DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION BARNALA, PUNJAB.

 

Complaint Case No : CC/08/2020

Date of Institution : 03.01.2020

Date of Decision : 08.02.2021 

Mohinder Singh son of Uttam Singh resident of village Moom Tehsil and District Barnala.  

...Complainant

Versus

1.) WIDEX India Pvt Ltd SCO 213, 2nd floor Sector 40-D. Chandigarh through its authorized signatory.

2.) Dr Jatinder Kumar, Jagriti Speech and hearing Centre, SCO-5 Shakti Complex near Gol Digi Bathinda 151001.

3.) Grover ENT and Allergy Hospital, Street No. 7 KC road, Barnala  through sole Proprietor Dr Gaurav Grover. 

...Opposite Parties 

Complaint Under Section 12 of the Consumer Protection Act.

Present: Sh. Rajan Chaudhary counsel for complainant.

Sh. Aditya Gautam counsel for opposite party No. 1.

Sh. Lokeshwar Sewak counsel for opposite parties No. 2 and 3.

Quorum.-

1. Sh. Kuljit Singh : President

2. Sh. Tejinder Singh Bhangu : Member

(ORDER BY SHRI KULJIT SINGH PRESIDENT):

    The complainant Mohinder Singh filed the present complaint under  the Consumer Protection Act 1986 (as amended up to date) against Widex India Private Limited, Chandigarh and others. (in short the opposite parties). 

2. The facts leading to the present complaint as stated by the complainant are that the complainant was suffering from ear disease and was hard of hearing. Therefore, he visited OP No. 3 for check up. OP No. 3 advised complainant that he should consult OP No. 2 who is expert and he regularly camps at the clinic of OP No.3 every Tuesday. It is further alleged that complainant got examined from OP No. 2 & 3 in the hospital of OP No. 3 and after examination a hearing aid/machine manufactured by OP No. 1 was given. The OP No. 2 and 3 charged Rs. 20,000/- from the complainant. The treatment given to complainant was not proper and the hearing aid does not work so far complainant is concerned and he cannot hear properly. The treatment given by OP No. 2 and 3 was not proper and hearing aid did not help complainant in any manner. In these circumstances, OPs are liable for deficiency in service and have been negligent. Therefore, they are liable to pay compensation to complainant.

3. It is further alleged that the complainant visited hospital of the OP No. 3 many times and requested to refund the price and pay compensation of Rs. One Lakh but OP No. 3 had flatly refused to accede to the requests of the complainant. Ultimately, the complainant sent legal notice dated 26.09.2019 through his counsel. OP No. 3 responded but the reply is vague, irrelevant and unconvincing. The said act and conduct of the OPs amounts to deficiency in service and unfair trade practice. Hence, the present complaint is filed seeking the following reliefs.-

1) The opposite parties may be directed to pay price of hearing aid to the tune of Rs. 20,000/-.

2) To pay Rs. 1,00,000/- as compensation for mental agony and inconvenience.

3) To pay Rs. 10,000/- as expenses of litigation.

4) To pay interest at the rate of 12% per annum since 9.10.2018 till actual realization.

5) Any other relief which this Commission deems fit and proper.

Rejoinder not filed by the complainant.

6. Upon notice of this complaint the opposite party No. 1 filed reply taking preliminary objections on the grounds that the answering opposite party is engaged in the business of reselling hearing aid devices and has a network of its distributors for reaching out to the end consumer. Further, the answering opposite party has directed its distributors to adhere to a standard operating procedure which has to be followed by the distributors. That based on the audiogram a suitable type of hearing aid device is suggested to the patient. In the present case O.P. 2 is the distributor and O.P. 3 is the doctor who referred the complainant to O.P. 2. The opposite party further submitted that an audiogram was conducted and the complainant was recommended to use a hearing aid of model U-10 for both the ears by O.P 2. That contradictory to the recommendation and persuasion, the complainant purchased a hearing aid device (U-3) and that too for only one ear. After the purchase was made, the complainant was given a trial period of 5 days to try the product during which the complainant was afforded an opportunity to test the product and efficacy thereof. Upon thorough satisfaction post the said trial period, the Complainant voluntarily opted for the product thereby implying comfort, efficacy, suitability, satisfaction an performance of the hearing aid device. Furthermore, no complaint of any nature was ever raised by the complainant to the answering respondent and directly a complaint was filed before this Commission. Further, the Answering Respondent submitted that the complainant's purchase of the hearing aid (U-3) was accompanied with cleaning accessories for the said hearing aid device and the safety manual for the operational instructions concerning the hearing aid device. The procedure to clean the hearing aid is specifically mentioned in the manual and the same was informed to the complainant orally along with demonstration. Despite an elaborate manual and clear, yet simple, demonstration concerning the cleaning of the device, the complainant failed to take adequate care of the hearing aid device that ordinarily ought to have been taken by any prudent and/or reasonable user of such product. Further, after more than six months of purchase of the hearing aid, the complainant approached O.P. 2 to get his hearing aid examined as it was not working properly. On examination of the device, O.P. 2 observed that the hearing aid device was found to be extensively damaged that appeared to have been caused by inadequate care for the hearing aid. The said damage was observed at one end and the conducting tube was filled that had been blocked by an extreme quantity of earwax which ought to have been cleaned by the complainant on the lines of the demonstration given to the complainant at the time of purchase of the hearing aid device. The complainant did not clean the conducting tube of the device as mentioned in the safety manual or demonstrated by O.P. 2 at the time of purchase. Further, despite severe damage and blockage, the O.P. 2 attempted to clean the device and successfully was able to restore the hearing aid device’s performance capability which was clear from the fact that the complainant was able to hear and informed the O. P. 2 that the device was working properly and expressed his satisfaction. The opposite party submitted that no evidence is brought forth evidencing that the device is non-operational.  Further, when O.P. 2 cleaned the device, it was completely functional. Therefore, in all likelihood the machine is working but not suiting the patient since the purchase in the first place is not in consonance to the recommendation of the O.P. 2. 

7. Further, the opposite party submitted that the complainant never filed a complaint with the company or called the customer care of the company. The complainant never approached O.P 1 to avail warranty benefits, prior to voiding of the same. The service of the legal notice to the Answering was never attempted in true spirit of fairness despite the fact that the address of the Answering Respondent is available on all the relevant public fora in addition to the website of the Ministry of corporate Affairs. Neither any opportunity to test the veracity of the claims of the complainant was ever afforded to the Answering Respondent nor for any curative action. Further the opposite party submitted that the allegations with respect to ‘no proper treatment’ are neither substantiated nor appear to be founded. It is not clear from the pleadings that what the complainant means by the term improper treatment’ and is not substantiated by any document It is well settled law that vague and incomplete pleadings are liable to be rejected. In all likelihood, the patient is filing this claim to either unjustly gain with a hope of earning easy money or to harass the answering opposite party or on the basis of wrong advice. 

8. On merits, it is submitted that that the complainant has not substantiated as to what kind of improper treatment was given and why the hearing aid device was not working properly. The complainant gave his consent to the treatment and the proper functioning of the hearing aid device on the same day when he purchased the hearing aid device and it was working perfectly. The complainant did not raise any complaint, on the contrary made the purchase consequent to first hand satisfaction and belief in the product after the trial period of 5 days afforded to the complainant to test the efficacy and performance of the product. Neither any call was made on the customer care of the company nor any legal notice was received by O.P. 1. Further, the complainant did not follow the advice of O.P 2 and insistently bought an unsuitable hearing aid device as prescribed by the expert. Further, if the machine was not suitable, the complainant was given a trial period of 5 days in which he could have a at returned or replaced the machine. The complainant did not avail this opportunity and impliedly accepted the suitability of the hearing aid device. Further the complainant ignored the demonstration given by O.P. 2 and instructions of the safety manual and did not clean the device properly. Further, when O.P 2 cleaned the device, the complainant could hear properly and hearing aid device is working in a perfect condition and that may or may not be suitable for the complainant. The complainant never approached the O.P 1 and has made O.P. 1 a party to the complaint directly without any legal notice served. Lastly, the opposite party No. 1 prayed for the dismissal of the present complaint with costs. 

9. The opposite party No. 2 also filed written version taking preliminary objections on the grounds that present complaint in the present form is not maintainable. The complaint does not fall under the definition of consumer as defined under Consumer Protection Act. Further this Commission has got no jurisdiction to hear and try the present complaint.  The present complaint is frivolous and vexatious and is liable to be dismissed under section 26 of the Act because the complainant first complained the matter to the opposite party no. 2 after more than six months of its purchase and when the complainant came to the opposite party and after examine the instrument the opposite party no 2 found that it was damaged on one side and there was blockage of the conducting tube of the machine due to excessive wax formation in the ear and the same was required repeatedly cleaning by the complainant and the same is comes within the instructions of maintenance which were clearly narrated to the complainant when he purchased the machine but the complainant failed to clean the wax which is formed in his ear regularly hence the opposite party No. 2 is not entitled for any negligence rather complainant himself is negligent about his ear. Moreover the complainant can easily hear when the opposite party cleaned the blockage of the conducting tube. The complainant has concealed material facts from the Commission.

10. On merits, it is submitted that the complainant approached the opposite party no. 3 and after examined the complainant advised to consult opposite party no. 2. It is pertinent to mention here that the opposite party no. 2 advised the complainant to get install hearing aid with U-10 machine and that too in both the ears but the complainant did not agree to the advise given by the answering opposite party to the complainant due to some money problem and he got U-03 in his right ear only and he did not get the hearing aid put in the left ear. Moreover the recommended model/machine was also not got put/installed by the complainant. He did not agree to the advice as given by the answering opposite party to the complainant. It is further submitted that the machine/hearing aid was given on trail for 5 days and no problem existed in he trial period and there was no problem after its setting i:e 20-11-2018 to 18-06-2019 moreover the complainant opted for the cheaper model and that too in one ear. It is further submitted that when the complainant approached to the answering opposite party and when he examined the machine it was damaged on one side and there was blockage of the conducting tube of the machine due to excessive wax formation in the ear and the same was required repeatedly cleaning by the complainant and same comes within the instructions of maintenance which clearly narrated to the complainant when he purchased the machine but the complainant failed to clean the wax which is formed in his ear regularly so the opposite party no.2 is not entitled for any negligence rather complainant himself is negligent about his ear. Moreover the complainant can easily hear when the opposite party cleaned the blockage of the conducting tube. Further it is submitted that complainant never complained to the answering opposite party no.3 regarding the treatment moreover the complainant never visited to the opposite party no. 3 for consultation after 10.09.2018. The complainant never visited the office of the opposite party no. 2 when he was advised there is blockage of the conducting tube of the machine due to excessive wax formation in the ear and the same was required repeatedly cleaning moreover he never mentioned in his complaint that he complained the matter to answering opposite party no. 2 at any time. Lastly, the opposite party No. 2 also prayed for the dismissal of the present complaint with costs. 

11. The opposite party No. 3 also filed written version taking preliminary objections that the complainant had come to the answering opposite party for check up and answering opposite party only advised him to consult opposite party No. 2 and the opposite party No. 3 never advised the complainant for hear aid and never settled or received any amount regarding the hear aid machine and complainant never raised any complaint regarding the problem of hear aid machine at any time to the answering opposite party since 10.9.2018. The opposite party No. 3 never further treated the complainant and after affixing the hear aid machine the dealing was between the complainant and opposite party No. 2 because the opposite party No. 2 came to the hospital of answering opposite party on every Tuesday as visiting consultant. Further, complainant has concealed material facts from this Commission and he has no locus standi to file the present complaint. 

12. On merits, it is admitted that the answering opposite party has examined and advised to consult opposite party No. 2. Further, the complainant and opposite party No. 2 settled all the terms and conditions and price of the machine regarding the hear aid machine and there is no role of answering opposite party in the price and machine. The answering opposite party has given proper and best treatment which was need for the ear of the complainant and there is no concern of the answering opposite party No. 3 with the hear aid machine. Lastly the opposite party No. 3 prayed for the dismissal of the present complaint against the opposite party No. 3 with heavy costs.

13. To support his case the complainant tendered in evidence affidavit of Mohinder Singh Ex.C-1, copy of prescription slip Ex.C-2, copy of model details of hearing aid Ex.C-3, copy of legal notice Ex.C-4, postal receipts Ex.C-5 to Ex.C-7, copy of legal notice Ex.C-8, copy of bill Ex.C-9, copy of warranty certificate Ex.C-10 and closed the evidence. 

14. To rebut the evidence of the complainant the opposite party No. 1 tendered in evidence affidavit of Rajesh Malik Ex.OP-1/1, copy of manual Ex.OP-1/2 and closed the evidence. The opposite party No. 2 tendered in evidence affidavit of Dr. Jatinder Kumar Ex.OP-2/1, copies of checking data Ex.OP-2/2 to Ex.OP-2/4 dated 20.11.2018, 18.6.2019 and 5.11.2019 respectively, copy of bill dated 2.10.2018 Ex.OP-2/5, copy of terms and conditions Ex.OP-2/6, copy of checking report of hearing of complainant Ex.OP-2/7 and Ex.OP-2/8 and closed the evidence. The opposite party No. 3 tendered in evidence affidavit of Dr. Gaurav Grover Ex.OP-3/1, reply to legal notice Ex.OP-3/2, postal receipt Ex.OP-3/3 and closed the evidence. 

15. We have heard the learned counsel for the parties and also gone through the record on the file. Written arguments also filed by the opposite parties.

16. It is admitted fact between the parties that the complainant was examined by opposite party No. 3 and advised to consult opposite party No. 2. It is also admitted by the opposite party No. 2 that he advised the complainant to get install a hearing aid with U-10 machine in both the ears but it is proved on the file from the document even tendered by the complainant Ex.C-9 and by the opposite party No. 2 as Ex.OP-2/5 that the complainant was recommended U-10 model for his both ears but he purchased U-03 model for Rs. 20,000/-. However, it is proved on the file vide worldwide warranty certificate Ex.C-10 that the product had two years warranty from its purchase but in case of any damage no warranty will be given. 

17. Further, vide copy of manual Ex.OP-1/2 it is proved on the file that for cleaning of machine cleaning tools like cloth, brush, long wax removing tool, short wax removing tool and battery magnet were given with the hearing aid machine. But even then the complainant failed to clean the machine due to which it got damaged due to blockage of conducting tube of the machine due to excessive wax formation in the ear and non cleaning of the machine. It is clearly mentioned in copy of manual Ex.OP-1/2 that clean your hearing aid every day will make it more efficient and more comfortable to wear. Wipe the hearing aid with a soft cloth (for example the cloth you received from your hearing care professional). If the microphone openings are blocked, contact your hearing care professional. Dry your hearing aid quickly if it gets wet, or if you perspire heavily. Some people use a special dehumidifier like Widex Perfect Dry Lux to help keep their hearing aids dry and clean. Ask your hearing care professional if this is right for you. When not in use leave the battery compartment open to ventilate the hearing aid. For information on how to clean your ear set the ear set manual. Do not use any kind of liquid or disinfectant to clean your hearing aid. Clean and inspect your hearing aid every day after use to check that it is not broke. If the hearing aid breaks while you are wearing it, leaving small fragments in your ear canal, contact your doctor. Never try to take out the fragments yourself. But the complainant never mentioned in his complaint or affidavit Ex.C-1 that he used the hearing aid machine as per the instructions mentioned in the manual Ex.OP-1/2 and clean the same every day. Further, the complainant also not filed report or affidavit of any expert to prove that there is manufacturing defect in the hearing aid machine. From all these documents it is clear on the file that the hearing aid machine in question for single ear was purchased by the complainant by his own will and not on the recommendation of opposite party No. 2 so there is no wrong treatment given by the opposite party No. 2. Further, if the machine got damaged due to non cleaning then there is no deficiency of service or unfair trade practice on the part of the opposite parties.

18. In view of the above discussion there is no merit in the present complaint and same is dismissed. However, no order as to costs or compensation due to peculiar circumstances of the present complaint. Copy of this order be supplied to the parties free of costs. The file be consigned to the records after its due compliance.

ANNOUNCED IN THE OPEN COMMISSION:

        8th  Day of February 2021

 

 

 

            (Kuljit Singh)

            President

              

(Tejinder Singh Bhangu)

Member