M/s Indraprastha Medical Corporation Ltd, the complainant herein is engaged in the business of running world class hospitals with medical facilities of highest standards.  It has filed the present complaint under section 21 (1) (i) of the Consumer Protection Act, 1986 ( in short, ‘the Act’) seeking compensation of Rs.2,33,60,349/- with 18% interest thereon besides cost for legal expenses and litigation.  Basic allegation in the complaint is that OP Nos. 1, 2  & 4 are guilty of deficiency in service in respect of the contract of redesigning, addition, alteration and renovation of the atrium of the Apollo Hospital, Sarita Vihar, New Delhi.  It is also alleged that OP No. 1 to 3 have supplied the defective goods i.e. Technistone of various colours supplied for relaying of the floor of the atrium as advised by OP No.4.  The details regarding the break-up of compensation claimed on account of supply of defective goods and deficiency in service are enumerated in para 28 of the complaint which is reproduced thus:

“i.     Cost of 3,92,890/- paid by the complainant to the Civil Contractor namely M/s Asiatic Engineers C.S. & for removal of the stone from the atrium of the hospital for installation of Technistone.

ii.     Cost of Rs.19,50,822/-  paid by the Complainant to the Opposite Party No.4 for the services provided by it.

iii.    Cost of Rs.55,20,337/- paid by the Complainant to Opposite Party No.1 & 2 for purchase of theTechnistone.

iii.    Cost of Rs.3,91,000/- paid to Opposite Party Nos. 1 & 2 for installation of Technistone.

iv.    Cost of Rs.1,32,750/- paid by the Complainant to M/s Mangla Exports for removal of the Technistone.

v.     Cost of Rs.30,00,000/- paid by the Complainant to M/s Mangla Exports for supply of Ice Blue Granite Stone.

vi.    Cost of Rs.15,92,250/- paid by the Complainant to M/s Mangla Exports for installation of Ice Blue Granite Stone.

vii.   Cost of Rs.3,30,900/- paid to M/s Gherzi Eastern Limited for checking the stone to be supplied by M/s Mangla Exports and supervise its laying by the same party.

viii.   Loss and damage suffered by the complainant to the tune of Rs.49,300/- for delay in completion of the installation of Technistone.

ix.    Loss and damage suffered by the complainant to the tune of Rs.50,00,000/- for the harassment and humiliation suffered by the Complainant due to deficiency in goods and services.

x.     Loss and damage suffered by the Complainant to the tune of Rs.50,00,000/- for loss of reputation due to deficiency in goods and services”.

2.       OP Nos. 1 & 2 on being served with the notice of the complaint have filed the written statement wherein besides denying the allegations on merits, they have taken a preliminary objection that the complaint is liable to be dismissed for the reason that complainant is not a consumer within the meaning of section 2 (1) (d) of the Act.  as such it cannot maintain the consumer complaint under the Act. 

3.       Shri Harsh Kaushik, Advocate, learned counsel for OP Nos. 1 & 2 has contended that perusal of the complaint would show that complainant Company admittedly is engaged in business of running quality hospitals with medical facilities of highest standards and that the Technistone manufactured by OP No.3 was purchased from OP No.1 & 2 for renovation of the atrium of the hospital on the recommendation of OP No.4.  Therefore, even if it is presumed for the sake of arguments that Technistone supplied was of sub-standard quality or that there was some deficiency in renovation of the atrium and relaying of floor, it was in connection with commercial purpose that is, running hospital business. Therefore, in view of section 2 (1) (d) of the Act, the complainant does not fall within the definition of ‘consumer’ and as such, it is not competent to maintain a consumer complaint.  Learned counsel has thus urged us to dismiss the complaint as not maintainable.  Similar arguments have been advanced on behalf of respondent no. 4.

4.       Shri Lalit Bhasin, Senior Advocate appearing for the complainant has refuted the above contention.  He has contended that while considering the question whether the goods in question were purchased for any commercial purpose or the services of OP No.1, 2 & 4 were hired for any commercial purpose, one has to see the pre dominant purpose for which the goods were purchased and the services were hired and availed.  Learned counsel has contended that in the instant case, the goods in question were purchased and the services were also availed for renovation and relaying of the floor of atrium of the hospital which has no connection whatsoever with the commercial activity of the complainant i.e. providing basic medical treatment / services to the patients.  The renovation of atrium is only a construction activity which cannot be correlated with the business of the complainant company and as such the complainant does not fall within the exception carved out in the definition of ‘consumer’.  Thus it is argued that the complaint is maintainable.

5.       We have considered the rival contentions and perused the  material on record.

6.       It order to appreciate the contentions of the parties, it would be appropriate to have a look on relevant provisions of the Act.

          The term complainant as defined under section 2 (b) of the Act is reproduced thus:

        “Complainant” means

(i)     a consumer; or

(ii)    any voluntary consumer association registered under the Companies Act, 1956 ( 1 of 1956) or under any other law for the time being in force; or

(iii)   the Central Government or any State Government; or

(iv)   One or more consumers, where there are numerous consumers having the same interest;]

(v)    in case of death of a consumer, his legal heir or representative;] who or which makes a complaint’’.

          On reading of the above for an individual to maintain consumer complaint under the Act, he has to be a consumer.  The term ‘consumer’ has been defined under section 2 (1) (d) of the Act.  The relevant portion of the definition which deals with hiring or availing of service is reproduced thus:

“Consumer means a person who-

 (ii)         hires or avails of any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who hires or avails of the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person but does not include a person who avails of such services for any commercial purpose.

 Explanation-    For the purpose of this clause, “commercial purpose” does not include use by a person of goods brought and used by him and services availed by him exclusively for the purpose of earning his livelihood by means of self-employment”.

          On reading of this provision, it is evident that after the amendment of the definition of consumer by the Act 62 of 2002, the persons availing services for any commercial purpose are excluded from the definition of “consumer”.

7.       On reading of the complaint, it is evident that cause of action of filing of the complaint is alleged to be defect in the quality of the Technistone supplied by the opposite parties and the deficiency in service in respect of renovating / laying of Technistone in the atrium of the hospital run by the complainant company.  Thus the crucial question for deciding the issue of maintainability is whether the renovation / laying of floor of the atrium of the hospital has any connection whatsoever with the business of the complainant?

8.       Admittedly, the complainant company is in the business of running hospitals and providing world class medical facilities of highest standards to the patients for consideration.  The atrium is also the part of hospital building.  The patients and their relatives also pass through the atrium.  It is well known that charges of commercially run hospitals are in direct proportion to the facilities provided including the ambience of the building. Therefore, in our considered opinion, the atrium of the hospital has a direct correlation with running of the business.  In para 21 of the complaint, it is alleged that because of the deficiency in service by OP No.1, 2 & 4, the complainant  had to face huge embarrassment as because of loosely laying of Technistone, many patients had slipped over it.  This allegation by itself is sufficient to show that laying of Technistone in the atrium has direct connection with the hospital business.  Not only this, perusal of para 28 of the complaint, which gives the break-up of the loss / damages suffered by the complainant, would show that this break-up apart from mentioning cost of various items, also includes charges of Rs. 50,00,000/- for loss of reputation because of deficiency in goods and services.  This also indicate that the goods in question and the services which are subject matter of the present complaint have direct relation with the hospital business of the complainant.  Further OP Nos. 1 & 2 have placed on record copies of annual report of the complainant for the financial year ending 31^st March 2009 as also relevant extracts of the annual reports of the Apollo Hospital for the financial years ending 31.03.2008 to 31.03.2012 wherein the expenses incurred for the addition, alteration of the atrium and relaying of Technistone in the atrium is shown as ‘capital expenses’ incurred for the hospital business.  Pursuant to the directions of the Bench, the complainant has filed affidavit of Shri P. Shiv Kumar, Vice President, Finance and Operations of the complainant wherein Shri P.Shvi Kumar has stated that procurement and laying of Technistone is a capital expense of Company and it is shown as financial statement of the relevant year under the heading ‘Building’.  It is also stated in the affidavit that the depreciation of the aforesaid expense under the heading ‘Building’ has been claimed and it is reflected in the financial statements as per the rates prescribed under Schedule XIV of the Companies Act, 1956.  From this averment also, it is evident that Technistone was purchased by the complainant Company and the services for renovation of atrium and relaying of Technistone were hired for ‘commercial purpose’ i.e. running the hospital business. Thus, the complainant in our view is not covered under the definition of ‘consumer’.  As such, he cannot maintain the instant consumer complaint.       In our aforesaid view, we are supported by the judgment of Supreme Court in the matter of Laxmi Engineering Works Vs. P.S.G.Industrial Institute (1995) 3 SCC 583.

9.       Result of the above discussion is that M/s Indraprastha Medical Corporation Limited is not covered under the definition of ‘consumer’ as envisaged under section 2 (1) (d) of the Act. Accordingly, the complaint is dismissed as not maintainable with no order as to costs.