Haryana

StateCommission

A/336/2016

KEE PHARMA LTD. - Complainant(s)

Versus

DR.ROSHN KASHYAP - Opp.Party(s)

AMIT GUPTA

13 May 2016

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION, HARYANA,PANCHKULA

                                                 

First Appeal No.336 of 2016

Date of Institution: 18.04.2016

                                                          Date of Decision: 13.05.2016

 

1.      Kee Pharma Ltd. A-One Community Centre, Naraina, Industrial Area, Phase-II, New Delhi 110028

Now at: A-8, third Floor, Naraina, Industrial Area, Phase-II, New Delhi 110028. Through its Managing Director.

2.      Kee Pharma Ltd. A-One community Centre, Naraina, Industrial Area, Phase-II, New Delhi-110028,

          Now at: A-8, Third Floor, Naraina, Industrial Area, Phase-II, New Delhi-110028 Through its General Manager Diagnostic.

     …..Appellants

                                                Versus

 

Dr.Roshan Kashyap, Proprietor of Kashyap diagnostic Centre, Tehsil Road, Panipat, District Panipat.

         …..Respondent

 

 

CORAM:   Mr. R.K.Bishnoi, Judicial Member.
                   Mrs. Urvashi Agnihotri, Member.

 

Present:-    Mr.Aditya Awasthi, Advocate counsel for the appellants.

 

                                      O R D E R

 

R.K.BISHNOI, JUDICIAL MEMBER:

 

          It was alleged by the complainant that he purchased a Minitecno Semi Autoanalyser make:ISE s.r.l. Italy vide quotation no.MT/04/2011 dated 12.04.2011 for an amount of Rs.1,62,750/- from the opposite parties (O.Ps.) with warranty was of two years.  Problem occurred in the very first year because of defective CARD which was replaced by the O.Ps. Even thereafter machine did not function properly and authorized engineer of O.Ps. Mr.Brijesh Saloni used to repair. At the end of warranty period he paid Rs.10,000/- for AMC of one year which was approved by O.Ps.  On 27.08.2012 he lodged complaint with the O.Ps. and photocell part of the machine was replaced on 03.09.2013 at the cost of Rs.12,600/-. Even thereafter machine was not functioning properly and he was forced to  purchase an another machine Transasia Bio Chemistry Analyser ARBA CHEM 5x NS from key Emm Bio Medicals Pvt. Ltd. Ambala on 13.03.2012 against the cost of Rs.1,10,000/-.  He also suffered loss on account of  reagents and clientage etc. He sent legal notice dated 19.08.2014, but, to no result.

2.      O.Ps. alleged that up to the date of warranty complainant was satisfied with the service of the machine and that is why he paid Rs.10,000/- for AMC.  He was requested to pay service tax, but, the same was not paid by him.  Within the warranty period photocell was changed and their engineer regularly visited the premises of the complainant as and when there was problem. Peristaltic pump was changed and filter calibration was done which was a part of regular maintenance.  Low water signal was due to use of dirty water and there was no fault in the machine.   Complainant should have approached civil court for redressal of his grievance.  He purchased this machine for commercial purpose and was not covered by the provisions of Consumer Protection Act, 1986 (In short “Act”). There was no manufacturing defect in the machine. Other averments were also denied and requested to dismiss the complaint.

3.      After hearing both the parties, learned District Consumer Disputes Redressal Forum, Panipat (In short “District Forum”)  allowed the complaint and directed as under:-

“We hereby allow the present complaint with a direction to opposite parties to replace the machine i.e. Minitecno Semi Autoanalyser. Cost of litigation quantified at
Rs.2200/- is also allowed to be paid by the opposite parties to the complainant.”

4.      Feeling aggrieved therefrom, O.Ps.-appellants have preferred this appeal.

5.      Arguments heard. File perused.

6.      Learned counsel for the appellants vehemently argued that machine was purchased by the complainant for commercial purpose i.e. to increase his income. He was running hospital which was run by so many persons and it was commercial establishment, so he is not covered by the definition of consumer and the complaint was not maintainable.  There was no major problem in the machine and learned District Forum wrongly directed to replace the same.  Service tax was not paid, so the A.M.C. was adjusted for 10 months and 15 days, which expired on 01.03.2014.

7.      This argument is of no avail. As per version of O.Ps. it cannot be presumed that the machine was purchased for commercial purposes.  It is specifically alleged by complainant that he was sole proprietor of the diagnostic centre.  He was not running it for commercial purpose.  He purchased this machine for the purpose of better services and it cannot be considered for commercial purpose.  Such like point was discussed by Hon’ble National Commission in M/s Cadila Health Care Ltd. Vs. M/s Anuradha Enterprises 2009 (2) CPC 523.  It was specifically opined therein that use of such like machine cannot be considered for commercial purposes.  For ready reference relevant portion of the aforesaid judgment is  reproduced as under:-

“15.   The first issue is to be decided is whether the complainants are consumers and whether the Analyzer was purchased for a commercial purpose and whether there was deficiency of service during the warranty period? The judgment of the Hon’ble Apex Court quoted in Kalpavruksha Charitable Trust Vs. Ttoshniwal Bros. (Bombay) Pvt. Ltd. is distinquishable because Kalpavruksha Charitable Trust is running huge with a diagnostic center, which is run for a commercial purpose.  However, it was providing free service to a small percentage of poor patients out of the profits generated.  A finding was recorded when this case came up before the National commission that the Diagnostic Centre run had yielded a surplus profit of Rs.7,96,559.59. this figure was not challenged by the Trust. Accordingly, the apex Court held that it is a commercial activity.  In the case on hand the complainants were not earning huge profits of the scale mentioned in the judgment cited (supra). It is not the case of the revision petitioner that the complainants are running a big enterprise and are earning huge profits and therefore, it is a commercial activity.  Accordingly, ratio of the case quoted by the learned senior counsel in Kalparuksha Charitable Trust Vs. Toshniwal Bors. (Mombay) Pvt. Ltd. (supra) is not applicable to the case on hand.

                   16.    Further, the learned senior counsel also quoted the case in Cheema Engineering Services V.Rajan singh(supra). In this case the complainant had purchased the machine from Cheema Engineering Services for brick moulding, brick-drying and brick-burning involving multifarious activities requiring large number of workmen involving big capital. Therefore, it was for the complainant to prove that it was not a large-scale activity.  Therefore, the ratio of this case is not applicable to the case on hand.

                   17.    As against this, let us see some other judgments. The National commission in the case of K.S.Dabas, Prop. Of Amazon Consultant Engineers V. Rajender Kumar chhabra, Prop ofChhabra Nursing and Maternity Home, 1986-99 Consumer 4097 (NS) = 1997 (2) CPC 118 N.C. drawing inspiration from the judgement of the Apex Court in Laxmi Engineering Works Vs. PSG Industrial Institute, 1986-95 Consumer 1553 (NS) =1995 (2) CPC 2 S.C. observed that whether the activity carried on by the complainant doing the medical and clinical business with the X-ray machine is on a large scale or for self employment for making a living for himself.  The State Commission has rightly posed the question that for holding that the purchase was for commercial purpose, it is necessary to record a finding on the question whether the person ws engaged in a business on a large scale with a view to earn large profits or whether it was a case of small exercise for self-employment or the goods purchased including machinery are to be used in furtherance of existing business on a small scale. These are pure questions of fact to be determined.

                   18.    In this case the partnership enterprise is having small-scale operations and they are not earning huge profits, hence it is not a commercial entity.  In M/s Sarat Equipments V. Interuniversity Consortium, 1986-99 Consumer 4244 (NS)=1997 (2) CPC 400 N.C.it was held that the main purpose of the activity must  be to generate profits by using the goods purchased.  If an educational institution bought equipment for being used by the students and even if it is charged certain amount of fees for allowing the equipment to be used for students, the main purpose of purchase could not be said to be commercial.

                   19.    In east India Construction Co. & Anr. V. M/s Modern consultancy Services & Ors. 1986-2007 consumer 1968 (NS) this commission quoted the following judgment of this commission in Meera & Co. Ltd. Vs. Chinar Syntex  Ltd., 2004 CTJ 1086 (CP) (NCDRC) =2004 (1) CPC 687 N.C. wherein it was held that even if the generating set purchased by the complainant for a commercial purpose, it suffered the alleged defects during its warranty period of one year and, therefore, the complainant was well within its right to move the Consumer forums under the Act, it  being a consumer of the opposite party’s service. This commission also mentioned that if any authority is needed on that settled position in law, reference may be made to the decision in Amtex Ambience Ltd. Vs. Ms. Alpha Radios and Anr., 1996 CTJ 906 (CP)=1996 (2) CPC 166 N.C.

                   In Amtex Ambience Ltd.’s case, this Commission has held that where the allegations of the complainant was that there was malfunctioning of the machinery-equipment during the period of warranty when the manufacturer had undertaken to keep the machinery in good working condition, even if sold for commercial purpose, the purchaser will certainly be a consumer under Section 2 (1) (D) (ii) in respect of services rendered or to be rendered by the seller for the proper functioning of the machinery-equipment, system during the period of warranty.  Similar was the finding of the National Commission in OP/290/1997-Jindal Drilling & Ind. Ltd. V. Indocon engineers Pvt Ltd. & Anr. 1986-2006 Consumer 10167 (NS)=2006(2) CPC 449 N.C. Hence, it is very clear that M/s East India Construction Company is a consumer and is entitled for protection under the Act.

                   20.    Further, in Rampion Pharmaceuticals v. Dr.Preetam Shah, 1986-99 consumer 3960 (NS) =1997 (1)( CPC 467 N.C. it was held that Eye Surgeon purchased the machine for professional purpose of his practice and not for commercial purpose and therefore, it is in the nature of the self employment.  Hence the complainant is a consumer.

                   21     In the case of Surya Flour Mill Vs. New India Manufacturing Co. Ltd. (surpra) it was been held as under:-

“…One is, sale of goods in respect whereof we are in agreement with the District Forum as well as the State Commission, for the reasons that the complainant had not pleaded that such purchase was for his self employment and for earning his livelihood. The other part is that the contract was clearly a service contract for which a sum of Rs.25,000/- was charged, receipt whereof is not in dispute.  It is also not in dispute that nothing was done by the respondent in respect of installation and the complainant was put to additional expenditure; the complainant had to engage another agency for the purpose of installation who charged the complainant a total sum of Rs.39,000/- i.e. Rs.14,000/- more than what the respondent had agreed to charge for rendering such services.  The For a below have fallen into error in not considering this part of the contract regarding rendition of service.  There is no distinction between commercial and non-commercial uses for which services are rendered or to be rendered. There is clearly a deficiency in service in respect thereof, for which we find that the petitioner-complainant is entitled to not only for refund of Rs.25,000/- but also an additional amount of Rs.14,000/- which is the extra expenditure to which the complainant-petitioner was put. The complainant would be entitled to a total of Rs.39,000/- together with interest at the rate of 15% p.a. from the date of purchase till the date of payment.  The impugned order is modified to the extent mentioned above.

22.    In the case of Synco Textiles Pvt. Ltd. Greaves Cotton & Company Ltd. (Supra) the National Commission held as follows:-

“…The interpretation of the words, “Commercial  purpose” in section 2 (1) (d) (ii) must be logical and equitable so as to avoid patent anomalies and inconsistencies in the application of the law. Viewed in this background, the various tests for determining whether the goods have been purchased for a commercial purpose would be:-

1. The goods are not for immediate final consumption but that there is only transfer of goods i.e. resale;
2. There should be a direct nexus between the purchase of goods and profit or loss from their further disposal.  Such a direct nexus is absent when the goods or services are converted for producing other goods or services.  After conversion there is no direct nexus between the kind of goods purchased and the kinds of goods sold.
3. There is nexus of form and kind between the goods purchased and the goods sold. Such a direct nexus of form and kind ceases when the undergo transformation or conversion.”

          In that case also diagnosing equipment was being used by doctor for running hospital, which developed problem.  It was opined that the same was not for commercial purposes.

8.      So, it cannot be presumed that this machine was purchased for commercial purposes when it developed snag within warranty period, the appellants-O.Ps. were bound to replace or repair the same to the satisfaction of the complainant which they have failed to do. Learned District forum has taken into consideration each and every aspect from every angle and there is no reason to disturb the same.  So the appeal is hereby dismissed in limine.

9.      The statutory amount of Rs.1100/-  deposited at the time of filing the appeal be refunded to the appellants against proper receipt and identification in accordance with rules.

 

May 13th, 2016  Urvashi Agnihotri         R.K.Bishnoi                                               Member                            Judicial Member                                       Addl. Bench                  Addl.Bench                 

 

S.K.