08/04/16

HON’BLE JUSTICE MR. KALIDAS MUKHERJEE, PRESIDENT

This Appeal is directed against the judgment and order passed by Learned District Forum, South 24-Parganas in case no.CC 349 of 2012 allowing the complaint and directing the OPs to refund the sum of Rs.7,65,000/- and cost of Rs.15,000/- totalling to Rs.7,80,000/- within one month from the date of order failing which interest @ 10% p.a. shall accrue from the date of default till realisation. 

The case of the Complainant/Respondent, in short, is that the Complainant Company runs its Hospital under the name and style “Unipon Hospital & Medical Science Pvt. Ltd.” at the premises no.V-122/A/2, S.A. Farooque Road, P.S. Rajabagan, Kolkata-700 018 which is G+6 storied building.  The Complainant Company purchased lift from the OP Company at the cost of Rs.8,50,000/- and made payment to the tune of Rs.7,65,000/- for the installation of the lift.  The OP installed the lift and handed over the same to the Complainant on 15/06/11.  Within 3 months from the date of installation the lift was not functioning properly.  It caused inconvenience to the patients.  The OPs did not supply the accessories.  The OP supplied the old pre-used and reconditioned material in the lift and for such reason the lift was not functioning properly.  For the said reason, the complaint was filed before the Learned District Forum.

The Learned Counsel for the Appellant has submitted that the Complainant is a private limited company engaged in commercial activity and, as such, the complaint was not maintainable.  The Learned Counsel has referred to the decision reported in 2012 (2) CPR 68 (NC) [M/s MCS Computer Service (P) Ltd. Vs. M/s Allena Auto Industries Pvt. Ltd.].

The Learned Counsel for the Respondent/Complainant has submitted that the Complainant Hospital purchased a lift and it was installed in the Hospital, but it was not used for commercial purpose.  It is submitted that the lift is used for service to the patients.  The Learned Counsel has referred to the decision reported in (1999) 10 Supreme 332 [Regional Provident Fund Commissioner vs. Shiv Kumar Joshi].

We have heard the submission made by both sides.  It is evident that the lift has been installed in the Hospital which is engaged in commercial activity.  In the decision reported in the case of M/s MCS Computer Service (P) Ltd. Vs. M/s Allena Auto Industries Pvt. Ltd. (supra) it has been held that private limited company cannot file complaint under the C. P. Act.    The lift has been installed in the place of business and the Complainant Hospital is engaged in generation of profit. It is, therefore, the commercial activity of the Complainant Company. In the decision reported in 2015 (3) CPR 53 (NC) [Rohit Chaudhary & Anr. vs. M/s Vipul Ltd.] it has been held that commercial users cannot maintain consumer complaint.  In the decision reported in 2016 (1) CPR 258 (NC) [Alfa Therm Ltd. vs. Unitech Ltd.] it has been held that Company cannot maintain consumer complaint.  The decision cited by the Learned Counsel for the Respondent/Complainant is not applicable in the facts and circumstances of the instant case. 

Having heard the Learned Counsel for the parties and on perusal of the papers on record, we are of the considered view that the complaint filed before the Learned District Forum was not maintainable being the commercial user and the Learned District Forum was not justified in allowing the complaint. 

The Appeal is allowed.  We set aside the impugned judgment and order.  The petition of complaint is dismissed.