ORDER (ORAL) Challenge in this Appeal, under Section 19 of the Consumer Protection Act, 1986 (for short “the Act”), by Opposite Party No.2 in the Complaint is to the order dated 20.12.2013, passed by the Punjab State Consumer Disputes Redressal Commission, at Chandigarh (for short “the State Commission”) in Consumer Complaint No.68 of 2010. -2- By the impugned order, while accepting the Complaint filed by Respondent No.1 herein, alleging deficiency in service on the part of the Appellant in not replacing the defective equipment, viz., Pentos DGXP Ceph Digital Panoramic Dental X-ray machine with Cephalostat, installed at the premises of the Complainant from 21.05.2007 to 29.05.2007, the State Commission has directed the Appellant and the manufacturer, Opposite Party No.1 in the Complaint, to (i) replace the defective parts of the machine within a period of one month from the date of receipt of copy of the order with fresh warranty of three years from the date of replacement to the satisfaction of the Complainant, to be judged by an independent Technical person; (ii) in case the defective parts are not replaced within the said time, the machine be replaced with a new one and on supply of a new machine, the Complainant will deliver back the old machine or the Opposite Parties shall pay back to the Complainant a sum of ₹25,75,000/- along with interest @ 9% p.a. from the date of purchase of machine till realization; (iii) pay ₹2,00,000/- as compensation on account of harassment and affecting the educational service to the students through the machines and (iv) pay ₹11,000/- as litigation expenses. Upon service of notice, the Complainant and the other Respondent in this Appeal were duly represented by their respective Counsel. -3- At the outset, we may note that as one of the preliminary objections to the maintainability of the Complaint had been raised by the Appellant in opposition to the Complaint, to the effect that the said equipment having been purchased by the Complainant for commercial purpose, it could not be treated as a Consumer within the meaning of Section 2(1)(d) of the Act, vide order dated 14.09.2016, Counsel for the Complainant was directed to place on record copies of the Profit and Loss Account and Balance Sheet of the Complainant Institution for the period ending 31st March 2015 and 31st March 2016, along with last three Assessment Orders and its Articles and Memo of Association. Pursuant to the said direction, Profit and Loss Accounts and Balance Sheets for the period from 31st March 2013 to 31.03.2015 have been filed by the Complainant. The case has been called out for further hearing the second time after the lunch break, but the Complainant still remains unrepresented. Same was the position on the last date of hearing. Accordingly, we have heard learned Counsel for the Appellant and Respondent No.2, stated to be manufacturer of the machine. It is manifest from a bare perusal of afore-stated documents that the Complainant, a Trust, had been running the Educational Institution, which had purchased the machine, on commercial lines. It is evident from the said documents that the Appellant’s gross receipts from -4- tuition fee etc. as also the net profit runs into Crores of Rupees. Besides, even otherwise in the light of a recent decision of the Hon’ble Supreme Court dated 07.03.2017, rendered in “Civil Appeals No.3560 and 3561 of 2008, Pratibha Pratisthan & Ors. Vs. Manager, Canara Bank & Ors., being a Trust, the Complaint by the Appellant under the Act was itself not maintainable. In the said authoritative pronouncement, the Hon’ble Supreme court has been pleased to hold that a Trust cannot invoke the provisions of the Act for redressal of its grievance. Further, as noted above, it is beyond the pale of doubt that the said machine/equipment had been purchased by the Complainant purely and exclusively for commercial purpose and therefore, it could not be treated as a “Consumer” within the meaning of the Act, on that account as well. For the afore-going reasons, we have no hesitation in holding that that the Complaint, giving rise to the present Appeal, was not maintainable and should not have been entertainment by the State Commission. Resultantly, the Appeal is allowed; the impugned order is set aside and the Complaint is dismissed. It goes without saying that we have not expressed any opinion on the question as to whether the subject equipment was defective or not. -5- The Appeal stands disposed of in the above terms, leaving the parties to bear their own costs. |
