offered to the complainant after the complaint was dismissed by the District Forum vide impugned order and the respondent No. 1 was still ready to return the same to the appellant/complainant. Mr. R.D. Vinayak, Advocate for the appellant/complainant submitted that now the complainant has got his hearing restored by surgical procedure and he no longer required the hearing aid by him.

IT may be mentioned that the facts regarding the purchase of the hearing aid is not in dispute. The respondent No. 1 has taken a specific plea that the hearing aid machines are not sold in a routine manner on the counter and has contended that before selling the hearing aid, the person intending to purchase the hearing aid, is put through some tests. Annexure-1 annexed with the written statement has been issued by Times Healthcare, which is in the name of Dr. V. S. Battu showing graphs regarding the hearing of Col. V.S. Battu. The hearing instrument for the right ear has been shown in Annexure-1 at 2nd page as Type ''131 CD X Crystal Clear''. The same is the position regarding the hearing instrument on the left side. Annexure R-2 is a report from ENT and Allergy Centre of Dr. Suman Kumar, which certified as under: "This is to certify that the hearing aid model 131 CD of Danavos is perfectly fine for the patient whose Audiogram is shown to me for consultation.

MR. R.D. Vinayak, Advocate for the appellant/complainant laid great stress on the fact that the name of the patient has not been disclosed in this certificate (Annexure R-2). However, it may be pointed out that the audiogram (Annexure-1), clearly mentions the name of Dr. Col. V. S. Battu and it is difficult to believe that Dr. Suman Kumar was consulted with audiogram of some other person other than the complainant. So far as Annexure R-2/A is concerned, which is the hearing instrument test result dated 7.3.2001, the client''s number has been disclosed as 0000001, client as 131 CDX, ML-12914 M/s. Times Health Care, Hearing Aid: ITC CD. It shows maximum output at frequency 387 Hz. under heading ''OSPL 90'' as 114.1 dB. Annexure R/2A shows the maximum output at frequence shown thereunder. Annexure R/2A also shows results under the headings - Full on Gain ; AGC Knee Input/Output; Attack/Release; Reference Gain; Harmonic Distortion; Noise; Battery and lastly Telecoil. The stock registers (Annexures R-3 and R-5) also mentions of Mr. Battu, which has been highlighted with green colour. The hearing aid 131 CDX was sold to the complainant and this fact is amply proved by the material placed on record.

In her affidavit, Ms. Aarti Gupta, respondent No. 1 deposed about the various tests conducted before sale of the hearing aid. In the replication, in Para 4 of the preliminary submissions, the complainant alleged that he had been suffering due to the supply of spurious item, which has had to be returned to him and grave deficiency of service in honouring the warranty. There is, however, no credible evidence led by the complainant/appellant to show that the hearing aid supplied to him by the O.P. was a spurious item. It is a different matter that the grievances of the complainant is that hearing aid purchased by him did not suit him as it did not improve his hearing at all but it is an altogether a different allegation that the item purchased was a spurious one. The complainant visited the business premises of respondent No. 1 on the dates mentioned in the complaint with the grievances that hearing aid was not properly suiting him and not improving his hearing aid. This fact is not in dispute. However, in additional affidavit, respondent No. 3 deposed, inter alia, that she was only a distributor for North India and she undertook to attend to the complaints of the customers by qualified service personnel in the event of any repairs to the equipment and the same is sent to the manufacturer through the All India Distributor. The hearing aid machine of the complainant, it was deposed, was repeatedly checked and the same was found to be in perfect order.

IN para 4, it was deposed that the hearing aid machine in question was purchased by the complainant after getting the complainant pass through hearing test (Audiogram) along with other clinical tests done and the specifications of the equipment were as advised by qualified ENT doctor. The advice was with 100% matching specification as required by the complainant (patient). IN para 5, it was, inter alia, deposed that "... The complainant has the problem of ear infection and wax in ear. The problem if cured, may lead to the satisfactory use of the hearing aid, by the complainant. However, technically, the hearing aid in question is a perfect machine, in A-one condition, having no defects, whatsoever." The District Forum has duly considered the material placed on record and according to us rightly concluded that in the absence of expert evidence, it cannot be held that the hearing aid purchased by the complainant suffered from any manufacturing defect or was a spurious item. This altogether a different matter that after the complainant underwent treatment, which restored his hearing aid, he did not require the hearing aid machine but the same cannot be held to mean that the machine had manufacturing defect or was a spurious item. The District Forum has rightly dismissed the complaint. However, the complainant is entitled to get back the hearing aid machine, which is lying with the respondent No. 1, whose Counsel has offered during the hearing of the appeal, to return the same.

RESULTANTLY, the appeal is partly allowed. The impugned order is modified to the extent that the O.P. No. 1-Ms. Aarti Gupta, Proprietor of Times Healthcare, Chandigarh is directed to return the hearing aid machine sold to the complainant within a period of one month from the date of receipt of certified copy of this order. In other respects, the appeal fails and is dismissed. The costs of appeal shall be borne by the parties themselves. Copies of this order be sent to the parties free of charge. Appeal partly allowed.