BEFORE A.P STATE CONSUMER DISPUTES REDRESSAL COMMISSION AT HYDERABAD
F.A.No.630 OF 2010 AGAINST C.C.NO.305 OF 2009 DISTRICT FORUM-I HYDERABAD
Between:
1. The Managing Director
M/s Allengers Medical Systems Ltd.,
SCO NO.212-214, Sector, 34-A, Chandigarh
Rep. by its Authorization Signatory
P.Chiranjeevi S/o P.Sudharshan Naidu
Branch Manager, Hyderabad
2. The Branch Manager
M/s Allengers Medical Systems Limited
P.Chiranjeevi S/o P.Sudharshan Naidu
office at Flat No.402, 4th Floor, Paradise
Circle, M.G.Road, Secunderabad Appellants/opposite parties
A N D
Dr.D.Rama Krishna S/o Krishnaji
Occ: Medical Practitioner
R/o Aakash Orthopedic Hospital
Shadnagar, Mahaboobnagar Dist.
Respondent/complainant
Counsel for the Appellants M/s V.Hari Haran
Counsel for the Respondent M/s V.Gourisankara Rao
F.A.No.356 OF 2012 AGAINST C.C.NO.305 OF 2009
Between:
Dr.D.Ram Kishan S/o Krishnaji
(wrongly typed as Dr.D.Rama Kirishna in CC NO.305/09)
Occ: Medical Practitioner
R/o Aakash Orthopedic Hospital
Shadnagar, Mahaboobnagar Dist.
Respondent/complainant
A N D
1. The Managing Director
M/s Allengers Medical Systems Ltd.,
SCD 71, Sector 20-C, Tribune Road
Chandigarh-020
2. The Branch Manager
M/s Allengers Medical Systems Limited
Jade aade, 402, 4th floor, Paradise Circle
M.G.Road, Secunderabad-003.
Respondents/opposite parties
Counsel for the Appellant M/s V.Gourisankara Rao
Counsel for the Respondents M/s V.Hari Haran
QUORUM: SRI R.LAKSHMINARASIMHA RAO, HON’BLE MEMBER
AND
SRI THOTA ASHOK KUMAR, HON’BLE MEMBER
THURSDAY THE FOURTEENTH DAY OF JUNE
TWO THOUSAND TWELVE
Oral Order (As per Sri R.Lakshminarasimha Rao, Hon’ble Member)
***
1. The opposite parties no.1 and 2 have filed the appeal challenging the order of the District Forum while the complainant has filed another appeal for enhancement of the amount of `25,000/- awarded by the District Forum. Both appeal are directed against the same order.
2. For the sake of convenience and felicity of expression, the parties are referred to as they are referred in the complaint.
3. The complainant purchased 9 HF A-Arm(HF 49) with 32 F image memory and PC Inter phase manufactured by the first opposite party. The sale consideration of the machine is `8,25,000/-.The equipment was installed at the hospital of the complainant on 25.03.2006. warranty for a period of one year was provided for the equipment. The complainant paid a sum of `90.000/- towards advance and `2 lakh towards part sale consideration and the balance amount was to be paid by the complaint by way of issuing postdated cheques.
4. The complainant contends that the equipment did not function on the very first day and he informed the problem to the second opposite party for which there was no response from the second opposite party. After repeated requests, the second opposite party said to have sent its representative, K.M.Prasad who checked and found the defect as “LEB-III growing no image on the monitor” and he had rectified the defect and submitted service report on 28.06.2006. The complainant contends that the machine stopped working from the next day and in the month of December,2007 the official of the second opposite party company stated to have inspected the equipment and informed him that the equipment suffered from manufacturing defect. The complainant states that the second opposite party offered to take back the equipment by paying him an amount of `80,000/- through cheque dated 7.12.2007 and he did not agree for the proposal and demanded for refund of the entire amount of `2,90,000/-. On failure of the opposite parties to refund the amount, he addressed letters and in reply the opposite parties got issued notice dated 25.10.2008 demanding for an amount of `5,35,000/- with interest and the complainant got issued reply to the notice.
5. It is contended on behalf of the opposite parties that the complaint is barred by period of limitation. The machine was purchased for his hospital which is being run for earning profits and the complainant employed many persons for running the hospital. It is contended that the complainant is working as professor in Osmania University and also working in Akash Orthopedic Hospitals to earn profits. The opposite parties have filed suit for recovery of amount of `5,35,000/- before the court of Senior Division, Chandigarh and when the suit is pending before the court the complainant as a counterblast, filed the complaint. The opposite parties contend that the defects pointed out by the complainant and they had also replaced the machine with a new machine. The complainant used the machine for three years and sought for refund of the sale consideration. There was no manufacturing defect in the machine. The complainant has not sustained any loss.
6. The complainant, in support of his claim has filed his affidavit and the documents marked as Ex.A1 to A9. On behalf of the opposite parties, the Deputy Manager (Sales) filed his affidavit but no documents.
7. The District Forum basing on the evidence placed on record came to the conclusion that the complaint is filed within the period of limitation and the complaint is maintainable as also the equipment supplied by the opposite parties was defective and liable to be taken back by them by paying a sum of `2,90,000/- besides an amount of `25,000/- towards compensation and `5,000/- towards costs.
8. The complainant has filed the appeal questioning the quantum of amount granted as compensation as inadequate whereas the opposite parties in their appeal challenged the order on the premise of the maintainability of the complaint on the counts of limitation, jurisdiction and pendency of suit for recovery of the amount before civil court as also on the foot of the plea that the equipment does not suffer an manufacturing defect.
9. The points for consideration are:
i) Whether the complaint is filed within the period of limitation?
ii) Whether the complainant is consumer and the complaint is maintainable under the provisions of the Consumer Protection Act?
iii) Whether the equipment did suffer any manufacturing defect?
iv) To what relief?
10. POINT NO.1: Placing reliance on the pleadings in the complaint that the equipment was defunct from the day one of its purchase, the learned counsel for the opposite parties would contend that the complaint is not filed within the period of limitation. The equipment was installed at the hospital of the complainant on 25.03.2006. The complaint was filed on 28.03.2009 and if we go by this single averment of the complainant, it certainly would take us to draw inference that the complaint is not filed within the period of limitation. There is no quarrel that if the complaint is not filed within the period of limitation, it has to be dismissed without considering the other issues involved in the matter.
11. In “State Bank of India Vs. B.S.Agircultural Industries (I)” reported in II (2009) CPJ 29 (SC) the Hon’ble Supreme Court had dealt with the question of limitation under Sec.24A of the C.P.Act and the obligation of the consumer forum in looking into the aspect of the question of limitation for entertaining the complaint. The Apex Court held as follows:
“Section 24A of the Consumer Protection Act, 1986 is peremptory in nature and requires consumer forum to see before it admits the complaint that it has been filed within two years from the date of accrual of cause of action. The consumer forum, however, for the reasons to be recorded in writing may condone the delay in filing the complaint if sufficient cause is shown. The expression, `shall not admit a complaint' occurring in section 24A is sort of a legislative command to the consumer forum to examine on its own whether the complaint has been filed within limitation period prescribed thereunder. As a matter of law, the consumer forum must deal with the complaint on merits only if the complaint has been filed within two years from the date of accrual of cause of action and if beyond the said period, the sufficient cause has been shown and delay condoned for the reasons recorded in writing. It is the duty of the consumer forum to take notice of section 24A and give effect to it. If the complaint is barred by time and yet, the consumer forum decides the complaint on merits, the forum would be committing an illegality and, therefore, the aggrieved party would be entitled to have such order set aside”. (emphasis supplied)
12. In this context, we should not forget that cause of action is not a single fact and it is bundle of facts which would be a factor to enable the complainant to base his claim against the opposite party.
13. The Hon’ble Supreme Court in Sonic Surgical Vs. National Insurance Co., Ltd., reported in (2010) 1 SCC 135 held that the complaint could be filed in the District forum in whose jurisdiction the branch office of the insurance company is situated and the cause of action had arisen. It was held thus,
In our opinion, no part of the cause of action arose at Chandigarh. It is well settled that the expression 'cause of action' means that bundle of facts which gives rise to a right or liability. In the present case admittedly the fire broke out in the godown of the appellant at Ambala. The insurance policy was also taken at Ambala and the claim for compensation was also made at Ambala. Thus no part of the cause of action arose in Chandigarh.
Further, the Hon’ble Supreme Court held
If the contention of the learned counsel for the appellant is accepted, it will mean that even if a cause of action has arisen in Ambala, then too the complainant can file a claim petition even in Tamil Nadu or Gauhati or anywhere in India where a branch office of the insurance company is situated. We cannot agree with this contention. It will lead to absurd consequences and lead to bench hunting. In our opinion, the expression 'branch office' in the amended Section 17(2) would mean the branch office where the cause of action has arisen. No doubt this would be departing from the plain and literal words of Section 17(2)(b) of the Act but such departure is sometimes necessary (as it is in this case) to avoid absurdity. [vide G.P. Singh's Principles of Statutory Interpretation, Ninth Edition, 2004 P. 79] In the present case, since the cause of action arose at Ambala, the State Consumer Redressal Commission, Haryana alone will have jurisdiction to entertain the complaint. For the reasons stated hereinabove, we do not see any reason to interfere with the impugned order of the NCDRC. Accordingly, this appeal is dismissed. No order as to the costs.
14. The service engineer of the second opposite party company issued service report on 28.06.2006 having attended to the repairs on the same day and the complainant brought to the notice of the second opposite party in the year,2007 that the equipment has become defunct. In reply to the notice of the complainant the opposite party no.1 expressed its readiness on 4.12.2008 that it would take back the equipment and pay an amount of Rs.80,000/- to the complainant. As such the District Forum has rightly observed that the complaint was filed within two years from the date of cause of action. The point is answered against the opposite parties.
15. POINT NO.2: It is the version of the opposite parties that the complainant is not a consumer within the meaning of Section 2(1)(d) of the Consumer Protection Act and as such the complainant is not maintainable. Admittedly, the complainant is working as professor in Osmania University besides running the hospital under the name and style ”Akash Orthopedic Hospital‘ at Mahaboobnagar District and he purchased the equipment for the purpose of the hospital. The opposite parties contend that the complainant employed several staff members for running the hospital and he has been earning profit by running the hospital. There is no denial of the fact by the complainant.
16. The equipment was purchased for the purpose of the hospital and the predominant purpose for running the hospital is to earn profit which is a commercial purpose. The complainant cannot be considered as consumer within the meaning of Section 2(1)(d) of the Consumer Protection Act.
17. Section 2(1)(d) and (o) of the Consumer Protection Act gives us the description of the person who is a consumer and the provisions of the service relating to certain fields. The provision of law reads as follows:
“2. (1) (d) “consumer” means any person who,—
(i) buys any goods for 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 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”
18. Besides the commercial purpose for which the equipment was purchased by the complainant, the opposite parties have filed suit and the suit is pending before the court of senior division, Chandigarh. The suit is of comprehensive nature when compared to the complaint which involves the issue in regard to the deficiency in service.
19. The National Commission in “D.Srihari Rao(Dr) Vs Wipro GE Medical systems and another” III(2011)CPJ 504 (NC) dismissed the revision petition filed against the order of this Commission holding the doctor had purchased Ultrasound Machine for commercial purpose. The National Commission confirming the order of this Commission dismissed the Appeal filed by the Complainant. The principle laid in the case is squarely applicable to the facts of the present case.
20. For the foregoing reasons, the complaint is not maintainable and is liable to dismissed.
21. POINT NO.3 : As the point no.2 is decided holding the complaint not maintainable, no discussion under this point is required .
22. POINT NO.4: In the result, the F.A.No.630 of 2010 is allowed. Consequently, the complaint and F.A.No.356 of 2012 are dismissed. The parties shall bear their own costs.
MEMBER
MEMBER
DT.14.06.2012
KMK*
