BEFORE THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION
OF TELANGANA : AT HYDERABAD
CC NO. 26 OF 2014
Between :
- M/s Safe Emergency Hospitals,
Rep. by tis Chairman Gadde Chakrapani
- Khammam Heart Care Center, Khammam
Rep. by its Chairman Gadde Chakrapani
Mayuri Center, Khammam
Complainants
A N D
M/s Wipro GE Health Care Pvt. Ltd.,
Rep. by its Authorized Person, Raghavendra G
Plot No.4, Kadugodi Industrial Area
Sadaramangala, Bangalore
Karnataka State
Opposite party
Counsel for the Complainants Sri R.Srinivasa Rao
Counsel for the Opposite party Served
QUORUM :
HON’BLE SRI JUSTICE B.N.RAO NALLA, PRESIDENT
&
SRI PATIL VITHAL RAO, MEMBER
FRIDAY THE TWENTY NINETH DAY OF DECEMBER
TWO THOUSAND SEVENTEEN
Oral Order : (per Hon’ble Sri Justice B.N.Rao Nalla, Hon’ble President)
***
The complaint is filed under section 17 (1)(a)(i) of the Consumer Protection Act, 1986 by the Complainant to direct the opposite party to replace Vivid S6 High End Echocardiography system with a new one by giving all accessories and to install in the hospital of complainant or to repay the paid amount of Rs.23,00,000/- with interest @ 24% p.a. from the date of payment; to award Rs.10 lakhs towards damages for the work loss to the complainant for non-installation of machine in their premises and also award Rs.5,00,000/- for physical and mental agony and to award costs of the complaint.
2. The brief facts of the case of the complainant is that the complainant on the specifications mentioned in the quotation had agreed to purchase the Vivid S6 High End Echocardiography system with standard accessories a demo unit for Rs.23,00,000/- and to that effect the complainant paid an amount of Rs.2,20,000/- as advance and remaining balance of Rs.20,80,000/- is to be paid after installation of said system at the hospital. Thereafter, the complainant paid balance amount of Rs.20,80,000/- to the opposite party in the month of May, 2013 and the opposite party supplied the machine. But as per opposite party’s quotation it has not supplied MARS software with two no. of SEER 12 Recorder and standard accessories which includes T-Wave alterns software and Heart rate Turbulence software. The machine was supplied in the month of May, 2013 and the opposite party till August 2013 did not visit the hospital to install the machine in their hospital for service to the patients. The warranty period was mentioned as one year only and opposite party was not coming forward to install the machine and allow complainant to get service of the said machine. In the month of August 2013 a lady engineer came to the complainant’s hospital from opposite party’s company but failed to install the machine in the hospital. The complainant came to know that the said machine seems to be a used one and rejected one from a hospital by name Panipat Cath Lab & Heart Care Center, Panipat. The opposite party has supplied a used, defective and refused machine to complainant.
3. It is the further case of the complainant that at the time of agreement, opposite party had promised to give practical training to the complainant’s hospital Cardiologist regarding the functioning of the machine but opposite party had failed to do so. The agreement was made between opposite party and complainant during the month of December 2012 under the benefits of December month. Finally, the complainant got issued a legal notice to the opposite party on 30.09.2013 , though served on the opposite party but failed to replace the said system or to install the machinery which amounts to deficiency of service on the part of the opposite party. Hence, the complaint with prayers as stated in paragraph no.1 supra.
4. The opposite party, though notice was served did not put its appearance either by its representative or its counsel.
5. On behalf of the complainant, the Chairman has filed his evidence affidavit and got Exs.A1 to A6 marked.
6. Counsel for the complainant present and was heard. No representation for the opposite party despite service of notice. The counsel for the complainant has filed written arguments.
7. The points that arise for consideration are :
- Whether the complaint is not maintainable under the Consumer Protection Act as the predominant activity being commercial in nature?
- Whether there is any deficiency in service on the part of opposite party?
- Whether the complainant is entitled to any of the reliefs?
8. POINT NO.1: The complainants is a Hospital under the name and style M/s Safe Emergency Hospitals. 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;
9. 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.
10. In paragraph 5 of the complaint it is stated the complainant is getting heavy financial loss on the machine to the tune of Rs.10 lakhs due to the non-installation of the machine . 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.
11. The Hon’ble Supreme Court has explained the meaning of ‘commercial purpose’ in Laxmi Engineering Works Vs. P.S.G. Industrial Institute 1995 (3) SCC 583. In that case, the complainant, a proprietary concern, purchased a machine to manufacture certain machine parts on a large scale. It was alleged that the respondent therein supplied a defective machine as a result of which the complainant suffered huge financial loss. In the complaint filed before the State Commission, the respondent raised preliminary objection regarding the maintainability contending that the machine was purchased for commercial purpose, and as such the complainant was not a consumer. The State Commission over-ruled the objection and allowed the complaint. On appeal, the National Commission reversed the order of the State Commission holding that the complainant was carrying on business of manufacture of machine parts on a large scale for the purpose of earning profits and as such the machine was purchased for commercial purpose. The complainant was therefore held to be not a consumer. The Hon’ble Supreme Court affirmed the view of the National Commission and while doing so held as follows:-
12.Now coming back to the definition of the expression 'consumer' in Section 2(d), a consumer means in so far as is relevant for the purpose of this appeal, (i) a person who buys any goods for consideration; it is immaterial whether the consideration is paid or promised, or partly paid and partly promised, or whether the payment of consideration is deferred; (ii) a person who uses such goods with the approval of the person who buys such goods for consideration (iii) but does not include a person who buys such goods for resale or for any commercial purpose. The expression "resale" is clear enough. Controversy has, however, arisen with respect to meaning of the expression "commercial purpose". It is also not defined in the Act. In the absence of a definition, we have to go by its ordinary meaning. "Commercial" denotes "pertaining to commerce" (Chamber's Twentieth Century Dictionary); it means "connected with, or engaged in commerce; mercantile; having profit as the main aim" (Collins English Dictionary) whereas the word "commerce" means "financial transactions especially buying and selling of merchandise, on a large scale" (Concise Oxford Dictionary). The National Commission appears to have been taking a consistent view that where a person purchases goods "with a view to using such goods for carrying on any activity on a large scale for the purpose of earning profit" he will not be a "consumer" within the meaning of Section 2(d)(i) of the Act. Broadly af- 441 firming the said view and more particularly with a view to obviate any confusion the expression "large-scale" is not a very precise expression the Parliament stepped in and added the explanation to Section 2(d)(i) by Ordinance/Amendment Act, 1993. The explanation excludes certain purposes from the purview of the expression "commercial purpose" - a case of exception to an exception. Let us elaborate: a person who buys a typewriter or a car and uses them for his personal use is certainly a consumer but a person who buys a typewriter or a car for typing others' work for consideration or for plying the car as a taxi can be said to be using the typewriter/car for a commercial purpose. The explanation however clarifies that in certain situations, purchase of goods for "commercial purpose" would not yet take the purchaser out of the definition o expression "consumer". If the commercial use is by the purchaser himself for the purpose of earning his livelihood by means of self-employment, such purchaser of goods is yet a "consumer". In the illustration given above, if the purchaser himself works on typewriter or plies the car as a taxi himself, he does not cease to be a consumer. In other words, if the buyer of goods uses them himself, i.e., by self- employment, for earning his livelihood, it would not be treated as a "commercial purpose" and he does not cease to be a consumer for the purposes of the Act. The explanation reduces the question, what is a "commercial purpose", to a question of fact to be decided in the facts of each case. It is not the value of the goods that matters but the purpose to which the goods bought are put to. The several words employed in the explanation, viz., "uses them by himself", "exclusively for the purpose of earning his livelihood" and "by means of self-employment" make the intention of Parliament abundantly clear, that the goods bought must be used by the buyer himself, by employing himself for earning his livelihood. A few more illustrations would serve to emphasis what we say. A person who purchases an auto-rickshaw to ply it himself on hire for earning his livelihood would be a consumer. Similarly, a purchaser of a truck who purchases it for plying it as a public carrier by himself would be a consumer. A person who purchases a lathe machine or other machine to operate it himself for earning his livelihood would be a consumer. (In the above illustrations, if such buyer takes the assistance of one or two persons to assist/help him in operating the vehicle or machinery, he does not cease to be a consumer.) As against this a person who purchases an auto-rickshaw, a car or a lathe machine or other machine to be plied or operated exclusively by another person would not be a consumer. This is the necessary limitation flowing from the expressions "used by him", and "by means of self-employment" in the explanation. The ambiguity in the meaning of the words "for the purpose of earning his livelihood" is explained and clarified by the other two sets of words.
12. Besides multiple authorities on the aforesaid proposition of law, it is suffice to state that Hon’ble National Commission has affirmed in catena of judgments particularly in Pharos Solutions Pvt. Ltd., Vs. Tata Motors Ltd., 2014 (4) CPJ 525 that wherever commercial element is present in a transaction it would be a commercial purpose and the buyer is not a ’consumer’.
13. In the light of the discussion and in view of the ratio laid down by the 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 no.1 is answered against the complainant.
14. POINT NO.2 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.
In the result the complaint is dismissed. There shall be no order as to costs.
PRESIDENT MEMBER
29.12.2017
APPENDIX OF EVIDENCE
WITNESSES EXAMINED
NIL
EXHIBITS MARKED
For complainant
Ex.A1 Copy of letter dated 12.12.2012 of opposite party
Ex.A2 Copy of Vscan Quote of Wipro GE Health Care
Dated 13.12.2012
Ex.A3 Copy of Agreement between complainant and Op dated 18.12.2012
Ex.A4 Office copy of legal notice dated 30.09.2013
Ex.A5 Copy of Postal Receipt dated 05.10.2013
Ex.A6 Copy of postal acknowledgement dated 08.10.2013
For opposite party
NIL
PRESIDENT MEMBER
