IN THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,
MURSHIDABAD , AT BERHAMPORE.
CASE No. CC No. 158/2016.
Date of Filing : Date of Admission : Date of Disposal :
10.11.2016 14.12.2016 31.10.2017
Gitaram Hospital Pvt. Ltd.
Having its registered office at
N.H. 34, P.O. Radharghat, P.S. Berhampore,
Dist. Murshidabad represented by its
Authorised Signatory MS Banhisikha Basak to
act etc. for and on behalf of the Company,
Pin: 742 187. ……………… Complainant.
-Vs –
1. The Divisional Manager,
The New India Assurance Co. Ltd.,
37A R.N.Tagore Road, P.O. & P.S. Berhampore,
Dist. Murshidabad, Pin: 742101.
2. Director,
Agfa Health Care India Pvt. Ltd.,
Kankana Estate, 6th Lane,
Russel Street,
Kolkata: 700 071. ……............ Opposite Parties.
Sri Syama Charan Dhar and Sri Pijush Ghosh, Ld. Advocates … for the Complainant
Sri Ajoy Kr. Bhattacharyya, Ld. Advocate … for the Opposite Party
Cont. ……….…. 2
= 2 =
Present : Anupam Bhattacharyya ……… President.
Chandrima Chakraborty …. .…. Member.
J U D G M E N T
Chandrima Chakraborty, Member.
Filtering out the unnecessary details in the complaint, the Complainant’s case may be summarized thus :-
The case stated in the complaint, in succinct, is that, the Complainant Gitaram Hospital Pvt. Ltd. has a digital X–Ray Unit for which the Complainant had insured the said X–Ray Machine on 05.08.2015 under the Opposite Party No. 1 Insurance Co. being Policy No. 51290044155800000024 for the period from 05.08.2015 to 04.08.2016.
Thereafter in the last week of the November, 2015, the CR 25 which is recorded as XEROX FILIM DEVELOPER DRYESTOR 5503, being Equipment Serial No. 5503 (Machine) was stopped functioning. The Complainant authority informed the matter to the Opposite Party No. 1 by a letter dated 04.12.2015 along with enclosed quotation of the Opposite Party No. 2 for the repairing cost as the instruction of the Surveyor appointed by the Opposite Party No. 1. The Complainant submitted the Claim Form before the Opposite Party No. 1 claiming the sum of Rs. 1,32,000/- only for repairing the said defective Machine but the Opposite Party No. 1 took no step to process the said claim for a long time
Cont. ……….…. 3
= 3 =
in spite of a reminder letter dated 16.05.2016 issued by the Complainant towards the Opposite Party No. 1 what amounts to negligence and deficiency in rendering service by the Opposite Party towards the Complainant for which being victimized and harassed by the Opposite Party the Complainant finding no other alternative than to file the instant case seeking adequate redressal against the Opposite Party.
Resisting the complaint, the Opposite Party No. 1 filed the Written Version denying the contention made by the Complainant in his complaint and stating inter alia that the case is not maintainable, the Complainant has no cause of action, barred by limitation and the Forum has no jurisdiction to deal the instant matter.
The specific case of the Opposite Party no. 1 in gist is that, this opposite Party is not in a position to admit whether the disputed Machine was insured or not under this insurance Co. and the claim is baseless , malafide and imaginary. This Opposite Party specifically denied that the Surveyor appointed by the Insurance Co. ever inspected the said disputed Machine in detail. The Surveyor severally appeared to the Complainant but due to non – cooperation of the Complainant authority could not complete the inspection work for which the said machine was left unattended for a long time. Thus, the Opposite Party denied any deficiency and negligence in rendering service towards the Complainant and prayed for dismissal of this case.
Despite service of the notice, the Opposite Party No. 2 never appeared before the Forum in through their authorized representative/Ld. Advocate to contest the case by filing Written Version and so the instant case has been heard ex-parte against both the Opposite Party No. 2.
Cont. ……….…. 4
= 4 =
Point for Determination
1. Whether the instant case is maintainable ?
2. Whether there is negligence or deficiency in service on the part of the O.P?
3. Whether the Complainant is entitled to get the relief as prayed for ?
Decision with Reasons
All the points are taken up together for consideration for convenience and brevity.
The main dispute between the Complainant and the Opposite Party No. 1 is that whether the Complainant authority is entitled to get the claim amount from the Opposite Party or not.
On overall evaluation of the argument made before the Forum by the Ld. Advocate for the Complainant and the Ld. Advocate for the Opposite Party No. 1 and perusing all documents submitted by both parties as material evidences on record, it is evident that the Complainant is “Gitanath Hospital Pvt. Ltd.” is a Private Limited Hospital (which is clearly visible from the ‘Cause Title’ of the case record).
Manifestly it is revealed that the Complainant is a Private Limited Hospital which is very much a profit earning organization which earns profits by mode of collection of charges/fees for every purpose from the treating patients in all respect from the patients who used to come at this Hospital for their treatments.
Cont. ……….…. 5
= 5 =
Moreover, the said disputed product (the Digital X–Ray Machine) is the part of the Complainant/Hospital from which the Complainant/Hospital earns profit as stated in the petition of complaint that the patients who required to be done the X–Ray may do the same in the Complainant Hospital by payment of cost/charges. So it is clear that the Complainant Hospital earns profit from the said disputed product (the Digital X–Ray Machine) and thus it is obviously come within the ambit of the ‘Commercial Purpose’ as stated in the Section 2 (d) of the Consumer Protection Act, 1986, as amended up to date.
At the time of hearing argument the Ld. Advocate on behalf of the Complainant argued that admittedly though the Complainant is a profitable organization but the Complainant authority does not earns profit only from that said disputed Digital X–Ray Machine for which the instant case is not come within the ambit of the ‘Commercial Purpose’ as stated in the Section 2 (d) of the Consumer Protection Act, 1986.
In this regard, the Ld. Advocate for the Complainant referred the annotation of the Consumer protection Act, 1986, wherein it is stated the matter regarding the X–Ray Test in the Government Hospital which is not at all applicable to this particular case.
The Ld. Advocate for the Complainant also referred another annotation of the same Act, wherein it is specifically stated that, ……… the expression ‘consumer’ contained in section 2(1)(d)(i) of the Consumer Protection Act, the said expression would not include ‘a person who obtains goods for resale or for any commercial purpose’.
Cont. ……….…. 6
= 6 =
There cannot be any doubt that the plying of taxi for hire is clearly a ‘commercial’ purpose and the purchase of vehicle made specifically for being used as a taxi is a purpose made for a ‘commercial purpose’. Such being the position, the complainant is not a consumer under the Act.
In the end it is made clear that in view of the insertion of Explanation to clause (d) of sub-section 91) of section 2 of the Consumer Protection Act, 1986 by the Consumer Protection (Amendment) Act 50 of 1993, the purpose of a machine, a car, or other items or goods, not as part of large scale business or trading activity, but exclusively for the purpose of earning livelihood, by means of self-employment, will not fall within the exclusion clause ‘commercial purpose’ of the definition of consumer contained in the Act. …….. and the Forum is very much opined the same view. In this particular case, the Complainant authority is a Private Limited Hospital contained the medical business in large scale only for profit earning and not for any charitable purpose and moreover the said disputed Digital X–Ray Machine is part of the said profit earning business. Nowhere in the complaint petition, the Complainant ever stated that the said Digital X–Ray Machine had been used for beneficial and/or charitable purpose for the purpose of treatment of the needy patients which indisputably indicates the fact that the Complainant Hospital used Digital X–Ray Machine to earn profits for which the instant case has been filed.
The Ld. Advocate of the Complainant further referred another case decided by the Hon’ble State Commission, Kolkata in the year 2014, wherein the Hon’ble Commission held that though the disputed Taxi was used for commercial purpose and the said taxi had lost for which the Complainant claimed the insured amount, the Complainant did not insured the said taxi for commercial purpose and duly paid the premium to the Insured company, the insurance is not for any commercial purpose and thus the Complainant is entitles to get the relief as prayed for.
Cont. ……….…. 7
= 6 =
But the Forum relies upon the famous judgment passed by the hon’ble Appex Court In Laxmi Engineering Works v. P.S.G. Industrial Institute, AIR 1995 SC 1428, wherein it was held by the Hon’ble Apex Court that :-
Now coming back to the definition of the expression 'consumer' in Section 2(d), a consumer means in so far as is relevant for the purpose of this appeal, (i) a person who buys any goods for consideration; it is immaterial whether the consideration is paid or promised, or partly paid and partly promised, or whether the payment of consideration is deferred; (ii) a person who uses such goods with the approval of the person who buys such goods for consideration; (iii) but does not include a person who buys such goods for resale or for any commercial purpose. The expression 'resale' is clear enough. Controversy has, however, arisen with respect to meaning of the expression "commercial purpose". It is also not defined in the Act. In the absence of a definition, we have to go by its ordinary meaning. 'Commercial' denotes "pertaining to commerce" (Chamber's Twentieth Century); it means "connected with, or engaged in commerce; mercantile; having profit as the main aim" (Collins English Dictionary) whereas the word 'commerce' means "financial // 24 // transactions especially buying and selling of merchandise, on a large scale" (Concise Oxford Dictionary). The National Commission appears to have been taken a consistent view that where a person purchases goods 'with a view to using such goods for carrying on any activity on a large scale for the purpose of earning profit', he will not be a 'consumer' within the meaning of Section 2(d)(i) of the Act. Broadly affirming the said view and more particularly, with a view to obviate any confusion - the expression 'large scale' is not a very precise expression - Parliament stepped in and added the explanation to Section 2(1)(d) by Ordinance / Amendment Act, 1993. The explanation excludes certain purposes from the purview of the expression 'commercial purpose' - a case of exception to an exception. Let us elaborate : a person who buys a typewriter or a car and uses them for his personal use is certainly a 'consumer' but a person who buys a typewriter or a car for typing others' work, for consideration or for plying the car as a 'taxi', can be said to be using the typewriter / car for a commercial purpose. The explanation however clarifies that in certain situations, purchase of goods for 'commercial purpose' would not yet take the purchaser out of the definition of expression of expression 'consumer'.
Cont. ……….…. 7
= 7 =
If the commercial use is by the purchaser himself for the purpose of earning his livelihood by means of 'self employment', such purchaser of goods is yet a 'consumer'. In the illustration given above, if the purchaser himself works on typewriter or plies the car as a taxi himself, he does not cease to be a consumer. In other words, if the buyer of goods uses them himself, i.e. by self- employment, for earning his livelihood, it would not be treated as a 'commercial purpose' and he does not cease to be a consumer for the purposes of the Act. The explanation reduces the question, what is a 'commercial purpose', to a question of fact to be decided in the facts of each case. 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 // 25 // purpose of earning his livelihood ' and 'by means of self-employment' make the intention of 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 emphasise what we say. 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 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 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 necessary limitation flowing from the expressions "used by him" and "by means of self-employment in the explanation. The ambiguity in the meaning of the words "for the purpose of earning his livelihood" is explained and clarified by the other two sets of words".
In the instant case, in first para of the complaint, the Complainant himself mentioned that the Complainant is a limited Company and reputed hospital. Thus it is be concluded in the view that the said Digital X–Ray Machine is a profit earning product which is fall within the purview of the exclusion clause ‘commercial purpose’ stated in section 2(1)(d)(i) of the Consumer Protection Act, 1986.
Cont. ……….…. 8
= 8 =
Moreover, it is found from the case record that the Complainant stated that as per verbal instructions of the Surveyor appointed by the Opposite Party No. 1 the Complainant submitted the claim along with some documents which was strictly denied by the Opposite Party no. 1 in their Written Version by stating that the Complainant authority did not allow and/or co-operate the said Surveyor appointed by them to inspect the said disputed X–Ray Machine. The Complainant failed to prove the stated fact by any oral and/or documentary evidence that the Surveyor ever inspect the said disputed X–Ray Machine.
Furthermore, it is manifestly evident that the Complainant claimed the cost of repair towards the Insurance Co./Opposite Party no. 1 before repairing the said disputed Machine and specifically stated that due to not disbursing the claim amount the Complainant has to suffer huge monetary loss which also specify that the Complainant has used to earn huge monetary profit/gain by using such disputed X–Ray Machine. So the Insurance Co. / Opposite Party No. 1 is not at all unjustified to allow the said claim before repairing the said disputed Machine by the Complainant.
Thus as per the above discussion it is the unanimous view of the Forum that being a reputed Private Limited Hospital the Complainant authority is obviously a profit earning organization in a large scale and filed the instant case praying relief is come within the ambit of the ‘Commercial Purpose’ which is fall under the exclusion clause within the meaning of Section 2(d)(i) of the Consumer Protection Act, 1986 for which the Complainant cannot be treated as a consumer under the Act.
Cont. ……….…. 9
= 9 =
In light of the above analysis, we are of the opinion that the Complainant is not entitled to get the relief as prayed for and consequentially the points for consideration are decided in negative.
In the result, we proceed to pass
O R D E R
That the case be and the same is dismissed on contest against both the Opposite Parties without any cost.
Let a plain copy of this order be made available and be supplied free of cost, to each of the parties on contest in person, Ld. Advocate/Agent on record, by hand under proper acknowledgment / be sent forthwith under ordinary post to the concerned parties as per rules, for information and necessary action.
MEMBER PRESIDENT
