West Bengal

Bankura

CC/24/2015

Sikha Rani - Complainant(s)

Versus

Transasia Bio medical Ltd. - Opp.Party(s)

Self

08 Jan 2024

ORDER

IN    THE   DISTRICT   CONSUMER   DISPUTES   REDRESSAL COMMISSION, BANKURA 

 Consumer Complaint No. 24/2015

                                                Date of Filing: 09/03/2015                                         

Before:                                        

1. Samiran Dutta                            Ld. President.      

2. Siddhartha Sankar Bhui            Ld. Member. 

 

For the Complainant:  Ld. Advocate Arup Kr. Shit

For the O.P.:  Ld. Advocate Ananda Mohan Mondal

 

Complainant  

 M/s Ritawari Healthcare Services Pvt. Ltd., Patpur, Bankura                                                                                                                                    

Opposite Party 

1.Transasia Bio Medical Ltd., 518 Kamalalaya Centre, Lenin Sarani, Kol-13

2.Mr. Samik Basu, Sr. Sales Manager, Transasia Bio Med Ltd., 518 Kamalalaya Centre, Lenin Sarani, Kol-13

 

FINAL ORDER / JUDGEMENT

 

Order No.50

Dated:08-01-2024

Both parties file hazira through advocate.

The case is fixed for argument.

After hearing argument from both sides the Commission proceeds to dispose of the case as hereunder: -

The Complainant’s case is that it being a Private Limited Company formerly known as Ritavari Diagnostic Centre, Proprietor Mrs. Sikha Rani De placed an order with O.P. for purchase of Biochemistry Analyzer on 26/11/2013 for Rs.6,95,000/- and the same was supplied on 01/01/2014 beyond four weeks of placing the order and the machine was installed on 25/02/2014. Full payment has already been made in installments but the machine was found defective and to make it operational and functioning one 2 KVA Online UPS and A.C. Room was provided as per post delivery arrangement. The Complainant further accommodated D.I. Plant for purifying water being supplied by the O.P. Company for smooth functioning of the machine but the machine started giving wrong results due to poor quality of the D.I. Plant and so within two months of installation on 22/04/2014 the machine broke down and after repairing it again broke down on 26/05/2014 due to defective parts. After detection of faulty results of the machine according to the advice of O.P. a better quality D.I. water treatment Plant was installed at the cost of the Complainant on 08/07/2014 for Rs.41,800/- for accurate result of the said machine. The O.P. was to arrange CME (Continuing Medical Education) to generate awareness among practicing doctors locally about this new technology for better accuracy of results and benefit of the patient but the O.P. did not arrange the same as per their commitment. For all the lacunae and inactions on the part of the O.P. the Complainant has suffered a huge financial loss to run the Diagnostic Centre without Biochemistry Analyzer which is lying in dead condition. The Complainant has therefore sought for appropriate relief against the O.P./Company.

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Page: 2

O.P. /Co. contested the case by filing a written version denying all the material allegations made in the complaint contending inter alia that the case is not maintainable on the ground that the Complainant is not a consumer under the Consumer Protection Act as the machine has been purchased for commercial purpose.

                                                                                -: Decision with reasons: -

Having regard to the facts of the case, submission, contention and documents from both sides the Commission finds that there is no doubt delay in delivery of the machine as per terms and condition of the order but even after installation of the machine problem cropped up time and again which could not be overcome by taking all the possible measures as per advice and recommendation of the O.P./Company. O.P. has received full payment as is evident from the documents filed at the time of hearing. It is the duty of the O.P./Company as product seller to take proper care and maintenance of the product supplied to the Complainant and the O.P./Company is found negligent and careless in safeguarding the interest of the Complainant/ buyer. The supplied machine is not even in serviceable and reparable condition and the Complainant could not even operate the machine even for a single occasion. It goes to show that the machine has inherent defect beyond service and repair and the O.P. / Company being the product seller has to compensate the financial loss suffered by the Complainant. U/s 86(e) of the Consumer Protection Act, 2019 a product seller shall be liable in a product liability action if he fails to exercise reasonable care in maintaining such product.

Thus the O.P./Company being the product seller has incurred liability to pay compensation to the Complainant Rs.6,95,000/- being the equivalent price of the defective machine with further compensation of Rs.1 Lakh for causing inconvenience, financial loss in business and for additional expenses beyond the terms and condition.

At the time of hearing Ld. Advocate for the O.P. has referred to the decision of the Supreme Court dated:13/04/2013 passed in Civil Appeal No.5352/5353 of 2007 (National Insurance Co. Ltd. Vs. Harsolia Motors & Ors. where an illustration has been given to the effect that the Complainant being Private Limited Company running a  diagnostic clinic cannot be said to be a consumer in respect of the defective X’ray machine purchased by the Complainant from the O.P. According to the Ld.  Advocate for the O.P. this illustration should be applied to the present case where Complainant  being also a Private Ltd. Co. running a diagnostic centre cannot also be said to be a consumer with regard to the alleged defective Biochemistry Analyzer purchased by the Complainant from the present O.P. But the Commission is reluctant to rely upon an illustration which is nothing but an obiter dicta.

Ld. Advocate for the O.P. has also referred to a decision of 14/11/2022 of Hon’ble NCDRC, New Delhi in R.P. No.446 of 2020 to substantiate his contention which is distinguishable from the present facts and circumstances of the case.

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Page: 3

In this connection the Commission likes to refer to the leading decision of the Apex Court reported in (1995) 3 SCC 583 (Lachmi Engineering Works Vs. PSG Industrial Institute where in Para 24 (II) it has been held that where the purpose for which a person has bought goods is a commercial purpose within the meaning of the definition of the expression “consumer” in Consumer Protection Act is always a question of fact to be considered in the facts and circumstances of each case. Relying on this decision the Supreme Court in the decision dated: 13/04/2023 as referred to above has held in Para 42 that each case has to be examined on its own facts and circumstances and what is to be examined is whether any activity or transaction is for commercial purpose to generate profits and there cannot be a straight jacket formulae which cannot be adopted and every case has to be examined on the broad principles which have been laid down by this Court.

The Supreme  Court in the above referred decision has further held in Para 43 that what needs to be determined is whether the transaction has direct nexus with the profit generating activity and  whether the dominant intention or dominant purpose of the transaction was to facilitate some kind of profit generation.

Applying the above principles of law enunciated by the Supreme Court to the present case the Commission finds that the purchase of Biochemistry Analyzer by the Complainant Co. with the intention of providing better medical service to the patient cannot be considered as a transaction having direct nexus with the profit generating activity and the Complainant Co. being the service provider cannot be said to have dominant intention or dominant purpose to facilitate some kind of profit generation. In other words it can be said that sole purpose and intention of a Diagnostic centre like the Complainant Company cannot be a profit generating activity though charges/fees is received against service provided to the patient through such machine. The Diagnostic centre of the Complainant for which the Biochemistry Analyzer was purchased is purely a medical service provider without any commercial activity for profit generation.

Ld. Advocate for the O.P. has further contended that there is no averment in the complaint that the Complainant runs the Diagnostic centre for the purpose of earning his livelihood by means of self employment and as such the Complainant will not be treated as a consumer for commercial purpose within the expression clause of the “consumer”.

Ld. Advocate for the Complainant has countered this argument stating that no averment is necessary in this regard as the Complainant has no other business and activity for the purpose of earning his livelihood except this Diagnostic Centre. No evidence is forthcoming on record as to whether the Complainant Company has any other business or activity for any commercial purpose other than the present one.  In absence  of proof of this fact the Complainant’s case will be covered under the explanation clause of the “consumer” as provided in  Section 2(7) of the Consumer Protection Act.

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Page: 4

Thus considering the entire facts and circumstances of the case and the legal aspect involved thereto the Commission is of the view that the Complainant Company is a consumer within the definition of consumer under the Consumer Protection Act and as such it has locus standi to file the  instant case against the O.P.

For the reasons stated above the Complainant is entitled to get the relief as discussed hereinabove.                                                                                                                                                       

Hence it is ordered……..

That the case be and the same is allowed on contest but without cost.

The O.P. is directed to pay to the Complainant Rs.6,95,000/- as the pecuniary loss of the business together with the compensation of Rs.1 Lakh  within one month from this date in default law will take its own course. On payment of the decretal amount within the stipulated period the Complainant will allow the O.P. Company to get back the installed machine at the uninstallation cost and carrying cost to be borne by the Complainant.

Both parties be supplied copy of this Judgement free of cost.

 

 ____________________                _________________         

HON’BLE   PRESIDENT           HON’BLE MEMBER