HARSHAL DAFFAL vs KODY ELCOT LTD.

THIS is a complaint under Section 17(i)(a) of the Consumer Protection Act, 1986 (for short the ''Act'') for deficiency in service in not supplying the Trans Vaginal Probe of the value of Rs. 1,87,234/- with interest thereon at the rate of 24 percent and compensation for the loss suffered of Rs. 6,00,000/- at the rate of Rs. 1,000/- per day from 27.8.1994 to 3.8.1996 and further a sum of Rs. 1,00,000/- for mental pain, inconvenience and harassment along with the costs of the proceedings.

THE case of the complainant in brief is thus : THE complainant placed an order on 9.4.1994 for supply of FF Sonic UF 4500 Ultra Sound Machine made in Japan along with Microcon Vaginal Probe 3.5 MHz and Trans Vaginal Probe 7.5 MHz. THE complainant paid the purchase price of Rs. 6,50,000/- including 47% customs duty. THE delivery was to be made within four months from the date of the order by the opposite parties. THE machine was supplied on 27.8.1994 without Trans Vaginal Probe 7.5 MHz (for short TVP) which was assured to be supplied in September, 1994. Inspite of repeated correspondence, the TVP was not supplied, hence the complainant purchased the same for Rs. 1,87,234/- on 3.8.1996. For non-supply of the Trans Vaginal Probe 7.5 MHz the complainant suffered loss at the rate of Rs. 1,000/- per day from 27.8.1994 to 3.8.1996 at their Ultra Sono Centre run by the complainant and his wife Dr. Anuradha Dafal, therefore, this complaint to claim the amount of the TVP of the value Rs. 1,87,234/- with interest thereon at the rate of 24 percent and the loss suffered of Rs. 6 lacs with compensation of Rs. 1,00,000/- for mental pain, inconvenience and harassment along with the costs of the proceedings. The opposite parties filed preliminary objections and submitted that the complaint is barred by limitation as not presented within a period of two years from the date of arising out of cause of action as the machine was supplied on 27.8.1994 while the complaint was filed on 12.9.1996. The complainant is not a consumer as defined under Section 2(1)(d) of the Act as the machine was purchased for his Ultra Sono Centre run by the complainant and his wife exclusively for the purpose of putting it for commercial use for earning large profits, objection to territorial jurisdiction was also raised as the Delivery Note mentioned that "any dispute which may arise out of this transaction will be to Madras Jurisdiction only".

Learned Counsel for the complainant submitted that the machine was purchased by the complainant after borrowing the loan for earning his livelihood. The TVP was assured to be supplied within a period of one month from the date of delivery which was not supplied, hence, the complaint was filed on 12.9.1996 within limitation from the date of arising of cause of action. The complainant is a consumer as the complainant purchased the machine for earning his livelihood by way of self-employment. As to territorial jurisdiction it was submitted that the machine was installed by the opposite parties at Bhopal, therefore, mention of jurisdiction at Madras in delivery note has no effect.

AFTER hearing learned Counsel for the parties and on perusal of the record of the case, we are of the view that the complainant cannot be held to be a consumer as defined under Section 2(1)(d) of the Act. Admittedly, the complainant at the time of purchase of machine was in Government employment, employed as an Associate Professor, M.G. College Bhopal and Government Hospital at Bhopal. The complainant along with his wife runs three Ultra Sono Centres one at 51, M.I.G. M.L.A. Quarters, Jawahar Chowk, Bhopal, the other is at 5, Shahjahani Medical Centre, Kala Darwaja, in front of Gandhi Medical College, Sultania Road, Bhopal, and the third one is at F-124/17, 6 No. Bus Stop, Shivaji Nagar, Bhopal. The complainant also had a Mobile Ultra Sonography Unit. In the circumstances, it cannot be assumed that the complainant had purchased the machine exclusively for the purposes of earning his livelihood by means of self-employment. Besides from the averments made in the complaint, it is evident that the complainant has claimed loss at the rate of Rs. 1,000/- per day for non-use of TVP in the Ultra Sono Centres at different places. Merely, because the complainant has borrowed loan from the Financial Institution to enable the complainant to purchase the machine, that will not bring the case within the Explanation of Section 2(1)(d) of the Act as the complainant was not unemployed and that the machine was purchased for profit-making activity. In Black''s Law Dictionary, Sixth Edition, at page 270, Commercial activity has been defined as under : "Commercial activity. Term includes any type of business or activity which is carried on for a profit. Lanski v. Montealegre, 361 Mich. 44, 104 N.W. 2d 772, 774. Activity relating to or connected with trade and traffic or commerce in general. Steinbeck v. Gerosa, 4 N.Y. 2d 302, 175 N.Y.S. 2d 1, 6, 151 N.E. 2d 170, 173."

THE Supreme Court in case of Kalpavruksha Charitable Trust v. Toshniwal Brothers (Bombay) Pvt. Ltd. & Anr., III (1999) CPJ 26 (SC), considered the expression and definition of the ''Consumer'' and after referring to its earlier decision in Laxmi Engineering Works v. P.S.G. Industrial Institute, II (1995) CPJ 1 (SC)=(1995) 3 SCC 583, and observed in paras 4 and 5 thus : "4. THE main reliance on behalf of the appellant has been placed on the decision of this Court in Laxmi Engineering Works v. P.S.G. Industrial Institute, II (1995) CPJ 1 (SC)=1995 (3) SCC 583, in support of the contention that the appellant was a "consumer" within the meaning of the definition set out in the Consumer Protection Act, 1986. THE definition was considered by us and it was held that since the machinery in question was installed by the appellant for commercial purpose, it would not be a ''consumer''. 5. It is contended by the Counsel for the appellant that the term "commercial purpose" has been considered by this Court in the case of Laxmi Engineering Works (supra), and the observation of National Commission that "commercial purpose" would mean "profit-making activity on a large scale" was approved and, therefore, the activity of the present appellant would not be a commercial activity as no "profit-making on a large scale" is involved. We do not agree. This Court in that decision had further held in para 21 as under : ''21. We must, therefore, hold that : (i) THE Explanation added by the Consumer Protection (Amendment) Act 50 of 1993 (replacing Ordinance 24 of 1993) with effect from 18.6.1993 is clarificatory in nature and applies to all pending proceedings. (ii) Whether the purpose for which a person has bought goods is a ''commercial purpose'' within the meaning of the definition of expression ''consumer'' in Section 2(d) of the Act is always a question of fact to be decided in the facts and circumstances of each case. (iii) A person who buys goods and uses them himself, exclusively for the purpose of earning his lively-hood, by means of self-employment is within the definition of the expression "consumer".'' Applying those tests, the Court in the case of Laxmi Engineering Works (supra), held that the appellant was not a ''consumer'' as the machinery in that case was not purchased for self-employment, but was purchased for ''commercial purposes''."

The decision relied on by the complainant of the National Commission in case of M/s. Kody Elcot Ltd. v. Dr. C.P. Gupta, (1999) NCJ (NC) 346, is of no help and is distinguishable on facts wherein the doctor was not in the Government service who was running his Sonography Centre by means of self-employment for earning his livelihood, therefore, the question of profit was considered not to be relevant. In view of the above, we hold that the complainant does not fall within the ambit of Consumer as defined in Section 2(1)(d) of the Act, therefore, the complaint to seek relief under the Act is not maintainable and is liable to be dismissed.

IN the circumstances, it is not necessary for us to deal with the plea of limitation and territorial jurisdiction. The complainant, if so advised, may institute the civil suit for seeking the relief in the Court of competent jurisdiction. If, the complainant chooses to file a suit for the relief claimed in these proceedings, he can do so according to law and in such a case he can claim the benefit of Section 14 of the Limitation Act to exclude the period spent in prosecuting the proceedings under the Consumer Protection Act, while computing the period of limitation prescribed for such a suit.

WITH the aforesaid observation, the complaint is dismissed with no order as to costs. A copy of this order be conveyed to the parties. Complaint dismissed.