F.A.No.1099 of 2013 AGAINST C.C.NO.78 OF 2012 DISTRICT FORUM-I HYDERABAD 

Between:

Yashoda Hospital, Hyderabad presently
rep. by is Administrator R/o Hyderabad                                                                                                                                            Appellant/Complainant

                   AND

1.   M/s per its Manager, Pune -003, 2.   M/s rep. by its Manager, H.No.5-1-341/A,
Old

3.   M/s VEE Tech Diesels,
per its Manager, Head Office, 201
West

                                                        Respondents/Opposite parties

Counsel for the appellant                      M/s

Counsel for the respondents                  Admission Stage                 

QUORUM:   SRI R.LAKSHMINARASIMHA RAO,   I/C PRESIDENT 

                                                AND

SRI S.BHUJANGA RAO, HON’BLE MEMBER

    WEDNESDAY THE TWENTIETH DAY OF NOVEMBER

                                TWO THOUSAND THIRTEEN

Oral Order (As per Sri

                                        ***

1.             The unsuccessful complainant is the appellant.  The appellant is the hospital which filed the complaint stating that it purchased generator sets from the respondent no.2 and 3 in the month of September 2006 for the use in the hospital.  The generator sets were functioned without any complaint during the period of three years and by the time of completion of the three years they functioned for a period of 960 and 571 hours only.  As per the terms of the supply of the generator sets the respondents are bound to maintain the two generator sets till completion of 5000 hours on CMC @ `18,000/- per annum only.  The respondents did not attend on them in spite of request made by the appellant and instead offered to give annual maintenance @ `20,000/- instead of CMC.  In view of poor response from the respondents, the appellant by is letter dated 14.5.2009 requested the respondent no.1 to `18,000/- per year.  No action was taken by the respondents.  Since the respondents did not respond to the demand of the appellant the appellant got  notice dated 10.5.2010 to the respondents.  The respondents demanded charges @ `2`2,32,000/- excess of the accepted rate.  The appellant suffered loss not less than a `4  The appellant is claimed for `4 lakhs towards the mental tension.    

2.             The respondents No.1 and 3 resisted the case contending that the appellant after satisfying itself in respect of all the terms and conditions of the purchase of equipment agreed to purchase two generators sets.  The appellant  aware of the terms and conditions relating to the supply of the equipment.  As per the terms of the sale stipulated clearly that the warrant period would be three years or 5000 hours whichever falls earlier against manufacturing defects from the authorized dealer.  The comprehensive maintenance contract would be levied from the fourth year i.e., after the warranty period @ `18,000/- p.a.  During the period of warranty and even during subsequent periods there were no complaints with respect to the running/functioning of the equipment at both the sites of the complainant and the warranty period was completed successfully.  In the light of the fact of low utilization levels of equipment and completion of warranty period of 3 years, the respondent no.1 advised the appellant to enter into a new annual maintenance contract with respondent no.3 so as to retain the equipment perfect and intact for its use in future.  As a special case the respondent no.3 offered to take up maintenance contract with the appellant for `20,000/- p.a. as against `25,000/- p.a. for 500 KVA for other customers. 

3.             The respondent no.2 also resisted the case contending that it is the dealer of the respondent no.1 for the supply of their products on getting the orders from the customers and accordingly two generator sets of 500 KVA and 600 KVA were installed at   In the whole transaction the role of the respondent no.2   is very limited   dealer for supply of the goods only and the other portion of the work will be carried by the respondent no.1 and respondent no.3 as per the terms and conditions agreed by them.  After installation of the generators there is no complaint from the appellant about the functioning of the generators within the warranty period.  During the warranty period of 3 years the respondents no.1 and 2 entrusted he free service to the respondent no.3. 

4.             The appellant and the

5.             The District forum dismissed the complaint on the ground that the appellant is not a consumer as it is doing business   by running the hospital. 

6.             Feeling aggrieved by the order of the District Forum, the complainant filed the appeal contending that the generators purchased by the appellant/complainant are not for any commercial use and the appellant are not making or had not made any profit on them and is purchased the  to generate  electricity in emergency.  As per   

7.             The appellant while preferring the appeal filed petition FAIA No.2782 to condone delay of 15 days.  As we have come to the conclusion that the matter to be disposed at the admission stage on merits as such, the delay of 15 days in filing the appeal is   and the FAIA No.21782 of 2013 is allowed.

8.            The point for consideration whether there was any infirmity in the order of the District Forum?

 9.            Since the appellant is the hospital and it purchased the two generator sets    for the use of   hospital     in the course of its business, we directed the learned counsel to show as to how the complaint is maintainable under Consumer Protection Act,  more so, in the light of the decision of the Supreme Court in  in Birla Technologies Ltd. Versus Neutral Glass and Allied Industries Ltd. reported in CDJ 2010 SC-1177  wherein it was  held:

 “that  the goods sold by the appellant to the respondent/complainant amounted to `goods’ and that such goods were purchased for commercial purpose of earning more profits, there could be no dispute that even the services which were offered had to be for the commercial purpose. Nothing was argued to the contrary.  On   one count that under Section 2(1)(d)(

CDJ 2010 SC 1177

 10.           When a query was raised as to how the complaint is maintainable in view of the fact that the services availed are for commercial purpose and the exclusion clause does not in any way comes to the rescue of the complainant, in the sense that the complainant a private limited company could not have availed the services exclusively for the purpose of earning livelihood by means of self-employment.

11.           The learned counsel for the complainant contended   the complainant company was running its business and they purchased the generators only to generate electricity in emergency and as per Sec.2(1)(o) of CP Act supply of electrical or other energy is a consumer.  In support of their contention the learned counsel for the complainant relied upon the following decisions:

                    1.         2005(1) CPJ 27 NC

                        2.         2006(10 CPJ 1 SC

                        3.         2006 CPJ (4) 375 NC

                        4.         2006 (2) CPJ 289 NC

                        5.         CPJ (1) 1996 25 SCC

                        6.         1998 3 SCC 247 (PARA 4)

                        7.         2006 (1) CPR 173 NC

                        8.         2000 (5) SCC 294

12.            In view of the service availed of as also in the light of the above decisions   the learned counsel for the complainant has contended that the complaint is maintainable before this Commission. 

 13.           Recently the   Birla Technologies Ltd. Versus Neutral Glass and Allied Industries Ltd. reported in CDJ 2010 SC-1177   observed that  purchasing of goods or  availing services for commercial purpose  would not attract the definition of ‘consumer’  in the light of Section 2(1)(d)(  For   we excerpt the passage  from the said decision in order to impress that Section 2(1)(d) attracts both purchasing of goods as well as availing of services.  Their Lordships’

 “that  the goods sold by the appellant to the respondent/complainant amounted to `goods’ and that such goods were purchased for commercial purpose of earning more profits, there could be no dispute that even the services which were offered had to be for the commercial purpose. Nothing was argued to the contrary.  On   one count that under Section 2(1)(d)(

CDJ 2010 SC 1177

14.            The learned counsel for the complainant has contended that their Lordships’ did not consider the definition of ‘service’ as defined u/s 2(1) (o) of the Consumer Protection Act vis-à-vis ‘goods and services’.    In fact in view of definition u/s 2(1) (d) (ii) there is no need to consider the definition of   ‘service’, in view of the fact that said definition expatiates as to the services that are amenable in order to resolve the dispute. 

15.            At the cost of repetition, we may state that in order to attract a case to be filed before the Consumer Fora the important ingredient could be that either availing of services or goods   it should be exclusively for the purposes of earning his livelihood by means of self-employment.    By no stretch of imagination a Super Specialty Hospital could be treated as a person of goods bought and used by him/it and services availed by him/it exclusively for the purposes of earning his/  livelihood by means of self-employment.   

16.            The National Commission in   The National Commission had categorically opined that the transaction is related to his business activity and therefore it will fall in category of commercial purpose which has been taken out of the purview of the Consumer Protection Act, 1986.  

 17.           In the light of authoritative pronouncement of the   and in the teeth of admitted commercial activity undertaken by the complainant,  it cannot be termed as ‘consumer’   as defined under the Consumer Protection Act.  The transaction does not come under exception clause. 

18.            In the result, the appeal is disposed of setting aside the order of the District Forum.  Consequently, the complaint is dismissed with liberty to approach to the Civil Court or any other Forum. In the event the respondent approaches the Civil Court, the period spent between the filing of the claim before the District Forum and the disposal of the matter today by us will be excluded under Section 14 of the Limitation Act, 1963in the light of the decision of the

                                                                                                                                                                     I/c PRESIDENT

                                                                                                                                                                       MEMBER

                                                                               Dt.20.11.2013

కె.ఎం.కె.*