STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

[1]   M/s Transasia Bio-Medicals Ltd., 8, Chandivali Studio Road, Andheri (E) Mumbai – 400 072.

[2]   Managing Director, M/s Transasia Bio-Medicals Ltd., 8, Chandivali Studio Road, Andheri (E) Mumbai – 400 072.

……Appellants/Opposite Parties No.1 and 2

V e r s u s

Deepak Kumar Jindal, Sole Proprietor of M/s Deep Clinical Laboratory & ECG Centre, Single Storey Shop No.9, Phase-7, S.A.S. Nagar, Mohali, Pin – 160 062 (Punjab).

              ....Respondent/complainant

Appeal under Section 15 of the Consumer Protection Act, 1986.

BEFORE:   JUSTICE SHAM SUNDER (RETD.), PRESIDENT.

                MRS. NEENA SANDHU, MEMBER.

Argued by: Sh. C.S. Pasricha, Advocate for the appellants.

                    Sh. Munish Kumar, Advocate for the respondent.

PER JUSTICE SHAM SUNDER (RETD.), PRESIDENT

              This appeal is directed against the order dated 10.09.2007, rendered by the District Consumer Disputes Redressal Forum-I, U.T., Chandigarh (hereinafter to be called as the District Forum only) vide which, it accepted the complaint, filed by the complainant (now respondent) and directed Opposite Parties No.1 and 2 (now appellants), jointly and severally, as under:-

“In view of above discussion, we are of the opinion that this complaint must succeed and the same is accordingly allowed with costs. The OPs No. 1 and 2 are directed to refund the amount of Rs.3,75,000/- to the Complainant along with Rs.10,000/- as compensation for mental and physical harassment and Rs.1100/- towards litigation expenses within 30 days from the receipt of the copy of the order. If the amount is not paid within aforesaid time, the OPs No. 1 & 2 shall be jointly and severally liable to pay back the same along with interest @9% per annum on Rs.3,75,000/- since 27.3.2005 till realization”.

2.             The facts, in brief, are that complainant- Deepak Kumar Jindal, being the sole proprietor of M/s Deep Clinical Laboratory and ECG Centre, is running the same (Laboratory), at Mohali, Punjab, for earning his livelihood, by way of self-employment. For the purpose of running this small enterprise, he also gets assistance of his father, Sh. Pawan Kumar Jindal, who is a retired Senior Laboratory Technologist, from General Hospital, Sector 16, Chandigarh, and has got vast experience in Clinical Laboratory Technology. He is also getting help and assistance, in running the said laboratory, of his younger brother Mr. Vikas Kumar Jindal, who holds B.Sc Degree (Medical) and one year Diploma in Medical Laboratory Technology, from Govt. Rajendra Medical College and Hospital, Patiala.

3.             In the month of January/February 2005, the Officials of M/s Transasia Bio-Medicals Limited, (Opposite Party No.1), visited the Laboratory of the complainant, and made representation about the efficiency, accuracy and high technology of their machine/instrument, called Random Access Auto Analyzer (hereinafter to be referred as the machine/instrument only). The complainant was taken by the representation, made by the Officials of Opposite Party No.1, and placed an order vide letter dated 25.2.2005 (Annexure P-1), for the same, with Opposite Party No.1. In response to the order, Opposite Party No.1, vide Invoice dated 7.3.2005 (Annexure P-2) supplied the machine/instrument, price whereof was Rs.3,75,000/-. The price of the machine/ instrument was fully paid by the complainant, to the Opposite Parties. The delivery of machine/instrument was made through courier, namely XPS Courier, Sector 26, Transport Area, Chandigarh. Sh. Hardip Singh, Engineer/Product Specialist of Opposite Party No.1, installed the machine/instrument, in the Laboratory of the complainant, on 2.4.2005. The model of the machine/instrument was ERBA SMARTLAB bearing Sr. No. SL-050301.

4.             According to the complainant, right from the day one, the machine/instrument started giving troubles. The working/functioning of the same was erratic/defective. The matter was brought to the notice of the Opposite Parties, from time to time, on several occasions. The erratic/defective functioning of the machine/instrument was reported to the Engineer/Official of Opposite Party No.1, at Chandigarh/Mohali, soon after the installation of the same. The Engineer/Official of Opposite Party No.1, visited the Laboratory of the complainant and tried to rectify the defects, but could not succeed. Again, in response to a complaint, made by the complainant, about the erratic/defective working of the machine/instrument, the Engineer/Official of Opposite Party No.1, visited the Laboratory of the complainant, on 03.11.2005. The complainant pointed out the problem of leakage in syringe. It was recorded by the Engineer/Official of Opposite Party No.1, in the action taken remarks “Replaced the old defective syringe with new one. Handed over the equipment to customer in working order”. However, the complainant was not satisfied with the repair work, done by the Engineer/Official of Opposite Party No.1. Thus, the complainant recorded, in the relevant column of comments that the machine was kept “under observation”. Within a few days, the same problem recurred. The complainant again made a complaint, at Chandigarh/Mohali office of Opposite Party No.1. The Engineer/Officer of Opposite Party No.1, again visited the Laboratory of the complainant on 16.11.2005. The complainant reported the problem of leakage in syringe/erratic results. The Engineer/Official of Opposite Party No.1, recorded in the observation column of the maintenance proforma “Replacement of Teflon”. Action taken report by the said Engineer/Official was “Replaced the defective Teflon Tip with new one. Ran few samples, result O.K. Handed over the equipment to customer in working order”. It was stated that the alleged repair was not satisfactory. Therefore, in the column meant for comments of the customer, the complainant noted “very bad quality of syringe section. 3^rd time it has been replaced with a span of 7 months”.

5.             It was further stated that the problem resurfaced again, infact, it had never stood rectified.  The complainant reported to the Engineer/Official of Opposite Party No.1, with regard to the same, who visited his Laboratory on 23.12.2005. The complainant told the Engineer/Official of Opposite Party No.1, that the machine was giving high/low results. The action taken report of the said Engineer/Official was “Cleaned probe, cleaned Teflon of syringe section, reaction sector, ran two batches. M/C working OK”.  However, this time also, the repair was not upto the satisfaction of the complainant. Therefore, the comments were recorded by the complainant, in the observation column of the maintenance Proforma, that the machine was kept “under observation”. Again the machine faced the problem of flow cell. The Engineer/Official of Opposite Party No.1, visited the Laboratory of the complainant, on 13.2.2006 and replaced the flow cell assembly with new one and ran two samples. However, sensing the repair to be not satisfactory, the complainant recorded that the machine had been kept “under observation”. The defect reappeared within 4-5 days and the complainant again made a complaint, to Opposite Party No.1, the Engineer/Official of which visited the Laboratory of the complainant on 18.2.2006, and found that the machine was giving erratic results. He recorded his action taken report “Checked the equipment and found that flow cell Assembly needs replacement”.  Flowcell was replaced. The Engineer/Official of Opposite Party No.1, again carried out preventive maintenance procedure on 8.3.2006, but the results were not satisfactory. Therefore, the complainant recorded his comments that the machine had been kept “under observation”. The machine continued giving erratic results, so the Engineer/Official of Opposite Party No.1, again visited the Laboratory of the complainant on 15.4.2006. The problem of erratic results was brought to his notice. The action taken report recorded by him was, “Replaced the sample probe alongwith tubing to flowcell and flowcell to pump. Machine is under observation”. It was further stated that, thus, it was clear even from the remarks of the Engineer/Official of Opposite Party No.1, that he was unable to rectify the problem of erratic results, on 15.04.2006. In his attempt, to rectify the problem of erratic results, the Engineer/Official of Opposite Party No.1, again visited the Laboratory of the complainant on 25.4.2006, and the action taken report recorded by him, on this date was, “Checked and found in few batches may be once or twice result goes higher or lower side. Checked for air bubbles, dirty reaction sectors, but no problem found. Job continued”. It was further stated that it clearly meant that the job of repair had not been completed by the Engineer/Official of Opposite Party No.1. The complainant recorded his comments, in the relevant column “Machine is giving problem repeatedly, after being installed. Kindly replace it at earliest”,

6.             Since the local Engineer/Official of Opposite Party No.1, could not carry out proper repairs, therefore, another Engineer of Opposite Party No.1 from Mumbai, namely Mr. Bhuvesh visited the Laboratory of the complainant in the 2^nd week of May, 2006. He continued trying to repair the machine/instrument for 3 or 4 days, by regularly visiting the Laboratory of the complainant, but, he was unsuccessful. Having failed to repair the machine, on 16.5.2006, he recorded his observation that he found air bubbles trap inside flowcell. The action taken report recorded by him was “Replaced flowcell assembly, tubing sets, sensor wires and controller board, the problem still persist with this instrument”. It was further stated that, in fact, the Engineers/Officials of Opposite Party No.1, completely and miserably failed to rectify the defects in the machine bearing serial number 050301, sold by it (Opposite Party No.1). It was further stated that, finally, admitting that there was manufacturing defect, in Smartlab Machine/Instrument bearing Sr.No. 050301, the Opposite Parties, agreed to replace the same, with a brand new and defect-free machine/instrument, of the same description and price.

7.             It was further stated that the Opposite Parties, actually delivered the replacement machine/instrument bearing no.060303, to the complainant, through courier M/s XPS Courier at Chandigarh, on 22.06.2006. It was further stated that, on the same evening, Mr. Hardeep and Mr. Rajiv Mahajan (Chandigarh based Engineers of Opposite Party No.1) visited the Laboratory of the complainant, and conducted some tests, on the new machine/instrument, but the results were erratic, as before. Therefore, they could not prepare formal installation report, on that day. It was further stated that again on 6.7.2006, with a view to install the new machine/instrument and prepare its formal installation report, Mr. Rajiv Mahajan accompanied by Mr. Sandeep      (stated to be the Production Engineer of Opposite Party No.1), from Daman, visited the Laboratory of the complainant, but during installation they faced the problem of erratic results of the new machine/instrument also, and recorded in the so-called installation report dated 6.7.2006, that the machine was giving inconsistent results of ‘BUN’. They tried their level best to successfully install the machine/instrument, but failed to achieve any concrete results. Exhausted by their fruitless attempts, and utter failure, they gave up and left in a huff. While going they wrongly and falsely recorded, in the action taken report that “no permission given from customer as the same problem observed after replacement of new M/C”. It was further stated that actually the fact was that the complainant never refused permission to them, to rectify the defects, found by them, and to install the machine/instrument. In fact, those Engineers miserably failed to rectify the defects, in the new machine/instrument which had surfaced, because there were inherent manufacturing defects, in the same. It was further stated that Mr. Sandeep, Engineer of Opposite Party No.1, told the complainant that there were inherent manufacturing defects, in the new machine/instrument itself, and so it could not be repaired/rectified by them. In view of this candid confession, the complainant recorded his comments on the installation report that “New Machine is giving very poor results in the presence of Mr. Mahajan & Mr. Sandeep from Daman. So please refund the money with interest and compensation at the earliest, otherwise further action will be taken”.

8.             It was further stated that, on 26.06.2006 the complainant faxed a letter to Opposite Party No.1, at their Fax Number 022-28573030. In that letter, he specifically complained to Opposite Party No.1, that although the old Smartlab machine/instrument had been replaced with a so-called new machine/instrument, the previous defects which he had complained of a number of times, had not been removed/rectified, even in the so-called new machine/instrument. On 11.7.2006, the Sales Executive – Mr. Gurdial Gularia and Zonal Manager, Mr. Vineet Malhotra of Opposite Party No.1, came to the Laboratory of the complainant, and assured to settle the issue, by 13.7.2006, failing which the complainant would be at liberty to move the Court/Consumer Court, but nothing was done by them. It was further stated that the Zonal Manager, Mr. Vineet Malhotra of Opposite Party No.1, did not give any positive response, and told the complainant, that it was an average instrument. Therefore, through his letter dated 14.7.2006, faxed to Opposite Party No.1, the complainant brought all the facts and circumstances of the case to its notice, but nothing had been done.

9.             It was further stated that, on 25.7.2006, the Deputy General Manager, North – Sh. H.M. Singh, accompanied by the Officers of Opposite Party No.1, Sh. Rajeev Mahajan and Sh.Gurdial Gularia, visited the Laboratory of the complainant and confessed that even the new machine/instrument was having inherent manufacturing defects, in it, and so the same could not be rectified. On 27.7.2006, at about 11.30 AM, the Service Engineer of Opposite Party No.1, Mr. Rajeev Mahajan, informed the complainant, on telephone, that he had been instructed by their Deputy General Manager – Sh. H.M. Singh, to inform that he had agreed to refund the price, and take back the new machine, because it was also having inherent manufacturing defects in it. However, to the utter surprise of the complainant, he received an obnoxious letter dated 28.7.2006, from the Deputy General Manager of Opposite Party No.1, which was in an intemperate, abusive and unbusiness like language. It was further stated that the allegations, made in that letter were false, unfounded and incorrect. It was further stated that, in the letter dated 28.07.2006, the Deputy General Manager of Opposite Party No.1, had pointed out, that the problem could be due to faulty electrical connection, power fluctuation, improper placement and operation of the instrument, environmental factors, reagents, controls etc. It was further stated that, every time, the Engineers of Opposite Party No.1, visited the laboratory of the complainant, to attend the complaints, about defects, in the machine, they had recorded “Line neutral voltage and line earth voltage O.K.”, and, at no point of time, they pointed out any faulty electrical connection or the power fluctuation. It was further stated that the complainant had got installed, an On-Line UPS, and, there had been no improper placement or any improper operation of the machine/instrument. It was further stated that, at the time of installation of the original machine/instrument, warranty was given by the Opposite Parties. It was further stated that when that machine/instrument was replaced with a new one, the complainant was told that the same warranty would be applicable to new machine/instrument. It was further stated that by installing the machines, which were having inherent manufacturing defects, the Opposite Parties, were not only deficient, in rendering service, but also indulged into unfair trade practice. The complainant served a legal notice dated 12.8.2006, upon Opposite Parties No. 1 and 2, for the refund of price of the machine/instrument alongwith interest etc. but to no avail. When the grievance of the complainant, was not redressed, left with no alternative, a complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter to be called as the Act only), was filed, directing the Opposite Parties to take back their SMARTLAB Sr.No.060303 machine/instrument and refund the price thereof, alongwith interest @18% P.A., from the date of its sale,  till realization; pay compensation, to the tune of Rs.6 lacs, for mental agony, physical harassment, inconvenience and loss of business, caused to the complainant; and pay cost of litigation.

10.           The Opposite Parties, in their joint written version, pleaded that the complainant did not fall with the definition of a consumer, as defined under Section 2(1)(d) of the Act, as he was running the Laboratory, aforesaid, as a commercial venture, with a view to earn huge profits.  It was further pleaded that the District Forum, at Chandigarh, had no territorial Jurisdiction to entertain and decide the complaint, as in Annexure P-2, it was made clear, that any dispute pertaining to the machine/ instrument, in question, would be resolved, within the territorial Jurisdiction of Bombay Court. It was further pleaded that the complaint was liable to be dismissed, for mis-joinder of the parties. It was stated that the order was placed by the complainant, with Opposite Party No.1, to supply the machine/instrument-Smartlab to him. It was denied that the representatives of Opposite Party No.1, made highly exaggerated representation, regarding the quality and efficiency of the machine/instrument.  It was further stated that the machine/instrument was installed, in a perfect condition, in the Laboratory of the complainant. It was further stated that, as and when, any defects were pointed out, by the complainant, in the machine/instrument, the Engineers of Opposite Party No.1, attended to his grievance and rectified the said defects. It was admitted that the machine/instrument was replaced, with a new machine/instrument. It was further stated that replacement of a new machine/instrument, in place of the old one, did not mean that the machine/instrument was having any inherent manufacturing defects. It was further stated that the complainant had full opportunity to check all the capabilities of the machine/instrument, as he used the Demo Unit, for over a month, before deciding to buy the same. It was further stated the alleged defects, in the machine/instrument, could be attributed to faulty electrical connections, power fluctuations, improper placement and improper operation of the same. It was further stated that since no expert evidence/report, was produced by the complainant, with regard to the inherent manufacturing defects, in the machine/instrument, and, as such, the question of any deficiency in rendering service, or unfair trade practice, on the part of the Opposite Parties, did not at all arise. It was further stated that according to the terms and conditions of AMC/CMC, the seller may at its sole discretion, replace the machine/instrument, if repairs at the site were not considered suitable, but there could be no compulsion, to refund the price thereof. The remaining averments, were denied, being wrong.

11.           The Parties led evidence, in support of their case.

12.           After hearing the Counsel for the parties, and, on going through the evidence, and record of the case, the District Forum, accepted the complaint, in the manner, referred to, in the opening para of the instant order. 

13.           Feeling aggrieved, the instant appeal, has been filed by the appellant/Opposite Parties No.1 and 2.

14.           We have heard the Counsel for the parties, and, have gone through the evidence, and record of the case, carefully. 

15.           The first question, that arises, for consideration, is, as to whether, the complainant fell within the definition of a ‘consumer’ or not. For proper decision of this question, the provisions of Section 2(1)(d) and Section 2(I)(o), defining the ‘consumer’ and ‘service’  respectively are extracted as under ;

“(d) "Consumer" means any person who, -

(i) buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised or under any system of deferred payment when such use is made with the approval of such person but does not include a person who obtains such goods for resale or for any commercial purpose; or

(ii)[hires or avails of] any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other then the person who [hires or avails of] the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person [but does not include a person who avails of such services for any commercial purpose]; Added by Act 62 of 2002 w.e.f. 15.03.2003.

[Explanation. For the purposes of this sub-clause "commercial purpose" does not include use by a consumer of goods bought and used by him and services availed by him exclusively for the purposes of earning his livelihood, by means of self-employment;]

Section 2(1)(o) defines service as under:-

(o) "service" means service of any description which is made available to potential 16[users and includes, but not limited to, the provision of] facilities in connection with banking, Financing insurance, transport, processing, supply of electrical or other energy, board or lodging or both, 17[housing construction] entertainment, amusement or the purveying of news or other information, but does not include the rendering of any service free of charge or under a contract of personal service.”

16.           According to the explanation appended to Section 2(1)(d)(ii), "commercial purpose" does not include use by a consumer of goods bought and used by him and services availed by him exclusively for the purpose of earning his livelihood, by means of self-employment. In paragraph number 2 of the complaint, in, clear-cut terms, it was stated by the complainant, that he was running Deep Clinical Laboratory and ECG Centre, being its sole proprietor, at Mohali, Punjab, for earning his livelihood, by way of self-employment. He further clarified that for running this small enterprise, he also gets assistance of his father, Sh. Pawan Kumar Jindal, who is a retired Senior Laboratory Technologist, from General Hospital, Sector 16, Chandigarh, and has got vast experience, in Clinical Laboratory Technology. He further clarified that he is also getting help and assistance, in running the said Laboratory, of his younger brother Mr. Vikas Kumar Jindal, who holds B.Sc. Degree (Medical) and one year Diploma in Medical Laboratory Technology, from Govt. Rajendra Medical College and Hospital, Patiala. The averments contained, in paragraph number 2 of the complaint, were duly supported by the complainant, in his detailed affidavit, filed by him, by way of evidence. It is, thus, proved that the complainant has been running Deep Clinical Laboratory and ECG Centre, at Mohali, Punjab, with the help of his father and brother, referred to above, for the purpose of earning his livelihood, by way of self-employment. The mere fact, that he has been taking assistance of his father and brother, who are experts, in the line, and are his family members, does not go to prove that he has been running the Laboratory, as a commercial venture, with a view to earn huge profits. No cogent and convincing evidence was also produced by the Opposite Parties, that the complainant was carrying some other commercial activity, as a result whereof, he was earning huge profits. Even, no cogent and convincing evidence was produced by the Opposite Parties, to prove that the Clinical Laboratory, being run by the complainant, with the help of his family members, is a large commercial venture, solely for the purpose of earning huge profits, and not for earning his livelihood, by way of self-employment. In Haryana Urban Development Authority Vs. Usha Vohra, IV (2009) CPJ 305 (NC), the complainant was allotted a booth in Sector 10, Panchkula, on 15.10.1991,  for which she had paid a total consideration of Rs.8,29,354.50, till 31.12.1996. There was no averment, in the complaint, that the same was purchased by the complainant, for earning her livelihood, by way of self employment. The complaint was decided, in favour of the complainant, by the District Forum, directing the Opposite Parties, to refund the excess amount charged, and an appeal was preferred, before the State Consumer Disputes Redressal Commission, which was also dismissed. Feeling aggrieved, a Revision Petition was filed by the Haryana Urban Development Authority. During the course of Revision Petition, an argument was advanced, that since the complainant was allotted booth, which was obviously for commercial purpose, she did not fall within the definition of a consumer. The National Consumer Disputes Redressal Commission, in the aforesaid case, held that the mere fact that the respondent/complainant, had been allotted a booth site, no conclusive finding, could be recorded about the same (booth) having been allotted for commercial consideration, and, not for earning livelihood, as that would require a lot of consideration to unsuit her. In Remington Rand of India Ltd., & Ors. Vs. Pioneer Typewriter Co. I (1996) CPJ 317 (NC),  a case decided by a Full Bench of the National Consumer Disputes Redressal Commission, New Delhi, the complainant purchased a Paper Copier Machine, from the Opposite Party, which did not give satisfactory service. No averment, was made, in the complaint, that the Paper Copier Machine, had been purchased by the complainant, for earning livelihood, by way of self employment. Ultimately, the machine became defective, and the complaint for replacement of the same, was filed. The State Consumer Disputes Redressal Commission, decided the complaint, in favour of the complainant. Feeling aggrieved, an appeal was filed by the Opposite Party/appellant, which took up the plea, that the complainant/respondent, did not fall within the definition of a consumer, as the machine was purchased by it, for running the business, on a large scale, for earning huge profits. In these circumstances, the National Consumer Disputes Redressal Commission held that the firm of the complainant, was indeed a small unit, and just because it was a partnership firm, it could not be concluded that it was engaged, in a large scale commercial activity, for earning huge profits. It was further held that since loan was obtained by the complainant/respondent, from the Bank, for purchasing the machine, which fact, in itself, clearly proved that the complainant was to run a small venture, to earn its livelihood, by way of self employment. In Techno Mukund Constructions Vs. Mercedes Benz India Limited & Anr., 2011 (2) CLT, 362, a motor car was purchased by the Firm, for the use of its Managing Partner, for his going and coming to his place of work and home, and it was for his use for the activities of the Firm. A plea was raised, by the Opposite Parties, that the car was sold by them, to the complainant, which was a commercial Company, and it was being used for a commercial purpose, and, as such, it was not a consumer, and did not fall within the definition of a consumer, as defined under Section 2(1)(d) of the Act. The National Consumer Disputes Redressal Commission, New Delhi, however, held that the buyers of goods or services for self consumption, in economic activities, in which they are engaged, would be consumers, as defined by the Act. It was further held that the purchase of car, in question, by the complainant, could not be held to be a case of purchase for commercial purpose. In Dr. Santosh Kumar Khanna Vs. Wipro Ge Medical System Ltd., and Ors., IV (2005) CPJ 666, a case decided by Uttaranchal State Consumer Disputes Redressal Commission, Dehradun, the complainant, being a retired Senior Physician, purchased machinery for self-employment and to effectively diagnose disease. The machine became defective and he filed a consumer complaint. An objection was taken by the Opposite Parties, that the same had been purchased by the complainant, for commercial purpose, and, as such, he did not fall within the definition of a consumer, as defined under Section 2(1)(d), of the Act. The State Consumer Disputes Redressal Commission, Dehradun, however, held that the commercial purpose was not involved and the complainant fell within the definition of a consumer.  In Halda Office Systems Pvt. Ltd. Vs. Bapuji Institute of Engineering and Technology, II (2012) CPJ 359 (NC),  chairs were purchased for the use of students, in educational institution. There was no evidence that the said chairs were purchased, on behalf of the institution, for commercial purpose. Some of the chairs were got replaced, as the same were defective. Under these circumstances, it was held that it could not be said that the complainant did not fell within the definition of a consumer. In Shind Engineering Industries Vs. J.S. Birdi & Sons, III (2002) CPJ 277 (NC), machines were purchased by the complainant, which were being used for earning livelihood by way of self employment. During the warranty period, the machines were not functioning satisfactorily. The machines were, ultimately, got repaired. The State Consumer Disputes Redressal Commission held that the complainant was not a consumer, though it was stated that the machines were being operated, by the complainant, and his son and they did not employ any other staff. In the First Appeal filed by the appellant/complainant, it was held by the National Consumer Disputes Redressal Commission, New Delhi, that the machines were being used by the complainant, for his self employment, and, as such, the complainant fell within the definition of a consumer. In Jindal Oil and Ginning Factory Vs Punjab Small Industries & Export Corporation (2009)CPJ26(Pb), a case decided by the Punjab State Consumer Disputes Redressal Commission, Chandigarh, an application for allotment of an  industrial plot, was made by the complainant, but no averment was made, in the complaint, by the complainant, that it was purchased with a view to earn livelihood, by way of self employment. However, the Punjab State Consumer Disputes Redressal Commission, at Chandigarh, held that when the industrial plot was not allotted to the complainant, it sought refund, and, under these circumstances, it fell within the definition of a ‘consumer’.

17.           As per  the explanation, appended  to clause (ii) of Section 2(d) of the  Act ‘commercial purpose’ does not include use by a person of goods bought and used by him, and services availed of  by him exclusively, for the purpose of  earning his livelihood, by means of  self-employment. It is not the value of the goods, that matters, but the purpose to which the goods bought are put to. The several words employed in the explanation, viz., "uses them by himself", "exclusively for the purpose of earning his livelihood" and "by means of self-employment" make the intention of the Parliament abundantly clear, that the goods bought, must be used, by the buyer himself, by employing himself, for earning his livelihood. A few more illustrations would serve to emphasis that a person who purchases an auto-rickshaw, to ply it, himself, on hire, for earning his livelihood, would be a consumer. Similarly, a purchaser of a truck, who purchases it, for plying it, as a public carrier, by himself, would be a consumer. A person, who purchases a lathe machine, or other machine, to operate it himself, for earning his livelihood, would be a consumer. In the above illustrations, if such a buyer, takes the assistance of one or two persons, to assist/help him, in operating the vehicle or machinery, he does not cease to be a consumer. As against this, a person who purchases an auto-rickshaw, a car or a lathe machine, or other machine, to be plied or operated exclusively by another person, would not be a consumer. This is the necessary limitation, flowing from the expressions "used by him", and "by means of self-employment" in the explanation. Similar principle of  law was laid down in Laxmi Engineering Works Vs P.S.G. Industrial Institute, 1995(2) Consumer Law Today 474(SC). In M/s Cheema Engineering Services Vs Rajan Singh 1996(2)Consumer Law Today 397, a case decided by a Full Bench of the National Consumer Disputes Redressal Commission, the complainant, purchased a brick manufacturing machine, to operate himself, for earning his livelihood, by taking assistance of one or two persons. Under these circumstances, it was held that he fell within the definition of a ‘consumer’.  The principle of law, laid down in the aforesaid cases, is fully applicable to the facts of the instant case. Since, in the instant case, the machine/instrument was purchased by the complainant, sole proprietor of Deep Clinical Laboratory and ECG Centre, Mohali, Punjab, for earning his livelihood, by way of self-employment, by taking help of his father and brother, qualified technicians, and, as such, it being a small venture, it could be very well said that he fell within the definition of a consumer. The District Forum was also right, in coming to the conclusion, that the complainant fell within the definition of consumer. The findings of the District Forum, in this regard, being correct, are affirmed.

18.           The Counsel for the Opposite Parties, however, placed reliance on Annexures A-1 to A-3 (colly.), which were admitted into evidence, during the course of appeal, in pursuance of the order dated 04.09.2012 passed in Revision Petition No. 607 of 2008, titled as M/s Transasia Bio-Medical  Ltd.  & Ors. Vs. Deepak Kumar Jindal,  against the orders dated 19.12.2007 and 15.01.2008  rendered in this appeal, by this Commission, to contend that the complainant had purchased other machines, and had been running the Laboratory, aforesaid, since long, and, as such, it could not be said that he was running a small venture, to earn his livelihood, by way of self employment, by taking assistance of his father and brother, who are qualified technicians. Annexure A-1 is a photocopy of the certificate  dated 12.08.1997, signed by the complainant, revealing that the Opposite Parties successfully installed EC-St in Deep Clinical Laboratory and ECG Centre, at Mohali, Punjab. Annexure A-2, is a copy of the installation report dated 30/31.07.1997, regarding satisfactory working of an instrument namely Semi Automatic Clinical Chemistry Analyzer with built-in printer, alongwith despatch note dated 24.07.1997 showing  various parts of the machine installed in 1997. There is an invoice at page 51 of the appeal file, showing that the price of the machine/instrument, which was installed in 1997, was to the tune of Rs.1,55,000/-. At page 53, there is a duplicate dispatch note dated 24.07.1997, mentioning start-up reagents for SRBA CHEM-5 Plus, the price whereof, is shown to be Rs.5,029/-. The machine/instrument, was installed in Deep Clinical Laboratory, Kothi No.341, Phase VII, S.A.S. Nagar, Mohali. If a machine was got installed by the complainant, in his Laboratory, of which he is the sole Proprietor, in the year 1997, the price whereof was Rs.1,55,000/-, that did not mean, that he was indulging into a large scale commercial venture, for the purpose of earning huge profits. Since, the complainant, is running a Laboratory, for earning his livelihood, by way of self employment, and is also taking the help of his two family members, who are qualified technicians, naturally, he will purchase the machines/ instruments, from time to time, which become defective and need replacement. The machine, in respect whereof, the complaint was filed, was installed in 2005, and was replaced in 2006. There is a wide gap of period, between 1997 and 2005/2006. Under these circumstances, the documents Annexure A1 to A3 (colly.), do not, in any way, go to prove that the complainant was running a large scale commercial activity, with the sole motive to earn huge profits, and, as such, he did not fall within the definition of a consumer. No help, therefore, can be drawn by the Counsel for the appellants/Opposite Parties, from these documents.

19.           The Counsel for the appellants/Opposite Parties, however, placed reliance on Birla Technologies Ltd. Vs. Neutral Glass and Allied Industries Ltd., 2011 (1) SCC 525, Kalpavrusksha Charitable Trust Vs. Toshniwal Brothers (Bombay) Pvt. Ltd. and another, 1999(3) PLR 707 (SC), Eicher Motors Ltd. Vs. Dilip Chandra Kant Vaidya and others, 2007(1)CLT 502 and Shashi Bhushan Shori  Vs. The Chairman-cum-Managing Director, Indian Overseas Bank and Ors., First Appeal No.230 of 2012, decided on 04.10.2012, this Commission, in support of his contention that the complainant, having purchased the machine/instrument, in question, for commercial purpose, to earn huge profits, and, as such, he did not fall within the definition of a consumer, as defined under Section 2(1)(d) of the Act. In Birla Technologies Ltd.`s case (supra), the appellant was to develop a software, which was to take care of financial accounting, production, marketing, purchase, stores/inventory, fixed assets, pay roll and personnel system of the respondent/complainant, a Limited Company. The cost of the said software installed was Rs.36 lacs. The system was not properly working. When the grievance of the complainant, was not redressed, it filed a complaint. The State Consumer Disputes Redressal Commission, dismissed the complaint, holding that the complainant did not fall within the definition of a consumer. Feeling aggrieved, an appeal was filed, before the National Consumer Disputes Redressal Commission. The National Consumer Disputes Redressal Commission, held that the complainant fell within the definition of a consumer. Ultimately, the Opposite Party/ appellant, filed Civil Appeal  No.10650 of 2010, before the Supreme Court of India. The Hon`ble Supreme Court held that the complainant did not fall within the definition of a consumer, on the ground, that the goods were bought, and the services were hired by it, for commercial purpose, to earn huge profits. In Kalpavrusksha Charitable Trust`s case (supra) the trust purchased machinery/equipment, for CT Scanning to be used by Diagnostic Centre. The fee was being charged by the Centre from the patients. It was not the case of the trust, that the machine had been purchased and used for earning livelihood, by way of self employment. Under these circumstances, it was held by the Supreme Court, that the complainant was indulging in profit making activity, on a large scale, and, as such, it did not fall with the definition of a consumer. In Eicher Motors Ltd.`s case (supra) the complainant was a transport operator, and, he was wholly engaged in the transportation of passengers. He purchased two more buses. It was held that it could not be said that he could drive both the buses, without employing drivers. Under these circumstances, it was held that the complainant could not be said to be a consumer, nor the buses were purchased by him, for self employment, so as to exclude the same, from the phrase of commercial purpose. In Shashi Bhushan Shori`s case (supra), the complainant availed of credit facility of Rs.245.00 lacs from the bank, for the purpose of his business. No averment was made, in the complaint, that he was running the business, for earning his livelihood, by way of self employment. It was, thus, held by this Commission, that the complainant was running business, on a large scale, with the motive of earning huge profits, and, thus, he did not fall within the definition of a consumer. The facts of the cases, relied upon by the Counsel for the appellants/Opposite Parties No.1 and 2, cited in this paragraph, being completely and entirely distinguishable, from the facts of the instant case, no help can be drawn by him, therefrom. The submission of the Counsel for the appellants, being without merit, must fail, and the same stands rejected.

20.           The next question, that arises for consideration, is, as to whether, the machine/instrument, in question, suffered from inherent manufacturing defects, right from the day of its installation, or not. It is proved, from the evidence, on record, that right from the day, the machine was installed in the year 2005, it started giving troubles. It is evident, from Annexure P-3 copy of the Technical Service Report No.128862 dated 03.11.2005, that the problem was reported by the complainant, in the machine, in the syringe. The action taken report recorded by the Engineer/Official of the Opposite Parties were “Replaced the old defective syringe with new one handed over the equipment to the customer in working order”. The Engineer/Official of the Opposite Parties also signed this report. The remarks recorded by the complainant, on this report, were that the machine kept “under observation”. Annexure P-4, is another Technical Service Report No.128902 dated 16.11.2005. The problem reported by the complainant was leakage in syringe/erratic results. The observations made by the Engineer/Officer of the Opposite Parties were “Replacement of Teflon”. The action taken report recorded by the Engineer/Official of the Opposite Parties were “Replaced the defective Teflon Tip with new one, ran few samples, result O.K. Handed over the equipment to the customer in working order”.  The remarks recorded by the complainant, on this report, were “very bad quality of syringe section, 3^rd time it has been replaced within a span of seven months”. Annexure P-5 is another Technical Service Report No.117823 dated 23.12.2005.  The problem reported by the complainant was the same.  The action taken report recorded by the Engineer/Official of the Opposite Parties was “Cleaned probe, cleaned Teflon of syringe section, reaction sector, ran two batches. M/C Working OK”. The remarks recorded by the complainant, on this report, were the machine/instrument kept “under observation”. Annexure P-6 is another Technical Service Report No.128940 dated 13.02.2006.  The problem reported by the complainant was replacement of flowcell.  The action taken report recorded by the Engineer/Official of the Opposite Parties, was “replaced the old defective flowcell assy., with new one. Ran few samples, result O.K.”. The remarks recorded by the complainant, on this report, were that the machine/instrument kept “under observation”.  Annexure P-7 is another Technical Service Report No.128936 dated 18.02.2006. The problem reported by the complainant was erratic results.  The action taken report recorded by the Engineer/Official of the Opposite Parties was “checked the equipment and found that flowcell assy. needs replacement.”. Flowcell was replaced on this occasion. Annexure P-8 is another Technical Service Report No.136545 dated 08.03.2006. This time action taken report recorded by the Engineer/Official of the Opposite Parties, was “carried out preventive maintenance procedure. M/C working O.K.”. The remarks recorded by the complainant, on this report, were that the machine/instrument kept “under observation”. Vide Technical Service Report No.143390 dated 15.4.2006, the problem of erratic results was brought to the notice of the Engineer/Official of the Opposite Parties. The action taken report recorded by the Engineer/Official of the Opposite Parties was “Replaced the sample probe alongwith tubing to flow cell and flow cell to pump. Machine is under observation”. The remarks recorded by the complainant, on this report, were that the machine/instrument kept “under observation”.  Annexure P-9 is another Technical Service Report No.143393  dated 25.04.2006.  The problem reported by the complainant was erratic results.  The action taken report recorded by the Engineer/Official of the Opposite Parties was “Check and found in few batches may be once or twice result goes higher or lower-side checked for air bubbles, dirty reaction sectors, but no problem found. Job continued”. The remarks recorded by the complainant, on this report, were “Machine is giving problem repeatedly after being installed, kindly replace it at earliest”. Annexure P-10 is another Technical Service Report No.137073 dated 16.05.2006. The problem reported by the complainant was “intermittently, some biochemistry test gives erratic results”.  The action taken report recorded by the Engineer/Official of the Opposite Parties was “Replaced flowcell assembly, tubing sets, sensor wires and controller board, the problem still persists with this instrument”. It was also observed that “air bubbles were found trapped inside flowcell”.  All these defects occurred, in the machine installed in 2005 during the period of warranty. The machine, which was got installed by the complainant, in 2005, as is evident, from the aforesaid Technical Service Reports, was defective right from the very beginning. The tests of blood samples were to be conducted through this machine. It is evident, from the aforesaid Technical Service Reports of the machine/ instrument, that the same was giving erratic results. A machine, which is defective and could not give proper/correct results, could be said to be suffering from inherent manufacturing defects. The mere fact, that a number of times, the defects aforesaid were attended to, by the Engineers of the Opposite Parties, within the warranty period, but they were unable to rectify the same, was sufficient to prove that the machine/instrument was suffering from inherent manufacturing defects. It is, no doubt true, that no expert evidence/report was produced by the complainant, yet, when the facts eloquently speak for  themselves, even in the absence of expert report, the Consumer Fora, can hold that the machine/instrument, was suffering from inherent manufacturing defects. The District Forum was also right, in holding that the machine/instrument, which was got installed by the complainant, from the Opposite Parties, in 2005, was suffering from inherent manufacturing defects. The findings of the District Forum, in this regard, being correct are affirmed. The submission of the Counsel for the appellants, being without merit, must fail, and is rejected.

21.           Not only this, when the first machine/instrument, which was got installed, by the complainant, in the year 2005, from the Opposite Parties, was found suffering from inherent manufacturing defect, they replaced the same and installed a new machine,  in July 2006, but the same also started giving some troubles, as is evident from Technical Service Report No.135114 dated 06.07.2006 itself. The problem reported by the complainant was erratic results during installation. It was observed by the Engineer/Official of the Opposite Parties that M/C was giving inconsistent results of ‘BUN’. The action taken report recorded by the Engineer/Official of the Opposite Parties was “no permission given from the customer as the same problem observed after replacement of new M/C”. The remarks recorded by the complainant, on this report, were “New Machine is giving very poor result in the presence of Mr. Mahajan & Mr. Sandeep from Daman. So please refund the money with interest and compensation at the earliest, otherwise further action will be taken”. Since the new machine/instrument was also giving the same trouble, and, it was not defect free, the complainant was left with no other alternative, than to get installed another machine, at his own cost, on 27.04.2007, after waiting for more than eight months, for the rectification of defects.  The Counsel for the Opposite Parties, no doubt, submitted that the complainant did not allow them to install the new machine/instrument and this fact was mentioned in Job Card Annexure P-11. This submission of the Counsel for the appellants/Opposite Parties, was disputed by the complainant, who stated, in his affidavit, that it was wrongly and falsely recorded, when they failed to install the machine/instrument successfully. However, it is an admitted fact that new machine/instrument was installed, which was not defect free. Rajeev Mahajan and Sandeep, two Engineers/Technicians of the Opposite Parties, who installed the new machine/instrument were made parties to the complaint. They are the employees of Opposite Parties No.1 and 2, but no affidavit was filed, on their behalf, to contradict the version of the complainant.  We are, therefore, of the considered opinion, that new machine/instrument, which the Engineers/Technicians of the Opposite Parties installed, in the Laboratory of the complainant, also suffered from inherent manufacturing defects. The problem reported was “erratic results during installation and the machine giving inconsistent results of ‘BUN’”. This all goes to show that, there was no question of not giving permission, by the complainant, to install the machine by the Engineers/Technicians of the Opposite Parties, but, since it was giving erratic and inconsistent results, that was why, it was mentioned by the Engineers/Technicians of the Opposite Parties, that the same problem was observed after replacement of the new machine. In this view of the matter, it is held that in the action taken report, the remarks recorded by the Engineers/Officials of the Opposite Parties, that “no permission given from the customer as the same problem observed after replacement of new M/C”, therefore, being without any substance, could not be believed.

22.           The District Forum, was, thus right, in holding that the Opposite Parties, were deficient, in rendering service, as also indulged into unfair trade practice, by supplying the machine, to the complainant, which suffered from inherent manufacturing defects. The District Forum, was, thus, also right, in ordering the refund of Rs.3,75,000/-, being the price of the first machine, which was got installed in the year 2005. The District Forum, was, however, wrong in not ordering the return of the machine/instrument, which was replaced by the Opposite Parties, in the year 2006, at the time of refund of the amount. To this extent, the order of the District Forum deserves to be modified.

23.           No other point, was urged, by the Counsel for the parties.

24.           The order of the District Forum, being based on the correct appreciation of evidence and law, on the point, is liable to be upheld, with the modification indicated in paragraph number 25.

25.           For the reasons recorded above, the appeal is dismissed, with no order as to costs, with the modification that the respondent/complainant shall return the machine to the appellants/Opposite Parties No.1 and 2, at the time of refund of the amount with interest and payment of compensation, awarded by the District Forum and upheld by this Commission.

26.           Certified copies of this order, be sent to the parties, free of charge.

27.           The file be consigned to Record Room, after completion.

Pronounced.

November 6, 2012

Sd/-

[JUSTICE SHAM SUNDER (RETD.)]

PRESIDENT

Sd/-

[NEENA SANDHU]

MEMBER

Rg