REPORTABLE

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.

J U D G M E N T

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  Commission1 on

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

3. The appellant placed an order for purchase of TurboChem 100 Unit in

response to quotation submitted by the respondent in the second week of

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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

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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

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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

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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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