K.S. DABAS vs RAJINDER KUMAR CHHABRA

PETITIONER was the opposite party before the District Forum, where respondent/complainant had filed a complaint alleging deficiency in service on the part of the petitioner.

VERY briefly stated the facts of the case are that the respondent/complainant purchased an x-ray machine Model Gomaz-1005 for a sum of Rs. 88,000 which was delivered to him on 9.8.1990; part of the goods had already been supplied on 18.6.1990. The complaint of the respondent/complainant was, that from the very first day of its instal, the machinery failed to give its accurate results. Several complaints were made but yet no action was taken, hence dissatisfied with the conduct of the petitioner, the respondent / complainant filed a complaint before the District Forum. It is pertinent to note that this is a second round of litigation as during the first round of litigation when the matter came before this Commission, this Commission vide its order dated 17.4.1997 remanded the case to District Forum, Kaithal (Haryana) for hearing the complaint de novo. The Distric Forum after hearing the parties allowed the complaint and directed the petitioner to replace the entire machine along with x-ray tube or pay back the amount along with interest @ 12% from the date of purchase till the date of realisation along with compensation of Rs. 25,000. Aggrieved by this order, an appeal was filed before the State Commission basically on two grounds, namely, the complaint is barred by limitation and secondly, the machine was purchased for commercial purposes. The State Commission after hearing the parties dismissed the appeal, hence this revision petition before us. Before us also the same pleas have been taken. After hearing the parties and perusal of material on record, there is no disputing the fact that machine was delivered in June/August 1990, and the complaint has been filed for the first time in 21.3.1994. Even though no time limit was under the Consumer Protection Act, but as per law prevailing at that time the period was taken to be 3 years from the cause of action, for filing a complaint as per the Indian Limitation Act. Hence prima facie the complaint appears to be barred by limitation, but in this particular case, the last document is a telegram dated 5.2.1993, which reads as follows : "Your machine shall complete by Sunday. Kindly come on Sunday and inspect your machine before delivery."

The State Commission, in our view, rightly counted the time limit from this date and thus dismissed this plea of the petitioner that the complaint was barred by limitation. We are in full agreement with this view. It is also relevant to mention that learned Counsel for the petitioner also drew our attention to a document dated 14.8.1992 (appearing at page 30 of the volume - I) to show the conduct of the complainant as according to the petitioner this date of the letter appears to be tampered with. We were shown the original by the learned Counsel for the respondent/complainant and we find that there is no tampering and the letter issued by the petitioner reads as 14.8.1992. As far as the telegram dated 5.2.1993 is concerned, a specific reference of this has been made in para 14 of the complaint which in the written version has only been blandly denied. In the affidavit filed by the complainant, this point has again been reiterated in para 13 of the affidavit in following terms :- "13. That on 5.2.1993, the deponent received a telegram from the respondent wherein the respondent requested to inspect the machinery which has been taken back for repairs in the month of January 1993."

It has been only denied in following terms by the petitioner in his affidavit : "13. Contents of para 13 are false and denied in toto."

WE are not impressed with this type of bland denial of a specific allegation / fact when the complaint and the affidavit carries specific reference to this telegram. WE are not impressed at all by the argument of the learned Counsel for the petitioner that this telegram related to some other equipment supplied to the respondent / complainant. In view of above, the time limit shall start from 5.2.1993 and the complaint admittedly was filed on 21.3.1994, hence we find that the complaint was filed within the prescribed time of limitation.

COMING to the second point that this was a commercial transaction, as per material on record, the respondent/complainant owns and runs ''Chhabra x-ray and Nursing Home'' as well as ''Chhabra Maternity and General Hospital''. It is for one of these Hospital/Nursing Home that x-ray machine was supplied. Section 2(1)(d) of the Consumer Protection Act (CPA), specifically excludes the applicability of CPA, if goods have been purchased for commercial purposes. Since it has been clarified in the judgment of Hon''ble Supreme Court in the case of Laxmi Engineering Works v. P.S.G. Industrial Institute, II (1995) CPJ 1 (SC)=(1995) 3 SCC 583, and Cheema Engineering Services v. Rajan Singh, VI (1998) SLT 20=(1997) 1 SCC 131, wherein it is clearly held : "18. 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 livelihood, by means of self-employment is within the definition of the expression "consumer."

We are unable to satisfy ourselves that purchase of machine could be said to be for self-employment for purpose of earning a livelihood. The objective of this legislation as well as the law as interpreted by the Hon''ble Supreme Court, where a person engages in any activity for earning his livelihood directly from that, then it shall fall within the CPA. In the present case, the respondent/complainant is a qualified doctor having a degree of B.A.M.S. and runs two Hospitals/Nursing Home. It cannot be said that x-ray machine was purchased exclusively for earning his livelihood, we would presume that his livelihood comes from earnings from this Hospital/Nursing Home. X-ray machine was purchased to supplement and enhance that income; which will make it not falling within the purview of the CPA. We have no hesitation in observing that in view of the material on record and also his holding two Hospitals/Nursing Homes, this machine was purchased for commercial purposes. Both State Commission and District Forum, in our view, erred in arriving at a different conclusion in this regard. In view of above discussion, we are unable to sustain the order of the District Forum and State Commission, which are set aside. Respondent/complainant will be free to approach the appropriate Court/Forum, if so advised for seeking relief against the petitioner and the period spent before the Consumer Fora shall be condoned under Section 14 of the Limitation Act, for purposes of calculation of limitation applicable before an appropriate Forum / Court as per law laid down in the case of Laxmi Engineering Works v. P.S.G. Industrial Institute (supra). The revision petition is partly allowed in above terms. Revision Petition partly allowed.