NETWORK LTD vs VIJAI PRAKASH GOYAL

THIS is an appeal filed by M/s. (sic.) Network Limited, Nehru Place, New Delhi against the order passed on 16.11.1996 by the majority of the District Forum, Agra passed in Case No. 322/1995. By the minority judgment the complaint was dismissed by the President on 6.11.1996 while the two Members on 16.11.1996 allowed the complaint and directed appellant-opposite party to replace the necessary parts of the Ultra Sound Scanner Model Nebula (machine) within 30 days and to pay Rs. 30,000/- as damages and in case the machine is not repaired in time. The opposite party has further been directed to pay Rs. 1,00,000/- alongwith interest at 18% on 31.3.1994 while by the minority order the President in his order dated 6.11.1996 has come to the conclusion that the complainant-respondent Dr. Vijai Prakash Goyal is not a consumer as the Ultra Sound Scanner Machine has been purchased for commercial purpose and as such complaint is not maintainable.

WE have heard Mr. Mahesh Singh, Counsel for the appellant and Mr. Ashok Mehrotra, Counsel for the respondent and orders were reserved. The facts of this case in brief are that the complainant-respondent Dr. Vijai Prakash Goel has purchased an Ultra Sound Scanner Machine from the appellant for the Maternity and Nursing Home run by him alongwith his wife who is also a doctor. The machine was valued at Rs. 5 lakhs. It was alleged that the said Ultra Sound Machine was defective and due to that the complainant has suffered loss of Rs. 50,000/- on account of mental agony and Rs. 1,50,000/- towards professional loss. The complainant-respondent prayed the District Forum through his complaint for removal of the defects in the said Ultra Sound Scanner or its replacement together with a sum of Rs. 2,00,000/- as compensation. Before the District Forum the appellant has contested the case and raised the legal objection alongwith challenging the defects of the machine on merits. The legal objection raised by the appellant- opposite party before the District Forum was that the complainant is not a consumer as the machine in question was purchased for commercial purpose being used in running of a Maternity/Nursing Home alongwith his wife to earn the profit and not as an earning of livelihood. According to para 10 of the complaint the respondent-complainant has specifically stated that he has suffered a loss on account of mental agony of Rs. 50,000/- and Rs. 1,50,000/- on account of professional loss totalling to Rs. 2,00,000/-. Thus according to the appellant the complaint is not maintainable before the District Forum.

Before this Commission the learned Counsel for the appellant has again laid stress on this plea that the complainant-respondent is not a consumer as defined under Section 2(1)(d)(i) of the Consumer Protection Act, 1986 as the Ultra Sound Scanner Machine was purchased for being used in a Maternity/Nursing Home by the complainant which is run by him alongwith his doctor wife for earning profit. He has also invited our attention towards para 10 of the complaint in which the complainant himself admitted that he has suffered a loss of Rs. 1,50,000/- on account of professional loss. Against this plea the learned Counsel for the respondent-complainant has stated that the machine was purchased to earn the livelihood and not for commercial purpose because both the doctors are earning their livelihood by doing practice by maintaining a Maternity Home, This plea in reply raised by the learned Counsel for the respondent is not convincing. There is a vast difference between running of a Clinic by a physician or as doctor alone or alongwith his wife being a doctor and that of running of a full-fledged Maternity/ Nursing Home. Nursing Home is definitely for the purpose of earning profit. Thus there is a difference between earning for self-employment and maintaining and running of a Nursing Home for profit purposes.

THE learned Counsel for the appellant has relied upon a case Sterling Computer Limited v. P. Raman Kutty, decided by National Commission reported in I (1996) CPJ 118 (NC), in which it was held by the National Commission that the Computer purchased was for commercial purpose. He has also relied upon another case Abbey Chemical Private Ltd. v. Kanti Bhai D. Patel, decided by the National Commission reported in I (1993) CPJ 17 (NC). He has also relied upon another case M/s. Cure Well Hospital Private Ltd. v. M/s. Kohli Medical Gases Private Ltd. and Others, II (1992) CPJ 413 (NC) decided by the National Commission in which the National Commission has held that the Central Gas Pipeline System was intended to be purchased and installed by the complainant clearly for commercial purpose as it was being installed in operation theatre, I.C.C.U. Peadrictics I.C.U., Labour Room and Dialysis Unit to provide continuous and uninterrupted supply of oxygen, nitrous oxide and secretion line. THErefore, it is clear that the hospital in question is a big one and it has been established for earning huge profits. Commercial activity has been defined by the National Commission in Synco textiled Private Ltd. v. Greaves Cotton & Company Ltd., I (1991) CPJ 499 (NC). The only question that requires to be considered is whether the goods like Ultra Sound Scanner Machine supplied to the complainant- respondent for a commercial purpose and whether, this case falls under the explanation clause provided to Section 2(1)(d)(i) of the Consumer Protection Act, 1986 which reads as follows: (d)(i) The consumer means "any person who buys any goods for consideration which has been paid or promised or partly paid and partly promised or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised or under any system of deferred payment when such use is made with the approval of any such person, but does not include a person who obtains such goods for re-sale or for any commercial purpose". Explanation: For the purpose of Sub-clause (ii) commercial purpose does not include use by a consumer of goods paid and used for him exclusively for the purpose of earning his livelihood by means of a self- employment." The learned Counsel for the respondent has argued that the Ultra Sound Scanner Machine was used for earning the livelihood of the complainant-respondent by means of self- employment. We are not inclined to accept this argument of the learned Counsel for the respondent because in the complaint itself the complainant Dr. Vijai Prakash Goyal has admitted in para 1 that he alongwith his wife are medical practitioners and are running a Maternity Home at 10/60, Katra Madari Khan, Agra and in para 10 of the complaint it has been admitted by the complainant himself that he has suffered a loss on account of mental agony for Rs. 50,000/- and Rs. 1,50,000/- on account of professional loss totalling to Rs. 2,00,000/- for which the opposite party are liable to pay to the complainant. It was also admitted that he has purchased this machine for Rs. 5,00,000/- for running a Maternity Home and Clinic. There is a difference between a Clinic running by a doctor for his private practice butinthiscasethecomplainantalongwith his wife is running a Maternity Home for which he has acquired an Ul tra Sound Scanner Machine for the purpose of large-scale profit by maintaining a Maternity Home in which he used to charge th e rental charges of keep ing the patient in the Maternity Home and also utilising the Ultra Sound Scanner Machine for earning profit for advanced practice which cannot be termed for the purpose of earning livelihood. This case is on the lines of M/s. Curewell Hospitals Private Ltd. v. M/s. Kohli Medical Gases Pvt. Ltd., & Ors., reported earlier in which the gas pipeline was also installed for earning the profit in a hospital. Thus it is established that the purchase of the Ultra Sound Scanner Machine by the complainant-respondent in the present case of appeal is for the commercial purpose and not for earning livelihood maintaining of a hospital in the name of Maternity Home by the husband and wife who are doctors themselves cannot be termed for the purpose of earning livelihood. A doctor or doctors who just maintain a Clinic, who use to examine the patients prescribed the prescriptions and do not keep the patient with them as indoor patients can be termed to earn livelihood but maintaining a hospital like Maternity Home with the high technical facility of Ultra Sound Scanner Machine is certainly for earning of profit. Thus the Ultra Sound Scanner Machine purchased by the complainant- respondent in question was for commercial purpose and therefore, the complainant is not a consumer and accordingly the complaint is not maintainable before the District Forum or any Consumer Fora constituted under the Consumer Protection Act, 1986. Therefore, the appeal is allowed and the order of the District Forum appealed against is set aside and the complaint is dismissed with costs which we assess to be Rs. 2.000/- to be paid to the appellant by the complainant-respondent within a period of one month from the date of this order.

LET a copy of this order be made available to the parties within 10 days. Appeal allowed.