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Consumer court dismisses company’s claim that doctor is not consumer

BY JATIN RAMAIYA
Dr Hemant Kulkarni, from Comba, Margao approached the South Goa District Consumer Disputes Redressal Forum complaining against A N Enterprises based at Kolhapur.
Dr Kulkarni, a medical practitioner with his consulting room at Margao, had been practicing there for the last fifteen years, and he is also a factory medical officer for a pharmaceutical unit in Verna on retainer ship basis. At the pharmaceutical unit, Dr Kulkarni occasioned to meet representative of A N Enterprises whilst he was installing an audiogram cabin which reduces noise levels during the functioning of the machine.
Dr Kulkarni desired to install an audiogram cabin at his consultation room/office at Margao and therefore made enquires from A N Enterprises whether they could manufacture a smaller size cabin which would not compromise the sitting capacity, waiting area of his consulting room/office. The representative of A N Enterprises inspected Dr Kulkarni’s dispensary room and thereafter got the same inspected by their engineer who assured and agreed that they could manufacture an audiogram cabin to be installed in his consulting room.
Dr Kulkarni and the said representative agreed that the cost towards manufacturing, installing and commissioning of the cabin would be Rs 80,000 totally and the representative requested that an amount of Rs 25,000 be paid initially and thereafter when the cabin was transported, the transportation charges would have to be paid and the balance amount to be paid in installments within three years from the date of the commissioning of the cabin. An amount of Rs 25,000 was paid by demand draft and the said audiogram cabin was brought and installed in late April 2008, at which time the transportation charges amounting to Rs 7,000 was paid. However, the same could not be commissioned that upon installation the cabin and after fitting the connecting cables, the cabin was not working. A N Enterprises subsequently replaced the electrical panel which was done in the month of late September or early October. Despite that the audiogram cabin was not functional. The noise level inside the cabin was very high. Though the cabin was manually painted in May 2008, however, at a later stage it started rusting. Furthermore, the sitting space for clients was compromised and reduced to half even though the complainant was assured otherwise prior to installation of the cabin that despite being aware that the said cabin was not commissioned by the opposite party and that the same was not working, instead of attending to the same, threatening calls were made to the complainant by the accountant of the opposite party demanding the balance payment. However, Dr Kulkarni told the representative of the A N Enterprises he would pay the balance amount when the deficiencies are looked into and corrected and in the event they cannot be corrected the amounts paid by him should be refunded and the cabin taken back as promised by the opposite party. The engineer of the opposite party finally contacted the complainant and assured him that the defects in the cabin would be rectified. However, the same was not done in spite of couple of reminders. Hence Dr Kulkarni approached the forum.
The forum issued notice to the A N Enterprises and in pursuance of the said notice they filed a reply and raised preliminary objection that the complaint was not a consumer under Section 2(d) of the act amongst the other defences. However, the forum relying upon a Supreme Court judgement held in the matter of Laxmi Engineering Works versus R S G Industrial Institute, held as under: “In view of what is stated above there is no evidence brought on record to establish that the complainant is not a consumer and that the audiogram cabin is not being used by the complainant himself, exclusively for the purpose of earning his livelihood, by means of self-employment and the complainant does not fall within the definition of the expression “consumer”.”
After going to through the documentary and other evidence led before the forum, it came to the conclusion that there was deficiency in service and therefore held that A N enterprises is liable to rectify all the deficiencies in the said cabin and equipment within 15 days of the receipt of the order and make the same workable and upon Dr Kulkarni’s satisfaction and with further directed Dr Kulkarni to pay the balance amount of Rs 48,000 to A N Enterprises. In the event they fail and neglect to comply with this order within thirty days from the receipt of the order, A N Enterprises shall refund the sum received from Dr Kulkarni with interest at 9 per cent per annum.

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