NEW BHANDARI HOSPITAL vs LOGICSTAT INTERNATIONAL PRIVATE LTD

IN the case of sale of goods, the complainant will not be a consumer if the same were purchased for commercial activity. However, if there is guarantee or warranty in respect of such goods for a particular period or maintenance of the goods supplied, it will not be a simple case of sale of goods but would also include element of rendering service for consideration. That being the position, the factum of commercial activity will not be relevant to hold that the complainant is not a consumer. The District Forum dismissed the complaint filed by M/s. New Bhandari Hospital (Regd.) vide order dated September 19, 1996 holding that the complainant was not a consumer as defined in respect of purchase of high voltage transformers as supplied by the Opposite Party, M/s. Logicstat INternational Pvt. Ltd., New Delhi as the complainant was running the Hospital for commercial purpose and it will not be a case of use of the machinery for self employment. The complainant purchased six Servo Controlled Voltage Stabilizers of different capacities vide INvoice No. 1074 dated March 31, 1994 for a sum of Rs. 153004.50. The goods were delivered at Amritsar as received through Transporter and were found to be of substandard material. Thus, the complaint was filed before the District Forum for refund of the sale price with 24% p.a. interest and a sum of Rs. 3,270/-, freight charges of transporting of the transformers from Bombay to Amritsar, costs of litigation of Rs. 5,000/and compensation of Rs. 1 lac. The Opposite Party contested the complaint by filling its version raising different pleas one of them being that the transformers were purchased by the complainant for his commercial activities, for use in the hospital for hospital equipments.

LEARNED Counsel has referred to Annexure 2 filed with the appeal, which is a quotation, copy of which was also produced before the District Forum, indicating guarantee for one year against any manufacturing defect. It is in response to this quotation that the orders were placed. Further reference be made to Annexure A4. Such quotations are at pages 159 to 167 of the District Forum record, indicating periods of guarantee. There is further reference to the existence of the guarantee in the correspondence that changed hands between the parties. At page 141 of the record is the letter written by the Opposite Party specifically mentioning one year''s guarantee period, which was to expire shortly that the complaint was lodged. In para 12 of the complaint, there is reference to the period of guarantee. In the reply filed by the Opposite Parties, the plea of the complainant with respect to the guarantee has not specifically denied. In Amtrex Ambience Ltd. v. M/s. Alpha Radios & Anr., I (1996) CPJ 324 (NC), the National Commission while dealing with the case of supply of Air Conditioner not being giving satisfactory service, complained during the period of warranty, held the purchaser to be a consumer under Section2(1)(d)(ii) of the Consumer Protection Act. In para 4 of the judgment, it was observed as under : "This Commission has in several cases already taken the view where the allegations of the complainant were that there was malfunctioning of the machinery/ equipment during the period of warranty when the manufacturer had undertaken to keep the machinery in good working condition, even if sold for commercial purpose, the purchaser will certainly be a consumer under Section 2(1)(d)(ii) in respect of services rendered or to be rendered by the seller for the proper functioning of the machinery/equipment, system during the period of warranty." In view of the law as laid down by the National Commission, the complainant in the present case is to be held to be a consumer as defined and entitled to file the complaint. It is not a case of simple sale of goods that element of commercial activity of the complainant could be a factor to deny relief under the Consumer Protection Act to the complainant. In the case of hiring service for consideration, the element of commercial activity of the complainant is foreign.

For the reasons recorded above, this appeal is allowed. Order of the District Forum is set aside and the case is sent back to the District Forum for decision on merits according to law. Parties through their Counsel are directed to appear before District Forum, Amritsar on 29.7.1997. The District Forum record with copy of order be sent there promptly. There will be no order as to costs in this appeal. Appeal allowed.