BEFORE THE CONSUMER DISPUTES REDRESSAL FORUM,
ERNAKULAM.
Date of filing : 12/02/2014
Date of Order : 27/03/2014
Present :-
Shri. A. Rajesh, President.
Shri. Sheen Jose, Member.
Smt. V.K. Beena Kumari, Member.
C.C. No. 85/2014
Between
Welcare Hospital, | :: | Complainant |
Vyttila. P.O., Ernakulam – 682 019, Rep. by the Administrator, Cherian. M.T. | | (Dr. N.M. James. Ph.D., Thengummoottil Buildings, High Court Road, Ernakulam – 31.) |
And
1. Somany Ceramics Ltd., | :: | Opposite Parties |
82/19, Bhakerwara Road, Mundika, New Delhi – 110 041, Rep. by the Managing Director. 2. Somany Ceramics Ltd., F – 36, Sector – 6, Noida – 201 301, Gautam Budh Nagar, Utter Pradesh, Rep. by the Chief Marketing Manager. 3. M/s. Anna Trade Links, NH Byepass, Thykoodam, Vyttila. P.O., Kochi – 682 019, Rep. by the Proprietor. 4. Somany Ceramics Ltd., 29/3760, Devi Tower, Thykoodam, Vyttila. P.O., Kochi – 682 019, Rep. by the Senior Territory Manager. | | (Notice not sent) |
O R D E R
A. Rajesh, President.
1. This complaint has been preferred by the complainant a hospital against the opposite parties claiming refund of the price of the tiles manufactured and supplied by the opposite parties.
2. At the threshold, heard the question of maintainability of the complaint in this Forum. The learned counsel for the complainant contended that the complainant is a consumer within the ambit of the Consumer Protection Act, since the complainant has purchased the goods for consideration. The learned counsel vehemently relied on the decision rendered by the Hon'ble National Consumer Disputes Redressal Commission in State of Himachal Pradesh and Others. Vs. Suresh Kumar 2012 KHC 2225.
3. After the amendment in Section 2 (1) (d) with effect from 15-03-2003 a person who avails service or purchases goods for commercial purpose is excluded from the definition of 'consumer'. The complainant has nowhere pleaded in the complaint that the hospital is being conducted as self-employment for livelihood. Nor has it been alleged that the goods manufactured and supplied by the opposite parties were being purchased exclusively for the purpose of livelihood by means of self-employment by the complainant.
4. Moreover, the Hon'ble National Consumer disputes Redressal Commission in Indraprastha Medical Corporation Ltd. Vs. Alpine International and Others I (2014) CPJ 22 (NC) held in Para 8 as follows :-
“Admittedly, the complainant company is in the business of running hospitals and providing world class medical facilities of highest standards to the patients for consideration. The atrium is also the part of hospital building. The patients and their relatives also pass through the atrium. It is well known that charges of commercially run hospitals are in direct proportion to the facilities provided including the ambience of the building. Therefore, in our considered opinion, the atrium of the hospital has a direct correlation with running of the business. In para 21 of the complaint, it is alleged that because of the deficiency in service by OP Nos. 1,2 and 4, the complainant had to face huge embarrassment as because of loosely laying of Technistone, many patients had slipped over it. This allegation by itself is sufficient to show that laying of Technistone in the atrium has direct connection with the hospital business. Not only this, perusal of para 28 of the complaint, which gives the break-up of the loss/damages suffered by the complainant, would show that this break-up apart from mentioning cost of various items, also includes charges of Rs. 50,00,000 for loss of reputation because of deficiency in goods and services. This also indicates that the goods in question and the services which are subject matter of the present complaint have direct relation with the hospital business of the complainant. Further OP Nos. 1 and 2 have placed on record copies of annual report of the complainant for the financial year ending 31st March, 2009 as also relevant extracts of the annual reports of the Apollo Hospital for the financial years ending 31-03-2008 to 31-03-2012 wherein the expenses incurred for the addition, alteration of the atrium and relaying of Technistone in the atrium is shown as 'capital expenses' incurred for the hospital business. Pursuant to the directions of the Bench, the complainant has filed affidavit of Shri. P. Shiv Kumar, Vice President, Finance and Operations of the complainant wherein Shri. P. Shiv Kumar has stated that procurement and laying of Technistone is a capital expense of Company and it is shown as financial statement of the relevant year under the heading 'Building'. It is also stated in the affidavit that the depreciation of the aforesaid expense under the heading 'Building' has been claimed and it is reflected in the financial statements as per the rates prescribed under Schedule XIV of the Companies Act, 1956. From this averment also, it is evident that Technistone was purchased by the complainant Company and the services for renovation of atrium and relaying of Technistone were hired for 'commercial purpose' i.e. running the hospital business. Thus, the complainant in our view is not covered under the definition of 'consumer'. As such, he cannot maintain the instant consumer complaint. In our aforesaid view, we are supported by the judgment of Supreme Court in the matter of Laxmi Engineering Works V. P.S.G. Industrial Institute, II (1995) CPJ I (SC)=(1995) 3 SCC 583.”
5. Respectfully following the above pronouncement of the Hon'ble National Consumer Disputes Redressal Commission, we are unable to rely on the decision cited by the learned counsel for the complainant. Resultantly, this Forum is of the firm opinion that the complainant is not a consumer and the complaint is not maintainable in this Forum. Held so. The complainant is directed to receive back the complaint and the related documents to be submitted before the appropriate authority, if so advised.
Pronounced in the open Forum on this the 27th day of March 2014.
Sd/- A. Rajesh, President.
Sd/- Sheen Jose, Member.
Sd/- V.K. Beena Kumari, Member.
Forwarded/By Order,
Senior Superintendent.
