D.J. De Souza vs CPC Diagnostics (P) Ltd.

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS. 3351-3352 / 2019 (ARISING OUT OF SLP (C) 8398-8399/2019, D. NO. 44809 OF 2018)

DR. D. J. DE SOUZA …..APPELLANT

VERSUS

MANAGING DIRECTOR CPC ..…RESPONDENT DIAGNOSTICS PVT. LTD.

JUDGMENT

Hemant Gupta J.

Leave granted.

2. The challenge in the present appeals is to a judgment and order

passed by the National Consumer Disputes Redressal Commission 1 on

14.12.2017 and also an order in Review Petition passed on 04.10.2018.

Signature Not Verified

3. The appellant placed an order for purchase of TurboChem 100 Unit in Digitally signed by MANISH SETHI Date: 2019.04.02 16:52:18 IST Reason: response to quotation submitted by the respondent in the second week of

1 NCDRC

1 August 2015. The appellant remitted a sum of Rs. 3, 50, 000/- towards 50

per cent cost of the instrument. The pre-installation requisite contemplated

the following conditions:

“1. Pre-installation Customer has to Requisite provide the following:

Efficiently air-conditioned room 1 KVA online UPS for running of the equipment.

Broadband connection for “i-track”(Remote diagnostics Tool) The equipment will be provided with “i-track” Remote, facility at the time of installation.”

4. The equipment was delivered on 30.09.2015. The service engineer

pointed out that 1000 mv/650 Watt UPS of APC Company was not suitable

and the appellant was advised to purchase 1KVA Online UPS for usage

during power failure. The stand of the appellant is that he has got a

confirmation from M/s. Awareness Technologies USA, the manufacturer of

the equipment that UPS which the appellant had is suitable but the

respondent insisted on installation of 1KVA Online UPS. The appellant also

raised a grievance that there is no on-board laundry facility present on the

instrument, therefore, such instrument is of no use to him. Therefore, the

appellant sought payment of Rs. 3, 50, 000/- along with 9 per cent interest

as well as damages of Rs. 50, 000/-.

5. The District Consumer Disputes Redressal Forum, South Goa at

Margao2 dismissed the complaint inter alia on the ground that the appellant

2 District Forum

2 has not placed copy of the order in support of his plea that on-board laundry

was a part of the equipment. Since, there was no commitment on the part of

the respondent to supply on-board laundry facility, the complaint was

dismissed. Aggrieved against the order passed by the District Forum, the

appellant filed an appeal before the Goa State Consumer Disputes

Redressal Commission3. The said appeal was dismissed on 08.07.2016

when his argument that the respondent has indulged in restrictive unfair

trade practice, was not accepted. It was argued that the appellant had one

1KVA UPS purchased on 19.10.2015 but the respondent insisted on

installation of Online UPS. The appellant referred to his correspondence with

the manufacturer in USA that UPS purchased by the appellant is good

provided that the instrument is the only item hooked up to the UPS.

6. The State Commission found that the appellant placed an order when

the respondent communicated their best offer for Turbochem 100 fully

Automated Random-Access Biochemistry Analyser and also enclosed

brochure for reference. It is thereafter, the 50 per cent of the price was paid.

In the brochure there is mention of on-board cooling facility as one of the

features but there is no feature of on-board laundry facility. There is a

specific mention of requirement of 1 KVA Online UPS for running of the

equipment. In view of said facts, the learned State Commission dismissed

the appeal. The further challenge by way of a Revision before the NCDRC

remained unsuccessful. The NCDRC found that there is no commitment

from the respondent about the supply of instrument with on-board laundry

3 State Commission

3 facility and that the appellant has failed to establish that there was any

malfunctioning or manufacturing defect in the instrument.

7. It was also mentioned that the performance of the instrument depends

upon the continuous uninterrupted electricity supply which could be made

available through Online UPS. It was advisable to install best quality Online

UPS keeping in view the fluctuation in electricity supply in the country.

8. Before this Court, the appellant argued that the manufacturer of the

instrument in USA vide an email as Annexure P-10, has communicated that

the UPS purchased by the appellant will be good, provided the TurboChem

100 is the only item hooked up to the UPS. Therefore, the insistence of the

respondent for installation of 1KVA Online UPS is arbitrary and is restrictive

trade practice.

9. We have heard the appellant and find no merit in the present appeals.

The pre-installation requisite as reproduced above clearly stipulates that the

appellant has to provide: (i) Efficiently air-conditioned room (ii) 1KVA Online

UPS for running of the equipment (iii) Broadband connection for “i-track”

(Remote Diagnostics Tool). The equipment will be provided with “i-track”

remote facility at the time of installation.

10. In the brochure supplied to the appellant, there is no commitment of

supply of instrument with on-board laundry facility. Thus, the appellant could

not insist on on-board laundry facility which was never committed to be

delivered to the appellant along with the instrument nor there could be any

installation of the equipment without installation of 1KVA Online UPS as part

of pre-installation requirements. The email from the manufacturer will not

4 override the pre-conditions of installation which are in view of electricity

supply conditions in the country. All the authorities under the Consumer

Protection Act, 19864 have found that there is no deficiency in service or

restrictive trade practice.

11. In view of the above, we do not find any error in the orders passed by

the Forums constituted under the Act which warrant interference in the

present appeals. The present appeals are thus dismissed.

…..……………...........................J. (Dr. Dhananjaya Y. Chandrachud)

….…..........................................J. (Hemant Gupta) New Delhi, April 1, 2019.

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