SUPERIOR AIR PRODUCTS LTD. vs VIMALA HOSPITALS (P) LTD.

THE two opposite parties who are the Sales Officers of M/s. Superior Air Products Ltd., are the appellants. THE complainant, Vimala Hospitals (P) Ltd., Dindigul (respondent herein) purchased from the opposite parties an Anaesthetic machine for a sum of Rs. 1,25,606/- and the machine was installed in the complainant hospital on 5.3.92. According to the complainant, the machine was found to be defective and inspite of requests made to the opposite parties they failed to rectify the same. On 8.2.93, the complainant wrote to the respondent pointing out the defects. On 11.2.93, the 1st opposite party sent a reply promising to depute their engineer to service the equipment, but they did not do so. Because of the delay on the part of the opposite parties in rectifying the defective machine the complainant purchased a new machine on 31.10.92 for Rs. 35,600/- from M/s. Sophy Surgical Company, Madurai. On these grounds the complaint has been filed for directing the opposite parties to pay the complainant hospital a sum of Rs. 2,00,000/- and for the costs of the complaint.

IN the written version filed by the opposite parties it is contended that the Anaesthetic machine was purchased for commercial purpose of the complainant and therefore the complainant is not a consumer within the meaning of the Consumer Protection Act, 1986 and hence the complaint is not maintainable. The opposite parties denied that the Anaesthetic machine supplied to the complainant was defective. It is then contended that after the installation of the machine, the opposite parties visited the Hospital on 16.4.92 and 27.7.92 and during those visits the complainant told them that the machine has been handled by an unqualified person. The complainant in its letter dated 7.9.92 raised some complaints which were in no way connected with the working of the machine. Even then, the opposite parties attended on the machine on 3.11.92 and looked into the alleged defects. On that day, i.e. 3.11.92 the complainant has given a Certificate that the opposite party serviced the equipment to its entire satisfaction. Thereafter in January, 1993, the complainant made some complaints in its letter dated 20.1.93 to which the opposite parties sent a reply on 28.1.93 and they visited the hospital on 18.2.93, but the complainant prevented the opposite parties from attending on the machine and in this regard, the opposite parties have sent a letter dated 22.2.93 which has been marked as Ex. B-2 and this clearly substantiates this version of the opposite parties. The opposite parties have even stated that they were prepared to extend the warranty period by another 12 months and replace any components if found defective, as a special gesture. It is then contended that as per the terms and conditions of supply, the guarantee period is only 12 months from the date of supply for doing any service by the opposite parties, and during that service period, the opposite parties have been visiting the hospital and inspecting the machine. Therefore there is no deficiency in the machine or in the service of the opposite parties and thus the complaint is not maintainable and it has to be dismissed. The District Forum, on a consideration of the evidences, came to the conclusion that the complainant is certainly a consumer within the meaning of the Consumer Protection Act and therefore the complaint is maintainable and that the machine was defective. In the result, the lower Forum ordered directing the opposite parties to take back the machine and refund the sale price deducting tax and other incidental expenses incurred by them, less 10% depreciation, with interest thereon @ 18% on the sale price from 5.3.92 till payment, and to Rs. 20,000/- as damages for pain and sufferings.

Now in the appeal it is contended that from the pleadings and evidence adduced it is clear that there was no serious defect in the machine and there was no deficiency in service on the part of the opposite parties and that the machine has been purchased for commercial purpose and therefore the order of the lower Forum is against the evidence and probabilities of the case and therefore it is liable to be set aside and the complaint dismissed.

ON a careful consideration of the pleadings and evidence, we are of the view that the complainant has not made out a case for any relief in the complaint. A reading of the complaint would show that the machine was installed on 5.3.92 and thereafter, according to the complainant, a letter was sent to the opposite parties only on 8.2.93 mentioning defects in the machine and expressing concern that the opposite parties were not responding to the complainant''s requests to rectify the defects. It is then stated in the complaint that the 1st opposite party sent a reply on 11.2.93 promising to depute their engineer to service the equipment. But we find from the records that neither of these letters has been filed as Exhibit in the case. Therefore it is not clear as to what were the defects pointed out and what were the promises made by the opposite parties, according to the complainant. A mention has been made about a telegram dated 17.2.93 by the complainant''s Counsel to the opposite parties as a document relied upon by the complainant. But no mention of this telegram is made in the pleadings. We find that a copy of the telegram has been marked as Ex. A4. In this telegram it is just stated to the effect that the opposite parties, inspite of repeated reminders and demands, have not fulfilled their obligations. As such, there is no evidence shown by the complainant as to what were the defects in the machine and as to how the opposite parties failed to rectify the defects. As against this, the case of the opposite parties is that as and when they were informed of any malfunctioning of the machine, they immediately attended to it and that the complainant has given maintenance service report (Ex. B-1) dated 3.11.92 stating to the effect that the machine has been serviced to their entire satisfaction and spare parts and accessories detailed therein have been supplied. Considering all these, it cannot be believed that there was any major manufacturing defect in the machine, or subsequent to the installation the machine became defective and that defect was not-rectified by the Opposite parties within the warranty period. May be the complainant has purchased a new machine from another Company on 31.10.92, but that might have been purchased by the complainant as another one Was required or as an additional one and it need not necessarily be because the machine purchased from the opposite parties did not function. There is no reliable evidence to show that because of the non-functioning of the machine purchased from the opposite parties the second machine was purchased. For these reasons it cannot be held that the machine in question was defective that entitled the complainant to get any relief under the Consumer Protection Act. As regards the contention of the appellants/opposite parties that the complainant is not a consumer within the meaning of the Consumer Protection Act, we find much force in this contention. Admittedly the machine has been purchased for a hospital which is described in the complaint as a reputed hospital at Dindigul consisting of highly qualified Doctors with degrees from U.K. and U.S.A. It is also admitted that in the hospital, the patients are charged fees for the services rendered to them. Therefore the machine has been purchased for commercial purpose. However, it is argued that the machine has been purchased for the purpose of earning livelihood by means of self-employment and therefore under the explanation given under Section 2(1)(d) of the Act, the transaction is excluded from being treated as for commercial purpose. It appears to us that the explanation would apply to an individual only and not a body like the complainant hospital. However it may be from the facts available, we are clearly of the view that it cannot be said that the machine has been purchased for earning livelihood by means of self-employment. As already mentioned, according to the complainant hospital, it is a reputed one consisting of Doctors with degrees from U.K. and U.S.A. During the course of the argument, for a query by this Commission, the learned Counsel appearing for the complainant/respondent stated that there are 5 Doctors in the hospital. The Memorandum of Association relating to the complainant hospital is found among the records of the case. This Memorandum shows that the complainant hospital is a body consisting of Members and is a Private Limited Company and the share capital of the Company is Rs. 5 lakhs even on the date of inception, i.e. 12.8.88. The hospital being a reputed one, as stated by the complainant itself it should have grown much. Inspite of the averments in the written version that "the petitioner Company is being run as a commercial business with profit motive and if the Profit & Loss Account and the Balance Sheet is produced, it would clearly establish the same", the complainant has not chosen to file the Profit and Loss Account and Balance Sheet to show that it is only a small venture for self-employment. So we are of the view that the machine has been purchased for commercial purpose within the meaning of Section 2(1)(d)(i) of the Act.

FOR all the above reasons, we allow the appeal, set aside the judgment of the District FORum and dismiss the complaint. We pass no order as to costs. Appeal allowed. _______________