| Final Order / Judgement | ORDER Dated: 06.12.2016 Mohd. Anwar Alam, President - Complainant filed this complaint on 30.09.2015 and alleged that she had worked as pathologist and opened her own laboratory in the name of Pathmax Laboratory Pvt. Ltd. at B 107, Rishi Nagar, Guru Harkishan Road, Rani Bgh, Delhi-110034. She has placed an order to the OPs for supply of one Bio-Chemistry Analyzer, Model ERBA-EM-200 and analyzer was supplied and installed in her laboratory vide invoice no. 1020161 dated 23.12.2010 at a cost of Rs. 7,10,000/-. Complainant further alleged that the analyzer was being operated by staff of complainant duly trained by the OPs but analyzer started producing error logs frequently and the service was interrupted and required service by the service engineers of the OPs and was not giving even near to accurate test result and for every interruption the service engineer by the OPs paid a visit to the laboratory and restored functioning of the analyzer and she reporting to OPs to take such suitable action to ensure the stability of the functioning of the analyzer. She requested the OPs to take back the analyzer as the interruption being on high scale ill-effecting the reputation of the laboratory amongst the patients and the doctors of the area as well as earnings of the complainant who offered new version. Complainant accepted the proposal of free of cost replacement of the defective analyzer with the improved version of the analyzer and on the consent having been given by this complainant OPs installed the new analyzer on 18.09.2012 in the laboratory with extended warranty of one year from 18.09.2012 to 17.09.2013 but the new analyzer too started getting frequent break downs and the value of the test results was not correlative and she again requested OPs to remove the analyzer and refund the money so that she could buy another reliable analyzer. OPs once again enticed her to enter into an AMC/ Warranty for another year and once the AMC was executed OPs assured that the analyzer will be put to work by bringing in good quality spares and complainant paid a hefty sum of Rs. 84,270/- for the warranty executed for the period 18.09.2013 to 17.09.2014 but the malfunctioning of the analyzer continued and now that the analyzer was costing the complainant additional over Rs. 7,000/- per month against the AMC. Complainant made complaints to OPs but OPs remained almost irresponsive despite the fact that the CMC/ Extended warranty was in vogue till 17.09.2014 and that CMC/ Extended warranty full payment stood already made to the OPs by the complainant but the analyzer continued to be defective after 27.02.2014. After 27.02.2014 the analyzer abandoned by the OPs and left unused by her. Complainant sent legal notice dated 16.08.2014 but OPs did not opt to own the responsibility. Hence there is deficiency in service on the part of OPs accordingly she prayed that OPs be directed to refund Rs. 7,10,000/- and Rs. 84,270/- on account of CMC/Warranty and to pay2,00,000/- on account of the losses suffered to her , Rs. 2,00,000/- as compensation, Rs. 5,00,000/- for the loss of reputation amongst patients / doctors , Rs. 8,500 against the legal notice and Rs. 25,000/- as litigation cost.
- In reply, OPs submitted that complainant is not a consumer as she had purchased the instrument for “commercial purpose” . OPs admitted that they had sold and delivered the Bio Chemistry Analyzer vide invoice no. 1020161 on 23.12.2010 and the same were satisfactorily installed at the place of the complainant and as per the request of the complainant the analyzer was rectified but complainant was interested in replacement of the said instrument hence they replaced the instrument by the new/ updated version along with the warranty till 17.09.2013. OPs further admitted that due to inadequate trained staff she felt necessary to get AMC and there was no or coercion on part of complainant to enter into such A.MC. OPs denied rest of the allegations made in the complaint and prayed that the complaint be dismissed with costs.
- The complainant has filed rejoinder to the reply and explained that the objections filed by OPs are baseless. In support of her complaint, complainant filed affidavit his own affidavit along with documents i.e. copy of invoice cum delivery challan (Annexure C1) , copy of invoice or change in components (Annexure C2) , copy of invoice of new analyzer (Annexure C3) , copy of error logs (Annexure C4) , copy of invoice showing replacement of vital components of the analyzer (Annexure C5), copy of technical service report(Annexuce C-5A). copy of warranty for the period 18.09.2013to 17.09.2014 (Annexure 6), copy of the TSR dated 27.02.2014 (Annexuce C7) , copy of invoice of analyzer model COBAS-C111 (Annexuce C8) copy of email dated 10.06.2014 (Annexuce C9) , copy of legal notice dated 16.08.2014 (Annnexuce C10) , communication dated 28.02.2015 (Annexure c11) and application dated 08.7.2015 (Annexure C12) , copy of notice dated 22.07.2015 (Annexure C 13)
- In support of reply, OPs filed affidavit of Sh. Chacko Gorge , (Manager, Administration ) along with documents i.e. copy of board resolution (Ex. RW1/A).
- Both the parties filed their written arguments.
- We have heard the arguments and considered the evidence led by the parties and their written and oral arguments. In this case points to be considered are as under:-
(a) Whether complainant is a consumer? (b) Whether there is any deficiency in service on the part of the OPs? (c) Relief? 7. Complainant herself admitted in the complaint that she opened her own laboratory (PathMax Laboratory Pvt Ltd) to earn her livelihood. Complainant herself alleged that analyzer was installed by the OPs at the laboratory and that the OPs provided training to the staff of the complainant and that the analyzer as such was operated by the same trained staff. It clarify that the laboratory of the complainant was not run by complainant herself or her family members but by the trained staff employed by her. It is nowhere mentioned in the complaint that laboratory was opened by the complainant exclusively for the purpose of earning of livelihood by means of self employment. 6. Hon’ble Supreme Court in the case Laxmi Engineering Works V/s PSG Industrial Institute, AIR 1995 SC 1428 in Para no. 24 held as under. (i)the explanation added by the Consumer Protection (Amendment) Act 50 of 1993 (replacing Ordinance 24 of 1993) with effect from 18.06.1993 is clarificatory in nature and applied to all pending proceedings. (ii)Whether the purpose for which a person has bought goods is a ‘commercial purpose’ within the meaning of the definition of expression ‘consumer’ in section 2 (d) of the ACT is always a question of fact to be decided in the facts and circumstance of each case. (iii)A person who buys goods and use them himself, exclusively for the purpose of earning his livelihood, by means of self employment is within the definition of the expression ‘’consumer’’. - Looking to the above facts and circumstance we are of the considered opinion that complainant is not a consumer within the provision of Section 2 (1) (d) of the Consumer Protection Act 1986 hence present complaint of the complainant is not maintainable in this forum. As this complaint is not maintainable, therefore, there is no need to decide the remaining points of consideration. Hence complaint is dismissed accordingly.
- Both the parties will bear their own cost.
- Copy of the order made available to the parties free of cost as per law.
File be consigned to record room. Announced on……… | |
