DR. D.J. DE SOUZAversusMANAGING DIRECTOR CPC DIAGNOSTICS PVT. LTD.

378                      [2019]REPORTS
               SUPREME COURT    6 S.C.R. 378               [2019] 6 S.C.R.


A                            DR. D.J. DE SOUZA
                                        v.
         MANAGING DIRECTOR CPC DIAGNOSTICS PVT. LTD.
                     (Civil Appeal Nos. 3351-3352 of 2019)
B                               APRIL 01, 2019
              [DR. DHANANJAYA Y. CHANDRACHUD AND
                       HEMANT GUPTA, JJ.]
             Consumer Protection Act, 1986: Deficiency in service –
      Appellant placed an order for purchase of TurboChem 100 Unit
C
      from respondent – On delivery, the service engineer pointed out
      that 1000 mv/650 Watt UPS was not suitable and advised appellant
      to purchase 1KVA Online UPS for usage during power failure –
      Stand of appellant was that he got a confirmation from the
      manufacturer of the equipment that UPS which the appellant had
D     was suitable – However, respondent insisted on installation of 1
      KVA Online UPS – Appellant also raised grievance that there was
      no on-board laundry facility present on the instrument and, therefore,
      such instrument was of no use to him – Complaint before Consumer
      Forum by appellant claiming the purchase amount and damages of
      Rs.50,000 – Held: The pre-installation requisite clearly stipulated
E
      that the appellant had to provide efficiently air-conditioned room,
      1KVA Online UPS for running of the equipment and broadband
      connection for “i-track” (Remote Diagnostics Tool) – In the
      brochure supplied to the appellant, there was no commitment of
      supply of instrument with on-board laundry facility – Thus, the on-
F     board laundry facility 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 being part of pre-installation requirements – The e-mail from
      the manufacturer would not override the pre-conditions of
      installation which were in view of electricity supply conditions in
G
      the country – All the authorities under the Consumer Protection Act
      correctly found that there was no deficiency in service or restrictive
      trade practice – No interference with the orders passed by Forums
      called for – Appeals dismissed.

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                                      378
     DR. D.J. DE SOUZA v. MANAGING DIRECTOR CPC                              379
                  DIAGNOSTICS PVT. LTD.

      CIVIL APPELLATE JURISDICTION: Civil Appeal Nos.3351-                   A
3352 of 2019
      From the final Judgment and Order dated 14.12.2017 and
04.10.2018 of the National Consumers Disputes Redressal Commission,
New Delhi in Revision Petition No.2219 of 2016 and RA No.295 of
2018 in Revision Petition No.2219 of 2016 respectively.                      B
      Dr. D.J. De Souza, Appellant-in-person.
      The Judgment of the Court was delivered by
      HEMANT GUPTA, J.
      1. Leave granted.                                                      C
      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.
       3. The appellant placed an order for purchase of TurboChem 100
                                                                             D
Unit in response to quotation submitted by the respondent in the second
week of 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:                     E

                                  Efficiently air-conditioned room
                                  1 KVA online UPS for
                                  running of the equipment.
                                  Broadband connection for                   F
                                  “i-track”(Remote
                                  diagnostics Tool)
                                  The equipment will be
                                 provided with “i-track”
                                 Remote, facility at the time                G
                                 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

                                                                             H
380                SUPREME COURT REPORTS                       [2019] 6 S.C.R.


A     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
B
      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 interalia on the ground that the
C     appellant 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
D     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
E     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
F     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
G     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 facility and that the appellant has
      2
          District Forum
      3
H         State Commission
          DR. D.J. DE SOUZA v. MANAGING DIRECTOR CPC                                381
           DIAGNOSTICS PVT. LTD. [HEMANT GUPTA, J.]

failed to establish that there was any malfunctioning or manufacturing              A
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            B
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.                   C
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       D
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         E
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 override the pre-conditions of installation which
are in view of electricity supply conditions in the country. All the authorities    F
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                   G
dismissed.


Devika Gujral                                                  Appeals dismissed.

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    Act                                                                             H