(Delivered on 05/05/2017)

Per Mr. S.B. Sawarkar, Hon’ble Member

1.      The present appeal is filed against the order of the learned  Additional District Forum, passed in CC No. 51/2010 dated 04/12/2010  partly granting the complaint and directing the opposite party (in short O.P.) to provide the cost of the new  C.T. Scan Tube of Rs.10,50,000/- to the complainant with cost of  complaint of Rs. 1000/-. The order to be complied in the span of 30 days from the date of the receipt of the order.

2.      The complaint as recorded is that  Asha Institute  of Medical Science  and  Research  Center  Pvt.  Ltd.  of Kamptee through   Owner/Managing Director Dr.  Rajendra Agrawal livelihood source of the complainant. He entered in Memorandum of Understanding (MOU) with O.P. to provide the furbished C.T.Scan Model on 29/08/2007. In response to which the O.P.  fitted C.T. Scan Model  at the place of complainant on 27/11/2007  for which  complainant paid Rs. 25,00,000/- . As per clause No. 10 of the MOU, the O.P.  was supposed to  provide the maintenance  and up keep of  the machine with  C.T. Tube for the period of two years. 

3.      On 16/11/2009 the complainant made a complaint regarding defect in the machine to O.P.  However, the engineer of the O.P. visited the  institute of the complainant  on 01/12/2009 (after the period of  guarantee from 27/11/2007 to  27/11/2009) and  after inspection  recorded  “Machine is working but some time X-ray – error come  in between chest and  abdomen cases  image quality  of chest and  abdomen is poor.” He further made special remark “Tube should be replaced”.

4.      The complainant further submitted that as per clause No. 10 of MOU the O.P.  has to  replace  the C.T. Tube  being  within  warranty. However,  the O.P.  intentionally  sent the  engineer after the  warranty  period  and  without  replacing  the tube gave a quotation  dated 04/12/2010 of Rs.9,68,000/- for a new C.T.Tube.  The complainant therefore, submitted that as the O.P. committed breach of the MOU conditions he had to purchase  the new tube of Rs. 10,50,000/- from the open market and fit it to the machine.  Thus claiming deficiency in service, the complainant field complaint with prayer to provide the cost of new Tube of Rs. 10,50,000/- from the O.P.

5.      On notice, the O.P.  countered  the complaint  admitting the MOU but  claiming  the  complainant to have purchased  the machine  for the purpose of business as a company and hence,  the complainant  does not fit into the definition of  Consumer and the complaint in the ambit  of the Consumer Protection Act,1986. The O.P. further claimed that as per the MOU the dispute is subject to Arbitration clause & hence, the Forum is not competent to hear the complaint.

6.      The O.P.  admitted the  sale of machine but claimed that the defect arose after the  warranty  period and hence MOU is not binding on the O.P.  Therefore, it sent a quotation for the new C.T. Tube.  The O.P. claimed that the complainant fitted the new tube in Feb. 2010 indicating that the machine was running up to that time.  Hence, no breach of MOU. Therefore requested to  dismiss the complaint.

7.      The learned Forum held that the clause of Arbitration is no bar for  the  Forum to take cognizance of the  complaint.  It further held that  the  MOU of maintenance was of two years within which  the complaint was made on 26/11/2009 and the technician  has recorded the opinion  of  defect in the tube and to change it on 01/12/2009. It indicated that the defect arose within the warranty period. Hence, MOU is binding on O.P.  to replace it. Therefore, passed the order supra.

8.      Aggrieved against the order, the O.P. filed an appeal through Advocate Smt. Anuradha Deshpande & hence, called as appellant.  The original complainant is referred as respondent.  Advocate Shri Borkar appeared  for  it and filed  written notes of argument,  but  he was absent  on the day of final hearing.  We heard the appellant’s advocate.

9.      The advocate for the appellant submitted that the appellant sold the  referred C.T. Scan Machine which was a pre owned C.T. Scanner Model and had informed  respondent that  it is a  pre owned  or second hand goods which  does not  come  within the perview of the Consumer Protection Act,1986. Hence, the complaint should have been dismissed.

          The advocate for the appellant further submitted that  the machine was installed by the complainant  for commercial purpose to provide the report of diagnosis  test and taking  fee for the test for the same. Hence,  it was for the commercial purpose. Hence, it does not fall within the jurisdiction  of the District Consumer Forum.

          The advocate for the appellant also  submitted that if after the warranty period, if the C.T. Tube of the machine  is required then a second hand C.T. Tube with slice count of less than  60,000 would be provided for Rs. 4,50,000/-.

          The advocate for the appellant further submitted that the warranty provided  to the machine was to be over on 27/11/2009 before which  just ten days the complaint  was lodged  on 16/11/2009 regarding  intermittent  problem in the C.T. Tube which is the most expensive part of the machine.  The engineer  of the  appellant  visited on 01/12/2009 and  had found  the C.T. Scanner working though the problem was intermittent.

          The advocate for the appellant further  submitted that  the C.T. Tube generates  X ray and  works like an  electric bulb, either  on  or off. It cannot work intermittently. The advocate of appellant  further submitted that  the  C.T. Tube was working till 15/02/2010 as can be seen  from the service report  of a third party Medirays Corporation  from which  they took the further service.  The  C.T.Tube would not have functioned  till  15/02/2010 had it been defective on 01/12/2009.  It can also be seen from the count of  C.T. Tube which  showed  the reading  of  825356 on 01/12/2009 and  it was 829118 on 23/02/2010 indicating that it was used for  3762 times  after 01/12/2009, indicating  use for 250 patients.

          The advocate for the appellant further submitted that the service report of 01/12/2009 indicates  ”problem may be in the C.T. Tube or in other parts”. The advocate  of appellant further submitted that  the  C.T. Tube costs Rs. 3,50,000/-. However, the complainant purchased a new C.T. Tube costing Rs. 10,50,000/- and therefore claimed much higher amount than the MOU.

          The advocate for the appellant raised the objection that machine was not kept properly  and  the wires were  eaten by the rats and the AC was not properly functioning. The advocate for the appellant submitted that the contract was to supply the used tube and not the new tube though  the previously provided  the C.T. Tube was functioning till the last day of warranty. The learned Forum could not appreciate the fact that the respondent  is a company which purchased  the instrument  for the purpose of business and it was  the  second hand machine. The respondent  also  raised  a unrealistic  demand  than the conditions  and tried to  extract  extra benefits.  The advocate for the appellant therefore submitted that  as  the complaint  was not  tenable,  it is  necessary to be dismissed. She relied  on the following judgments.

i,        National Commission Judgment passed in Wipro G.E. Health Care Pvt. Ltd. Vs.  Ajmer Hospital and  Research Institute published at IV(2014) CPJ 535 (NC). Wherein the Hon’ble  Commission held that  the complainant  admitted that  fee charged for the machine  in order to run the hospital and service not provided free of charge & hence, the complainant is not consumer.

10.    The advocate for the respondent was absent. But he filed written notes of argument supporting the impugned order. He in his written notes of arguments   stated that  the  respondent  had  rightly made a complaint regarding intermittent  problem in X ray tube in 16/11/2009. The engineer visited  only after the lapse of warranty period. He rightly recorded the defect in the machine  stating the  image quality  to be poor and  made a remark “Tube should be replaced”. It clearly showed that the tube had stopped  working  in the warranty period and thus  the appellant  was bound  to replace it as per the MOU. Instead of that, the  appellant  sent a  quotation for a new tube with 100% requirement of advance. It shows that  the  appellant  committed breach of the MOU and the respondent was compelled  to  purchase a new C.T.Tube.

11.    The  respondent’s  advocate  further submitted that  the institute is for livelihood  of respondent and the reports from the machine are used for his diagnostic work. Hence,  the complainant   is a consumer. Therefore,  according to him the learned Forum has passed the correct order, which deserves to be confirmed.

12.    We considered the contentions of both the parties. We find that the complaint is filed on behalf of a limited company calling the complainant/ now respondent  as owner and Managing Director which indicates that there would be additional Directors and the company is not a livelihood source of the complainant/respondent.  The complainant/respondent is a doctor as can be seen  from the  name  and the  claim  of him. Hence,  he would be having his  medical practice  as  a source of  livelihood. It appears that  the machine  purchased by the respondent  is used  to  get the reports  which are used  for the diagnostic work. It shows that  the  charges of the report  are the separate  than the  medical  practice charges  of the  respondent /complainant  doctor on behalf of  the respondent.  It indicates that the income from the machine is a separate income of test than the practice of the  complainant/respondent as a doctor. It shows that  the purchase of machine  is for the commercial purpose  which  the machine  is earning  independent of  any relation  with the medical practice. 

13.    We find that the Hon’ble Supreme Court in the judgment  passed  in  Laxmi Engineering Works Vs. P.S.G.  Industrial Institute judgment published  at India Kannon .Org/doc/1433560 dated 04/04/1995 has  dealt  in details about the commercial use and the  self use, to be the  test of  consumer ship  of the complainant  before the Consumer Fora. The Hon’ble Supreme Court has well elucidated the difference between   the  commercial use for livelihood  by a person  himself  and from the  commercial purpose for earning profit in addition to  livelihood income. 

14.    In the present case the respondent  is a  declared  private limited company  which is a  legal body  which is  earning  profit from the activity  of the machine  referred above purchased by it.  It cannot be therefore called as it used  the machine  for the purpose  of earning livelihood  of  some person   who can claim that he is a consumer.  In view of the facts which comes before us we find no reason  to hold that the machine was purchased  as a consumer to support the livelihood of the respondent, so that  the complaint was in the ambit of  the Consumer Protection Act,1986.

15.    We find that the when the facts which come to the notice and which  show that  the purpose of the purchase of machine is for the commercial use then  there is no point in discussing  the further details of the present case. We also find that the learned Forum has overlooked this aspect of the case and has passed the order holding the purchase to be for the purpose of maintaining livelihood.  Thus, the order becomes unsustainable and therefore deserves to be set aside. Hence, the order below.

ORDER

i.        The appeal is allowed.

ii.       The order of the learned Forum is set aside.

iii.      Stay if any stands vacated.

iv.      Parties to bear their own cost.

v.       Copy of the order be provided to both the parties, free of cost.