Kone Elevator India (P) Ltd. vs Saket Medical And Research Centre (Pvt.) Ltd.

THE complainant/respondent which is a Private Limited Company got installed two lift stretcher and passenger lift from the petitioner company for a consideration of Rs. 10,35,000/ -. According to the complainant, though both the lifts were to be made operational by March, 2007, one lift was installed in July, 2007 whereas the installation of the stretcher was not completed even till December, 2007. Being aggrieved, the complainant approached the concerned District Forum, seeking compensation from the petitioner company, along with interest on the amount paid to it. The complaint was resisted by the petitioner; inter -alia on the ground that the complainant being a commercial establishment and having purchased the lift for commercial purpose was not a ''consumer'' and therefore, the complaint was liable to be dismissed. The delay in installation of lift was attributed by the petitioner to the complainant.

THE District Forum vide its order dated 26.3.2014, directed the petitioner to pay Rs. 51,000/ - to the complainant as compensation, along with cost of litigation quantified at Rs. 11,000/ -. It was further held that since the petitioner had committed delay in installing the lift, it was not entitled to receipt of the balance sale consideration of 10% from the complainant. Being aggrieved from the order passed by the District Forum, the petitioner company approached the concerned State Commission by way of an appeal. Vide impugned order dated 08.09.2014, the State Commission dismissed the appeal filed by the petitioner company. Being aggrieved the said company is before this Commission by way of this revision petition.

Section 2(1)(d) of the Consumer Protection Act, to the extent it is relevant, provides that the term ''consumer'' does not include a person, who purchases goods or hires or avails service for a commercial purpose. The explanation attached below Section 2(1)(d) excludes from the ambit of the expression ''commercial purpose'', user of goods bought by a person or availing of the services by him exclusively for the purpose of earning livelihood, by means of self -employment.

IN the present case, the complainant, which is a company duly incorporated under the provisions of the Companies Act purchased and got installed lifts from the petitioner for the purpose of being used in its hospital. Since the complainant is a company, it is evident that the said hospital is being run by it for making profits. The lifts were to be used by the complainant for expansion of its commercial activities i.e. running a hospital for making profits by rendering services in the said hospital. Therefore, it would be difficult to dispute that the lifts were purchased and got installed by the complainant for a commercial purpose. It is true that the purchase of lifts by itself did not generate profit for the complainant but when used in the hospital, the said lifts were contributing to generating profits for the complainant by providing facility of the use of the lift to the patient and their visitors etc. The tariff fixed by a hospital is based inter -alia on the quality of the infrastructure made available to the patients, their companions and their visitors. A hospital which provides the facility of use of the lifts will certainly be in a position to command higher tariff as compared to a hospital, which does not offer such a facility to the patients, their companions and their visitors. Therefore, the use of the lifts in a private hospital certainly helps in augmenting the profit of the organisation which runs the hospital.

AS far as the explanation attached below Section 2(1)(d) of the Act is concerned, I find that the complaint contains no such averment which would attract applicability of the said explanation. In any case, the aforesaid explanation does not apply in the case of a company, the same being applicable to a case where an individual, who at the relevant time is unemployed, seeks to generate employment for himself by using the goods bought or the services availed by him for the purpose of earning his livelihood. The learned counsel for the complainant/respondent has referred to the decision of the Hon''ble Supreme Court in Laxmi Engineering Works v. P.S.G. Industrial Institute : (1995) 3 SCC 583, where the Hon''ble Apex Court, inter -alia held that a person buying goods and using the same by himself solely for the purpose of earning his livelihood by means of self -employment would be a consumer. It was further held that whether the purpose for which a person has bought goods for a commercial purpose is a question of fact to be decided in the facts and circumstances of each case. The above referred view is of no help to the complainant since it is a company and therefore, could not be earning livelihood by means of self -employment while purchasing lifts from the petitioner company. Moreover, the hospital being run by the complainant was already operational when the lifts in question were purchased. It is specifically alleged in the complaint that the said lifts were meant for expansion of the hospital being run by the complainant by adding new operation theatres, new ward at second and third floor and new projects for which facility of lifts was required. The learned counsel for the complainant has also referred to the decision of the Hon''ble Supreme Court in Ruby (Chandra) Dutta v. United India Insurance Company : (2011) II SCC 269, where it was held that revisional power of this Commission is limited to the cases where the orders impugned before this Commission suffers from some prima facie error. However, in the present case, the orders passed by the fora below are wholly without jurisdiction since the services of the petitioner were availed by the complainant for a commercial purpose and consequently complaint before a Consumer Forum was not maintainable.

FOR the reasons stated hereinabove, I hold that since the services of the petitioner were availed by the complainant for a commercial purpose, the complaint before a Consumer Forum was not maintainable. The impugned orders are therefore, set aside and the complaint is consequently dismissed with no order as to costs. It is however, made clear that the dismissal of the complaint does not come in the way of the complainant seeking such other alternative remedy as may be available to it in law, for the redressal of its grievances.