State Consumer Disputes Redressal Commission
Dr.Ravindra Thawait vs Siemens Healthcare Diagnostics & Ors. on 22 June, 2015
CHHATTISGARH STATE
CONSUMER DISPUTES REDRESSAL COMMISSION,
PANDRI, RAIPUR (C.G).
Appeal No.FA/14/462
Instituted on : 02.07.2014
Dr. Ravindra Thawait, S/o Shriram Thawait,
Pathology Lab,
Kazi Manzil, Jail Road,
Raipur (C.G.) ... Appellant
Vs.
1. Siemens Healthcare Diagnostics Limited,
Registered Office & Plant 589, Sayajipura, Ajwa Road,
Baroda - 390 019
2. Bayer Diagnostics India Ltd.,
Registered Office & Plant 589m Sayajipura, Ajwa Road,
Baroda - 390 019
3. Allied Diagnostics,
Ground Floor, Bhatia Complex,
Opposite Rajkumar College, G.E. Road,
Raipur (C.G.) ... Respondents
PRESENT :
HON'BLE SHRI JUSTICE R.S. SHARMA, PRESIDENT
HON'BLE MISS HEENA THAKKAR, MEMBER
HON'BLE SHRI D.K. PODDAR, MEMBER
COUNSEL FOR THE PARTIES :
Shri K.K. Sharma, for the appellant.
Miss Shutapa Shah & Shri V. Vijay Rao, for the respondent No.1.
None for the respondent No.2 & 3.
ORDER
DATED : 22/06/2015 PER :- HON'BLE SHRI JUSTICE R.S. SHARMA, PRESIDENT.
This appeal is directed against the order dated 22.05.2014, passed by District Consumer Disputes Redressal Forum, Raipur (C.G.) (henceforth "District Forum") in Complaint Case No.501/2010. By the // 2 // impugned order, the learned District Forum, has dismissed the complaint of the appellant (complainant).
2. Briefly stated the facts of the complaint are that : the appellant (complainant) is M.B.B.S., M.D. (Path. & Micro) and runs a Pathological Lab, at Kazi Manzil, Jail Road, Raipur (C.G.), for earning his livelihood. To facilitate his work, he wished to purchase Hematology Analyzer hence enquired about the Bayer Advia 60 Hematology Analyzer from the respondent No.2 (O.P.No.2), who has a tie up with respondent No.1 (O.P.No.1) for marketing the machines manufactured by O.P.No.1. Vide his letter dated 02.12.2004 the Zonal Manager of respondent No.2 (O.P.No.2) had sent details about the Bayer Advia 60 Hematology Analyzer and had also assured about the committed after sales services and support. As the Bayer Advia 60 Hematology Analyzer suited to the requirements of the appellant (complainant), he purchased one Bayer Advia 60 Hematology Analyzer, from respondent No.3 (O.P.No.3), i.e. the local dealer of respondent No.1 (O.P.No.1) and respondent No.2 (O.P.No.2), vide invoice No.116 dated 07.02.2005 for a valuable consideration of Rs.5,50,000/- only and started using the Bayer Advia 60 Hematology Analyzer at his Pathology Lab for earning his livelihood. For purchasing the aforesaid Bayer Advia 60 Hematology Analyzer, the appellant (complainant) had obtained finance from ICICI Bank, Raipur. The appellant (complainant) had purchased the aforesaid Hematology Analyzer with the hope that it will serve for a // 3 // long time with the assured committed after sales services and support from the manufacturer through its local dealer. That earlier the Bayer Advia 60 Hematology Analyzer worked well and whenever any defect developed it was rectified by the service engineers / technicians of the OPs. Subsequently, the Analyzer developed a major defect as its differential count stopped functioning since 15.05.2009. The appellant (complainant) made several complaints to Mr. Rajendra Jain of respondent No.3 (O.P.No.3). Even after the Warranty period, the appellant (complainant) is entitled to avail services with regard to the aforesaid analyzer yet nobody turned up for a long time. In the month of July, Nagpur based technician Mr. Ashish came and repeatedly tried to repair the Bayer Advia 60 Hematology Analyzer in the month of July, August, September and October, 2009 but could not succeed. During all these months, the professional work of the appellant (complainant) suffered considerably. Finally Mr. Rajendra Jain was requested to take the matter seriously. Then Mr. Jain sent a Pune based engineer on 20.02.2010 who came and repaired the Bayer Advia 60 Hematology Analyzer on payment basis. He replaced the Maintenance Kit worth Rs.8,770/-. After repair the counter started reading but on the very next day it again stopped reading. Besides this during repair Indices value was disturbed which could not be rectified. The Pune based engineer again visited on 24.02.2010 and replaced the WBC Chamber which cost Rs.55,000/- and the appellant (complainant) had // 4 // to bear the cost. Yet the Indices Value remained disturbed and the Bayer Advia 60 Hematology Analyzer remained not workable. Despite the fact that the appellant (complainant) had to spent additional sum of nearly Rs.65,000/- as per advice of the Service Engineers yet instead of working properly, the Bayer Advia 60 Hematology Analyzer developed further defect as the Indices value was also disturbed and the Bayer Advia 60 Hematology Analyzer became totally non- functional. After 26.02.2010, the appellant (complainant) made repeated phone calls to the respondents (OPs), to get the defects rectified but the same have went unheeded and now people at their end had started not picking the phone even. The appellant (complainant) had invested huge amount of Rs.5,50,000/- after obtaining finance from ICICI Bank to purchase the Bayer Advia 60 Hematology Analyzer with the hope of getting lifelong service. He believed that in case any defects developed in the Bayer Advia 60 Hematology Analyzer, he would get the assured 'committed after sale service and support.' The Bayer Advia 60 Hematology Analyzer developed major defect in May, 2009 i.e. after only a period of nearly 4 years. Thereafter remaining period of 2009 was spent in making repeated complaints to the respondents (OPs) but to no avail. The appellant (complainant) was rendered helpless and disgusted as the Bayer Advia 60 Hematology Analyzer can only be repaired by Service Engineers / Technicians of the respondents (OPs) but even they were not able to repair the Bayer Advia 60 Hematology // 5 // Analyzer. Instead of deputing more competent persons the respondents (OPs) adopted non-co-operating attitude. This attitude on their part amounts to deficiency in service and also to Unfair Trade Practice. The appellant (complainant) has suffered huge financial loss, inconvenience and mental harassment during all this period. As the Bayer Advia 60 Hematology Analyzer could not be repaired for a long period of more than 7 months and as the profession of the appellant (complainant) was badly suffering due to non-availability of the Hematology Analyzer and the appellant (complainant) was suffering great mental and physical harassment due to deficiency in service by the respondents (OPs) he had to purchase a new Bayer Advia 60 Hematology Analyzer of other company in January, 2010 worth nearly Rs.4,00,000/- on installment basis. It was only on account of deficiency in service and unfair practice on part of the respondents (OPs) that the Bayer Advia 60 Hematology Analyzer could not be repaired and the appellant (complainant) was constrained to purchase the new Bayer Advia 60 Hematology Analyzer. Hence the respondents (OPs) are liable to compensate the loss suffered by the appellant (complainant). So, the appellant (complainant) served legal notice dated 18.08.2010 on the respondents (OPs) through his counsel Shri S.C. Misra, Advocate vide registered A/D Post but despite service of said notice the respondents (OPs) have failed and neglected to depute some competent person to rectify the Bayer Advia 60 Hematology Analyzer. Therefore, // 6 // the appellant (complainant) filed consumer complaint before the District Forum and prayed for granting reliefs as mentioned in the relief clause of the complaint.
3. The respondent No.1 (O.P.No.1) filed written statement and averred that upon expression of interest by the appellant (complainant) to Siemens Health Care Diagnostics Ltd., the respondent No.1 (O.P.No.1) (formerly known as Bayer Diagnostics India Ltd.) with respect to purchase of Bayer Advia 60 Hematalogy Analyzer, the Zonal Manager of the respondent No.1 (O.P.No.1) vide their letter dated 02.12.2004 made an offer to the appellant (complainant). The said letter was accompanied by a proforma invoice covering supply of Bayer Advia 60 Hematalogy Analyser and its accessories along with its commercial terms of supply and an illustrative brochure. The commercial terms of supply of Bayer Advia 60 Hematalogy Analyser clearly stipulated the terms of warranty and after sales services that the installation offered would be covered under Warranty for a period of 12 months from the date of installation or 14 months from the date of shipment which is earlier. On account of the said Bayer Advia 60 Hematology Analyzer being best suited to the requirements of the appellant (complainant), on 7th February, 2005 the appellant (complainant) purchased a Bayer Advia 60 Hematalogy Analyser from the respondent No.3 (O.P.No.3) a local dealer of respondent No.1 (O.P.No.1) at a price of Rs.5,50,000/-. At no point in time was any // 7 // grouse and/or demur raised by the appellant (complainant) vis-à-vis the commercial terms of supply. The Bayer Advia 60 Hematalogy Analyser purchased by the appellant (complainant) served the appellant (complainant) well during the warranty period (which expired on 6th February, 2006) with no problems, defects and /or malfunctioning reported to the respondent No.1 (O.P.No.1) by the appellant (complainant) and for an additional period of 3 years and thereafter again with no problems, defects and/or malfunctioning reported. Whenever any minor problems were reported to the respondent No.3 (O.P.No.3), three years after the warranty period, prompt action was taken by the respondent No.3 (O.P.No.3) to arrange for necessary technicians for carrying out necessary repairs. It is clear that in terms of the contract of warranty the respondent No.1 (O.P.No.1) was required to maintain the Bayer Advia 60 Hematology Analyzer free of cost only for a period of one year viz. from 7th February, 2005 to 6th February, 2006 and it was not at all necessary for the respondent No.1 (O.P.No.1) to provide free service and/or to maintain the system thereafter. Subsequently, a service contract was entered into between the appellant (complainant) and respondent No.3 (O.P.No.3) for the period ending July, 2008 which contract was not renewed by the appellant (complainant). This fact has been conveniently suppressed and glossed over by the appellant (complainant) from the District Forum. The life of the Bayer Advia 60 Hematology Analyzer of the // 8 // appellant (complainant) was considered and declared expired by the respondent No.1 (O.P.No.1) and no service for the same was available after January, 2010 By letter dated 11.12.2009 of the respondent No.1 (O.P.No.1) to the appellant (complainant), the appellant (complainant) was informed of the strategic decision of respondent No.1 (O.P.No.1) to globally discontinue supporting 3 - part cell counter ADVIA 60 systems business and the associates service, consumables, reagents, spare parts, etc., and that the respondent No.1 (O.P.1) were to discontinue the support effective from 01.01.2010. The appellant (complainant) was also informed that the support services will be handed by HORIBA ABX through bioMerieux India Company from 01.01.2010. By letter dated 11.12.2009 of the respondent No.1 (O.P.No.1) the appellant (complainant) was also offered a special upgrade scheme for the installation of fully automatic 5-part differential hematology analyzer ADVIA 120/2120. In the last week of December, 2009, the appellant (complainant) made a complaint to the respondent No.3 (O.P.No.3) regarding certain problems faced by the WBC Chamber of the said Bayer Advia 60 Hematology Analyzer. Despite the facts that the appellant (complainant) had not renewed the service contract and was using an expired time pack and that the respondent (O.P.) was not under any obligation to render any service, the respondent No.3 (O.P.No.3) duly arranged for a technician to attend the same. In fact the appellant (complainant) was also advised by the technician to // 9 // purchase controls for checking accuracy of the Bayer Advia 60 Hematology Analyzer results as the controls being used by the appellant (complainant) were past the expiry period viz. May, 2009. Samples were run and the results were found to be satisfactory and problem was solved. A service charge of Rs.62,974/- was accordingly raised upon the appellant (complainant) for the replaced parts and services rendered. The respondents (OPs) fully attended to the complaints of the appellant (complainant) raised well after the warranty period and after expiry of the service contract for a requisite service charge which they are permitted to levy from the appellant (complainant). On two other occasions i.e. on 20th & 23rd February, 2010 when the respondent No.3 (O.P.No.3) was again approached by the appellant (complainant) for carrying out repairs on the Bayer Advia 60 Hematology Analyzer, the respondent No.3 (O.P.No.3) duly arranged for technicians. On the visit of 20th February, 2010, the technician Mr. Manoj Sable and Mr. Ashish Manvatkar observed and noted that the variation in histogram differential readings was due to the fact that the maintenance kit was not replaced for the past three years. Further, it became apparent that the advice of the technicians earlier on 26th December, 2009 to the appellant (complainant) to purchase controls for checking accuracy of the Bayer Advia 60 Hematology Analyzer results as the controls being used by the appellant (complainant) were past the expiry period of May, 2009, was not paid heed to, which clearly brings // 10 // out the malafides of the appellant (complainant). The terms of the contract of warranty which the appellant (complainant) is well aware of, clearly provides that the respondent No.1 (O.P.No.1) was required to maintain the Bayer Advia 60 Hematology Analyzer free of cost only for a period of one year viz. from 7.02.2005 to 06.02.2006 and during the subsistence and validity of the service contract which expired in July, 20089. It was not at all necessary for the respondent No.1 (O.P.No.1) to provide free service and/or to maintain the system after expiry of the warranty period and after expiry of the service contract. Despite the same, the respondent No.1 (O.P.No.1) not only diligently attended to the complaints of the appellant (complainant) during the period of warranty and after expiry of the service contract but even thereafter for a reasonable service charge. The parts which required replacement were also provided to the appellant (complainant) at the proper price.
4. Though respondent No.2 (O.P.No.2) appeared before the District Forum, but did not file written statement.
5. In spite of service of notice, the respondent No.3 (O.P.No.3) did appear before the District Forum and did not file written statement, hence the respondent No.3 (O.P.No.3) was proceeded ex-parte.
6. Learned District Forum, after having considered the material placed before it by the parties, dismissed the complaint by the impugned order.
// 11 //
7. The appellant (complainant) filed documents. A-1 is forwarding letter dated 2.12.2004 together with proforma invoice and challan, A-2 is bill dated 07.02.2005 of Allied Diagnostics, A-3 is Field Service Report dated 26.12.2009 of Siemens Healthcare Diagnostics Ltd., A-4 is invoice dated 05.03.2010, A-5 is bill dated 08.04.2010 of Carewell Biotech Pvt. Ltd., A-6 is legal notice dated 18.08.2010 sent by Shri S.C. Misra, Advocate to the respondents (OPs), A-7 are acknowledgments.
8. The respondent No.1 (O.P. No.1)and respondent No.2 (O.P.No.2) filed documents. Exhibit 1 is copies of letter dated 02.12.2004, the proforma invoice covering supply of Advia 60 Hematalogy Analyser and the commercial terms of supply, Exhibit 2 is copies of fresh Certificates of Incorporation dated 02.08.2007 and 06th August, 2008, Exhibit 3 is copy of letter dated 11.12.2009 of Anil Shankar, Finance Director & CFO of the respondent No.1 (O.P.No.1) to the appellant (complainant), Exhibit 4 is copy of the field service report of Ashish Manavatkar dated 26.12.2009, Exhibit 5 is copy of the field service report of Manoj Sable and Ashish Manvatkar dated 20.02.2010, Exhibit 6 is copy of the field service report of Ashish Manvatkar dated 23.02.2010, Exhibit 7 is copy of an email dated 20.04.2010 of Matrix Service Solutions.
9. Shri K.K. Sharma, learned counsel appearing for the appellant (complainant) has argued that the appellant (complainant) purchased // 12 // one Bayer Advia 60 Hematology Analyser from the respondent No.3 (O.P.No.3) for earning his livelihood by means of self employment with the financial help from ICICI Bank, Raipur. Earlier the Bayer Advia 60 Hematology Analyzer worked well and whenever any defect developed, it was rectified by the service engineers / technicians of the OPs, but thereafter the Bayer Advia 60 Hematology Analyzer was creating problem hence the above Bayer Advia 60 Hematology Analyzer was sent to the OPs and several complaint was made by the appellant (complainant) to the OPs, but the OPs did not repair the Bayer Advia 60 Hematology Analyzer. In the month of July, 2009 one Mr. Ashish came and repeatedly tried to repair the Bayer Advia 60 Hematology Analyzer in the month of July, August, September and October, 2009 but could not succeed. The appellant (complainant) suffered huge losses due to non-working of the Bayer Advia 60 Hematology Analyzer. The appellant (complainant) requested the OPs to repair the Bayer Advia 60 Hematology Analyzer. Finally Mr. Rajendra Jain was requested to take the matter seriously. Then Mr. Jain sent a Pune based engineer on 20.02.2010 who came and repaired the Bayer Advia 60 Hematology Analyzer on payment basis, but the Bayer Advia 60 Hematology Analyzer, was not working properly and the OPs did not repair the Bayer Advia 60 Hematology Analyzer properly. Thus, the OPs committed deficiency in service. The impugned order passed by the District Forum is erroneous and is liable to be set aside.
// 13 //
10. Miss Shutapa Shah, learned counsel appearing for the respondent No.1 (O.P.No.1) has argued that the Bayer Advia 60 Hematology Analyzer was purchased by the appellant (complainant) for his Pathology Centre and the appellant's (complainant's) Pathology centre is one of the biggest Pathology Centre at Raipur. Bayer Advia 60 Hematology Analyzer was purchased by the appellant (complainant) for his business purpose and the transaction between the parties was commercial transaction. She further argued that the Bayer Advia 60 Hematology Analyzer was purchased by the appellant (complainant) in the year 2004 and the complaint was filed before the District Forum on 16.12.2010, which is apparently barred by limitation. The warranty period was also lapsed, therefore the appellant (complainant) is only entitled to get the Bayer Advia 60 Hematology Analyzer repaired on payment basis. The OPs never denied to repair the Bayer Advia 60 Hematology Analyzer on payment basis. The Bayer Advia 60 Hematology Analyzer was duly repaired by the OPs and service charge of Rs.62,974/- was raised for the replaced parts and services rendered. The respondents (OPs) fully attended the complaint of the appellant (complainant) with warranty period and also after expiry of the service contract. The advice of the technicians earlier on 26.12.2009 to the appellant (complainant) to purchase controls for checking accuracy of the Bayer Advia 60 Hematology Analyzer results as the controls being used by the appellant (complainant) were past the // 14 // expiry period of May, 2009 was not paid heed to which clearly brings out the malafides of the appellant (complainant). After expiry of the warranty period and service contract, the OPs are entitled to raise / demand repair charges. The impugned order passed by the learned District Forum is reasonable, just and proper and does not suffer from any infirmity, illegality or irregularity, hence does not call for any interference by this Commission.
11. We have heard arguments of learned counsel for both the parties and have also perused the record of the District Forum.
12. In Ranbaxy Laboratories Ltd. Smt. Mamta Sarkar and Others, 1986-99 Consumer 4937 (NS), Hon'ble National Commission has observed that "(A) Consumer Protection Act 1986, section 2(1)(d) - consumer- commercial purpose - the first respondent purchased from the revision petitioner a diagnostic kit - Tandem Icon II HCG Urine"" which is used for conducting pregnancy tests - the said purchase was by the first respondent on 19.8.1993 - the first respondent is the proprietor of the clinical laboratory - alleging that the kit supplied to her really belonged to a time expired batch and that the revision petitioner company had wrongly purported to extend the date of expiry by an unauthorized entry and that as a result of using the time expired material for conducting tests the wrong results were obtained in the complainant's laboratory and as a consequence serious damage was caused to the reputation of the laboratory. A complaint was filed // 15 // by her against the revision petitioner company before the State Commission, West Bengal seeking the recovery of a total compensation of Rs.18,75,000/- for deficiency in service, unfair trade practice, harassment caused to the complainant and compensation for loss of goodwill of the complainant's laboratory etc. Held whether the purpose for which person has brought goods is a "commercial purpose" within the meaning of the definition of expression "consumer " in Section 2(1)(d) of the Act is always a question of fact to be decided in the facts and circumstances of each case." Any finding on the said question of fact has to be based on a consideration of evidence adduced in the case and mere pleading without evidence cannot form the basis of a valid finding particularly when the case pleaded in respect of the said matter by one party is seriously disputed by the other party. There has been no advertence at all by the State Commission to any evidence whatsoever adduced in the case or even to the relevant fact and circumstances from which any inference may legitimately be possibly drawn. The finding entered by the State Commission without any consideration of the facts and circumstances of the case cannot be accepted as legally correct and tenable.
(B) Consumer - commercial purpose - the onus was entirely on the complainant to make out that she is a 'consumer' as defined in the Act and since the complaint in this case was filed in July, 1994 long after coming into force of the Amendment introduced in the Consumer Protection Act by the Amending Act of 1993 (Act 50 of 1993), the complainant was under a duty to establish by acceptable evidence that the article in question was purchased by her for being used by herself for the purpose of earning her livelihood by means // 16 // of self-employment. The diagnostic kit had been purchased for use in a clinical laboratory owned by the complainant. There is absolutely no material on record to show that the complainant is a technically qualified person competent to perform any work in the laboratory by making use of the kit. No attempt has been made by the complainant to prove that the goods purchased are to be used by herself - it is also to be established by the complainant that the goods purchased are used exclusively for the purpose of earning her livelihood by means of self-employment. In this case, there is no evidence at all on record to prove that Santimoyee Clinical Laboratory was being conducted by the complainant by way of self -employment as a means of earning her livelihood - the fact that the complainant sought to recover a sum of Rs.18,75,000/- from the opposite party company by way of compensation for the supply of the kit which was allegedly defective, whose cost was only about Rs.2,000/- assumes significance as it goes to indicate that the business carried on in the clinical laboratory must have been of a considerable magnitude and could not have been a small venture started by the complainant for employing herself for earning her livelihood - the purchase of the kit made by the complainant was for a "commercial purpose" and the complainant cannot be therefore regarded as a "consumer" entitled to maintain a complaint under the Act."
13. In Amanchi Rajendra Prasad & Ors. v. Dabur Ayurvet Ltd. (Aqua), II (2009) CPJ 388 (NC); Hon'ble National Commission has observed thus :-
// 17 // "9. We do not want to reiterate the detailed reasons given by the State Commission while allowing the appeal of M/s. Dabur Ayurvet Ltd. Suffice to say that we concur fully with the findings of the State Commission, that these are not consumer disputes. These are pure and simple commercial transactions wherein cheques issued by the purchaser had bounced. As a counter-blast the purchaser and his close relatives have filed consumer complaints to camouflage the commercial transactions. Therefore, these revision petitions are dismissed."
14. In M/s Rohit Chemical & Allied Industries Pvt. Ltd. National Research Development Corporation, IV (2013) CPJ 87 (NC), Hon'ble National Commission observed thus :
"22. In Laxmi Engineering Works v. P.S.G. Industrial Institute, AIR 1995 SC 1428, it was held :-
"12. Now coming back to the definition of the expression 'consumer' in Section 2(d), a consumer means in so far as is relevant for the purpose of this appeal, (i) a person who buys any goods for consideration; it is immaterial whether the consideration is paid or promised, or partly paid and partly promised, or whether the payment of consideration is deferred; (ii) a person who uses such goods with the approval of the person who buys such goods for consideration; (iii) but does not include a person who buys such goods for resale or for any commercial purpose. The expression 'resale' is clear enough. Controversy has, however, arisen with respect to meaning of the expression "commercial purpose". It is also not defined in the Act. In the absence of a definition, we have to go by its ordinary meaning. 'Commercial' denotes "pertaining to commerce" (Chamber's Twentieth Century); it means "connected with, or engaged in commerce; mercantile; having profit as the main aim" (Collins English Dictionary) whereas the word 'commerce' means "financial // 18 // transactions especially buying and selling of merchandise, on a large scale" (Concise Oxford Dictionary). The National Commission appears to have been taken 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(1)(d) 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 of expression 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 // 19 // 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 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. This is necessary limitation flowing from the expressions "used by him" and "by means of self-employment in the explanation. The ambiguity in the meaning of the words "for the purpose of earning his livelihood" is explained and clarified by the other two sets of words".
15. In Kishore Ramchandra Bhide v. Habibat India Agro Development Pvt. Ltd. & Ors., IV (2012) CPJ 706 (NC), Hon'ble National Commission, observed thus :-
"7. The Supreme Court has discussed the term 'consumer' in the celebrated authority reported in Laxmi Engineering Works v PSG Industrial Institute, II (1995) CPJ 1 (SC) = 1995 3 SCC 583, wherein it was held :
"The National Commission appears to have been taken a consistent view that where a person purchases goods 'with a view to using such // 20 // 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(1)(d) 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 of expression 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 // 21 // 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 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.
A person cannot be said to be consumer if he purchases the second house."
16. In Biilagi Sugar Mill Ltd. v. Kessels Engineering Works (P) Ltd., II (2010) CPJ 242 (NC) Hon'ble National Commission observed thus :-
"3. From the facts narrated in the complaint, it is clear that the Turbine (T.G. Set) in question had been purchased by the complainant for commercial purpose and, purchase for commercial purpose is excluded under Section 2(1)(d)(i) of the C.P. Act. Likewise, the services of the warranty for commercial purpose are also excluded for commercial purpose under Section 2(1)(d)(ii) w.e.f. 15.3.2003. A Division Bench of this Commission to which one of us (R.K. Batta, J) was a party has after scrutiny of a large number of judgments, which actually pertain to the pre-amendment period i.e. before 15.3.2003, in Meera Industries v. Modern Constructions, R.P. No.1765 of 2007 decided on 22.5.2009, wherein it was held :
// 22 // "In view of the above, we are of the opinion that whether a customer buys goods for commercial purpose and avails of services attached to the goods in the nature of warranty, he cannot be considered to be a consumer even for the purpose of services during the warranty period in view of the amendment to Section 2(d)(ii) of the Act, which came into force w.e.f. 15.3.2003. In view of this, the complainant cannot be held to be a consumer with reference to the services attached to the warranty and the complaint is not maintainable".
17. In the instant case, it appears that the appellant (complainant) purchased Bayer Advia 60 Hematology Analyzer from the respondent No.3 (O.P.No.3) for his Pathology Centre and for expansion for his business. The respondent (complainant) has not been able to prove that the said Bayer Advia 60 Hematology Analyzer was purchased by him for his personal use. Therefore, it cannot be said that the appellant (complainant) purchased the said Bayer Advia 60 Hematology Analyzer for his personal use or for earning his livelihood by means of self employment. The said Bayer Advia 60 Hematology Analyzer was purchased by him for commercial purpose.
18. In the instant case, the contention of the respondents (OPs) is that the service contract was lapsed and thereafter it was not renewed, therefore, it is not obligatory on the part of the respondents (OPs) to repair the Bayer Advia 60 Hematology Analyzer without obtaining service charges from the appellant (complainant). The respondent // 23 // No.3 (O.P.No.3) sent its employee for conducting repairing work of the Bayer Advia 60 Hematology Analyzer. The contention of the respondents (OPs) is established by the service report dated 26.12.2009.
19. On 20.02.2010 and 23.02.2013, the appellant (complainant) again told the respondent No.3 (O.P.No.3) for repairing of the Bayer Advia 60 Hematology Analyzer and repairing work was done in which it was found that since last three years maintenance kit was not replaced and according to the advice given to the appellant (complainant) he was instructed to replace the parts which were expired in May, 2009, but the appellant (complainant) did not give any response. Thus the appellant (complainant) was using the parts which were already expired due to which the Bayer Advia 60 Hematology Analyzer was creating problem which is proved from the report of Manoj Sable and Ashish Manvatkar dated 20.02.2010 which was installed later and in February, 2010 again it was found that due to non use of Hypocloride, the RCB chamber is not working properly, which was repaired, regarding which the appellant (complainant) did not pay any service charges and thus the appellant (complainant) concealed actual facts.
20. Thus, we find that the appellant (complainant) did not follow the procedure fixed for maintenance of the Bayer Advia 60 // 24 // Hematology Analyzer and obtained the services of the OPs are expiry of the warranty and did not replace the alleged parts. Thus, we find that on the false ground the complaint has been filed.
21. Looking to the facts of the case, we find that the respondents (OPs) have not committed any deficiency in service or unfair trade practice and the finding recorded by the learned District Forum is reasonable and does not call for any interference by this Commission.
22. Therefore, the appeal filed by the appellant (complainant) being devoid of any merits, deserves to be and is hereby dismissed. No order as to the cost of this appeal.
(Justice R.S. Sharma) (Ms. Heena Thakkar) (D.K. Poddar)
President Member Member
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