(Mrs.) KUSUM BAKHSHI AHLWAT vs G.P. SINGH, MANAGER ADMINISTRATION And OTHERS

WHETHER a self-employed medical professionals'' purchase of equipment for his clinical requirements would be one for a commercial purpose? This is the significant threshold question in this complaint.

FOR the limited purpose of disposing of the preliminary jurisdictional objections, it suffices to refer to the facts relevant to the aforesaid issue alone. Dr. (Mrs.) Kusum Bakhshi Ahlwat is apparently a professional of some standing having her own clinic in the name of Bal Maternity & Nursing Home at Jind. It is the case that she had bought one Ultra Sound Diagnostic Scanner Model : PAL-IIB for Rs. 2,80,000/- from M/s. United/Uni-Magna Tech Limited. It has been averred that the purchase inter-alia was made on an assured service of training in ultrasonography as well, on such machines. The same was installed at the premises of the Complainant on the 25th of March, 1992. Thereafter the complainant pressed for the necessary training being provided as contracted. However, it is the case that the opposite party failed or evaded in providing such training rendering it impossible to use the expensive equipment. Charges of unfair trade practice and unscrupulous exploitation has been laid at the door of the opposite parties and a compensation amount of Rs. 1,75,000/- has been claimed.

On behalf of the opposite parties four preliminary objections have been raised alleging that the complainant does not come within the ambit of a consumer and further that there is no deficiency in service and no cause of action is disclosed.

ON behalf of the complainant an additional affidavit has been filed highlighting the fact that the Ultrasound Diagnostic Scanner has been purchased for her personal use/service in her own clinic for the specific purpose of dignosing the clinic patients properly for which no extra charge was levied upon them. It is the plea that the equipment is not being used for a commercial purpose or for trading or profit making activity, but scrupulously for the benefits of the clinic patients only. Mr. Goel, the learned Counsel for the opposite parties in projecting the threshold objection has persistently argued that the purchase of the equipment was for a purely commercial purpose. It was the stand that the complainant was running a maternity and Nursing Home for which she obviously levied charges from her patients. It was contended that the complainant undoubtedly earned a large professional income from her medical practice and, therefore, the purchase cannot escape the net of a commercial purpose. Primal reliance was sought to be placed on II (1992) CPJ 413 (NC), M/s. Curewell Hospital Pvt. Ltd. v. M/s. Kohli Medical Cases Pvt. Ltd. and II (1992) CPJ 759, G.S. Ranganath v. The Chairman M/s. Miles India Ltd. By way of analogy reference was made to I (1993) CPJ 54, M/s. Amar Medical Hall v. Moti Ram, Advocate.

THERE is no gain saying the fact that the submission aforesaid raises a significant issue in the context of the recent holding that medical professionals rendering services for consideration are squarely within the ambit of the consumer jurisdiction. Even otherwise, within this field, the concept of self-employment and the purchase of goods for primarily earning ones livelihood have significantly come to the fore. Since these have larger ramification even at the national level, the issue merits consideration in some depth even at the cost of prolixity. The difficulty of giving a precise meaning to a somewhat celeberated phrase like "commercial purpose" which has a very broad connotation is inherent indeed. The complexity of such a matter as well-illustrated by the old but celebrated case of the House of Lords in Commissioner of Income Tax v. John Frederik Pemsel xx 1891 Appeal Cases 531. Therein, what fell for consideration was a somewhat analogous phrase of "charitable purposes" and the exhaustive judgment of the Law Lords on the question of its true import is a classic example of the intricacies thereof. Inevitably, one would have to advert to precedent but before referring to individual cases, it must be noticed that there has been recently a distinct shift in approach within the consumer jurisdiction and precedent has now veered away from an overly extended meaning of the phrase "commercial purpose". It bears recalling that in I (1991) CPJ 44 (NC), Western India State Motors v. Sobhag Mall Meena & ors., decided on the 8th of November, 1989, the National Commission took a somewhat summary view that there cannot be any doubt that the plying of a taxi was a clearly commercial purpose and the purchase of a vehicle made specifically for being used as a taxi was a purchase made for "commercial purpose" and consequently the purchaser was not a consumer and the complaint should not have been entertained. Shortly thereafter, in Synco Textiles Ltd. v. Greaves Cotton Company decided on 6th of April, 1990, I (1991) CPJ 499 (NC), the National Commission by majority again took a somewhat strict view that purchase of a generating set as a stand-by arrangement for a factory was for a commercial purpose. However, Mr. Y. Krishnan, member in a forceful and brilliant dissent took the view that the generating set purchased by such an appellant for running an oil mill only in the event of a break down and disconnection of electricity would not invest the purchase with a "commercial purpose".

MUCH water seems to have flown under the bridges since the aforesaid decisions were rendered. In II (1991) CPJ 644, Abhey Kumar Panda v. Bajaj Auto Ltd. & anr., the Orissa State Commission taking a somewhat divergent view held that a person purchasing a vehicle for running it as a taxi and earning his own livelihood, cannot be said to be purchasing the same for a "commercial purpose". It was opined that where the intention is to engage oneself honourably to earn a livelihood the purchase of goods for the purpose cannot be said to be for a "commercial purpose". This view was affirmed directly by the National Commission on appeal in I (1992) CPJ 88 (NC), Abhey Kumar Panda v. Bajaj Auto Ltd. (supra). It was held that both the findings of the Orissa State Commission that the complainant is a consumer and that the said vehicle was defective are affirmed. However, it was in I (1992) CPJ 140 (NC), The Secretary Consumer Guidance and Research Society of India v. BPL India Ltd. that the National Commission elaborated the issue and explained away the earlier cases. Western India State Motors v. Sobhag Mal Meena & ors. (supra) and Synco Textiles Pvt. Ltd. v. Greaves Cotton Company (supra).

CONSEQUENTLY a virtually refreshing reconsidered view was taken that even where goods are obtained for a patently profit making activity, they would not come within the mischief of the exclusion clause unless two further tests are satisfied. In the result it was held that even purchase of a photo copier by a person mainly for making profits there from was not one for a commercial purpose if it was for the purpose of self-employment. This enunciation of law is thus a clear pointer to a new approach that even where goods are obtained directly for a profit motive, they may still be not be within the phrase of a "commercial purpose" as such. Reference may also be made to I (1992) CPJ 337 (NC) M/s. Jyoti Marketing & Projects Ltd. & anr. v. M. Pandian & Anr. Therein, it was observed as follows : "It has been repeatedly held by this Commission that when a person buys any article for consideration to use it for some self-employment in order to earn his own livelihood, the purchase is not for a commercial purpose."

The aforesaid view was re-echoed in I (1992) CPJ 327 (NC), M/s. Indra Fabricators & ors. v. M/s. Pineapple Marketing Co-op. Society Ltd.

HOWEVER, to hearken back to the ratio in the Secretary Consumer Guidance and Research Society of India v. BPL India Ltd. (supra), it deserves highlighting that V. Balakrishna Eradi, J. speaking for the National Commission concluded as under : "Thus cases of persons who purchase goods or even machinery for self-employment purpose without engaging in any trading or manufacturing business on a large scale for purpose of profit making will not fall within the scope of the exclusion clause in the statutory definition in Section 2(1)(d)(ii) and hence such persons are consumers entitled to protection under the Act."

From a conspectus of the aforesaid line of precedent it emerges that three clear tests or conditions have to be satisfied before the purchase would come within the mischief and the exclusion clause of the goods having been purchased for a commercial purpose. These are : (i) self-employment to earn a livelihood stand at a distinct and different pedestal; (ii) the goods purchased must be for use in profit making activity engaged on a very large scale; (iii) there should be a direct nexus betwixt the use of the goods and the actual profit making activity.

NOW while applying and elaborating the aforesaid three tests, what deserves highlighting is the distinction betwixt a trade and a profession. It is true that at some level, the dividing line may be somewhat thin, but there is no gain saying the fact that the two occupations are somewhat separate and distinct. A professional uses his inherent acquired talent in practicing the same either to earn a livelihood or to advance himself in life. Such activity is a shade apart from a trading manufacture or sale in goods or commodities. As has already been noticed, the recent trend of precedent has sharply veered over in favour of self-employed persons even where they are engaged in directly profit making activities. However, where a person is engaged in his particular profession for earning his livelihood and is self employed, then he obviously stands on the highest pedestal in this context. It would be somewhat manifest that a doctor practising the noble profession of medicine for his livelihood would be obviously in this class and very near to its apex. The scale of profit making activity is then an equally important factor. As already noticed binding precedent now lays down that to bring in the exclusion clause of a commercial purpose, such activity must be on a very large scale. It is true that it may be not always easy to draw a line in the grey area where an activity may closely verge on the large scale. However, it is somewhat manifest that a medical professional running his own clinic cannot possibly or in any case easily be labeled that he is indulging in the profit making activity on a very large scale. Perhaps it deserves reiteration that the practice of medicine by a professional may not in terms be labeled as a pristinely profit making activity at all. But even assuming it to be so, a nursing home or a clinic by a single or two professionals together would not come within the purview of large scale profit making, activity. Lastly the direct nexus test between the use of goods and the actual profit making activity is equally relevant in this context. In the present day world most activities may have an economic or profit motive. But the test as laid is that a merely indirect connection is not enough and what is crucial is the factum of a direct and close nexus betwixt the use of goods and the profit making activity. In the present context, where a diagnostic scanner is used by a non-professional for charging fees for scanning clientage generally the same could possibly be labeled as a direct nexus to the profit making activity. However, where a medical professional uses the scanner for his personal purpose for diagnosing the disease of the patient in his clinic and does not directly levy charges for such scanning the connection betwixt the use and the profit making activity is totally difused if not virtually cut off. In the present case the complainant has put in a specific affidavit averring that the scanner was purchased for personal use to help her in diagnosing the patients properly and for which they charged nothing extra from the patients. It follows that generality apart in the particular case, the absence of a direct nexus is thus patent.

IN fairness to the learned Counsel for the opposite party, his reliance on precedent may be adverted to. M/s. Curewell Hospital Pvt. Ltd. v. M/s. Kohli Medical Cases Pvt. Ltd. (Supra) was plainly a case where the complainant far from being a professional was indeed a private limited company engaged obviously in the profit making activity. The case is thus plainly on a different footing. Again in ''G.S. Ranganath v. The Chairman M/s. Miles INdia Ltd. (Supra), also the purchaser was the Maleswaram X-ray Clinic and Laboratory Pvt. Ltd., through its Managing Director. Clearly that was also a Corporation which admittedly used the purchased equipment for testing the patients by charging Rs. 50/- per head. This case is equally of no avail to the opposite party. Lastly M/s. Amar Medical Hall v. Moti Ram, Advocate (Supra), as already noticed was merely relied upon by way of analogy and had no direct bearing on the issue.

TO conclude, the answer to the question posed at the out-set is rendered in the negative and it is held that a self-employed medical professional purchasing equipment for his clinical requirements would not come in the exclusion clause of a purchase for a commercial purpose. In the light of the aforesaid ratio, the preliminary objection raised on behalf of the opposite parties must fail and is consequently rejected.

In the alternative, it may also be noticed that herein the primary grievance of the complainant also is that there is a deficiency in the services undertaken to be rendered by the opposite parties. The core of the matter is that they had undertaken in no uncertain terms to provide training on the Ultra Sound Diagnostic Scanner at Delhi for sonography. This is alleged to have not been done. Once that is so the matter will also come within the ambit of the deficiency is service in which context the question of a commercial purpose does not arise at all. If authority was needed, for this plain proposition, reference may be made to I (1992) CPJ 93 M/s. Vishwa Jyoti Printers v. M/s. Molins of India. For this added reason also, the stand of the opposite parties must be rejected.

IN the light of the aforesaid reasons, the preliminary jurisdictional objections are hereby rejected. The trial of the complaint will now proceed on its merits. Preliminary Objection rejected.