State Consumer Disputes Redressal Commission
Sun Hospital Pvt. Ltd. vs Dhl Express (India) Pvt. Ltd. on 10 November, 2022
Cause Title/Judgement-Entry IN THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION ODISHA, CUTTACK First Appeal No. A/698/2009 ( Date of Filing : 12 Aug 2009 ) (Arisen out of Order Dated 27/05/2009 in Case No. CD/236/2008 of District Cuttak) 1. Sun Hospital Pvt. Ltd. Represented through its Managing Director, Dr. Dipak Mitra, S/o: Dr. Sukumar Mitra, Shree Vihar Colony, P.O: Tulasipur, P.S: Bidanasi, Town & Dist.: Cuttack-8 2. Dr. Dipak Mitra S/o: Dr. Sukumar Mitra, Managing Director, Sun Hospital Pvt. Ltd. Shree Vihar Colony, P.O: Tulasipur, P.S: Bidanasi, Town/Dist: Cuttack- 753008 ...........Appellant(s) Versus 1. DHL Express (India) Pvt. Ltd. Through its Chief Manager, Customer Service, 8th Floor, Dheeraj Arma, A.K Marg, Bandra (E), Mumbai-400051 2. Authorized Agent, DHL Express (India) Pvt. Ltd. At: Bharatia Tower, P.O: Badambadi, Town/Dist.: Cuttack ...........Respondent(s) BEFORE: HON'BLE MR. JUSTICE Dr. D.P. Choudhury PRESIDENT HON'BLE MR. Pramode Kumar Prusty. MEMBER HON'BLE MS. Sudihralaxmi Pattnaik MEMBER PRESENT: M/s. R. Roy & Assoc., Advocate for the Appellant 1 M/s. P.K. Parida & Assoc. (R-1&2), Advocate for the Respondent 1 Dated : 10 Nov 2022 Final Order / Judgement
Heard learned counsel for the appellant. None appears for the respondent inspite of opportunity offered.
2. This appeal is filed U/S-15 of erstwhile Consumer Protection Act,1986(herein-after called the Act). Hereinafter, the parties to this appeal shall be referred to with reference to their respective status before the learned District Forum.
3. The case of the complainant, in nutshell is that the complainants are running the hospital under private establishment. They have purchased two life saving ventilators valued at 2400.000 USD. It is alleged inter-alia that the equipments developed some electrical/electronic problem and it was decided to send them to Mr. Antony Burgos Bemes,870,Bloomfieldave,Clifton,NJ-07012,USA from where they were purchased. It is alleged inter-alia that these two ventilators being well with documents were packed handed over to OP No.3 with a letter addressed to D.C. on 30.10.2007,the OP No.3 who received the two ventilators granted receipt vide Annexure-1 with the help of get pass under Annexure-2. It is alleged that all the equipments have already handed over to the Ops for their courier service but on enquiry they found the instruments did not reach the consignee. Thereafter the complainant made grievance before the Ops on 13.12.2007 but the Ops did not respond for which the complainant sustained loss in business. As such the complainant filed the case against the OP showing deficiency in service and prayed to pay the cost of the two ventilators alongwith compensation.
4. The OPs filed joint written version admitting the fact that the complainants are regular consumer and they have received two ventilators for sending them to USA after receipt of all the documents. It is averred that those two ventilators could not reach to the consignee due to the reasons beyond the control of the Ops and those two consignments have been held up by the customs authority at Kolkata for want of some documents with the knowledge of the complainant. It is further averred that the complainants are running a clinic and using the two ventilators for the purpose of their business for which the complainants can not be said to be a consumer as defined U/S-2(1)(d)(ii) of the C.P.Act,1986. So, they have prayed for dismissal of the complaint.
5. After hearing both the parties, learned District Forum have dismissed the complaint by holding that it was not maintainable because the complainants are not consumer U/S- U/S-2(1)(d)(ii) of the C.P.Act,1986.
6. Learned counsel for the appellant submitted that learned District Forum has committed error in law by not going through the complaint and the facts of the case with proper perspectives. According to him two ventilators procured for use of the patients who ultimatel beneficiary of the ventilators. They have simply sought services of the Ops to send them to the consignee for repair. He submitted that the performance of the ventilators is to give service to the patients and in the peculiar facts and circumstances the Ops can not shift their responsibility by taking the plea that the complainants have procured the ventilators for commercial purpose. He clarified that the ventilators are meant for patients who are entitled to critical service.
7. On the otherhand, the courier service to carry the ventilator can not be made as re-sale of courier service and can not be meant for the purpose of any commercial purpose. He relied on the decision of the Hon'ble Supreme Court of India vide Laxmi Engineering Works -Vrs- PSG Industrial Institute reported in 1995-AIR-SC-128 where the word "commercial purpose" has been well discussed, where under consumer complaint is not maintainable. However he reiterated that the vehicle has been used by the complainant for commercial purpose.
8. Due to agreement the complainant is bound to pay EMI in respect of the contract in time and in case of default, the financier has full contractual rights to repossess the financed vehicle by observing due process of law. He also relied on the decision of Hon'ble National Commission(NCDRC) in Harsolia Motors Motors -Vrs- National Insurance Company(I) 2005 CPJ 27 where it is clearly revealed that in a case where business is undertaken to generate profit, it will not be deemed for commercial purpose in all cases. He also relied on decision of Hon'ble National Commission of M/s. Metco Expert International-Vrs- Federal Bank Limited, in F.A. No.42 of 2014. Therefore, he submitted that learned District Forum without application of judicial mind have held that the complaint is not maintainable under the Act as the complainants are not consumer U/S-2(1)(d)(ii) of the C.P.Act. So, he submitted to set-aside the impugned order by allowing the appeal.
9. Considered the submission of learned counsel for the appellant, perused the DFR and impugned order.
10. It is admitted fact that the complainants are running a hospital where ventilators are required for the benefit of the patients. It is also admitted fact that the ventilators became out of order and they were sent through the courier service of the OP to the consignee but they did not reach. It is also not in dispute that the OP has received the packed ventilators and they could not sell same due to certain documents wanting.
11. The only question in this case that whether the complainant is a consumer US/2(1)(d)(ii) of the C.P.Act. The ventilators are not the issue in this case. The issue is service provided by the OP-Courier Service. It is profitable to quote Section-2(1)(d)(ii) of the C.P.Act.
" A complaint shall be instituted in a State Commission within the limits of whose jurisdiction;(a) the opposite party or each of the opposite parties, where there are more than one, at the time of the institution of the complaint, actually and voluntarily resides or carries on business or has a branch office or personally works for gain or (b) any of the opposite parties, where there are more than one, at the time of the institution of the complaint, actually and voluntarily resides, or carries on business or has a branch office or personally works for gain, provided that in such case either the permission of the State Commission is given or the opposite parties who do not reside or carry on business or have a branch office or personally works for gain, as the case may be, acquiesce in such institution, (c) the cause of action, wholly or in part, arises."
12. The decision of Laxmi Engineering works (Supra) where Their Lordship discussed the case with regard to "commercial purpose" in the following manner:-
"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 affirming the said view and more particularly with a view to obviate any confusion- the expression 'large scale' is not a very precise expression-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 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 of expression 'consumer'. If the commercial use is by the purchaser himself for the purpose of earning 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. It is not the value of the goods that matters but the purpose to which the goods bought are put to. The several words employed in the explanation, viz., 'uses them by himself','exclusively for the purpose of earning his livelihood and 'by means of self-employment make the intention of Parliament abundantly clear, that the goods bought must be used by the buyer himself, by employing himself for earning his livelihood. A few more illustrations would serve to emphasise what we say. A person who purchases an auto-rickshaw to ply it himself on hire for earning his livelihood would be a consumer. Similarly, a purchaser of a truck who purchases it for plying it as a public carrier by himself would be a consumer. A person who purchases a lathe machine or other machine to operate it himself for earning his livelihood would be a consumer. ( In the above illustrations, if such buyer takes the assistance of one or two persons to assist/help him in operating the vehicle or machinery, he does not cease to be a consumer). As against this a person who purchases an auto-rickshaw, a car or a lathe machine or other machine to be plied or operated exclusively by another person would not be a consumer."
13. Moreover, in the decision of New Delhi Municipal Corporation -vrs- Sohan Lal Sachdev(dead) represented by Mrs. Hirinder Sachdev, w/o Late Sohan Lal Sachdev,II(2000) SLT 13(2000) 2 SCC 494 at para-12 Their Lordship have dealt in ( 2000) 2 SCC 494 in para-12 which is as follows:-
"The two terms 'domestic' and 'commercial' are not defined in the Act or the Rules. Therefore, the expressions are to be given the common parlance meaning and must be understood in their natural,ordinary and popular sense. In interpreting the phrases the context in which they are used is also to be kept in mind. In Stroud's Judicial Dictionary( 5th Edn.) the term 'commercial' is defined as 'traffic, trade or merchandise in buying and selling of goods'. In the said dictionary the phrase 'domestic purpose' is stated to mean use for personal residential purposes. In essence the question is, what the character of the purpose of user of the premises by the owner or landlord is and not the character of the place of user. For example, running a boarding house is a business, but persons in a boarding house may use water for 'domestic purposes. As noted earlier the classification made for the purpose of charging electricity duty by MDMC sets out the categories 'domestic' user as contradistinguished from 'commercial' user or to put it differently 'non-domestic user'. The intent and purpose of the classification, as we see it, is to make a distinction between purely 'private residential purpose' as against 'commercial purpose'. In the case of 'guest house', the building is used for providing accommodation to 'guests' who may be travelers, passengers, or such persons who may use the premises temporarily for the purpose of their stay on payment of the charges. The use for which the building is put by the keeper of the guest house, in the context can not be said to be for purely residential purpose. Then the question is, can the use of the premises be said to be for 'commercial purpsoe' ? Keeping in mind the context in which the phrases are used and the purpose for which the classification is made, it is our considered view that the question must be answered in the affirmative. It is the user of the premises by the owner( not necessarily absolute owner) which is relevant for determination of the question and not the purpose for which the guest or occupant of the guest house uses electric energy."
14. With due regard to the aforesaid decisions and provision of law we are of the view that those ventilators which appears to be for "commercial purpose" but not exactly commercial because they are not directly used to generate profit. In this regard the decision of NCDRC at 2005 Harsolia Motors(Supra) at para 23,24,25 are also quoted below:-
23. If the goods are purchased for resale or for commercial purpose then such consumer would be excluded from the coverage of Consumer Protection Act,1986. Such illustration could be that a manufacturer who is producing one product "A', for such production he may be raw-material, then purchase of such articles would be for commercial purpose. As against this, the same manufacturer if he purchases a refrigerator, a television or an air-conditioner for his use at his residence or even in his office, it can not be held to be for commercial purpose and for this purpose he is entitled to approach the consumer form under the Act.
24. Similarly, a hospital which hires the services of a medical practitioner, it would be a commercial purpose. But, if a person avails of such services for his ailment it would be held to be not a commercial purpose.
25. Further, from the aforesaid discussion, it is apparent that even taking wide meaning of the words 'for any commercial purpose' it would mean that goods purchased or services hired should be used in any activity directly intended to generate profit. Profit is the main aim of commercial purpose. But, in a case where goods purchased or services hired in an activity which is not directly intended to generate profit, it would not be commercial purpose.
15. With due respect of the aforesaid decision we are of the view in the instant case although the complainants-hospital have used ventilators for service rendered to the patients but in no way the service which is hired by the complainants for courier service not directly connected to earn his profit. Therefore, in the instant case the complainants can be treated as consumer U/S-2(1)(d)(ii) of the C.P.Act. The view taken by the learned District Forum therefore not agreed to. However, the complainants lodged complaint against the Ops is maintainable.
16. So far merit of the case is concerned, the learned District Forum have not gone through same as if held not maintainable. But we are not concerned with such view of learned District Forum because they have held that the complaint is not maintainable. It is admitted fact that the till date the ventilators have not reached the consignee. As long as the ventilators have not been handed over to the consignee without any reason ascribed, there lies deficiency in service on the part of the OP. Hence, on the merits also the case of the complainants succeed. Therefore, we are of the view that the complaint is allowed and the Ops are directed to return the ventilators by removing deficiency in service or pay the cost of ventilators 2400.000 USD to complainant. Further the Ops are directed to pay the compensation for the harassment not only to the hospital but also to the patients of the hospital since 2007. Rs.30,00,000/- is awarded as compensation to the complainant and Ops are directed to pay same. All above order be complied within a period of 60 days, failing which it will carry interest @ 12 % interest per annum from the date of impugned order till date of payment.
The appeal is disposed of accordingly.
Free copy of the order be supplied to the respective parties or they may download same from the Confonet or Website of this Commission to treat same as copy of order received from this Commission.
DFR be sent back forthwith. [HON'BLE MR. JUSTICE Dr. D.P. Choudhury] PRESIDENT [HON'BLE MR. Pramode Kumar Prusty.] MEMBER [HON'BLE MS. Sudihralaxmi Pattnaik] MEMBER