BEFORE THE A.P.STATE CONSUMER DISPUTES REDRESSAL COMMISSION: AT HYDERABAD.
C.D.NO.26 OF 2007
Between
Mr.Dr.D.Srihari Rao S/o D.Subba Rayudu
Occ: Doctor, Aged: 39 years,
R/o D.No.18-1-599, A.V.V.Mahal
Tirupati, Chittoor District
Complainant
A N D
1. M/s WIPRO G.E. MEDICAL SYSTEMS
Rep. by its Managing Director
Mr.B.Srijit, Aged: Major, Surya Towers
6th Floor, Sardar Patel Road,
Secunderabad-003
2. M/s WIPRO G.E. MEDICAL SYSTEMS
Rep. by its Chairman, Mr.B.V.Raja
Aged about : Major, Plot No.4,
Kadugodi Industrial Area
Saramangal, Bangalore 560 067
Opposite parties
Counsel for the Complainant Sri V.Gourisankara Rao
Counsel for the opposite party No.2 Sri K.Ashok Reddy
QUORUM: SRI SYED ABDULLAH, HON’BLE MEMBER
&
SRI R.LAKSHMINARSIMHA RAO, HON’BLE MEMBER
WEDNESDAY THE TWELFTH DAY OF MAY
TWO THOUSAND TEN
Oral Order ( As per R.Lakshminarsimha Rao, Member)
***
The complaint is filed against M/s Wipro G.E. Medical Systems seeking direction for refund of Rs.37 lakhs with interest @ 24% per annum in the alternative for replacement of equipment i.e., Voluson 730 Pro and an amount of Rs.25 lakhs towards damages in addition to the sum of Rs.10,000/- towards the costs.
The averments of the complaint are that the complainant, a doctor by profession has been running a diagnostic centre in M/s S.V. Diagnostic Center at Tirupathi. The complainant purchased Voluson 730 Pro from the opposite parties in exchange with the old equipment which was valued at Rs.4,50,000/-. The complainant paid a sum of Rs.50,000/- and agreed to pay an amount of RS.11 lakhs in 60 monthly installments. Some time after the machine was installed, it posed various problems which were brought to the notice of the opposite parties no.1 and 2 by a letter dated 5.7.2005. The complainant requested the opposite parties either to replace the machine with a new one or extend the warranty period of the equipment in question. The opposite parties by letter dated 8.9.2005 extended the warranty period of the machine for a period of six months from 30.5.2005 to 29.11.2005. On 22.3.2001 the complainant purchased a 4D Colour Doppler Ultra Sound Scanner System i.e., V730 Pro Machine from the first opposite party for a consideration of Rs.37 lakhs.
The complainant has paid a sum of Rs.7,16,253/- and the balance amount of Rs.30 lakhs was financed by GE Capital Services, New Delhi to be paid over a period of six years. The complainant has paid a sum of Rs.50,000/- towards the first year EMI and he has been paying an amount of Rs.61,531/- towards the EMI for the rest of the loan period. Since the date of installation of the 4D Colour Doppler Ultra Sound Scanner System (V730 Pro machine) out of five probes, 3 probes had not been working properly. The matter was reported to the opposite parties. The service team could not repair the problem. The complainant had suffered heavy financial loss due to the improper performance of the machine. The complainant has been paying the loan even though the machine was not functioning properly. The service team of the first opposite party had not solved the problem. On 8.4.2006 the complainant demanded the opposite party no.1 for replacement of the machine. On 4.7.2006 the complainant requested the second opposite party for exchange of the machine. The complainant is compelled to send the patients to the nearest cities such as, Madras and Bangalore.
The service engineers of the opposite party no.1 had not repaired V-730 Pro machine. The staff of the opposite party no.2 had given an improper explanation. The complainant has been getting heavy financial loss on the machine to the tune of Rs.4,000/- per day. The patients coming from different places have been going back due to the non-functioning of the machine. The complainant has paid a sum of Rs.8,50,000/- to the financiers. At the time of installation of the machine the opposite parties assured the complainant that with the machine the complainant’s clinic can do business of Rs.5,000/- to 10,000/- per day. For the failure of the machine the complainant is not able to do his professional business. On 5.1.2006 the, Medical and Health Department Team, Govt. of India, seized the diagnostic centre due to non-functioning of the machine. The complainant with much difficulty could get permission for reopening the diagnostic centre. The complainant complained to the opposite party no.1 about the negligent behavior of the opposite party no.2. The opposite party no.1 postponed to take action against the opposite party no.2. The complainant has addressed a letter dated 30.5.2006 demanding to buy back or sale of the machine to others. The complainant came to know the actual cost of the machine was Rs.28 lakhs. The opposite parties sold the machine to the complainant for a consideration of Rs.37 lakhs. The opposite parties acted fraudulently and dishonestly and induced the complainant to purchase the machine at an exorbitant rate. The opposite parties are responsible for the loss sustained by the complainant.
The opposite partyno.1 is M/s Wipro GE Medical Systems, Secunderabad whereas the opposite party no.2 M/s Wipro GE Medical Systems, Bangalore. Jitesh Nambiar, the authorized representative of the opposite party no.2 has filed his counter affidavit which was treated as the counter by the District Forum. It was contended that the complaint is not maintainable. The opposite party no.2 is not the dealer of the opposite party no.1. The opposite party no.1 is the branch office of the opposite party no.2. The complainant had purchased Voluson 730 Pro from the opposite parties by exchanging his old equipment. The complainant had paid an amount of Rs.5,55,000/- out of which Rs.2,40,675/- was adjusted as buy back value for the old equipment and the balance amount due from the complainant was financed directly from G.E.H.F.S. to the opposite parties. Considering the request of the complainant made through letter dated 5.7.2005, the opposite party extended warranty period of the machine for another six months from 22.7.2005. The extension of the warranty period was intimated through letter dated 8.9.2005 to the complainant. The opposite partyno.2 addressed letter dated 16.1.2006 to the complainant with a request to enter into Annual Maintenance Contract in view of the problem expressed by the complainant and in view of the cost of the machine. The complainant has not responded about the request made by the opposite party no.2.
As and when a complaint was received from the complainant, the opposite party no.2 used to attend and rectify the repairs. The opposite party no.2 has attended on 6.10.2004, 19.1.2005, 3.2.2005, 28.2.2005, 7.4.2005, 12.5.2005, 11.6.2005, 15.6.2005, 5.7.2005, 14.9.2005, 19.10.2005, 8.12.2005, 6.4.2006 and 15.6.2006. Despite the expiry of warranty period, the opposite party no.2 visited the diagnostic centre of the complainant on 14.9.2005, 19.10.2005, 8.11.2005 and 6.4.2006. The opposite party no.2 had attended to rectify the errors complained of during the warranty period. In case of receipt of any complaint after the expiry of the warranty period and when there is no annual maintenance contract, the opposite party no.2 has no liability to attend the complaint reported by the complainant. There had been no deficiency in service on the part of the opposite parties. Hence, prayed for dismissal of the complaint.
The complainant has filed his affidavit. Of the 38 documents filed by the complainants 28 documents have been marked.
The Commercial Officer, of the opposite party no.2 company, K.Raman Kutti has filed his affidavit in support of the case of the opposite parties and the documents marked as Exs.B1 to B16.
Both counsel have filed their respective written arguments.
The points for consideration are:
1) Whether the complainant is maintainable under provisions of the C.P.Act?
2) Whether the Voluson 730 Pro supplied by the opposite parties suffered from manufacturing defects?
3) Whether there was any deficiency in service on the part of the opposite parties?
4) To what relief?
POINT NO.1 The opposite parties had taken objection in regard to the maintainability of the complaint. A perusal of the contents of the complaint would show that the complainant is a doctor by profession and he had purchased 4D Colour Doppler System i.e., Voluson 730 Pro on 22.3.2001. The complainant has stated that the colour Doppler system suffered from defects which fact is immaterial in view of the purchase of the equipment in question on 22.3.2004 in exchange of the old equipment. The complainant complained of defects in equipment to the opposite parties no.1 and 2 who defended the claim stating that all the repairs were attended to during the warranty period including the extended warranty period and whatever the problems complained of beyond the warranty period would not be considered in view of the failure of the complainant to enter into Annual Maintenance Contract. The complainant has stated that the opposite party had cheated him by selling the equipment for Rs.37 lakhs which in fact according to the information of the complainant is of Rs.28 lakhs.
The learned counsel for the complainant had submitted that the complainant is a consumer within the meaning of Sec.2(1)(d) of the C.P.Act as the complainant has purchased the equipment for the purpose of his profession. The learned counsel for the complainant relied, upon the decision of the Hon’ble National Commission in Cadila Health Care Ltd., Vs. Anuradha Enterprises reported in I(2010) CPJ 283 (NC), to contend that the National Commission had held that Anuradha Enterprises, a partnership firm of doctor couple is a consumer for having purchased a defective diagnosis equipment which gave trouble one week after installation.
The complainant is a doctor by profession and he has been running a diagnostic centre under the name and style M/s SV Diagnostic Centre at Tirupathi. The complainant has purchased the equipment for the purpose of his diagnostic centre. In order to invoke the jurisdiction of this Commission essentially the complainant has to be a consumer within the meaning of Sec.2(1)(d) of the Consumer Protection Act. Sec.2(1)(d) of the C.P.Act reads as under:
(d) "consumer" means any person who—
(i) buys any goods 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 user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose; or
(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 purposes;
Explanation.— For the purposes of this clause, “commercial purpose” does not include use by a person of goods bought and used by him and services availed by him exclusively for the purposes of earning his livelihood by means of self-employment;
The provision of law i.e., Sec.2(1)(d) of C.P.Act provides for the entitlement of a person who buys goods or avail services not for resale or for any commercial purpose. An exception has been carved on the definition of the consumer that a person is a consumer provided he has purchased the goods either for resale or for any commercial purpose subject to the condition that he had done so for eking out his livelihood by means of self employment. Therefore, in order to fit in the definition of consumer as provided by Sec.2(1)(d) of C.P.Act, the complainant necessarily has to 1) buy the goods or avail service not for resale or commercial purpose, 2) in the instance of purchasing the goods or availing the service for resale or commercial purpose, the complainant in essence has done it to eke out his livelihood by means of self employment. Therefore, the exception excludes the prohibition imposed on the consumer availing the service or purchasing the goods for commercial purpose.
The question to be answered now is whether the complainant has purchased the equipment for commercial purpose and if so would it enable the complainant to approach this commission.
The complainant in the complaint, has stated that the opposite party had assured him that his clinic would do business of Rs.5,000/- to Rs.10,000/- per day with the machine purchased from them. The complainant has stated that he had been getting financial loss to the tune of Rs.4,000/- per day due to the machine suffering problem. In paragraph 5 of the complaint it is stated “ the complainant is getting heavy financial loss on the machine to the tune of Rs.4,000/- per day and the patients who are coming all the way from different places to take the treatment as prescribed by the doctor are going back due to the non-functioning of the said machine”. The paragraph 6 of the complaint reads as under:
It is humbly submitted that at the time of installation of the said machine the opposite parties had convinced and assured the complainant, with the said machine the complainant clinic can do business of Rs.5,000/- to Rs.10,000/- per day”.
The overall meaning of the contents of the complaint shows that the complainant has purchased the equipment for the purpose of earning profit which prima facie is a commercial purpose. The equipment being purchased for commercial purpose would disentitle the complainant of any right to approach this Commission. The decision relied upon by the complainant is not applicable to the facts of the case. In that case a doctor couple was running Anuradha Enterprises and purchased a diagnostic equipment from Ms/ Cadila Health Care Limited which subsequently because faulty and there was a break down of the analyzer. The complaint filed by the complainant firm was resisted on the ground that the complainant is not a consumer within the definition of Sec.2(1)(d) of C.P.Act. The counsel for the opposite party referred to the judgment of the Hon’ble Supreme Court in Kalpavruksha Charitable Trust vs. Toshniwal’s Brothers (Bombay) Pvt. Ltd., and another reported in AIR 1999 (SC) 3356 and Cheema Engineering Services v. Rajan Singh reported in (1997) I SCC 131.
In Kalpavruksha Charitable Trust Vs. Thoshniwal’s Bros (Bombay) Pvt. Ltd., the Supreme Court held:
In the instance case, what is to be considered is whether the appellant was a "consumer" within the meaning of the Consumer Protection Act, 1986, and whether the goods in question were obtained by him for "re-sale" or for any "commercial purpose". It is the case of the appellant that every patient who is referred to the Diagnostic Centre of the appellant and who takes advantage of the CT Scan etc. has to pay for it and the service rendered by the appellant is not free. It is also the case of the appellant that only ten per cent of the patients are provided free service. That being so, the "goods" (machinery) which were obtained by the appellant were being used for "commercial purpose".
In Cheema Engineering Services v. Rajan Singh the Apex court held as follows:
The word 'self-employment 'is not defined. Therefore, it is a matter of evidence. Unless there is evidence and on consideration thereof it is included that the machine was used only for self-employment to earn his livelihood without a sense of commercial purpose by employing o 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 the respondent is using the machine exclusively by himself and the members of his family for preparation, manufacture and sale of bricks or whether he employed any workmen and if so, how many, are matters of evidence. The burden is on the respondent to prove them.
By referring to the aforesaid two decisions of the Supreme Court, it was held by the National Commission in paragraphs 23 and 24 of the order as under:
The ratios of the above decisions other than Kalpavruksha Chartible Trust v. Toshniwal Bros.(supra) and Cheema Engineering Services v. Rajan Singh (supra) are squarely applicable to the case on hand. Therefore, in this case the complainant is declared as a consumer. Further this complaint was filed on 9.8.2000 whereas as per Section 2(d)(ii) of the C.P.Act, it existed prior to 15.3.2003, “ consumer” means any person who (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 parly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned purpose.
Only by the amendment Act 62 of 2002, this section was amended and following line was added at the end which came into force w.e.f.,13.3.2003 i.e. but does not include use by a person of goods bought and used by him exclusively for the purpose of earning his livelihood, by means of self-employment. As the complaint was filed prior to this date, the complainant is a consumer under the Consumer Protection Act.
The decision of the National Commission is not applicable to the facts of the case in hand for the reasons set out as follows:
1. The averments of the complaint predominantly deal with the aspect of commercial element, loss of profit which has been expressly discussed hereinabove.
2. The National Commission has relied upon the decisions other than Kalpavruksha Chartible Trust v. Toshniwal Bros. and Cheema Engineering Services v. Rajan Singh.
3. The National Commission held the complainant firm as consumer having thrust on the unamended Consumer Protection Act. It was held by the National Commission that the complainant was consumer in view of the fact that the complaint was filed prior to the date of enforcement of amendment Act 62 of 2003.
In the light of the discussion and in view of the ratio laid in Kalpavruksha Charitable Trust v. Toshniwal Bros. and Cheema Engineering Services v. Rajan Singh by the Hon’ble Supreme Court, this Commission is of the opinion that the complainant is not a consumer within the meaning of Sec.2(1)(d) of C.P. Act. Hence, the point is answered against the complainant.
POINTS NO.2 & 3 In view of the finding under the point no.1 that the complainant is not a consumer and as such not entitled to invoke the jurisdiction of this commission, there need not be any discussion under these points.
POINT NO.4 In the result the complaint is dismissed. There shall be no order as to costs.
MEMBER
MEMBER
Dt.12.05.2010
KMK*
APPENDIX OF EVIDENCE
WITNESSES EXAMINED
NIL
EXHIBITS MARKED
For complainant
Ex.A1 Receipt dt.27.02.2004
Ex.A2 Invoice dated 22.3.2004
Ex.A3 Installation completion and acceptance report dt.20.01.2003
Ex.A4 Service report/invoice dt.30.5.2004
Ex.A5 Service report/invoice dt.06.10.2004
Ex.A6 Service report/invoice dt.03.02.2005
Ex.A7 Service report/invoice dt.28.02.2005
Ex.A8 Service report/invoice dt.28.02.2005
Ex.A9 Service report/invoice dt.07.04.2005
Ex.A10 Service report/invoice dt.12.05.2005
Ex.A11 Service report/invoice dt.11.06.2005
Ex.A12 Service report/invoice dt.11.06.2005
Ex.A13 Service report/invoice dt.15.06.2005
Ex.A14 Service report/invoice dt.05.07.2005
Ex.A15 Letter dated 05.07.2005
Ex.A16 Letter dated 26.07.2005
Ex.A17 Letter dated 08.09.2005
Ex.A18 Gate pass cum D.C. dt.12.09.2005
Ex.A19 Service report/invoice dt.14.09.2005
Ex.A20 Service report/invoice dt.19.10.2005
Ex.A21 Service report/invoice dt.08.12.2005
Ex.A22 Service report/invoice dt.06.04.2005
Ex.A23 Letter dated 08.04.2006
Ex.A24 Letter dated 18.04.2006
Ex.A25 Service Report/invoice dt.30.05.2004
Ex.A26 Permission letter dt.11.01.2006
Ex.A27 Letter dated 27.06.2005
Ex.A28 Letter dated 30.05.2006
For opposite parties
Ex.B1 Letter dated 5.07.2005
Ex.B2 Letter dated 08.09.2005
Ex.B3 Letter dated 19.10.2005
Ex.B4 Letter dated 02.03.2005
Ex.B5 Letter dated 28.02.2005
Ex.B6 Letter dated 07.04.2005
Ex.B7 Letter dated 12.05.2005
Ex.B8 Letter dated 05.07.2005
Ex.B9 Letter dated 11.06.2005
Ex.B10 Letter dated 15.06.2005
Ex.B11 Letter dated 14.09.2005
Ex.B12 Letter dated 06.10.2004
Ex.B13 Letter dated 19.10.2005
Ex.B14 Letter dated 08.12.2005
Ex.B15 Letter dated 06.04.2006
Ex.B16 Letter dated 16.01.2006
MEMBER
MEMBER
