JUSTICE J. M. MALIK, PRESIDING MEMBER 1. The main question which falls for consideration is ‘whether M/s Ajmer Hospital & Research Institute purchased Logic 500 Pro Whole Body Colour Doppler Ultra Sound Echo Cardiography machine worth Rs.22,50,000/- from the opposite party/petitioner, M/s Wipro G.E. Healthcare Pvt. Ltd., formerly known as Wipro GE Medical System Pvt. Ltd., for commercial purpose?’ 2. Both the fora below have directed the petitioner/opposite party to refund the said money with interest @9% p.a. and pay costs of Rs.2,000/-. 3. Aggrieved by that order, the petitioner has filed this revision petition. 4. We have heard the learned counsel for the parties. 5. Learned counsel for the complainant/respondent has invited our attention to few facts. There is a letter dated 27.6.2001, which clearly mentions “AJMER HOSPITAL AND RESEARCH INSTITUTE I-GA-15, VAISHALI NAGAR, AJMER 305001 (A public and Charitable Trust). In the middle of the letter, it was mentioned : “As per telephonic discussion with Mr. Ganesh Prasad the firm will supply the following things with the original equipment supply free of cost as per their marketing budgetary programme considering our organization as a public and charitable trust for the service to the society and humanity Echo Tech.” 6. Similar is the position regarding other letter dated 27.6.2001. 7. Learned counsel for the respondent/ complainant vehemently argued that these letters written on a letter-head clearly go to reveal that the complainant is a public and charitable trust. Consequently, by no stretch of imagination, it can be said that the complainant had purchased the machine for commercial purpose. 8. Learned counsel for the complainant has also invited our attention towards para 15 of the complaint, wherein, in the center, it is written: “…..That Non-applicant firm has also not supplied the supply part shipment of the machine as per Purchase Order dated 27.6.2001 of the Complainant firm and even after the repeated assurances not supply the Short Supplied Articles and cause grave irregularities and hence is guilty for mal trade practice, for which complainant firm, for the purpose of social work, has placed purchased order for the purchase of Machine with the aim and object to give property facilities of updated Cardiology to the general public, to the Non-Applicant firm and also paid for the same…..” 9. Learned counsel for the complainant vehemently argued that the petitioner/opposite party has failed to show that from the machine, the society was earning any profit. He also contended that there was noble idea behind bringing the machine to the hospital because there is no other such machine in the whole of the area. He contended that this machine is beneficial to so many people of the rural area. In order to embolden this case, learned counsel for the complainant has cited two authorities. As a matter of fact, both the parties have placed reliance on Laxmi Engineering Works v. P.S.G. Industrial Institute 1995 (3) SCC 583. 10. The attention of the parties was invited towards para 18 of the said judgment wherein it was mentioned that the words ‘for any commercial purposes’ are wide enough to take in all cases where goods are purchased for being used in any activity directly intended to generate profit. Learned counsel for the complainant contended that there is not even an iota of evidence which may go to show that the said machine was installed to generate profit. Learned counsel for the respondent/complainant stated that this is not such activity engaged on a large scale for the purpose of making profit. 11. Both the counsel have relied upon another authority of the Supreme Court i.e. Cheema Engineering Services v. Rajan Singh (1997) 1 SCC 131, wherein it was held: “6. In other words, the Explanation excludes from the ambit of commercial purpose in sub-cluase (i) of Section 2(1)(d), any goods purchased by a consumer and used by him exclusively for the purpose of earning his livelihood by means of self-employment. Such purchase of goods is not a commercial purpose. The question, therefore, is whether the respondent has been using the aforesaid machine for self-employment?. The word “self-employment” is not defined. Therefore, it is a matter of evidence. Unless there is evidence and on consideration thereof it is concluded that the machine was used only for self-employment to earn his livelihood without a sense of commercial purpose by employing on regular basis the employee or workmen for trade in the manufacture and sale of bricks, it would be for self-employment. Manufacture and sale of bricks in a commercial way may also be to earn livelihood, but “merely earning livelihood in commercial business”, does not mean that it is not for commercial purpose. Self-employment connotes altogether a different concept, namely, he alone uses the machinery purchased for the purpose of manufacture by employing himself in working out or producing the goods for earning his livelihood. ‘He’ includes the members of his family. Whether he employed any workmen and if so, how many, are matters of evidence. The burden is on the respondent to prove them. Therefore, the Tribunals were not right in concluding that the respondent is using the machine only for self-employment and that, therefore, it is not a commercial purpose. The orders of the all the tribunals stand set aside. The matter is remanded to the District Forum. The District Forum is directed to record the evidence of the parties and dispose of it in accordance with law within period of six months from the date of the receipt of this order.” 12. All these arguments are bereft of merits. It must be borne in mind that it is the consumer who is to carry the ball to prove that it is a consumer as per Section 2(1)(d) of the Consumer Protection Act, 1986. Para 5 of the Kalpavruksha Charitable Trust vs. Toshniwal Brothers (Mombay) Pvt. Ltd. and another (2000) 1 SCC 512 runs as follows: “5. It is contended by the counsel for the appellant that the term “commercial purpose” has been considered by this Court in the case of Laxmi Engg. Works and the observation of the National Commission that “commercial purpose” would mean “profit-making activity on a large scale” was approved and, therefore, the activity of the present appellant would not be a commercial activity as no “profit-making on a large scale” is involved. We do not agree. This Court in that decision had further held in para 21 as under: SCC p.599) “21. We must, therefore, hold that: - The explanation added by the Consumer Protection (Amendment) Act 50 of 1993 (replacing Ordinance 24 of 1993) with effect from 18-6-1993 is clarificatory in nature and applied to all pending proceedings.
- Whether the purpose for which a person has bought goods is a ‘commercial purpose’ in Section 2(d) of the Act is always a question of fact to be decided in the facts and circumstances of each case
- A person who buys goods and uses them himself, exclusively for the purpose of earning his livelihood, by means of self-employment is within the definition of the expression ‘consumer’.”
Applying those tests, the Court in the case of Laxmi Engg. Works held that the appellant was not a “consumer” as the machinery in that case was not purchased for self-employment, but was purchased for ‘commercial purposes.” “6. It is, therefore clear that in spite of the commercial activity, whether a person would fall within the definition of “consumer” or not would be a question of fact in every case. The National Commission had already held on the basis of the evidence on record that the appellant was not a “consumer” as the machinery was installed for “commercial purpose”. We have been again referred to various documents, including the “project document” submitted by the appellant itself to the bank for a loan to enable it to purchase the machinery in question, but we could not persuade ourselves to take a different view.” 13. It must be borne in mind that the amendments in changed (d)(ii) explanation appended to it were introduced by Act No. 15 of 2003 after the judgment in the case of Laxmi Engineering Works v. P.S.G. Industrial Institute 1995 (3) SCC 583 was passed. Again, at page 517 of the judgment in Kalpavruksha Charitable Trust vs. Toshniwal Brothers (supra) , it was held: “9.There is nothing on record to indicate that the Trust was rendering free service to the patients at its Diagnostic Centre where these machines were installed. The Trust may have been given certain benefit under the Income Tax Act, one of which, according to the appellant itself, was that the donations made to it were exempt under Section 80-C of the Income Tax Act, 1961, but this would not be conclusive. Since the audit report indicated that the appellant had earned profit to the tune of Rs. 7 lakhs in the financial year ending on 31-3-1991, its activity in running a Diagnostic Centre with the aid of the machines supplied by Respondent No. 1 cannot but be treated to be a commercial activity. So far as the contention that the Trust had incurred losses in subsequent years is concerned that by itself will not make the activity a “non-commercial activity”. 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. In a commercial activity, financial gain is a dominant object, but if the activity is not properly supervised or is not properly conducted, it may bring in loss instead of profit. But this would not, as pointed out above, change the nature of activity. It is another matter that the profit earned by the Trust was ultimately spent on charity, but for that too, there is no evidence on record. Even if it were so, the activity in running a Diagnostic Centre where free diagnostic aid was not provided to the patients and whatever was done was for monetary consideration, the activity would essentially remain a “commercial” activity with the result that the Trust would not be a “consumer” within the meaning set out in Section 2(d)(i) of the Act. The finding of the Commission, therefore, in this regard cannot be disturbed.” 11. The addition of the above explanation makes the definition clear that if a consumer has bought the goods for his own exclusive use for purposes of earning his livelihood by self-employment, he would not be a “consumer”. That being so, the Commission was right in recording its finding that the appellant was not a “consumer” within the meaning of the Act and the claim petition filed by the appellant was not maintainable.” 14. Learned counsel for the complainant candidly admitted that the complainant charges fee for the said machine in order to run the hospital and the service is not provided free of cost. He admitted that he has not filed the income tax returns. He has also not filed the registers, stock registers and receipts issued charging the fee from the patients. See the law laid down in Birla Technologies Ltd. vs. Neutral Glass & Allied Industries Ltd. (2011) 1 SCC 525 and M/s Amla Processing Private Ltd. vs. M/s Best Engineering Technologies, special leave to appeal (Civil) No. 2229 of 2014 decided on 20.1.2014 upholding the order passed by this Bench in first appeal No. 619 of 2012. 15. This Bench in Mohan Branwal (an individual) Vs. Pawan Kumar, Sales Manager, vide order dated 30.08.2013, in revision petition No. 2917 of 2013, where the complainant purchased one plant with machine for soya bin Bari making unit at chance was held to be for ‘commercial purpose’. The plea of defect or deficiency in service during the warranty period was not accepted. The Apex Court in Special Leave to Appeal (Civil) No. 37191 of 2013, upheld the view of this Commission, vide order dated 17.12.2013. 16. In the case of Kalpavruksha Charitable Trust vs. Toshniwal Brothers (Mombay) Pvt. Ltd. and another (2000) 1 SCC 512, the appellant was a charitable trust running a diagnostic center. Only 10% patients were referred to its center, who used to take advantage of CT Scan etc. 17. Under the circumstances, it stands proved that the complainant is not a consumer. Therefore, we set aside the orders passed by fora below and dismiss the complaint. However, liberty is given to the complainant to seek redressal of its grievances from the appropriate forum as per law. 18. The revision petition stands allowed in above terms. | 
