JUSTICE V.K. JAIN, PRESIDING MEMBER (ORAL)

1.      The complainant/respondent, who is a doctor by profession, purchased an ultrasound scanning machine from the petitioner for a consideration of Rs.8,50,000/-. The case of the complainant is that the aforesaid ultrasound machine stopped working within a week of its installation. Though some repairs were carried out by the petitioner, the machine did not work properly even after the said repairs. Another complaint was made to the petitioner, which assured the complainant that an expert technician from its head office would be called to attend to his grievance. However, despite the aforesaid assurance, neither the machine was repaired nor was it replaced. When the complainant made a representation to the petitioner, he was told that he would have to pay Rs.4,00,000/- if he wanted the machine to be replaced. The learned counsel for the petitioner states that the offer made to the complainant was for an advanced version of the machine. However, the offer was not acceptable to the complainant, who approached the Ahmedabad District Consumer Disputes Redressal Forum (for short, the District Forum) seeking refund of Rs.8,50,000/- which he had paid, alongwith interest at the rate of 18% per annum, besides compensation amounting to Rs.20,000/- and cost of litigation amounting to Rs.10,000/-.

2.      The complaint was resisted by the petitioner, inter alia, on the ground that the service calls made by the complainant were duly attended to by its service team and replacement unit was also provided to him to ensure that no inconvenience was caused to him during the period the machine was repaired. It was further stated in the reply that since the complainant was not satisfied with the services rendered by the petitioner-company, a decision was taken to take back the said machine and offer a higher version to the complainant at a special price of Rs.4,00,000/-.

3.      The District Forum vide its order dated 03-12-2009 directed the petitioner to pay a sum of Rs.8,50,000/- to the complainant against return of the machine. The petitioner was also directed to pay Rs.10,000/- as compensation for the mental harassment caused to the complainant and Rs.1,500/- as cost of litigation.

4.      Being aggrieved from the order of the District Forum the petitioner approached the Gujarat State Consumer Disputes Redressal Commission (for short, the State Commission) by way of an appeal. Vide impugned order dated 21-04-2014 the said Commission dismissed the appeal filed by the petitioner. Being still dissatisfied the petitioner is before us by way of this revision petition.

5.      The main contention of the learned counsel for the petitioner is that the machine was purchased by the complainant for a commercial purpose and, therefore, he was not a consumer within the meaning of Section 2 (d) of the Consumer Protection Act, 1986. In support of his contention he relies upon the decision of the Hon’ble Supreme Court in Kalpavruksha Charitable Trust Vs. Toshniwal Brothers (Bombay) Pvt. Ltd.,        (2000) 1 SCC 512 and the decision of this Commission in Synco Textiles Pvt. Ltd. Vs. Greaves Cotton & Company Ltd., I (1991) CPJ 499.

6.      The explanation below Section 2 (d), which came to be added with effect from 15-03-2003, expressly provides that for the purpose of said clause commercial purpose does not include use by a person, of goods bought and used by him and the services availed by him exclusively for the purpose of earning his livelihood by means of self-employment. A perusal of the complaint would show that the aforesaid machine was purchased by the complainant towards self-employment and services to the patient, after taking loan from the State Bank of India. A perusal of the letter dated      07-08-2004 written by the complainant to the petitioner would show that he was visiting several gynaecologists for doing sonography, taking the sonography machine with him, for the purpose. Admittedly, the complainant is a doctor by profession, he being MD in Gynaecology. If a doctor purchases a diagnostic tool such as an ultrasound machine for the purpose of visiting several clinics/nursing homes and rendering diagnostic services, using the diagnostic tool purchased by him, it cannot be said that the said diagnostic equipment was purchased by him for a commercial purpose. Such a purchase, in our view would be squarely covered by the explanation below to Section 2 (o) of the Act, which expressly excludes from commercial purpose, the goods bought for the purpose of earning livelihood by means of self-employment. The learned counsel for the petitioner submits that the complainant owns several other nursing homes and hospitals, details of which have been given by him in the revision petition. However, no such material admittedly was placed by the petitioner either before the District Forum or before the State Commission. The scope of our jurisdiction in a revision petition being extremely limited, we cannot entertain the aforesaid material, while considering a revision petition. Therefore, we cannot take any note of the averments made in the revision petition in this regard.

7.      As far as the decision of the Hon’ble Supreme Court in Kalpavruksha Charitable Trust (supra) is concerned, a perusal of the said judgment would show that in the case before the Apex Court, the petitioner-trust which was running a diagnostic centre had purchased a CT Scanner. The said Scanner was being used at a centre where only 10% of the patients were being provided free services, whereas the rest of the patients were to pay for the diagnostic services availed by them. It was on these facts and that the Apex Court, referring to the definition of consumer set out in Section 2(d) of the Act, held that the petitioner-trust was not a consumer within the meaning of the aforesaid provision. While dismissing the appeal filed by the petitioner-trust the Apex Court inter alia noted that there was nothing on record to indicate that the trust was rendering free services to the patient at its diagnostic centre where the machines were installed. It was also noted that the trust had earned profit to the tune of Rs.7,00,000/- in the relevant financial year. The Apex Court in these circumstances inter alia observed that an activity which is basically commercial in nature may either earn profit or incur loss but incurring of loss would not make the activity a non-commercial activity. It was further observed that in a commercial activity financial gain is a dominant object and if the activity is not properly supervised or is not properly conducted it may bring in loss instead of profit but that would not change the nature of the activity. In Synco Textiles (supra), the appellant before this Commission purchased generating sets for the purpose of carrying out its activity of manufacturing edible oil on a large scale basis for the purpose of trading. It was contended on behalf of the appellant that the generators were intended as a standby arrangement. It was held that the standby arrangement would make no difference since the generating set was to be used to generate electricity for running the expeller machine in the factory for commercial production of edible oil and there was a close and direct nexus between the purchase of generating set and the commercial activity of manufacturing of edible oil for trading carried on by the appellant-company. It was noted that the generating sets were to be used for generating the electricity for the purpose of manufacturing of edible oil, for the purpose of trading of the said oil. We would like to take note of the fact that the aforesaid order came to be passed before the explanation below Section 2(d) was added by way of an amendment of the Act. Moreover, the complainant in this case is a professional, who was using the ultrasound machine purchased from the petitioner-company, for the purpose of earning his livelihood by rendering diagnostic services at various clinics/nursing homes using the said machine.

8.      The learned counsel for the petitioner submits that the complainant suppressed the fact that he owns several other nursing homes and hospitals. Since, no material was produced before the District Forum to establish that the complainant owns several nursing homes and clinics, we cannot entertain the aforesaid submission.

9.      The learned counsel for the petitioner lastly submits that in fact there was no defect in the machine and, therefore, there was no deficiency in service. We note that a concurrent finding of fact has been returned by the District Forum and the State Commission, holding that the machine supplied to the complainant was defective. We cannot interfere with the aforesaid concurrent finding of the fact, unless it is shown to be perverse in nature. In our opinion, considering the facts and circumstances of the case including that the petitioner-company itself had offered to replace the machine, by a higher version of the said machine at a special price of Rs.4,00,000/-, it cannot be said that no reasonable person acting on the material available to him could not have recorded the finding which the District Forum and the State Commission recorded in this case. Therefore, we will not be justified in interfering with the aforesaid finding of fact while entertaining a revision petition.

10.    For the reasons stated hereinabove we find no merit in the revision petition and the same is hereby dismissed with cost assessed at Rs.25,000/- which shall be deposited with the Consumer Legal Aid A/c-NCDRC within four weeks from today.