PRESENT
Complainant in person.
Opponent by Adv. Prakash Kilpady present
ORDER
(Per- Mr. S. D. MADAKE, Hon’ble President.)
1. The complainant filed complaint against Opponent Under section 12 of consumer protection Act 1986.
2. According to complainant his wife Smt. Eva Mirza had sustained a fracture neck of left femur. She was taking treatment since 1985. On 10.06.2010 Opponent’s representative approached complainant for sale of Exogen Device unit to him and induced him to purchase the same by making false representation including 100 % money back guarantee.
3. The complainant purchased Exogen Express 0309011808 for a sum of Rs. 52,500/- (fifty two thousand and five hundred Rupees.) The Opp. Furnished brochures i.e. Booklet as well as device operating instructions.
4. Complainant submitted case history of his wife Smt. Elva Mirza , and used the Exogen device unit as per the instruction , however there was no progress at all.
5. The complainant sent two letters on 1.4.2011 and 29.4.2011 for reimbursement of value of goods with interest and Opponent the letter replied containing baseless grounds. The legal notice dated 13.08.2011 was issued by complainant claiming the said amount but Opp. failed to comply as per said notice.
6. The complainant alleged that Opp’s representative visited the surgeon of complainant on 29.3.2011 and obtained an opinion about progress in the health of Smt. Elva Mirza, the said certificate was not correct.
7. The complainant alleged that, Mrs. Eva Mirza was shown for second opinion to Dr. G. Sundaram who opined that patient is in severe pain.
8. Complainant alleged that opponent’s representative cheated him, his wife since beginning by making false promises and induced him to purchase Exogen device unit by way of deceptive tall claim of Rs. 100 % money back, The opp. Induced him with dishonest intention.
9. The complainant claimed amount of Rs. 52,550/- towards claim of Exogen device , compensation for mental agony for Rupees one lakh fifty thousand and cost of litigation Rs. 25,000/-
10. The complainant produced on record documents in support the complaint.
11. The opp. filed written statement on 5.10.2012 and alleged that complaint is false, frivolous and vexations filed with an intention to extort money. The opp. Is not manufacturer of Exogen Bone healing, the said article was sold by complainant as an agent of M/s Smith Nephew.
12. The Opp. alleged in para 3. Of written statement that letter dated 29.3.2011 given by Dr. C. Prakash indicates that, serial X ray taken periodically when compared with the previous ones show a steady narrowing of the fracture gap and the last X ray taken in March 2011 has sown that the gap is getting bridged by bone growth, which is evidence of the positive action of the system.
13. The opp. alleged that Exogen unit was supplied on advice of Dr. C Prakash, the allegations regarding money back are denied and there is no question of reimbursement. It is alleged that patient discontinued the treatment in violation of agreement.
14. The Opp. Produced on record the document i.e. agreement between complainant and M/s Smith and Nephew.
15. On pleadings of parties and documents the following points arise for our determination.
Sr.No. | Points | Answer |
1. | Whether the opponents is guilty for deficiency in service ? | Affirmative. |
2. | What order ? | As per final order. |
REASON
16. Heard both sides at length. Perused complaint, Written statement, affidavits in the form of evidence, written arguments of both sides as well as all documents produced on record.
17. Admittedly the complainant purchased Exoen device on 8.7.2010 for Rs.52,550/-. The document filed by Opp. Shows that there is clear mention of 100 % money back guarantee.
18. The complainant alleged that case history of Smt.Mirza was submitted to dealer before the purchase of device. The contents in para 3 of Written statement indicate that Opp. was aware of the case history of the patient since 1985.
19. The complainant alleged that Opp’s representative cheated him and his wife since beginning by making false promises assurances and induced to purchase the exogen device. The complainant made a specific grievance against opponent in individual capacity and not an agent of Smith Nephew Exogen ultra sound bone healing system.
20. The documents indicate that, opponent induced complainant stating that the article is the best solution for faster fracture repair. The documents show that the said article is the only bone stimulation device approved for accepting the healing of indicated fresh fractures. It is mentioned that for patients with non-union fractures 20 minute daily treatment with Exogen bone healing system is safe and effective.
21. The documents show that if a patient has a fracture that fails to heal the actual cost of the Exogen device paid by the purchaser will be refunded in full.
22. The complainant stated on affidavit that in pursuance of representations and assurances, he purchased the above article. He affirmed that the exercise was taken as per the instruction of opponent and found that there was no recovery , as falsely assured by opponent.
23. The Opp. alleged that Dr.C.Prakash Head Orthopedic Unit issued a letter stating that “ treatment was started on 8th July 2010 for a period of 150 days. Serial X rays taken periodically when complainant with the previous ones have been showing a steady narrowing of the fracture gap and the last X ray taken in March,2011 has shown that the gap is getting bridged by bone growth.
24. We have perused the opinion of Dr. C. Prakesh and found that there was no improvement as mentioned in the documents as well assurances made by opponent. It is also pertinent to note that statement in affidavit of Nitish Bellave dated 20.5.2014 in para 5 that complainant did not wait for a period of 150 days and took treatment with Dr. Sundaram. This shows that Opp. is relying on opinion of Dr.C. Prakesh and also stating that complainant has not taken treatment as per agreement.
25. In view of the facts stated above , we hold that complainant exclusively relied on inducement , assurance and promises of Opp. regarding the quality or fitness of Exogen and purchased the same. The complainant had intimated to opponent by stating the case history of patient, the particular purpose for which the said exogen was required. The complaint totally relied on opponents skill. The law presumes that goods shall be of merchantable quality.
26. We therefore hold that, opponent induced the complainant for purchasing the exogen and the same was purchased only on the promises and assurances of opponent. Hence we hold that Opp. is personally liable. Therefore, complainant is entitle to hold Opp. liable as per section 233 of the contract Act. The act of inducement and assurances are outside the contract of agency. The opponent is therefore guilty for deficiency in service as well as for unfair trade practice.
27. The complainant is entitle for refund of the amount of Rs.52,500/- paid for purchase of exogen, after returning the said article to opponent. The complainant has utilised he said article for certain period and there was some improvement opined by Dr. C. Prakash , we are of the opinion that complainant is not entitle for compensation for mental agony. However complainant is entitle for cost of the complaint which we quantify Rs.7,500/- . The complainant is entitle for interest at 9 % per annum on the amount of Rs.52,500/- from the date of filing complaint.
28. In the result we pass following order.
ORDER
1. RBT Complaint No. 251/2012 is partly allowed.
2. The opponent is directed to pay Rs.52,500/- to complainant with interest at 9 % from 9.6.2012 till realization of total
amount.
3. The Opponent is directed to pay Rs.7,500/- as cost of the complaint to complainant.
4. Copy of this order be sent to both parties.
