This appeal is against the order of the Andhra Pradesh State Consumer Disputes Redressal Commission passed in CD No.26/2007. The complainant Dr. D S Rao had made a consumer complaint against M/s. Wipro G E Medical Systems, from whom he had purchased an equipment for Rs.37 lakhs. The complainant, a doctor by profession had been running a diagnostic centre at Tirupati. He purchased a 4D colour Doppler Ultrasound Scanner system from the respondent on 14.5.2004, for Rs.37 lakhs. According to the complainant, the equipment had working problems soon after the date of installation. The service team of the respondent could not repair and cure the problem. The complainant allegedly, suffered heavy financial loss as, on the one hand he had to continue paying the EMIs of Rs.61,531/- a month and on the other, the machine continue to remain dysfunctional. His request to replace the machine was not agreed by the respondent. The complainant also came to know that the actual cost of the machine was only rupees 28 lakhs while he was made to accept a price of Rs. 37 lakhs. 2. The State Commission went into a detailed examination of the question whether the complainant had purchased the equipment for commercial purpose and if so, would it enable the complainant to invoke the jurisdiction of the State Commission? The Commission reached the conclusion that the complainant is not a consumer, within the meaning of section 2(1)(d) of the consumer protection act 1986. Therefore, the State Commission dismissed the complaint. 3., This order of the State Commission is impugned before us in the present appeal proceedings. The appeal has been filed with a delay of 12 days. Considering the circumstances explained in the application to condone it, the delay is condoned and the matter taken up for consideration. 4. The main grounds for appeal are that— a. The machine was not purchased for commercial purpose. The complainant purchased it to earn his livelihood. The quantum of earning per day is not the criterion to decide whether he is a consumer or not. The appellant has income from his diagnostic center, which is below the income level of his colleagues working in government and private hospitals. b. Even if the machine was purchase for commercial purpose, the buyer would be a consumer if the defects noticed during the warranty period are not rectified. 5. As per the complaint petition before the State Commission the complainant acquired a MBBS degree in 1992 and diploma in medical radio and diagnostics (DMRD) in 1997. Thereafter, in 1999 he established a diagnostic center at Tirupati in 1999. According to the complaint petition, the purpose of establishing the center was to "eke out my livelihood under self-employment". He started with an ultrasound scanning machine, costing about Rs.16 lakhs, in 2003. When this equipment started developing frequent problems, the respondents offered to buy it back and supplied the latest ultrasound scanner system i.e. the system in dispute, called Volusion 730 PRO BT03 for Rs. 37 lakhs. Under this arrangement, the older scanner was to be bought back for Rs.12 lakhs. The new equipment was installed on 14.5.2004. To finance this purchase, the complainant took a loan of Rs.31.45 lakhs from M/s Wipro G.E.Capital Service Ltd, repayable in 12 EMIs of Rs.50,000/- and 60 EMIs of Rs.61,512/-. 6. Unfortunately, operational problems with the new equipment started on 2.6.2004 itself. As the problems continued to recur, the Complainant asked for extension of the warranty. On 8.9.2005, it was extended till 29.11.2005. Thereafter, on 8.4.2006, the complainant sought replacement of this scanner. 7. On the other hand, the case of the respondent/OP was that as and when complaints came, they were attended to and defects rectified. The machine needed an Annual Maintenance Contract, which the complainant was not willing to sign. 8. The State Commission has examined the question whether this purchase was for a commercial purpose or not with reference to the provision under the Consumer Protection Act as well as the averments in the complaint petition itself. More specifically, the State Commission has referred to the following in the complaint petition— a. "The complainant is getting heavy financial loss on the machine to the tune of Rs.4,000/- per day in the patients were coming all the way from different places to take the treatment as prescribed by doctors are getting back due to non-functioning of the said machine. The complainant with good hope, paying the installments regularly to the financier's and so far the complainant has paid a sum of Rs.8,50,000/-. The opposite party service people have not turned up to comply the complainant and requests, then the complainant has stopped paying the installments to the financiers mentioning the facts before the financiers." (para 5) b. "It is humbly submitted that at the time of installation of the said machine the opposite party had convinced an assured the complainant, with the said machine the complainant clinic into business of rupees 5000 to 10,000 per day. Due to the constant troubles given by the said machine from the date of installation, the complainant is not able to do his professional business as expected and all this happen only with the failure of the said machine. Both the opposite parties are jointly and severally liable and responsible for the losses sustained by the complainant." (para 6) 9. The State commission has therefore concluded that the intended purpose of the purchase was to earn profit, which is prima facie a commercial purpose. 10. The State Commission has also examined the applicability of the decision of the Apex Court in Kalpavruksha Charitable Trust Vs. Toshniwal Bros. Pvt. Ltd. AIR 1999 SC 3356. Even though the appellant was a charitable trust, it was noted that every patient (except 10% who got it free) who took advantage of the CT scan had to pay for it. Therefore, it was held that it was a commercial purpose. In Cheema Engineering Services Vs Rajan Singh (1997) 1 SCC 131 The Apex Court held— “ The word self-employment is not defined. Therefore, it is matter of evidence. Unless there is evidence and on consideration the it is concluded that the machine was used only for self-employment to his livelihood without a sense of commercial purpose by employing on regular basis employees or workmen for trade in the manufacture and sale of bricks, it would be for self-employment. Manufacturer 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 been working out or producing the goods for earning his livelihood. He includes the members of the 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.” 11. In the affidavit evidence of the complainant, a reference is again made to establishment of a diagnostic center for the purposes of livelihood under self-employment. However, no details are given as to how a diagnostic center, set up with the declared objective of earning profits, becomes a case of self-employment. 12. In appeal proceedings before this commission it was argued by Mr. K.Maruti Rao, learned counsel of the appellant, that the application of the complainant to M/s. G E Capital Services Ltd. for a loan to finance this purchase would show that the loan was sought as an unemployed doctor seeking to establish the diagnostic center for earning his livelihood through self-employment. A perusal of this document reveals no such details. The document refers to the complainant only as borrower or debtor. Hence this argument needs to be rejected. Learned counsel for the appellant also made a reference to the decision of the Apex Court in Laxmi Engineering Works Vs. PSG Industrial Institute (1995) 3 SCC 583. In this decision also Hon’ble Supreme Court has held that whether the purpose is commercial or not, will depend upon facts and circumstances of each case. The facts in the case before us, as observed by the State Commission, are that the diagnostic center was set up with the declared objective of earning profits. The argument that his actual earning is below that of his colleagues working in government and private hospitals, cannot have any material effect on the purpose with which the diagnostic center was set up. 13. The other argument of the appellant is that the defects arose during the period of warranty and therefore he is a “consumer”. In the appeal before us, the purchase was of March 2004. As per records, complaints relating to operational problems were attended, from time to time, and the period of warranty was extended. The extended warranty itself had lapsed in November 2005, while the Consumer Complaint was filed in November 2007. In this context, the appellant has cited the decision in Tata Engineering & Locomotive Co. Ltd. Vs. Bachi Ram Dongwal 11(2009) CPJ 90 (NC). The facts of this case were very different. It related to violation of the terms of warranty by the consumer, leading to rejection of the complaint itself. Therefore, this decision will have no bearing on the present appeal. 14. For the reasons detailed above, the appeal is held to be devoid of any merit. It is therefore, dismissed and the impugned order of the State Commission confirmed. The parties shall bear their own costs. | 
