DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,GURGAON-122001.
Consumer Complaint No: 395 of 2012 Date of Institution: 30.10.2012 Date of Decision: 09.11.2015.
Dr.Neelam Ahlawat, Director Shri Balaji Nursing Home, Main Road, Sampla, Rohtak, Haryana.
……Complainants.
Versus
M/s Accuster Technologies Pvt. Ltd ( A unit of UPB Technologies Pvt. Ltd) having its Head Office at Plot No.758, Sector-47, Gurgaon, Haryana-122001 through its CEO/Managing Director/Duly Authorized Person-Mr. Amit Bhatnagar.
..Opposite party
Complaint under Sections 12 & 14 of Consumer Protection Act,1986
BEFORE: SH.SUBHASH GOYAL, PRESIDENT.
SMT JYOTI SIWACH, MEMBER
SH.SURENDER SINGH BALYAN, MEMBER.
Present: Sh. M.S. Kaushik, Adv for the complainant.
Sh. Sandeep Yadav, Adv for the opposite party.
ORDER SUBHASH GOYAL, PRESIDENT.
The case of the complainant, in brief, is that she is practicing BAMS doctor engaged in provisioning of medical services under the name and style of Shri Balaji Nursing Home. She purchased Smart Blood Analyzer Accuster with USB with one year’s warranty vide Bill No.406 dated 02.03.2012 and paid a sum of Rs.42,500/-. Immediately after purchase of said Smart Blood Analyzer Accuster, the complainant noticed the problems and defects in the said Analyzer. She reported the matter to the opposite party but of no use. The complainant got served a legal notice dated 22.06.2012 upon the opposite party but of no use. She requested the opposite party many times to either make the said analyzer functioning properly or to replace the same with a new serviceable analyzer but the opposite party did not pay any heed to his genuine request. Thus, the opposite party is deficient in providing services to the complainant. The complainant prayed that the opposite party be directed to refund the entire cost of the said Smart Blood Accuster with interest @ 18 % p.a. and to pay Rs.2 Lacs as compensation for harassment and mental agony.
2 Opposite party in its written reply has alleged that the complainant is not covered under the definition of consumer. However, there is no manufacturing defect in the Smart Blood Analyzer Accuster as complainant has failed to file any expert opinion which could prove that the Accuster is not working properly and is not giving proper results. Thus, there is no deficiency in service on the part of the opposite party.
3 We have heard the learned counsel for the parties and perused the record available on file.
4 Therefore, from the facts and circumstances of the case, evidence on the file and the arguments advanced by the learned counsel for the parties, it emerges that the complainant has filed the present complaint against the OP alleging deficiency in service on their part on the ground that she purchased Smart Blood Analyzer Accuster with USB with one year warranty for any defect vide Bill No. 406 dated 02.03.2012 and paid a sum of Rs.42,500/- but the complainant when used the said product she reported defect regarding malfunctioning of said machine but the opposite party failed to redress her grievances. On the aforesaid allegations the complainant has prayed for refunding of the sale price of the said machine along with interest and compensation on account of mental harassment. In order to emphasize that the complainant was a consumer as defined u/s 2(1)(d) of Consumer Protection Act, 1986 and In this regard he has placed reliance on I(2010) CPJ 283 (NC).
5 However, as per the contention of the opposite party the complainant was not a consumer as defined u/s 2(1) (d) of Consumer Protection Act, 1986 which has specifically excluded the complainant as the machine was being used for commercial purpose. To substantiate his arguments he has placed reliance on K.S.Dabas Vs Rajinder Kumar Chhabra (Dr.) III(2007) CPJ 423 (NC). He has also placed reliance on Laxmi Engineering Works Vs PSG Industrial Institute (1995) 3 Supreme Court Cases 583 and Cheema Engineering Services V Rajan Singh VI (1998) SLT 20.
In the case K.S.Dabas (supra) where x-ray was purchased by Chhabra x-ray and Nursing Home it was specifically held by the Hon’ble National Commission
“that coming to the said point that this was a commercial transaction, as per material on record, the respondent/complainant owns and runs ‘Chhabra x-ray and Nursing Home’ as well as ‘Chhabra Maternity and General Hospital’. It is for one of these Hospital/Nursing Home that x-ray machine was supplied. Section 2(1)(d) of the Consumer Protectioin Act (CPA), specifically excludes the applicability of CPA, if goods have been purchased for commercial purpose.”
6 However, there is no mention in the complaint or affidavit that the above said machine was purchased by the complainant for earning her livelihood.
7. Moreover, the complainant has also failed to produce any expert report to prove that the machine is malfunctioning or not working properly. In absence of any expert report it cannot be said that the machine was not functioning properly or it was having manufacturing defect.
8 Keeping in view the facts and circumstances of the case and the law referred by learned counsel for the opposite party we hold that the complainant is not a “consumer” as defined u/s 2(1)(d) of Consumer Protection Act, 1986 and thus the complaint is not maintainable before this Forum and is hereby dismissed. The parties concerned be communicated of the order accordingly and the file be consigned to the records after due compliance.
Announced (Subhash Goyal)
09.11.2015 President,
District Consumer Disputes
Redressal Forum, Gurgaon
(Jyoti Siwach) (Surender Singh Balyan)
Member Member
