1. This is a complaint under Sec. 17 of the Consumer Protection Act, 1986. The petitioner is one Sadhan Dutta, a consultant obstetrician and Gynaecologist, specializing in laser Endorse Scopic Surgery and is a practising Physician. The Opposite party No. 1 Rajesh Kohli was for gain in the Opposite parties Nos. 2 & 3. The O.P. No. 1 used to supply sophisticated surgical instruments as the representative of OP Nos. 2 & 3. On December 15, 1994 the Opposite party No. 1 approached the petitioner at his chamber and demonstrated his instruments. After negotiation the petitioner purchased one instruments namely suction irrigation Cannula on payment of a cheque of Rs. 13,000/-. The instrument was readily delivered by the OP No. 1 to the petitioner at his residential chamber. The O.P. No. 1 also gave a proforma invoice quoting therein rates for two other instruments namely Autoclavable 10 AM 30 Telescopestorz and lamka - CCD - Model 204 complete (Endorse Scopic Camera) for Rs. 75,000/- and it will 1,75,000/- respectively, totalling Rs. 2,45,000/- and told him that if the petitioner purchased the said instruments he would give him free of cost some other surgical instruments worth Rs. 40,000/- Term was 100% payment in advance on delivery to be made within three/four weeks. As the petitioner is a practising Gynaecologist he was in need of the instruments and accordingly he took a loan of Rs. 2,45,000/- from his Bank namely ANZ Grindlays and sent a Bank Draft as per terms in the pre forma invoice with the expectation that the instruments would be delivered within three/four weeks i.e., last week of June, 1995 or 4 July, 1995. Unfortunately, the machines were not delivered as promised and the petitioner suffered professional loss. He expressed his difficulty to OP No. 1 by correspondence other to deliver the instrument immediately or to refund the money with interest thereon. He had also to incur a substantial amount for correspondence and STD charge. He even sent a request for the supply of the instruments through one of his Doctor friend who happened to visit Bangalore but without any fruitful result. The petitioner complains that in the meantime suction Irrigation Cannula delivered by the OP against payment of Rs. 13,000/- also went out of order and was returned to Mr. Kohli for rectification and/or replacement by other better instruments. Mr. Kohli, OP No. 1 at last came to Calcutta and met the petitioner in his on 6-9-1995 and promised to deliver the instrument shortly. It has been alleged by the petitioner that the OP No. 1 brought a Camera and a Telescope of different brand and make namely Mesco Brand and left the same to him against his will. The OP No. 1 however, assured the petitioner to deliver the Camera and Telescope of the required brand very soon assuring that the instrument supplied by him were on the stand by. The instruments were however, not replaced as promised. Neither there was any substitution for this suction Irrigation Cannula. In the meantime the petitioners/Bank insisted for repaying of the loan, but inspite of repeated requests for the supply of the instrument and even after Approach various other societies the relevant instruments were not available. On receipt of a lawyer's letter for repayment of the money Mr. Kohli agreed in a letter dt. 22-1-1996 that he was agreeable to pay back Rs. 2,45,000/- interest deducting Rs. 66,100/- for the goods left with petitioner and on condition that the new system Camera and Telescope should be returned. Nothing however materialised and the petitioner has filed this case before the commission for realisation of a total amount of Rs. 7,42,323/- including the price paid to the OP and interest thereon and also professional loss.
2. The case was contested by OP No. 1 who denied the material allegation of the petitioner. Ultimately however the OP did not appear to contest the case at the time of argument and it was heard ex-parte.
3. Subsequently the OP No. 1 again applied for being heard and his argument was being heard.
4. The main contention of the OP is that the case is not maintainable as the instruments were purchased for his professional use. There is no doubt that the instruments in question were purchased for the professional use of the petitioner who was a practising Gynaecologist. But in this case the allegation is not that the instrument is defective one and should be replaced. From the facts of the case stated above it would be sent that real grievance of the petitioner that he was not supplied the foreign made sophisticated instruments which he actually ordered for. His case is that he was given some instrument as stand by with the assurance that the actual instruments would be supplied in future. We have seen the correspondence between the parties and after going to the documents produced in this case it appears to us that the allegation of the petitioner is true. We also hold that as this is not a case of replacement of defective goods the embargo put on a consumer using an instrument for commercial purpose would not be applicable here. The simple point which possess before us is that some valuable and sophisticated instruments were ordered by the petitioner but the same could not be supplied. Hence, in law and equity the person concerned should get back the price paid for them. We particularly note the letter dated January, 22, 1996 by the OP No. 1 agreeing to pay the petitioner back Rs. 2,45,000/- interest deducting Rs. 66,100/- provided the Telescope and Camera are returned to him. After this categorical assurance we need not go into the subsequent controversy whether the instruments were supplied to the petitioner to his satisfaction or whether he had ultimately agreed to retain them. We, therefore, hold that for the ends of justice the price of the instruments already paid to the OP No. 1 should be refunded on condition that the instruments kept with the petitioner i.e. Telescope and Camera as stand by as referred to in OP No. 1's letter dt. 22-1-1993 should be returned. "The petitioner should also return the equipments worth Rs. 66,100/- unless he wants to
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retain the same in which case is price of Rs. 66,100/- should be deducted from Rs. 2,45,000/-. 5. In the view that we are taking we are not agreeable to allow any amount of interest or professional loss to the petitioner and these claims are disallowed. This case is therefore allowed in part. The OP No. 1 is directed to refund the petitioner an amount of Rs. 2,45,000/- (Rupees Two lacs and forty five thousand only) and the petitioner is directed to return to the OP the aforementioned Telescope and Camera simultaneously. The aforesaid transaction should be made within a period of one month from the date of communication of this order. There will be no order for costs.