(Delivered on 31/03/2022)

PER DR. S.K. KAKADE, HON’BLE  PRESIDING MEMBER.

1.         This appeal is filed by Dr. Virendra Ratansing Rathod  of Yavatmal against  the order passed by the learned District Consumer Disputes  Forum, Yavatmal in Consumer Complaint No. CC/2015/5, the judgment and order passed on 11/12/2018. The learned District Consumer Forum, Yavatmal dismissed the  complaint filed by the appellant /original  complainant  with the  conclusion that  the complaint filed by the original complainant  needs elaborate  evidence of the cross examination  and  examination of  the documents which  is not possible  before  the District Consumer Disputes Redressal  Commission instead  the complainant  now  appellant  before  this Commission should  approach  the Civil Court and hence this complaint  was dismissed.

2.         Brief facts of  this appeal  for consideration  are as follows.

            Complainant – Dr. Virendra Ratansing Rathod and his wife Dr. Mrs.  Archana V. Rathod are doctors who decided to construct the Hospital.  Hence, approached to the respondents who are architects and engineers in the business of construction.  In the year 2012 the appellants after receiving the permission  and sanctioned construction  map by Municipal Council at Yavatmal dated 29/10/2012 . Executed an agreement  on 21/10/2013 with the original opposite parties  for  determined the cost of labour and  building construction  as  Rs.28,67,981/- (excluding  the materials  of the building construction). Since the respondents  did not  comply  with the terms of the agreement  and followed  unfair trade practice by not completing  the building  in time, the appellants  filed  consumer complaint  against  the respondents – original opposite parties. This complaint was filed on 09/01/2015 and decided on 11/12/2018.

3.         The opposite party / respondent Nos. 1&2  opposed  this complaint  by filing the   written statement  in which  the  respondents denied  that  there  was  any agreement  since  the complainant have not paid  them  and also pressurized to construct  the illegal  construction.  According to the respondents the complaint filed by the complainant, was frivolous and hence, prayed for dismissal of the complaint.

4.         The learned District Consumer Forum, Yavatmal on hearing the  submissions of both the parties  going through  the  documents  come  to the conclusion  that  the complaint  filed  by the complainant is complicated  and needs to examine  multiple  documents, examining  the evidence, cross  examine   and  the  consumer  complaints are  always  of the summary  nature. It is not proper to hear this complaint in the District Consumer Forum and complainant needs to adjudicate his complaint before the Competent Civil Court, with this conclusion the complaint was dismissed. Aggrieved by this judgment  and order original complainant have filed the appeal in  State Consumer Commission, Circuit Bench, Amravati which was  transferred  to this Circuit Bench, Nagpur and so heard finally  as RBT/A/19/8.

5.         As per submissions of the learned advocate for the appellant, the learned District Consumer Forum of  Yavatmal erred in coming to the conclusion that  the running a Nursing Home or Hospital is a  business with  the commercial purpose. Further, since the complainant  has paid  consideration  of Rs. 28,67,981/- to the respondents  in  view   of  agreement  between  the two parties  to construct the  building for hospital,  the O.P.- respondent  is service provider and hence, the  complainant – appellant in this appeal  is a Consumer, the Consumer Courts are  entitled –  authorized  to examine the  evidence  in details, allow cross examination and hence, the conclusion  by the learned District Consumer Forum, Yavatmal  that  this  is a dispute  of civil nature  and Civil Court need to  be approached , this conclusion  is wrong.  The learned advocate for the appellant referred to ruling of Sambhunandy Vs.  Manoj Chowdhury and Ors, reported in 2017 (2) CPR 518 (NC) decided by the Hon’ble National Consumer Commission on 20/04/2017, in which  the Hon’ble National Consumer Commission has already  made it clear that  the business  with commercial purpose which is for  earning  livelihood  by means  of self employment, a disputes involving such situation  is always a Consumer dispute.  Further the learned advocate for the appellant referred the other rulings as well,

i.          Laxmi Engineering Works Vs. P.S.G. Industrial  Institute, Decided by the Hon’ble Supreme Court on 04/04/1995, reported in CPR V-VI-1995 (2) page 11.

ii.          Kusum Agarwal and Anr. Vs. Harsha Associates Pvt. Ltd., reported  in 2018(1) CPR 894 (SC)

iii.         M/s. Paramount Digital Colour Lab & Ors. Vs. M/s. Agfa India  Pvt. Ltd. & Ors., reported  2018(3) CPR 1 (SC).

iv.        Sambhunandy Vs.  Manoj Chowdhury and Ors, reported in 2017 (2) CPR 518 (NC).

v.         Sunil Kohli and Anr. Vs.  Purearth Infrastructure  Ltd.  reported in IV(2019) CPJ 22 (SC)

6.         The learned advocate for the respondent submitted that the complaint before the learned District Consumer Forum, Yavatmal was decided on merits. It is the complainant now appellant, forced the O.P. to do extra construction and hence as per the direction of the complainant the O.Ps. have constructed  the building with extra area but original complainant  failed to pay for  extra constructed  work which  was done. Learned advocate for the respondents submitted that the construction work was started on 01/05/2013, the  agreement  was signed between  the parties on 21/10/2013(reference page No. 43). In view of the extra construction  which was  not sanctioned  in the plan  and building  was being constructed which was to be used for hospital that  has commercial  purpose The complaint  was rightly dismissed by the learned District Consumer Forum, Yavatmal  and hence the  learned advocate for the respondents supported the order passed by the learned District Consumer Forum of  Yavatmal.

7.         In our view  running a Nursing Home or Hospital  or providing  treatment  to the patient  is not  considered  as  business with  commercial purpose  and hence building  which was  constructed  for running the Nursing  Home - Hospital  cannot be termed as  having commercial purpose. Further since the complaints against the builder, developer come within the purview in the Consumer Protection Act, the Consumer Courts are enough competent to decide such complaints and disputes as Consumer disputes. In view of this discussion this Commission thinks it proper to set aside the order passed by the learned District Consumer Forum at Yavatmal since this complaint was not decided on merit, the same need to be remanded back.  The said complaint  need to be heard by the learned  District Consumer Commission  at Yavatmal on merit by allowing  both the parties to complete their  pleading, file evidence and then the District Consumer Commission at Yavatmal to decide this complaint  expeditiously. Hence, we pass following order.

ORDER

i.          Appeal is partly allowed with no order as to cost.

ii.          Consumer Complaint No. CC/2015/5 remanded back to the District Consumer Forum at Yavatmal for deciding this complaint on merit.

iii.         The learned District Consumer Forum, at Yavatmal to decide this complaint expeditiously in time bound manner.

iv.        Parties to appear before the learned District Consumer Forum at Yavatmal on 11/04/2022 at 10.30 a.m.

v.         Copy of order be furnished to both the parties, free of cost.