Delhi

North East

CC/75/2017

LAXMI DIAGNOSTIC CENTRE - Complainant(s)

Versus

SANJEEV PANDEY(DIRECTOR) - Opp.Party(s)

18 Sep 2019

ORDER

 DISTRICT CONSUMER DISPUTES REDRESSAL FORUM: NORTH-EAST

GOVT. OF NCT OF DELHI

D.C. OFFICE COMPLEX, BUNKAR VIHAR, NAND NAGRI, DELHI-93

 

Complaint Case No. 75/17

 

In the matter of:

 

	Shri Laxmi Diagnostic Shri Lal S/o Pundev Prasad R/o 171/1, Gali No. 5 Durga Park, (Near Solanki Public School) New Delhi-110045	Complainant
	Versus
1         2	Shri Sanjeev Pandey (Director) Millennium Biomedicale Pvt Ltd. 324, Aggarwal Plaza, Sector-14, Rohini, Delhi-110085   Shri Rajesh Kumar (Service Engineer) Millennium Biomedicale Pvt Ltd. 324, Aggarwal Plaza, Sector-14, Rohini, Delhi-110085   Present Address:- Millennium Biomedicale Pvt Ltd. A-26, First Floor, Street no. 2, Madhu Vihar Near Hasanpur Depot New Delhi-92	Opposite Parties

 

DATE OF INSTITUTION:     JUDGMENT RESERVED ON:               DATE OF DECISION :

01.03.2017 18.09.2019 18.09.2019

 

N.K. Sharma, President

Ms. Sonica Mehrotra, Member

 

Order passed by Ms. Sonica Mehrotra, Member

ORDER

1. The complaint arises out of a Hematology analyzer machine model NO. SB22 which the complainant Diagnostic Centre purchased from OP on 18.02.2015 for a sum of Rs. 2,80,000/- inclusive of VAT vide invoice no 185 dated 30.08.2014 which reportedly became defective within two-three months of purchase and which was neither replaced nor price refunded by OP giving rise to the present complaint alleging deficiency of service seeking damages and compensation from OP. Complainant has attached copy of letter dated 18.02.2015 from OP to complainant acknowledging placing the order for said machine on terms and conditions, copy of undated letter from complainant to OP placing order for the said machine Hematology Analyzer, copy of field service report no. 1425 dated 07.06.2016 issued by OP for service repair of the said machine and copy of legal notice dated 02.08.2016 from complainant counsel to OP.
2. Notice was issued to the notice on 21.03.2017. OP entered appearance on 18.04.2015 and filed its written statement.
3. However, before adverting to the merits of the case, the issue of maintainability has to be decided as per law laid down by Hon'ble Supreme Court in Hewlett Packard India Ltd Vs Shri Ramachandra Gehlot in CA no. 7107/2003 decided on 16.02.2004.
4. The core question to be decided is whether complainant will fall within the purview of consumer u/s 2(1)(d) of Consumer Protection Act, 1986.
5. In order to answer the aforesaid vital question, it would be useful to describe amended definition of a ‘Consumer’ alongwith its ‘Explanation’ as provided under Section 2(1)(d) of the Act.

The word ‘consumer’ is the fulcrum of the Consumer Protection Act (the Act) and is defined in Section 2 (1)(d) of the Act meaning any person who

1. buys and 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 that 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
2. 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 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 purpose of earning his livelihood by means of self employment.

 

The term ‘consumer’ has, thus, been defined to mean, a person who                 is-

1. a buyer, or
2. with the approval of the buyer, the user of the goods in question, or   
3. a hirer or person otherwise availing, or
4. with the approval of such aforesaid persons, the beneficiary, of the service(s) in question

 

with the condition super added that such buying of the goods or hiring or availing of any such service, is for a consideration, -

 

1. paid, or
2. promised, or
3. partly paid or promised, or
4. covered by any system of deferred payment

 

6. On bare reading of the above, it is clear that consumer is a person who buys goods or hires/avails of services for consideration but excludes a person who does the same for commercial purpose.

 

7. The word “commercial purpose ” has been defined by Hon'ble National Commission in Kores (India) Ltd Vs Samir Purkayastha (1996) 2 CPJ 71 (NC) as having a vide connotation and the determination of purpose in a consumer case should be done by taking into account a number of factors viz. the scope of business, the investment involved, the motive and intention behind the business, whether it is in the nature of earning a livelihood or earning substantial profit, currently as well as in future profits. Therefore commercial purpose is a question of fact to be decided on basis of purpose to which the goods bought are put to use and if the same is not for self employment, the person purchasing it is ousted from category of consumer especially after the amendment w.e.f. 15.03.2003 to the Act. “Commercial purpose” would therefore cover an undertaking whose object is to make profit out of it. Hon'ble Supreme Court in Laxmi Engineering Works Vs P.S.G. Industrial Institute II (1995) CPJ I SC observed that commercial purpose is question of fact to be decided in the facts of the each case and interpreted the Explanation to Section 2(1)(d)(ii) excluding certain purposes from the purview of ‘commercial purpose’ such as person buying a typewriter or car for personal use or plying car as taxi for earning livelihood i.e. if the buyer of goods uses them himself i.e. by self-employment, for earning livelihood it would not be treated as ‘commercial purpose’. Therefore, the goods bought must be used by the buyer himself, by employing himself for earning livelihood viz operating machine himself or plying a track himself as public carrier. As against this a person who purchases a vehicle or a machine to be plied or operated by other person(s) would not be a consumer. This is the necessary limitation flowing from the expressions “used by him” and “by means of self employment”. 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. ‘Self employment’ has been explained by Hon'ble Supreme Court in Cheema Engineering Services Vs Rajan Singh (1997) 1 SCC 131 as altogether a different concept with connotation that he (purchaser) alone uses the machinery purchased for the purpose of manufacture by employing himself in working out or producing the goods for earning his livelihood. Therefore, the purpose to which the goods bought are put to use becomes material.
8. The Hon'ble National Commission in Hajarimal Moonat Vs. Kumar Iron Works 1997 (1) CPR 18 held that to arrive at the conclusion whether a purpose for a commercial purpose, it has to be decided whether the purchase of the goods by the complainant was intended for commercial purpose for carrying on small business for the purpose of eking out his livelihood by way of self employment. The Hon'ble National Commission in B.H. Kerudi Vs M.D.J. Mithra & Co. Ltd 2002 (III) CPJ 299 (NC) held that where the equipment purchase by the complainant had a direct nexus with his commercial purpose, then purchase of such equipment is for commercial purpose and complainant not being a consumer cannot maintain complaint before Redressal Forum under the Consumer Protection Act. Further, the Hon'ble National Commission in Jay Kay Puri Engineering Vs M. Breweries and Distilleries Ltd. 1996 (1) CPR 102 (NC) and in Meera Industries Vs Modern Construction RP no. 1765/2007 decided on 22.05.2009  held that by virtue of amendment to Section 2(1)(d)(ii) of the Consumer Protection Act effected in 2003 w.e.f. 15.03.2003, a person who avails of services for commercial purpose would no longer be within the ambit of “consumer” under CPA even for the purpose of services during the warranty period to be rendered by manufacturer or supplier during the said period for the maintenance of machine purchased. The Co-ordinate Bench of Hon'ble National Commission in Shakti Engineering Works Vs Sri Krishna Coir Rop Industry III (2000) CPJ 2013 (NC) held that in order to have protection of explanation to Section 2(1)(d)(ii), one must establish that he himself was engaged in the activity which generates livelihood by way of self-employment.
9. In the present case, nowhere in the entire pleadings has the complainant averred the said machine to have been purchased for earning livelihood by means of self-employment. He is a director of the complainant Diagnostic Centre. OP too has taken this objection in its written arguments of complainant having not stated anywhere that he was using the said machine as a source of livelihood and submitted or that the machine was the only source of earning of him. Hon'ble Supreme Court in the judgment of Kalpavruksha Charitable Trust Vs. Toshniwal Brothers (Bombay) Pvt Ltd. AIR 1999 SC 3356 held that a C.T. Scan Machine purchased charitable hospital purchase for commercial purpose as patient were being charged for taking C.T. Scan. The Hon'ble National Commission in Agfa Gevaeart India Ltd. Vs M/s Jitpal X-Ray Pvt Ltd. 1994 (2) CPR 227 NC held that a Pvt. Ltd company running a diagnostic, laboratory, skin and VD clinic having purchased x-ray machine was not a consumer as defined under CPA as the machine purchased by it had been employed for commercial purpose and for carrying on business for profit. Hon'ble Delhi SCDRC in Dr. Pradeep Dutta Vs Larsen and Tubro Ltd. 1992 (3) CPJ 633 (Del) held that and ultrasound machine purchased by a medical practitioner for use in his clinic was purchased for commercial purpose and complainant was not a consumer. The Hon'ble National Commission in Transasia Bio-Medicals Ltd. Vs Deepak Kumar Jindal I (2016) CPJ 531 (NC) held that a Random Access Auto Analyzer Machine purchased by Respondent Clinical Laboratory was a purchase made for commercial purpose and reversed the decision of SCDRC Chandigarh which had allowed the complaint. The Hon'ble National Commission held that Learned State Commission has committed error in observing that complainant in consumer and allowed the Revision Petition.
10. After having exhaustively dealt with the settled proposition of Law in the elaborate legal discourse in the forgoing paragraphs in keeping with the facts of the present case and averments made by the complainant himself of running a Diagnostic Centre for which the said machine was purchased from OP, the complainant is ousted from the category of consumer within the purview of Section 2(1)(d) having purchased it for earning profit for its lab.
11. For all the aforesaid reasons, the complaint is dismissed as non maintainable with no order as to cost.
12.  Let a copy of this order be sent to each party free of cost as per regulation 21 of the Consumer Protection Regulations, 2005.
13.  File be consigned to record room.
14.   Announced on  18.09.2019

 

(N.K. Sharma)     President

(Sonica Mehrotra)  Member