K S Dabas vs Rajender Kumar Chhabra

THIS Revision Petition has arisen out of the order dated 5.7.1996 passed by the Haryana State Commission at Chandigarh dismissing the appeal of the petitioner herein and upholding the order dated 2.3.1995 passed by the District Forum, Kaithal directing me petitioner herein either to replace the X -Ray machine plant or to pay back to the complainant Rs. 1,10,000/ - and in addition pay damages to the extent of Rs. 25,000/ -.

THE facts lie in a narrow compass and may be stated. According to the complainant, he intended to establish X -Ray plant at his Nursing Home, run under the name and style of Chhabra Nursing and Maternity Home, Railway Road, Kalayat, District Kaithal and for this purpose he got a licence from the Small Scale Industries, Haryana, that the opposite party offered to supply a complete X -Ray Plant model GOMAX -1005 for a sum of Rs. 88,000/ - and that the opposite party supplied and installed the X -Ray Plant for which a total payment of Rs. 1,03,833.40 was made. The complainant alleged that when he found the X - Ray machine defective, he approached the opposite party for rectification / replacement but he did not get satisfaction and later filed the complaint before the District Forum claiming replacement of the machine as well as damages and business loss of Rs. 3.50 lakhs. On being noticed the opposite party filed a short version dated 23rd May, 1994 alleging inter alia that the Act is made for consumers specially defined under the Act and not for small scale industries as the complainant who is not a consumer. The opposite party had, however, asked for a complete copy of the complaint and reserved liberty to file a detailed reply. The opposite party, however, did not appear before the District Forum. The District Forum found that the machinery supplied was defective from the very beginning based on the report of the Local Commissioner and the affidavit. The District Forum did not go into the question whether the purchase of the X -Ray Plant was for commercial purpose or for self - employment of the complainant. The District Forum accepted the claim and granted relief as noticed in the earlier part of the order.

THE complainant as well as the opposite party being aggrieved of the order of the District Forum filed appeals before the Haryana State Commission. The main ground taken by the opposite party was that the X -Ray machine having been purchased for commercial purpose, the complaint could not be heard in consumer jurisdiction. The State Commission rightly posed the question that for holding the purchase for a commercial purpose, it was necessary to record a finding on the question whether the person was engaged in a business of large scale with a view to earn large profits or whether it was a case of small exercise for self -employment or the goods purchased including machinery are to be used in furtherance of existing business on a small scale. These a re pure questions of fact to be determined on the basis of the respective versions of the parties and on the basis of cogent and convincing evidence adduced by the parties in support of their respective versions : The opposite party had filed short version but the District Forum had not taken any notice of that short version wherein the objection to the jurisdiction of the District Forum relating to consumer dispute was clearly taken. The law has been settled by the Supreme Court in Laxmi Engineering Works v. PSG Industrial Institute, II (1995) CPJ 1 (SC). The question to be decided in this case is whether the activity carried on by the complainant doing the medical and clinical business with the X -Ray machine is on a large scale or for self -employment for making a living for himself. Since we have decided to remand this case to the District Forum for de -novo adjudication in accordance with law in the light of the observations in this order, we have restrained ourselves from expressing any opinion on the merits of the rival contentions lest it should prejudice either of the parties. The opposite party is granted an opportunity to file a detailed written version within one month from the date of receipt of this order before the District Forum.

THE impugned orders of the State Commission and the District Forum are set aside and the case remanded to the District Forum, Kaithal. The District Forum shall try the complaint de novo after accepting the written version of the opposite party and after affording an opportunity to the parties to substantiate their respective versions. On the circumstances of the case the parties are left to bear their own costs so far throughout. Revision allowed. Matter remanded for de -novo adjudication.