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Dr. D. Rama Krishna v/s The Managing Director Allengers Medical System Ltd. & Another

    Revision Petition No. 3853 of 2012

    Decided On, 20 March 2013

    At, National Consumer Disputes Redressal Commission NCDRC

    By, MEMBER

    For the Petitioner: P.B.A. Srinivasan, Harinder Singh, Advocates. For the Respondents: -------

Judgment Text

Suresh Chandra, Member

The petitioner in this case was the original complainant and the respondents were OPs No. 1 & 2 respectively before the District Forum. The petitioner purchased one machine – 9HF A-Arm (HF 49) with 32 F image memory and PC Interface manufactured by OP No.1 (respondent No.1) for Rs.8,25,000/-. The equipment was installed at the hospital of the complainant on 25.3.2006 with one year warranty cover provided for the equipment. He paid a sum of Rs.90,000/- towards advance and Rs.2 lakh towards part sale consideration and the balance amount was paid by him by way of post-dated cheques. It is the case of the complainant that the equipment did not function on the very first day and he informed about the problem to the second OP which is the local branch office of the first opposite party. After repeated requests, the second OP sent its representative who checked the defect and rectified the same and submitted his service report on 28.6.2006. It is submitted by the complainant that the machine stopped working on the next day and in the month of December 2007 the official of the second OP inspected the equipment and informed him that the equipment suffered from manufacturing defect. According to the complainant, the second OP offered to take back the equipment by paying him an amount of Rs.80,000/- through cheque dated 7.12.2007 but he did not agree with the proposal and demanded refund of the entire amount of Rs.2,90,000/-. On failure to get the refund, he sent letters to the OPs but the OPs in reply issued a notice dated 25.10.2008 demanding for an amount of Rs.5,35,000/- with interest from the complainant. Eventually, the complainant knocked the door of the consumer fora by filing a complaint with the District Forum, Hyderabad (District Forum-I) on 28.03.2009.

2. On being noticed, the OPs appeared and contested the complaint. It was submitted by the OPs that the complaint was barred by period of limitation. It was also contended that the machine was purchased for the complainant’s hospital which was being run for earning profit and the complainant had employed many persons for running the hospital. It was submitted that the complainant was teaching in the Osmania University and was also working in the Akash Orthopedic Hospitals to earn profits. Finally, it was argued that the defects pointed out by the complainant had been attended to and yet the OPs were prepared to take back the machine subject to certain proposal which the complainant did not accept. Denying any manufacturing defect in the machine or the complainant having suffered any loss on account of that, the OPs submitted that the complaint was nothing but counterblast to a civil suit filed by the OPs in March 2009 just to avoid the balance payment.

3. On appraisal of the issues framed and the evidence placed on record, the District Forum by its order dated 26.4.2010 held that the complaint was filed within the period of limitation and also that the complaint was maintainable. It was also held that equipment supplied by the OPs was defective and liable to be taken back by paying a sum of Rs.2,90,000/- besides an amount of Rs.25,000/- towards compensation and Rs.5000/- towards cost.

4. Aggrieved by the above order of the District Forum, the OPs filed an appeal against it before the A.P. State Consumer Disputes Redressal Commission, Hyderabad (‘State Commission’ for short) praying for setting aside this order. Not satisfied with the award in his favour, the complainant also filed an appeal before the State Commission for enhancement in relief. The State Commission after hearing the parties and considering the material placed on record, by its order dated 14.6.2012 dismissed the appeal No.356 of 2012 of the complainant and allowed appeal No.630 of 2010 of the OPs and set aside the order dated 26.4.2010 passed by the District Forum by holding that the complaint was barred by limitation and also that it was not maintainable under the provisions of the Consumer Protection Act, 1986 since the equipment in question was purchased for commercial purpose to earn profits by using it in the hospital run by the complainant in addition to his regular job as Professor in the Osmania University. The State Commission observed that the complaint had been filed after two years from the date of the arising of the cause of action and since the complainant also could not be regarded as a consumer as per the definition of the term contained in section 2(1)(d), the State Commission did not deal with the issue as to whether the equipment was defective or otherwise. It is in these circumstances that the complainant has now filled the present revision petition impugning the order of the State Commission through the present revision petition.

5. We have heard Mr. P.B.A.Srinivasan, Advocate for the petitioner and perused the record. Learned counsel has contended that the defect noticed by the complainant and reported to the OPs was covered by the warranty period. Learned counsel further submitted that the complaint in question was also filed within two years of the expiry of the warranty period. In view of this, he submitted that the complaint was wrongly dismissed on the ground of limitation. So far as the maintainability of the complaint under the Consumer Protection Act is concerned, learned counsel relied on the judgment of the National Commission in the case of ViewtechImagine Equipment Pvt. Ltd. & Anr. Vs. CMC Ltd. & Anr. [II (2008) CPJ 240 (NC)]. He argued that as per the ratio of this case, even where the equipment/machine was purchased for commercial purpose, the buyer would be consumer if the defects were noticed during the period of warranty. In view of this contention, learned counsel submitted that the impugned order cannot be sustained in the eye of law and is liable to be set aside.

6. We have given our thoughtful consideration to the contentions raised by learned counsel in support of the revision petition. Of the two grounds on which the complaint came to be dismissed by the State Commission, we would first deal with the second ground, namely, the maintainability or otherwise of the dispute in question under the Consumer Protection Act. The State Commission while non-suiting the claims of the petitioner has given the following reasons in support of the impugned order on this aspect:-

'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 complaint 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 a 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 purposes;

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'

7. We agree with the view taken by the State Commission. The view taken is in line with the decision of the National Commission in the case of D. Srihari Rao(Dr.) Vs. Wipro GE Medical Systems and Anr. [III (2011) CPJ 504 (NC)]. We have also gone through the order dated 21.4.2008 passed by this Commission in the case of ViewtechImagine Pvt. Ltd. & Anr. (supra) relied on by learned counsel but since the facts and circumstances of that case were different, the decision in that case will not provide any comfort to the petitioner. Besides this, we also note that the complaint was barred by limitation as rightly noted by the State Commission. Admittedly, the equipment in question was installed at the hospital of the complainant on 25.3.200

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6 and the warranty cover provided was for one year. According to the complainant/petitioner, the equipment started giving trouble right from the first day and if that be so, the complaint should have been filed by 25.3.2008 or at least within two years of the expiry of the period of warranty, i.e., 25.3.2009. In the absence of an application for condonation of delay, the District Forum committed a mistake in holding the complaint to be within the period of limitation on the ground of alleged continuous negotiations in the matter and thereby holding that the cause of action was continuing. In this context, it appears that the District Forum did not take due notice of the fact that a civil suit in the matter had already been filed by the OPs in February, 2009 before taking a view regarding the extension in the period of limitation. 8. In the aforesaid circumstances, we do not see any reason to differ with the view taken by the State Commission in its impugned order. We, therefore, dismiss the revision petition with the parties bearing their own costs in the matter.