By Smt. C. S. Sulekha Beevi, President,

1. The complainant who is the General Secretary of Markaz Tharbiyyathil Islamiyya is running a Charitable hospital. The complainant placed an order for a mobile X-ray unit with first opposite party. The X-ray unit was installed on 24-5-2001 and complainant paid Rs.2,10,000/-. The unit showed defect on 02-6-2003 and it was rectified on 03-6-2003. Again the same defect occurred on 08-9-2003 which was rectified on 09-9-2003. On 10-10-2003 the same complaint was noticed. Even though the service engineer of third opposite party attended, the defect could not be rectified. He reported to higher authority to replace the board. Complainant also reported the matter. Second opposite party deputed third opposite party to attend to the defect and third opposite party spend a whole day for repair and replaced the Thyristor. When the machine was switched on for checking, it collapsed with a terrible sound and blast. The machine became totally defective and this was caused due to the negligence of third opposite party who was an inexperienced and unskilled service engineer. Opposite parties ought to have replaced the tube and accessories. The complainant reported the matter before second opposite party in writing. Second opposite party demanded entire charges of Rs.45,000/- though the defect was caused due to negligence of the service engineer who was deputed by second opposite party. Complainant was compelled to execute Annual maintenance contract. The X-ray unit is lying idle from 11-9-2003 and complainant has incurred a loss of Rs.50,000/-. He alleges deficiency in service. Hence this complaint to direct opposite parties to replace the whole machine with a new one or to pay Rs.2,10,000/- with interest @ 18% per annum from 18-4-2001. He also prays for compensation of Rs.50,000/- for mental agony and monetary loss besides Rs.5,000/- towards cost of litigation.

2. First and second opposite parties filed a combined version. It is admitted that complainant purchased a X-ray equipment (Siemens Multimobile 2.5) from opposite parties in May, 2001 with one year warranty. The warranty expired in June, 2002. The X-ray unit was purchased for being used for commercial purpose and the complainant was charging every patient for taking the X-ray using this equipment. Hence the complainant is not a consumer as defined under the Consumer Protection Act, 1986. The complaint is not maintainable on this ground and has to be dismissed. It is further submitted that during the warranty period there were no complaints to the X-ray machine. After expiry of warranty period, the opposite parties had offered to service the equipment under the Equipment Maintenance Service Agreement (EMSA). But this was not accepted by the complainant. Even though opposite parties were not bound to rectify the defects noted in June, 2003, it was attended and rectified as a goodwill measure. In September, 2003 upon receiving complaint and on inspection of the equipment opposite parties noticed some defects in the X-ray Tube of the Equipment. As a good will measure, opposite parties brought the X-ray tube for thorough inspection and after detecting the defects, offered to rectify the same by sending this part to the factory of opposite parties at Goa on payment of cost of repair. Since complainant did not approve and accept this offer, the X-ray tube was returned to the complainant along with letter dated, 14-1-2004. That there was no deficiency on the part of opposite parties. The execution of Annual Maintenance Agreement (AMC) is optional and there was no compulsion from the part of opposite parties. The allegation that opposite parties compelled to execute AMC is denied as false. That third opposite party is not a personnel in the service of opposite parties, but is a Franchisee. He is well trained and well experienced. That on 03-9-2003 opposite party had only inspected and checked the X-ray equipment to find out the defects. The allegation that when the machine was switched on for checking it collapsed with terrible sound and blast is a cooked up story and denied by opposite party. That opposite party has always attended tot he report of defects. That there was no negligence while doing repairs of the machine. That complainant is not entitled to reliefs.

3. Notice issued to third opposite party was served. Third opposite party was set exparte on 09-1-2008. No version filed by third opposite party.

4. Evidence consists of the proof affidavit filed by complainant and Ext.A1 to A2 marked for the complainant. 1^st and second opposite parties filed a joint affidavit. No documents marked on the side of opposite parties.

5. Points for consideration:-

(i) Whether complainant is a consumer.

(ii) Whether opposite parties have committed deficiency.

(iii) If so, reliefs and costs.

6. Point (i):-

Opposite parties have disputed the complainant to be a consumer raising the contention that the X-ray machine was purchased by the complainant for commercial purpose. Complainant is the General Secretary of Markaz MMM Hospital. The X-ray unit was purchased for the hospital. Complainant has averred that it is a charitable hospital and has affirmed in the affidavit that the hospital is not run for commercial purpose. This apart, there is no evidence placed before us on the side of complainant regarding the question whether any charges are collected from patients for use of the X-ray machine in the hospital. A person who buys goods and uses them for himself exclusively for the purpose of earning his livelihood, by means of self-employment is within the definition of the expression ’consumer’. Complainant has no case that the goods were purchased for earning livelihood by means of self employment. Then the only question is whether the complainant had bought the goods for commercial purpose ie., to earn profit. Again, inspite of the commercial activity carried on, whether a person would fall within the definition of ’consumer’ or not is a question of fact. Though complainant contends that the hospital is run as a charitable hospital it is not specifically stated whether the X-ray of patients using the machine were taken free of charge. In other words complainant has not stated that it was not used for any profit oriented activity at all. Opposite parties relied upon the decision rendered in Kalpavruksha Charitable trust Vs. Toshinwal Brothers (Bombay)Pvt. Ltd. 2000 NCJ (SC) page1. It was held therein that when charges were collected from some patients for the use of C.T.Scan and that when only 10% of the patients who availed of the use of the C.T. Scan were provided free service, the alleged C.T.Scan was being used for commercial purpose and that the complainant would not be a consumer. The ratio of this decision is applicable to the instant case before us.

7. We have also considered the dictums laid in Kurji Holy Family Hospital Vs. Boehringa Mannheim India Ltd. and Others 2007 CTJ 1019 (CP) NCDRC and Viewtech Imaging Equipment Pvt. Ltd. Vs. CMC Ltd. and another 2008 CTJ 574 (CP) NCDRC. In these decisions it was held that before the amendment with effect from 15-3-2003, even if a party purchased goods for commercial purpose, it could maintain a complaint before the Forums in the event of those goods developing defects during warranty period. That warranty agreement amounted to service agreement.

8. The date of invoice for sale of X-ray machine is 18-4-2001 and the date of installation is 24-5-2001. Thus the purchase is prior to 15-3-2003. The warranty offered was only for one year. So the warranty period expired on 24-5-2002. Complainant does not have a case that the X-ray machine showed defects from the beginning itself or during it’s warranty period. No records are placed before us to show that it became repeatedly defective during it’s warranty period. His case is that the machine showed defect on 02-6-2003 which was rectified on 03-6-2003 and later on 08-9-2003 which was rectified on 09-9-2003. On 10-9-2003 it again showed defects. Thus as per the case of complainant, the defect appeared one year after the expiry of warranty.

9. It is obvious that Parliament intended to restrict the benefits of the Act to ordinary consumers purchasing goods whether for their own consumption or even for use in some small venture which they may have embarked upon to earn a living. It is not intended for any activity carried on for making profit. The complainants have failed to establish that the X-ray machine was used in the hospital without collecting any charges from any patient. No such records or documents are placed by the complainant. A mere averment in the complaint that the hospital is run as a charity hospital, which is denied by the other side can, by no stretch of imagination be said to be evidence by which the complainant can prove his case. It is the obligation of the complainant to provide the facta probanda as well as the facta probantia. Complainant has snot averred about any defect or rectification of defect during the warranty period or during one year after the expiry of warranty. The defect which gives rise to the cause of this complaint has first arose two years after the purchase. The alleged defect which gives rise to the cause of this complaint arose after 15-3-2003 (ie., on 02-6-2003) and the machine being used for commercial purpose, the complainant would not fall within the ambit of the definition of ’consumer’. We therefore have to hold that complainant is a not a consumer as defined under the Consumer Protection Act, 1986 as amended and that this complaint is not maintainable. Point found against the complainant.

10. For this reason we do not think that it is necessary to go into the merits of the case.

11. In the result, we dismiss the complaint on the ground that complainant is not a consumer and the complaint is out of the scope of jurisdiction of this Forum. The complainant is at liberty to approach the proper court. We make no order as to costs.

Dated this 27th day of January, 2010.

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C.S. SULEKHA BEEVI, PRESIDENT

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MOHAMMED MUSTAFA KOOTHRADAN, Sd/-

MEMBER E. AYISHAKUTTY, MEMBER

APPENDIX

Witness examined on the side of the complainant : Nil

Documents marked on the side of the complainant : Ext.A1 and A2

Ext.A1 : Photo copy of the invoice dated, 24-5-2001 for Rs.2,10,000/- from opposite party to complainant.

Ext.A2 : Photo copy of the letter dated, 22-9-2003 from complainant to first opposite party.

Witness examined on the side of the opposite parties : Nil

Documents marked on the side of the opposite parties : Nil

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C.S. SULEKHA BEEVI, PRESIDENT

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MOHAMMED MUSTAFA KOOTHRADAN, Sd/-

MEMBER E. AYISHAKUTTY, MEMBER