State Consumer Disputes Redressal Commission
M/S Allenger Medical Systems Limited vs Beena Sharma on 7 May, 2012
BEFORE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM SOLAN, H H.P. STATE CONSUMER DISPUTES REDRESSAL COMMISSION, SHIMLA. First Appeal No: 40/2010 Date of Decision: 07.05.2012. M/S Allengers Medical Systems Limited, SCO No.212-214, Sector 34-A, Chandigarh, Through its Managing Director. Appellant Versus Beena Sharma, Proprietor M/S Siddharth Polyclinic at North Oak Sanjauli, Shimla, through Special Power of Attorney Holder Dr. Lokender Sharma. Respondent Coram Honble Mr. Justice Surjit Singh, President Honble Mr. Chander Shekhar Sharma, Member Honble Mrs. Prem Chauhan, Member. Whether approved for reporting?[1]Yes. For the Appellant: Mr. Sanjeev Trikha, Advocate. For the Respondent: Mr. Peeyush Verma, Advocate. O R D E R:
Justice Surjit Singh, President (Oral) Appellant is aggrieved by the order dated 15.12.2009, of learned District Consumer Disputes Redressal Forum, Shimla, whereby a complaint filed against it, by respondent, Veena Sharma, claiming herself to be the proprietor of M/S Sidharth Polyclinic, has been allowed and the appellant ordered to refund a sum of `4.00 lacs, on account of price of the x-ray machine with interest at the rate of 9% per annum and also to pay `50,000/-, as compensation and `3500/- as litigation expenses.
2. Respondent Veena Sharma, filed a complaint under section 12 of the Consumer Protection Act, 1986, seeking issuance of a direction to the appellant to refund the price of x-ray machine allegedly purchased by her from the appellant, for being used in her clinic named & styled as M/S Sidharth Polyclinic. It was stated that the x-ray machine had been purchased by the respondent/ complainant for earning her livelihood. She filed the complaint through her son Dr. Lokender Sharma, who as per averment in the complaint was holder of special power of attorney, executed by her, in his favour.
3. X-ray machine was stated to have been purchased on 01.02.2007 and within a few days of its purchase, it stopped working. Matter was brought to the notice of the appellant, who had given one year warranty. Service engineer of the appellant visited the clinic, inspected the machine and found the same defective. Though the defect was stated to have been removed, actually the machine again developed a snag. Again, the appellant was informed. Within one year warranty period, machine stopped working atleast twelve times and every time, the appellant was informed of the defect. According to the complainant, the machine had not been functioning properly because of manufacturing defect in it. So, she filed a complaint, under section 12 of the Consumer Protection Act, 1986, seeking issuance of aforesaid directions to the appellant.
4. Appellant contested the complaint. Locus standi of the respondent/complainant to file complaint was challenged. It was stated that the machine had been sold not to the respondent/complainant, but to Dr. Lokender Sharma, alleged special attorney of the respondent and therefore, the respondent had no legal right to ask for the refund of the price of the machine. Also, it was denied that the respondent was a consumer. It was stated that the machine had been purchased for commercial purpose and was being used for such purpose and therefore, the respondent was not a consumer within the meaning of section 2(1) (d) (ii) of the Consumer Protection Act, 1986. On merits, it was denied that the machine had any inherent defect. Jurisdiction of the District Forum was also challenged and it was stated that as per agreement between the appellant and Dr. Lokender Sharma, the purchaser of the machine, the dispute was required to be referred for arbitration.
5. Learned District Forum, concluded that though the machine had been purchased by Dr. Lokender Sharma and the agreement was also executed in the name of said Dr. Lokender Sharma, yet respondent Veena Sharma, was beneficiary of the machine as it was being used in her clinic and so she was a consumer. Learned District Forum, on the basis of report Annexure A-21, given by an Ex. employee of the appellant and also on the basis of service reports regarding repair of the machine, concluded that the machine had manufacturing defect and consequently passed the impugned order.
6. We have heard leaned counsel for the parties and gone through the record.
7. Admitted case of the parties is that documents regarding sale of x-ray machine were prepared in the name of Dr. Lokender Sharma and not in the name of the respondent. Therefore, the respondent cannot be said to be the purchaser of the machine and hence, she was not a consumer.
8. View taken by the learned District Forum that the respondent/complainant is the beneficiary of the machine as it is being used in her clinic, can also not be subscribed to. Reason is that the machine is admittedly being used for commercial purpose. Respondent though did state in the complaint as also the rejoinder, that she had been making use of the machine for earning her livelihood, yet she did not say that she had self employed herself by making use of this machine. A person purchasing goods for commercial purpose is not a consumer unless he or she specifically pleads and also proves that the goods so purchased are used for earning livelihood by self employing himself/herself. In the present case, respondent pleaded only one of these two things that she purchased the machine for earning her livelihood, but did not say that she had been earning her livelihood by self employing herself by use of this machine.
9. Learned counsel representing the respondent/complainant submits that this is not a case of use of machine or goods purchased for commercial use, but this is a case of deficiency in service. We are not in agreement with the submission. Case of the respondent is that the machine is defective and it has manufacturing defect, because of which it requires replacement. So, it does not lie in the mouth of the respondent/complainant to say that this is a case of deficiency in service. Even if, it be assumed for the sake of argument that this is a case of deficiency in service on account of non-satisfactory servicing of the machine during warranty period, still the fact would remain that the machine is being used for commercial purpose and after the amendment carried out in section 2(1)
(d) (ii) effective from June, 2003, a hirer of service, which is used for commercial purpose, is also not a consumer unless he pleads and proves that such service is used for earning livelihood by self employing oneself.
10. Reliance has been placed upon two precedents of the Honble National Consumer Disputes Redressal Commission, by the learned counsel for the respondent/complainant in support of his submission that the plea of use of hired service for commercial purpose cannot disqualify the hirer of service from the class of a consumer if the deficiency in service is found during warranty period. Citations are Pearlite Liners Ltd. Versus Thermo Jarrell Ash Corporation and another 2006 CTJ 891 (CP (NCDRC) & East India Construction Co. versus Modern Consultancy Services and others 2006 CTJ 996 (CP) (NCDRC). In both these cases apparatus, in respect of which deficiency in service was alleged, had been purchased before June, 2003, when amendment in the definition of consumer so far as the hirer of a service is concerned was made. Therefore, neither of the two precedents is applicable.
11. As a result of the above stated position, we accept the present appeal and set aside the impugned order. Consequently, complaint is dismissed.
12. One copy of this order be sent to each of the parties, free of cost, as per Rules.
(Justice Surjit Singh) President (Chander Shekhar Sharma) Member (Prem Chauhan) Member May 07, 2012.
N Mehta) [1] Whether reporters of the local papers may be allowed to see the order?