NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION, NEW DELHI
Dinesh Singh, Presiding Member and Karuna Nand Bajpayee, Member
M/s. S.S. Medical Systems – Petitioner
versus
Dr. Smt. Vineeta Kochar – Respondent
Revision Petition No.3172 of 2008
(Against the Order dated 08/07/2008 in Appeal No.3285/2003 of the State Commission Uttar Pradesh)
Decided on 8.7.2021

IMPORTANT POINTS
(1) Usage of goods for earning livelihood does not affect status as a consumer.
(2) Revision Petition being used to gain unjust adjournment to extend the matter further.

Headnote:

(A) Consumer Protection Act 1986 – Consumer – Petitioner pled that Respondent was not consumer within purview of the act since she had procured HP machine for commercial purpose, to be used in her profession as a pathologist – Goods/products bought for earning livelihood do not classify as “commercial purpose” – Respondent is consumer within the ambit of the act - Deal made in 1998 – Distt. commission decision made in 2005 – State Commission decision made in 2008 – Revision Petition filed – Matter being heard in 2021 - 23 years since matter arose – Commission ruled that it was a continuing cause of action - Section 24A allows the commission to condone delay – Objection on limitation period not valid.

Held: In respect of the objection re limitation, the State Commission has rightly determined that the Complaint is within limitation (“- - - Obviously the present complaint is within the period of limitation as provided under Section 24(A) of the Act. Thus, the argument that the complaint was barred by limitation is a self frustrating argument and in view of the acknowledgement it has become self condemned. Over and above, a period of two years is to be computed from the date of accrual of the cause of action. In the instant case, initially supplied machine was having inherent defects and when complained it was replaced but the machine which was supplied by way of the replacement was also obsolete and in this connection different correspondences were made by the complainant which were entertained and even in this connection sincere efforts were made by the complainant to make known the grievances through the telephonic conversation which were admittedly promised to have been corrected. Thus, it was a case of continuing cause of action as, at no point of time, it was given to understand to the complainant that the machines sold and supplied on two occasions were not defective and were not suffering from manufacturing defects and were not supplied contrary to the terms and conditions of the agreement.- - -”).

We may observe that Section 24A of the Act 1986 provides that a Complaint should be filed within two years from the date on which the cause of action arose. In the instant case, when the new Machine (Color Doppler System Model Sono S 1000 Hewitt Packard), which was contracted for, was never supplied, and one after another two old faulty unusable Machines of lesser value and quality were provided in the stead, it was a continuing cause of action. Moreover, Section 24A enables the District Commission to condone the delay on showing sufficient cause for not filing the Complaint within the stipulated two year period. The facts of this case are such that, in the interest of justice, to prevent miscarriage of justice, it requires adjudication on merit, and a short delay, if any, should be ordinarily condoned in the normal wont. Looking at it in any way, the objection re limitation fails.

In respect of another objection that the transaction was for commercial purposes and as such the Complainant was not a ‘consumer’ under the Act 1986, the State Commission has rightly determined that the transaction was not for commercial purposes (“- - - A pathologist in an order to carry on his profession is supposed to be particularly equipped with the latest machine better suited to give the better results for the upkeep of the health and welfare of the society. Right to life as enshrined in Article 21 presupposes a right to live with decency and better health. For ensuring the better health and to be away from the disease, the treatment can better be given only on the basis of the upto date report of the pathologist. Obviously, this was the sole purpose when the complainant entered with the deal of a purchase with the opposite parties of a Hewlett Packard (Make) Color Doppler System Model Sonos -1000. A pathologist has every right to engage the staff suitably meant for assisting him in the smooth function of giving better pathology reports and as such engagement of a Radiologist for the operation of the machine cannot be stretched to mean that such engagement even if so made by the complainant would mean engagement of the Radiologist for the use of the machine for a commercial purpose.- - -”)

We may observe that, in the facts of the case, within the meaning of ‘consumer’ under Section 2(1)(d)(i) (read with the Explanation thereto), the Complainant was a ‘consumer’ as she bought the goods for a consideration partly paid and partly promised and she fell in the exception provided for in the Explanation, that ‘commercial purpose’ does not include use of goods bought and used exclusively for earning livelihood by means of self employment. (Para 8 & 9)

(B) Consumer Protection Act 1986 – Sec. 2(1)(f)) & Sec. 2(1)(g) (Consumer Protection Act 2019 Sec. 2(10) & Sec/ 2(11) – Defect & Deficiency – Machine procured from regd. dealer of HP, full consideration paid – Second-hand machine supplied instead – Taken back on complaint but replacement also defective – Request raised for new machine - New machine never supplied – Supply of 2 faulty machine entails both deficiency and defect – Distt. Forum awarded Rs. 8 Lakhs @8% interest out of 9 Lakhs cost of the machine – State Commission modified order to full cost of the machine, Rs. 9 Lakhs with 9% interest – Award upheld by NCDRC.

Held: We have perused the entire material on record, including inter alia the Order dated 07.08.2003 of the District Commission, the impugned Order dated 08.07.2008 of the State Commission and the Petition.

The brief facts of the case, as evinced from the material on record, are that the Complainant contracted with the Petitioner, M/s S.S. Medical Systems, the authorised dealer of M/s Hewlett Packard India Limited, to purchase a machine (Color Doppler System Model Sono S 1000 Hewitt Packard), and paid in all Rs. 9,00,000/-. The Petitioner gave an old second-hand Machine (Diagnostic Spectar Machine). The same was faulty and unusable, its value and quality was poor. After repeated complaints by the Complainant, the Petitioner took back the first Machine and provided another old Machine (Model G.E. 6800). The same was also faulty and unusable. An assurance was made by the Petitioner that the Complainant would be given a new Machine, as contracted for, within a short span of time. The new Machine, however, was never supplied.

In respect of the proposition that the Order of the District Commission was passed ex parte against it, the State Commission has rightly determined that reasonable and sufficient opportunity has been granted. (“- - - There is no document available on the record, in the instant case, to justify a conclusion that the registered notices sent at the address of the appellants were not served and consequently the notices were returned back. We accordingly find that the argument of ex parte proceedings being done without notice to the appellants is an argument which is not acceptable. More so at the appellate stage we have exhaustively heard the learned Counsel for the parties and considered their arguments on merit respectively. Thus, on that score, too, the contrary argument does not deserve to be accepted as a reasonable opportunity of hearing has been granted.- - -”)

The Petitioner was served by registered post, and, in any case, it was afforded the opportunity to profess its case in its Appeal before the State Commission. There is no reason on fact or law to in any way consider remanding the case to the District Commission on the proposition that the Order of the District Commission was passed ex parte.

In respect of the merits of the case, sifting through the entire evidence the State Commission has returned clear and categorical findings of ‘deficiency’ as well as ‘defect’ within the meanings of Section 2(1)(g) and 2(1)(f) of the Act 1986. (“- - - The bonafide of the complainant is very clear wherein throughout it was given to understand to the appellants that she was ready to deliver back the supply of the old machine which was lying unused with her subject to the replacement by the new machine of the standard for the contract was entered into or the refund of the money. Neither of the two contingencies have been opted by the appellants. It is a clear case of deficiency in service as well as a case of a supply of a defective goods respectively within the meaning of Section 2(1)(g) and 2(1)(f) of the Act.- - -”).

We may observe that it is well and truly evinced that Rs.9,00,000/- was paid by the Complainant to the Petitioner, an old unusable faulty Machine was first supplied, then it was replaced by another old unusable faulty Machine, the new Machine contracted for was never supplied. The very factum itself that old faulty unusable Machines were supplied, twice, and the new Machine contracted for was never supplied, constitutes both ‘deficiency’ and ‘defect’. (Paras 5, 6, 10 &11)

(C) Consumer Protection Act, 1986 – Sec. 21(1)(b) (Consumer Protection Act, 2019 Sec. 58(1)(b)) – Revision Petition by petitioner for further adjournment dismissed – Matter stretched for more than 2 decades – Sufficient opportunity granted.

Held: The dispute relates to not supplying a new Machine, for which the consideration was partly paid and partly promised. The Complaint was filed on 07.02.2003 before The District Consumer Disputes Redressal Commission, Kanpur Nagar (‘District Commission’). The Complainant was Dr. (Smt.) Vineeta Kochar, the buyer. The Opposite Party No. 1, M/s S.S. Medical Systems, was the authorized dealer of the Opposite Party No. 2, M/s Hewlett Packard India Limited, the sellers. The District Commission allowed the Complaint vide its Order dated 07.08.2003. Appeal there against was filed by M/s S.S. Medical Systems. M/s Hewlett Packard India Limited did not agitate the Order of the District Commission. The Appeal was dismissed by The State Consumer Disputes Redressal Commission, Uttar Pradesh (‘State Commission’) vide its Order dated 08.07.2008. This Petition has been filed by M/s S.S. Medical Systems in challenge to the Order of the State Commission, invoking the revisional jurisdiction of this Commission under Section 21(1)(b) of The Consumer Protection Act, 1986 (‘Act 1986’). Therefore, feel disinclined to delay this matter any further, and, politely declining the request for adjournment, would prefer to wade through the record ourselves and decide the same on merit at least now. The Petition, being misconceived and bereft of merit, is dismissed. (Paras 1, 4 & 14)

Result: State Commission order upheld, petition for further adjournment dismissed