This Complaint coming up before us for hearing on 02-02-12 in the presence of Sri M.V. Subbarao, advocate for the complainant and of Sri. N.V.Swamy, advocate for opposite party, upon perusing the material on record and having stood over till this day for consideration this Forum made the following:-

O R D E R

Per SRI M.V.L.RADHA KRISHNA MURTHY,  Member:-

This complaint filed u/s 12 of Consumer Protection Act praying to direct the opposite party to pay an amount of Rs.2,65,000/- together with interest @24%p.a., to pay an amount of Rs.5,00,000/- for damages, to pay an amount of Rs.5,00,000/- for mental agony and to pay expenses of the complaint.

2.   The averments of the complaint in brief are as follows:  

The complainant and his wife are running a hospital namely M/s R.R. Specialty Hospital and while they are searching for a suitable lift for their hospital, Opposite Party approached  the complainant and informed that they will provide 6 passenger  elevator for Rs.6,08,000/- and the said quotation is dated 24-10 -2010  with certain specifications mentioned there in.  Thereafter the Opposite Party failed to install the lift as per schedule even though the entire construction of the Hospital was completed.  At the time of submitting quotation the Opposite Party received an amount of Rs.4,50,000/- periodically and failed to provide lift and caused lot of mental agony to complainant.  Complainant and his wife are put to sever trouble and they are forced to occupy a rented building for pregnant patients as Opposite Party failed to provide lift to their hospital. Ultimately Opposite Party declared that they are unable to locate lift as per the schedule of their letter 15-11-10, wherein they promised that, they will install the lift in working condition by 29-11-10.  Opposite Party in their letter 26-02-2011 categorically mentioned that for the payment made by the complainant, having arrived the amount together with interest at Rs.5,30,000/- and out of the same Opposite Party paid an amount of Rs.2,65,000/- and agreed to pay the remaining amount by 20^th March, 2011.  The said balance amount was not paid by Opposite Party as scheduled.  Therefore, Opposite Party is liable to pay the balance amount Rs.2,65,000/- together with interest @24%p.a from 20^th March 2011 till payment and also damages of Rs.10,00,000/- for causing severe loss and mental agony to the complainant.                          Hence this complaint.

3.     Opposite Party filed its version which is in brief as follows:   

        All the averments mentioned in the complaint are not true and correct.  The matter was already settled and there is no defect or default or negligence on the part of Opposite Party in providing any kind of services.  There is no locus standi to file complaint against Opposite Party. Complainant and Opposite Party entered into a contract for erection of lift in his hospital. As per the terms & conditions, the Opposite Party worked properly and provided his services to the extent of his best.  Unfortunately a little delay was caused in erecting the lift in appropriate time, due to non- supply of proper material from the supplier of this Opposite Party, who is Excel Hydraulics, Hyderabad.  Due to this, complainant got irritated and created troubles to this Opposite Party.  Complainant called this Opposite Party to Pedakakani Police Station and forced this Opposite Party for his terms and obtained two cheques and two promissory notes and demanded to pay the amount on or before 26-02-2011.  Thus, the matter was settled.  As per the terms, this Opposite Party paid Rs. 2,65,000/- on 26-02-2011 to the complainant.  But the complainant returned only one cheque and one pronote, but did not return the another cheque and pronote  and kept them with him stating that he will return them after getting the amounts from the material supplier of this Opposite Party.  Even though most of erection of the lift was completed in the hospital, complainant himself disturbed the Opposite Party to avoid payment to this Opposite Party and developed contacts with the supplier of this Opposite Party and he was dealing directly with the supplier of this Opposite Party for the rest of the material to be erected at that lift in the hospital promises.  Complainant himself paid some amount around Rs.65,000/- directly to the material supplier of this Opposite Party.  Thus, misunderstands arouse between the complainant and this Opposite Party which was the main cause for delay in erection of the lift in appropriate time.  Though the matter was settled at Peda Kakani Police Station the complainant obtained two cheques each for Rs.2,65,000/- and two pronotes.  Actually this Opposite Party has to pay only Rs.2,65,000/- after settlement.  But the complainant obtained the cheques and pronotes for double amount stating that he will keep those cheques and pronotes till the amounts were returned from the material supplier of this Opposite Party.  There is no relation between those amounts paid by the complainant direct to the material supplier of this Opposite Party.  Complainant retained the erections at the door of the lift at his hospital premises which will cost around Rs.30,000/-  and this Opposite Party also spent nearly Rs.11,000/- for fixing the roof sheet fitting and iron frames and other labour works.  When this Opposite Party questioned about those amounts complainant got irritated and cancelled the contract and finally the matter was settled.  Due to the rationed intolerant behaviour of complainant the contract was cancelled.  Except that there is no any kind of defect or default in providing services.  After the matter was settled, this Opposite Party paid Rs.2,65,000/- on 26-02-2011 to the complainant.  But when Opposite Party asked for receipt regarding the amount paid by him, the complainant brought a letter from his wife mentioning that the Opposite Party still has to pay the balance amount on or before 20^th March,2011.  But actually this Opposite Party need not pay any balance amount.  Complainant is forcing this Opposite Party to pay the amounts given by the complainant to the supplier of this Opposite Party though this Opposite Party is no way concerned with the amounts paid to the material supplier directly by the complainant.  With malicious intention complainant got issued a legal notice to this Opposite Party demanding that this Opposite Party borrowed amounts from the wife of complainant to an extent of Rs.2,65,000/- on 27-01-2011 and also executed pronotes for that purpose and also mentioned a chque was also issued for that purpose on 20^th march, 2011 for an amount of Rs.2,65,000/- drawn on Axes bank Naz centre , Guntur, towards payment of debt due under the above said pronote, though no such kind of transaction ever took place.  Immediately this Opposite Party issued reply notice stating all facts regarding these transactions.  Therefore the complainant kept silent and did not file any case as there was no material.  More over due to cancellation of contract this Opposite Party sustained loss and did not ever recover the amounts paid by him to the material supplier, but this Opposite Party already paid all amounts to the complainant and settled the matter.  There is no defect of services on the part of this Opposite Party.  Hence the complaint may be dismissed.

4.     In support of their versions complainant and Opposite Party filed there respective affidavits reiterating the same.

On behalf of the complainant Exhibits A1 to A14 are marked and on behalf of Opposite Party exhibits B1 to B6 are marked.

5.      NOW THE POINTS FOR CONSIDERATION ARE :

1. Whether the complainant is a consumer within a meaning                         of consumer protection Act Section 2 (d).
2. Whether there is any deficiency of service on the part of Opposite party.?
3. To what relief the complainant is entitled to?

6.      POINT 1:   The case of the complainant is that the Opposite party is agreed to provide 6 passenger elevator to the hospital of complainant for Rs.6,08,000/-, that at the time of submitting quotation Opposite party received an advance amount of Rs.4,50,000/- and fail to provide the lift to the hospital, as per the schedule and that therefore the complainant suffered mental agony and that they are unable to admit the pregnant patients with the complications in the absence of the lift, and that Opposite party expressed their inability to install the lift through their letter dated                   26-02-2011 and that the amount paid by complainant together with interest accrued to Rs.5,30,000/- and that out of the said amount Opposite party paid an amount of Rs.2,65,000/- and agreed to pay the remaining balance by 20^th March, 2011 and failed to pay the balance amount,  and that thereby  Opposite party committed deficiency of service.

7.     The case of the Opposite party is that delay in providing the lift was caused due to non supply of proper material from the supplier of the Opposite party i.e. Excel Hydraulics, Hyderabad  and that  the matter was already settled and as per the terms of settlement, Opposite party paid Rs.2,65,000/- on 26-02-2011 to the complainant, that the complainant obtained two cheques each for Rs. 2,65,000/- and two pronotes for double amount stating that he will keep those cheques and pronotes till the amount was returned, that the complainant has only returned one cheque and one pronote and did not return another cheque and another pronote kept with him, that due to rash and intolerant behaviour of complainant, the contract was cancelled and due to the cancellation of the contract, Opposite party sustained the heavy loss and could not recover the amounts paid by him to the material supplier, and that there is no deficiency of service on the part of Opposite party since the matter was already settled.

8.     Admittedly Opposite party agreed to provide lift to the hospital of the complainant.  The hospital that was run by the complainant and his wife is a commercial institution.

9.     During the course of argument the learned counsel for the complainant argued that the hospital run by the complainant and his wife is for their lively hood and self employment profession and relied on a decision reported in I(1997) CPJ 23 (NC) in a case between Rampion Pharmaceuticals Vs Dr.Preetam Shah.

10.  The facts of the said case are that Dr.Shah who is a medical practitioner a profession working by way of self employment by using his knowledge and skill to earn his lively hood, purchased a machine and it has not been proved by any evidence that Dr.Shah is running a huge hospital and his business is on a large scale which can be put in the category of commercial nature and that therefore the National Commission agreed with the view taken by the State Commission that the machine was purchased not for commercial purpose but to pursue the professional activities by the complainant doctor and that therefore it is in the nature of self employment.

11.   But in this case the averment of the complaint does not disclose that they are running hospital for their lively hood.   Even according to the version of the complainant the complainant and his wife both are doctors and they are running a hospital by name M/s R.R. Specialty Hospital and that as the Opposite Party failed to provide the lift they are unable to admit the pregnant patients with the complications and as such the complainant was forced to occupy a rented building for pregnant ladies and spent lacks of rupees.    This averment of the complainant clearly shows that they are running a hospital on a large scale even by taking another building on rent by spending lacks of rupees for their pregnant and complicated patients.   Therefore the facts of the present case are quite different to the facts of the case relied upon by the counsel for the complainant. Therefore the citation relied on by he counsel for complainant is not applicable to the facts of the present case.   Therefore, the transaction that took place between the complainant and opposite party can be safely concluded as a commercial transaction and that therefore the complainant is not a consumer within the meaning of Consumer Protection Act, and that therefore the complaint is liable to be dismissed.  Accordingly this point is answered.

12.    POINT 2:    Admittedly Opposite party failed to provide lift to the hospital of the complainant as agreed upon and that therefore a settlement was made between the parties, that the amount paid by complainant together with interest accrued to Rs.5,30,000/- as on the date of settlement, that as per the settlement of the transaction Opposite party paid an amount of Rs. 2,65,000/- on 26-02-2011 and that the remaining amount is agreed to be paid by Opposite party by 20^th March,2011. Thus Ex-A6 dated 26-02-2011 by way of novation changed the nature of relationship between the complainant and opposite party from that of consumer and service provider into creditor and debtor.  According to the complainant, Opposite party failed to pay the remaining amount as per the settlement arrived at. As already both the parties arrived at a settlement and when the Opposite party failed to pay the remaining amount to the complainant as per the settlement, for collection of the remaining amount the complainant has to approach the Civil Court for recovery of the balance amount agreed to be paid by the Opposite Party. But it does not come under the purview of Consumer Protection Act. Therefore in view of the facts and circumstance of the case, we can not find any deficiency of the service on the part of the Opposite party.  Accordingly this point is answered.

13.    POINT 3:- In view of the foregoing discussion on points 1 & 2 the compliant is liable to be dismissed.

                In the result, the complaint is dismissed, but in the circumstances of the case each party shall bear their own costs.

Typed to my dictation by Junior Stenographer, corrected by me and pronounced in the open Forum dated this the 13^th day of February, 2012.

MEMBER                            MEMBER                                PRESIDENT

APPENDIX OF EVIDENCE

DOCUMENTS MARKED

For Complainant:

For opposite party:   

                                                                             PRESIDENT