National Consumer Disputes Redressal
M/S. Transasia Bio - Medicals Ltd. vs Deepak Kumar Jindal on 4 November, 2015
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 253 OF 2013 (Against the Order dated 06/11/2012 in Appeal No. 856/2007 of the State Commission Chandigarh) 1. M/S. TRANSASIA BIO - MEDICALS LTD. 8 CHANDAVALI STUDIO ROAD, ANDHERI (E) MUMBAI - 400072 MAHARASTRA ...........Petitioner(s) Versus 1. DEEPAK KUMAR JINDAL SINGLE STOREY SHOP NO-9 PHASE-7,S.A.S.NAGAR MOHALI PUNJAB - 160062 ...........Respondent(s)
BEFORE: HON'BLE MR. JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER
For the Petitioner : Ms. Anjali J. Manish, Advocate For the Respondent : Mr. V.K. Agarwal, Advocate
Dated : 04 Nov 2015 ORDER
PER JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER
This revision petition has been filed by the petitioner against the order dated 6.11.2012 passed by the learned State Consumer Disputes Redressal Commission, UT Chandigarh (in short, 'the State Commission') in Appeal No. 856 of 2007 - M/s. Transasia Bio-Medicals Ltd. Vs. Deepak Kumar Jindal by which, while dismissing appeal, order of District Forum allowing complaint was upheld.
2. Brief facts of the case are that complainant/respondent proprietor of M/s. Deep Clinical Laboratory & ECG Centre, was running his laboratory for earning his livelihood by means of self-employment by assistance of his father and younger brother purchased Random Access Auto Analyzer from OP No. 1/petitioner vide invoice dated 7.3.2005 for a sum of Rs.3,75,000/- and OP installed aforesaid instrument on 2.4.2005. From the day one, instrument started giving trouble. Functioning of instrument was defective and it was brought to the notice of OP and OP tried to rectify defects, but could not succeed. On 3.11.2005, OP replaced old defective syringe with new one and in November, 2005, again replaced defective Teflon Tip with new one; even then, instrument was not working properly and was giving erratic results and in February, 2006, Flow cell was replaced by OP; even then, trouble continued. Alleging deficiency on the part of OP, complainant filed complaint before District Forum. OP resisted complaint and submitted that complainant does not fall within purview of consumer, as complainant was running laboratory for commercial purposes. District Forum had no territorial jurisdiction. It was further submitted that as and when defects were pointed out by complainant, they were removed/replaced with new instrument. It was further submitted that defects could be attributed to faulty electric connection, power fluctuation and improper operation and there was no manufacturing defect and prayed for dismissal of complaint. Learned District Forum after hearing both the parties allowed complaint against OP No. 1 & 2 and directed them to refund Rs.3,75,000/- with Rs.10,000/- as compensation and Rs.1100/- as litigation expenses. Appeal filed by OP was dismissed by learned State Commission vide impugned order against which, this revision petition has been filed.
3. Heard learned Counsel for the parties and perused record.
4. Learned Counsel for the petitioner submitted that inspite of proof that complainant was running laboratory for commercial purposes and in absence of proof of manufacturing defect in the instrument, learned District forum committed error in allowing complaint and learned State Commission further committed error in dismissing appeal; hence, revision petition be allowed and impugned order be set aside. On the other hand, learned Counsel for the respondent submitted that order passed by learned State Commission is in accordance with law; hence, revision petition be dismissed.
5. It is admitted case of the complainant that he was running his Deep Clinical Laboratory and ECG Centre exclusively for earning livelihood by means of self-employment with assistance of his father Sh. Pawan Kumar Jindal, retried Sr. Laboratory Technologist and younger brother Sh. Vikas Kumar Jindal, who holds B.Sc. Degree (Medical) and one year Diploma in Medical Laboratory Technology.
6. Order placed by complainant for purchase of equipment from OP also contains names of all three persons on letter-head of M/s. Deep Clinical Laboratory and ECG Centre. It also contains following information:
"Equipped with Latest Medical Technology *Transasia EC-5 Fully Computerised Analyser, Elisa Reader *Fully Automatic Haematology Cell counter system - KX 21 *Computerised Biochemistry Analyser Start 21*Flame Photometer for Electrolytes *Sample Collection Facilities from home on prior appointment".
He purchased fully automated biochemistry batch analyser Erba Smartlab from OP meaning thereby, he was possessing before purchase of alleged Analyzer five instruments for his laboratory. Aforesaid information also reveals that sample collection facility from home was also provided by complainant to the patients. Thus, it becomes clear that complainant was running his laboratory with the help of his father, brother and some persons, who were collecting samples from patients from home with add of following five analyzers before purchase of sixth analyzers; namely, "1. Equipped with Latest Medical Technology *Transasia EC-5 Fully Computerised Analyser;
2. Elisa Reader
3. *Fully Automatic Haematology Cell counter system - KX 21
4. *Computerised Biochemistry Analyser Start 21
5. *Flame Photometer for Electrolytes *Sample Collection Facilities from home on prior appointment".
7. The core question to be decided is whether complainant will fall within purview of consumer under C.P. Act.
8. Learned Counsel for the petitioner submitted that complainant does not fall within purview of consumer, as he was running laboratory for commercial purposes with the help of many persons and using many instruments/analyzers. In support of his contention he has placed reliance on judgment of Hon'ble Apex Court in Laxmi Engineering Works Vs. P.S.G. Industrial Institute - (1995) 3 SCC 583 in which it was observed that commercial purpose is a question of fact to be decided in the facts of each case. Hon'ble Apex Court further observed as under:
"The National Commission appears to have been taking a consistent view that where a person purchases goods "with a view to using such goods for carrying on any activity on a large scale for the purpose of earning profit" he will not be a "consumer" within the meaning of Section 2(d)(i) of the Act. Broadly af441firming the said view and more particularly with a view to obviate any confusion the expression "large-scale" is not a very precise expression the Parliament stepped in and added the explanation to Section 2(d)(i) by Ordinance/Amendment Act, 1993. The explanation excludes certain purposes from the purview of the expression "commercial purpose" - a case of exception to an exception. Let us elaborate: a person who buys a typewriter or a car and uses them for his personal use is certainly a consumer but a person who buys a typewriter or a car for typing others' work for consideration or for plying the car as a taxi can be said to be using the typewriter/car for a commercial purpose. The explanation however clarifies that in certain situations, purchase of goods for "commercial purpose" would not yet take the purchaser out of the definition o expression "consumer". If the commercial use is by the purchaser himself for the purpose of earing his livelihood by means of self-employment, such purchaser of goods is yet a "consumer". In the illustration given above, if the purchaser himself works on typewriter or plies the car as a taxi himself, he does not cease to be a consumer. In other words, if the buyer of goods uses them himself, i.e., by self- employment, for earning his livelihood, it would not be treated as a "commercial purpose" and he does not cease to be a consumer for the purposes of the Act. The explanation reduces the question, what is a "commercial purpose", to a question of fact to be decided in the facts of each case.
In the light of aforesaid observation, it becomes clear that if complainant was running his laboratory with the help of his father, brother and other employees while using five instruments/analyzers, it cannot be presumed that complainant was running his laboratory for earning his livelihood by means of self-employment. Learned State Commission has committed error in observing that complainant was consumer under the C.P. Act.
9. Learned Counsel for the respondent submitted that powers of National Commission are limited as observed by this Commission in R.P. No. 2079 of 2012 - Action Construction Equipment Ltd. & Anr. Vs. Sri Bablu Mridha. I agree with the law laid down in aforesaid case, but it is not applicable to the facts and circumstances of the present case, as learned State Commission has committed jurisdictional error in holding complainant as consumer under C.P. Act in the light of aforesaid discussion.
10. As far merits of the case are concerned, perusal of record reveals that this instrument was delivered by OP to complainant on 7.3.2005 and as and when defects were pointed out they were removed by OP by repair/replacement of parts. Merely because defects were noted down many times, it cannot be inferred that purchased instrument was having manufacturing defect. By letter dated 5.9.2006, OP while denying all the allegations affirmed that they would provide all services as per warranty in terms of sale. It was further intimated that in case complainants want to buy another instrument, they would allow exchange of the instrument which makes it clear that OP was ready and has provided services as per warranty in terms of sale; even then, learned District Forum committed error in allowing complaint and learned State Commission further committed error in dismissing appeal without any expert opinion that instrument supplied by OP was having any manufacturing defect.
11. Fora below while allowing refund has not directed complainant to return alleged defective instrument to the OP. Learned Counsel for the respondent submitted that instrument was lying out of order since so many years and complainant purchased another analizer by invoice dated 27.4.2007. Perusal of aforesaid invoice reveals that complainant purchased Fully Automatic Chemistry Analyzer Model ML-2300 with STD Accessories for a sum of Rs.7,35,000/- which cannot be said to be replacement of analyser purchased from OP for a sum of Rs. 3,75,000/-. In such circumstances, it can be presumed that complainant purchased additional analyser by invoice dated 27.4.2007 for running his laboratory for commercial purposes.
12. In the light of aforesaid discussion, revision petition is to be allowed.
13. Consequently, revision petition filed by the petitioner is allowed and order dated 6.11.2012 passed by the learned State Commission in Appeal No. 856 of 2007 - M/s. Transasia Bio-Medicals Ltd. Vs. Deepak Kumar Jindal and order dated 10.7.2007 passed by District forum in Complaint No. 655 of 2006 Deepak Kumar Jindal Vs. M/s. Transasia Bio-Medical Ltd. is set aside and complaint stands dismissed. Parties to bear their own costs.
......................J K.S. CHAUDHARI PRESIDING MEMBER