PER JUSTICE AJIT BHARIHOKE, PRESIDING MEMBER M/s R.K.Diagnostics, a partnership firm, alongwith its partner Smt. Kovi Ajitha and Dr. K. Ramanna Kumar has filed this complaint under section 21 of the Consumer Protection Act, 1986, against M/s Philip Medical System India Private Limited and its General Manager Sh. M.S.Menon.

2. Briefly stated allegations in the complaint are that M/s R.K.Diagnostics Services Private Limited, through its Director Dr.K.Ramana Kumar (complainant no.2) negotiated with the Opposite Parties for purchase of a whole body scanner. During negotiations, the representative of the Opposite Parties assured of very high and superior quality images from the said CT scanner apart from the additional features including CT angiography package. Being impressed with the representation made by the representatives of the Opposite Parties, M/s R.K.Diagnostics Services Private Limited agreed to purchase the said equipment and paid the booking amount. M/s R.K.Diagnostics Services Private Limited later on dropped the idea of purchasing the said equipment and at that stage complainants no. 1 & 2 decided to start a partnership business and took initiative to purchase the said CT scan equipment booked by the Private Limited Company. For that purpose, a partnership firm, namely, complainant no.3 was constituted and the firm got sanctioned loan from the Andhra Bank. Thus, the complainants purchased the above equipment with the above specifications as represented by the representative of the Opposite Parties for Rs.1,05,00,000/- only. The configuration of the equipment was specified in the complainant letter dated 26.11.1999 addressed to the Opposite Parties. The Opposite Party issued the invoice dated 26.11.1999 alongwith the payment schedule of the price of equipment.

3. It is further alleged that the Opposite Parties installed the equipment in the complainant premises on 03.03.2000 and issued a installation completion-handover-acceptance certificate. The complainant in the remark coloumn of the said certificate specified three deficiencies noticed at the time of installation, namely, Gantry cover should be replaced, quality of image not good as promised and Endoscopy and Angiogram were neither installed nor demonstrated. The representatives of the opposite party assured the complainant that the deficiency pointed out by the complainant as per the above remarks shall be addressed to immediately. However, the Opposite Party failed to remedy the defects pointed out by the complainant. Consequently, the complainants instructed his bankers to stop payment of the four cheques issued against the payment of the price of the equipment. The opposite party infact presented those cheques for encashment but the same were dishonoured. The opposite parties, however, did not initiate any action against the petitioner for dishonour of the cheques. Aforesaid failure of the opposite party to rectify the defects pointed out by the complainants is alleged to be the deficiency in service which has led to the filing of the complaint seeking refund of the sum of Rs.74,25,000/- paid towards the cost of equipment besides the payment of interest charged from the complainants by Andhra Bank towards the loan amount as also interest on the principal amount and compensation for harassment and mental agony suffered by complainants no. 1 & 2.

4. Opposite party contested the claim of the complainants by filing written statement. They took preliminary objection to the effect that the complaint is not maintainable because the complainants had purchased the equipment in dispute for commercial purpose and as such they do not fall within the definition of onsumeras defined under section 2 (d) of the Consumer Protection Act, 1986. It is also contended that the complaint is hopelessly barred by limitation as it has been filed after a period of 4 years from the date on which the CT scan equipment was installed at the premises of the complainants and the alleged deficiencies or defects were noted by the complainants.

5. On merits also, the allegations in the complaint are denied. It is alleged that the contact for supply of CT scan machine and other equipment was placed by M/s R.K. Diagnostics Services Pvt. Ltd. and not by the partnership firm. It is further alleged that CT scan machine in perfect order in terms of contract was supplied on 14.02.2000 and the installation certificate was obtained from the complainant in March 2000. The objections raised by the complainants in the installation certificate were attended to and the service was undertaken on 08.6.2000 and after the service, machine was functioning properly and was in good working condition. Even the left Gantry cover was replaced. It is contended that despite of proper delivery and installation of machine, Dr. K.Ramana failed to make the subsequent payments and he kept on assuring the opposite parties that the payments were delayed due to certain financial problems. It is contended that the complainants owe a huge amount to the opposite parties towards the price of the machine and in order to avoid the said liability, the complainant has resorted to the instant complaint.

6. Both the parties have filed their evidence on affidavits. We have heard the counsel for the respective parties and perused the record including evidence.

7. Learned counsel for the opposite parties at the outset has submitted that the present complaint is liable to be dismissed, firstly, on the ground that the complainants do not fall within the definition of onsumerand, therefore, they cannot maintain consumer complaint under the provisions of Consumer Protection Act, 1986 ( in short, he Act. Secondly, it is contended that in the instant case, even if the averments made in the complaint are taken to be true, then also, the complaint is barred by limitation for the reason that it has been filed after a period of 4 years from the date on which the cause of action arose.

8. Learned Shri Ranjan Mukherjee, Advocate for the complainants has submitted that preliminary issues raised by the learned counsel for the opposite parties cannot be reagitated now for the reason that aforesaid issues have already been settled by this Commission vide its order dated 23.11.2005 dismissing the application of the complainant under Order 7 Rule 11 CPC seeking rejection of the complaint.

9. The above argument of learned counsel for the complainants is misconceived and is based upon incorrect reading of the order of the Commission dated 23.11.2005 which is reproduced thus: hole purpose of speedy disposal under the Consumer Protection Act would be frustrated if such type of preliminary objections are entertained and decided. Further, it is abundantly clear that if we refer to Section 13 of the Consumer Protection Act, Order 7 of the CPC is not made applicable. Secondly, it is the contention of the complainant that by sheer mistake in a previous complaint which was filed, the names of the complainants were not properly described. Instead of describing the name of complainants, the area where the complainant is having its business was mentioned. In this view of the matter, this application is rejected. Opposite party shall file its written version within 21 days from today alongwith the evidence by way of affidavit in support of it. Stand over to 28th Februrary, 2006

10. On perusal of the aforesaid order, it is evident that vide order dated 23.11.2005 this Commission declined to decide the application under order 7 Rule 11 CPC on two counts. Firstly that order 7 CPC is not applicable to the proceedings under the Act and secondly on the ground that if such preliminary objections are entertained and decided at the initial stage, it would frustrate the whole purpose of speedy disposal of consumer complaint, which is the object of the Act. Thus, we are of the view that there is no merit in the plea of the learned counsel for the complainant that preliminary objections regarding maintainability of the complaint as also the limitation have already been decided by the Commission. 11. Coming to the maintainability of the consumer complaint under section 21 of the Act, learned counsel Sh.Ajay Kapur, Senior Advocate for the opposite parties has contended that from the record, it is evident that CT Scan machine / equipment was purchased by the complainants for purely commercial purpose, therefore, the complainant, firm and its partner are not covered under the definition of onsumeras defined under section 2 (d) of the Act. Thus, the present complaint under the Act is not maintainable. 12. On the contrary, learned counsel for the complainants has submitted that complainants had purchased the CT Scan machine / equipment for the purpose of earning the livelihood. Therefore, in terms of the explanation to Section 2 (d) of the Act, the machine / equipment was purchased for the purpose other than commercial purpose. As such, complaint is maintainable under section 21 of the Act. 13. In order to appreciate the rival contentions, it would be useful to have a look on certain provisions of the Act. Section 2 (b) of the Act defines the term omplainantand it reads thus: omplainantmeans (i) a consumer; or (ii) any voluntary consumer association registered under the Companies Act, 1956 ( 1 of 1956) or under any other law for the time being in force; or (iii) the Central Government or any State Government; or (iv) One or more consumers, where there are numerous consumers having the same interest;] (v) in case of death of a consumer, his legal heir or representative;] who or which makes a complaint. 14. On reading of the above, it is evident that in order to successfully maintain the complaint, the complainants must fall within the definition of consumer. The term consumer has been defined under section 2 (d) of the Act. Relevant part of Section 2 (d) is reproduced thus: onsumer means a person who- 1) 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 purpose. Explanation- For the purpose of this clause, ommercial purposedoes not include use by a person of goods brought and used by him and services availed by him exclusively for the purpose of earning his livelihood by means of self-employment 15. On careful reading of section 2 (d) (1) reproduced above, it is evident that term onsumerfor the purpose of the Act does not include a person who obtains goods in question for resale or for any commercial purpose. However, the explanation to the provision makes an exception that commercial purpose does not include use of the goods bought by the buyer exclusively for the purpose of earning his livelihood by means of self employment. 16. In the context of the above definition of consumer, now it is to be seen whether the partnership firm M/s R.K.Diagnostics and its partners Kovi Ajitha and Dr. K.Ramana Kumar, the complainants, herein are covered by the definition of consumer? 17. Admittedly the negotiations for the purpose of CT Scan machine were conducted by Dr. K.Ramana Kumar with the opposite parties in his capacity as the Director of M/s R.K.Diagnostics Service Private Limited, which has several diagnostic centres throughout Andhra Pradesh. Thus, it is evident that the above referred private company was operating commercially for earning profits and not for earning the livelihood. It is also admitted case of the parties that Dr. K.Ramana Kumar as also the complainant Kovi Ajitha are shareholders of the aforesaid company. That being the case, it is clear that before the constitution of the partnership firm, M/s R.K.Diagnostics, its partners Dr.K.Ramana Kumar and Kovi Ajitha were running a private limited company for commercial purpose and earning profits. Therefore, by no stretch of imagination, it can be said that the partnership firm was constituted by the other two complainants with a view to earn their livelihood particularly when they were having a source of income in the above noted private limited company. Thus in our view, the complainants no. 1 & 2, who had other source of income constituted the partnership firm M/s R.K.Diagnostics for commercial purpose. Therefore they as well as their firm do not fall within the explanation to the definition of onsumeras provided under section 2 (d) of the Act. 18. From the discussion above, it is also evident that the partnership was created by the other two complainants with a view to extend their diagnostic service business which they were already carrying on through M/s R.K.Diagnostics Services Private Limited, a closely held company. Since the CT Scan machine / equipment was purchased for a commercial venture i.e. the Diagnostic Service, the complainants do not fall within the definition of consumer and as such in our view they are not competent to maintain consumer complaint under section 21 of the Act. On this count alone, the complaint is liable to dismissed as not maintainable. 19. Coming to the issue of limitation. As per the allegations in the complaint, CT scan machine / equipment was installed at the premises of the complainants on 03.03.2000 and while signing the installation / delivery, the complainants noted the defects in the CT scan machine / equipment. From this it is evident that the defects in the machine came to the knowledge of the complainants on 03.03.2000. Therefore, the cause of action for filing complaint on the ground of supply of defective CT Scan machine / equipment arose on 03.03.2000. The complaint as per the record has been filed on 04.11.2004 i.e. after the expiry of more than 4 years from the date on which the cause of action arose. Section 24A of the Act provides for the limitation period for filing of complaint before the District Forum, State Commission or National Commission. It provides that aforesaid fora shall not admit a complaint unless it is filed within two years from the date on which the cause of action has arisen. Of course Section 24A (2) provides an exception to the aforesaid rule and confers power upon the aforesaid fora to condone the delay in filing of complaint beyond the period of limitation if the complainant shows sufficient cause for not filing the complaint within such period. No such cause has been shown by the complainants. It may be noted that earlier the complainants had filed the complaint against the opposite parties on the same cause of action on 05.02.2003 under the name of R.K.Scan Centre. The said complaint was dismissed vide order dated 13.09.2004 on the ground that R.K.Scan Centre has no locus standi to maintain the complaint. Thereafter, the present complaint in the name of the partnership firm and the partners was filed on 04.11.2004. Alongwith the complaint, an application of condonation of delay was filed stating that the complainants were prevented from filing this complaint within the period of limitation for the reason that under the mistaken belief, complainants were pursuing the complaint under the name of R.K.Scan Centre where the CT Scan machine / equipment was supplied. It is submitted by the learned counsel for the complainants that because of the aforesaid bonafide mistake , the delay in filing of complaint has occurred. This argument is of no avail to the complainants. Even if the aforesaid explanation of the complainants is taken to be the reason for delay in filing of complaint, it only explains the delay caused for the period w.e.f. 05.02.2003 till 13.09.2004. As discussed above, the cause of action for filing of complaint arose on 03.03.2000. Therefore, in view of Section 24A of the Act, the complaint ought to have been filed by 03.03.2002. Admittedly, the first complaint under the wrong name was filed on 05.02.2003 i.e. after the beyond period of two years from the date of cause of action. Therefore, the first complaint itself was barred by limitation. There is no explanation given for the delay in filing of the complaint under the name of R.K.Scan Centre beyond the period of limitation. Thus, in our view the complainants have failed to show a sufficient cause which prevented them from filing the complaint within the two years period of limitation. Thus application for condonation of delay is dismissed. Resultantly, the complaint is barred by limitation. 19. In view of the discussion above, the complaint is neither maintainable nor it is within limitation. We find no reason to go into the merits of the case. Complaint is accordingly dismissed as not maintainable as well as barred by limitation with cost of Rs.50,000/-.