Order

J.S. Bhatia (President)

1. The complainant has filed the present complaint under the Consumer Protection Act against the opposite parties on the averments that complainant had purchased a fully automatic Biochemistry Analyzer EM 100 from opposite parties on 16.5.2013 in the sum of Rs.6 Lac after obtaining a loan of Rs.4.5 Lacs from Canara Bank, MDSD School, Kapurthala for carrying his livelihood and the same was installed in the laboratory of complainant situated at inside Dr.Aroras Angel Valley Medical Center, Peer Chaudhary Road, Kapurthala. After the installation of said automatic Biochemistry Analyzar EM 100, complainant found that the machine was not working properly and the same was creating trouble in its performance and the said machine was not working satisfactory upto the mark. Several times complainant called the engineers of opposite parties and told them about the trouble but till date no results have been found by complainant. Due to bad performance of machine automatic Biochemistry Analyzer EM 100, the reputation of the Lab of complainant has been spoiled in the eyes of the general public. In the beginning the representative of opposite parties i.e engineer asked that the problem will be handled by application team, so complainant approached the application team who told that it is the engineer job to make the running but no one of them solved the problem of complainant. Due to non performance of the machine, complainant has to switch of the machine since December 2013. Complainant various time sent the representation with a request to repair the machine through various e-mails like 13.12.2013, 14.12.2013, 20.12.2013, 16.12.2013 and 9.1.2014 but till date nothing has been done by opposite parties to solve the problem of complainant. The above said action of the opposite parties in denying the genuine claim of the complainant is totally illegal, wrong, against the provision of the law and malafide, as the complainant was not running the said Biochemistry Analyzer EM 100 for any commercial purpose. The cause of action to file the present complaint accrued to the complainant when the opposite parties did not replace/repair Biochemistry Analyzer EM 100 purchased by the complainant even after receiving various requests and e-mails dated 13.12.2013, 14.12.2013, 20.12.2013, 16.12.2013 and 9.1.2014 and finally when the complainant served a legal notice to the opposite parties but they failed to repair/replace the Biochemistry Analyzer EM 100 within the stipulated period of 15 days. On such like averments, the complainant has prayed for directing the opposite parties to replace the above sad machine or to refund its price to him. He has also claimed compensation and litigation expenses.

2. Upon notice, opposite parties appeared and filed a written reply raising preliminary objections that transaction in question is commercial in nature and that complainant has no locus-standi to initiate the present proceedings etc. They further pleaded that a call was received from the complainant about the preventive maintenance of the above instrument and it was duly attended by Mr.Ankur Mahajan, vide technical service report No.503363 dated 23.7.2013. Complainant never complained about the said instrument's work and performance and the opposite parties have done its maintenance to the satisfaction of the complainant. Whenever the call was received in respect of the above instrument, opposite parties and its representatives have duly attended and have resolved the difficulty faced by the complainant. As per technical analysis, work load of about 10 samples in a day which has affected the result of the instrument. Technically instrument must have the required work load of sufficient tests on day to day basis. The engineers have visited many times whenever they have received the calls from the complainant but the complainant was not ready for the solutions suggested by the engineers and shown bad attitude towards the opposite parties and its representatives. The said instrument has accurate result and performance. Opposite parties further states that due to insufficient tests carried out by the complainant, the complainant seems to be not interested in keeping the said instrument and asked for refund of money against the said instrument. Opposite parties also stated that the said machine is still in working condition during the recent last visit on 26.3.2014 by its engineer. They denied other material averments of the complainant.

3. In support of her complaint, learned counsel for complainant has tendered affidavits ExCA and Ex.CB alongwith copies of documents Ex.C1 to C20 and closed evidence.

4. On the other hand, learned counsel for opposite parties has tendered affidavit Ex.OP1 & 2/A and closed evidence.

5. We have carefully gone through the record and also heard the learned counsels for the parties.

6. Counsel for the complainant contended that the complainant had purchased automatic Biochemistry Analyzer from opposite parties No.1 and 2 on 16.2.2013 for Rs.6 Lacs for carrying i.e earning his livelihood and same was installed in the laboratory of the complainant situtated inside Dr.Aroras Angel Valley Medical Center, Peer Chaudhary Road, Kapurthala but working of the machine was not satisfactory. He further contended that complainant lodged the complaint with opposite parties No.1 and 2 but till date of filing of the complaint, the opposite parties No.1 and 2 have failed to solve the problem of the complainant. On the other hand, it has been contended by learned counsel for the opposite parties that transaction in question was commercial in nature and as such the complainant can not be termed as consumer. He further contended that opposite parties representative visited the place of the complainant, whenever any complaint was received and rectified the trouble faced by the complainant. He further contended that there was no deficiency in service on the part of the opposite parties. He further contended that there is no defect or fault in the machine in question and same was found to be in working condition during the last visit of the engineer of the opposite parties on 26.3.2014. Counsel for the complainant contended that where any goods are purchased by any person or consumer for the purpose of earning his livelihood by means of self employment then same is not covered under the expression "commercial purpose". In support of this contentions he has relied upon M/s National Seeds Corporation Ltd Vs. M.Madhusudhan Reddy & Anr 2012(1) Apex Court Judgments 265(SC), Madan Kumar Singh (Dead) through Lrs Vs. District Magistrate, Sultanpur & Ors, 2009(3) Apex Court Judgments 440(SC). We have carefully considered the contentions advanced by both the parties. The authorities relied upon by the complainant are on its own facts. It depends upon the facts and circumstances of each case whether the complainant purchased the article in question for commercial purpose or not. In complaint no doubt the complainant has pleaded that he purchased the machine in question for carrying i.e earning his livelihood but he has not mentioned that the same was purchased for self employment. The machine in question was admittedly installed in the laboratory situated in a hospital. Since the laboratory of the complainant is situated in the premises of the hospital i.e Dr.Aroras Angel Valley Medical Center, Peer Chaudhary Road, Kapurthala, so many other facilities must have been available at the laboratory of the complainant. In the title of the complaint, the complainant has described himself as Prop of Guru Nank Diagnostic Centre, Kapurthala. So complainant is running a Diagnostic Centre and machine in question is installed in the Diagnostic Centre situated in above said hospital. So it means that besides the machine in question various other machine must have been installed in the laboratory as Diagnostic Centre can not be run with single machine. In Beena Sharma Vs. Allengers Medical Systems Ltd IV (2012) CPJ 819 (NC), in some what similar circumstance it has been held by Hon'ble National Commission as under:-

" We must reject this contention because going by the nature of the machine and the purpose for which the machine was acquired and used, i.e installed in a poly clinic, where so many other facilities must have been put in service, the purchase of the machine can not be said only for earning livelihood of the complainant, who was not even the purchaser of the machine".

7. So in our opinion, complainant purchased the machine for commercial purpose and as such he can not be termed as consumer under the provisions of the Consumer Protection Act. By simply pleading that he purchased the machine for carrying his livelihood the bar of commercial purpose can not be defeated. Even if for the arguments sake it is assumed that complainant is a consumer, even then he is not entitled to refund of the price of the machine. The complainant has not lead any expert evidence to prove that the machine has any manufacturing defect. Whenever the complainant lodged any complaint with opposite parties the same was promptly attended to and resolved. Ex.C11 to Ex.C14 are service job sheets which have been duly singed by the complainant. In the job sheet dated 23.7.2013 Ex.C11 it is mentioned that preventive maintenance carried out satisfactorily. It is singed by the complainant. In service job sheet dated 17.8.2013 Ex.C12 fault rectified and instrument is working satisfactorily is ticked and the column which is required to be filled by customer is singed by complainant. Same is position regarding service jot sheet Ex.C13 and Ex.C14. In both these job sheets in the column to be filled by customer "fault rectified and instrument is working satisfactorily" is ticked and both the service job sheets are duly singed by the complainant. So from the above jot sheets, it is evident that whenever any complaint was made to the opposite parties, the same was duly attended to and problem rectified. So there is no deficiency in service on part of the opposite parties.

8. In view of above discussion, we hold that there is no merit in the present complaint and same is hereby dismissed with no order as to cost. Copies of the order be sent to the parties free of costs under the rules. File be consigned to the record room.