1. THIS is an appeal by the complainant against the order dated 5.1.2005 passed by the District Forum, Udham Singh Nagar whereby his complaint was dismissed by the learned Forum.
2. THE facts giving rise to the case under hand are that the complainant is running a Khanna Nursing Home at Kashipur for his self -employment. That in order to purchase an Ultrasound Machine from the opposite parties worth Rs. 3,85,000, the complainant gave the advance amount of Rs. 50,000 through draft to the opposite party No. 1. It was agreed between the parties that the machine shall be delivered at Kashipur and before delivery, the demonstration and training regarding operation of the machine will be given to the complainant. The meachine was sent by the opposite parties at Kashipur through Transport Corporation of India and the payment of Rs. 3,35,000 was made on 22.12.2002 but neither the demonstration regarding the machine, nor the training was given. It is alleged that this is deficiency in the service of the opposite parties. The complainant cancelled the order of machine and received back the cheque of Rs. 3,35,000 but the opposite parties did not refund the advance amount of Rs. 50,000, therefore, he filed the complaint before the learned Forum.
Before the learned Forum, the opposite party Nos. 1 and 2 filed written statement. The opposite party No. 3 did not appear before the learned Forum and the case proceeded ex parte against the opposite party No. 3. The opposite party Nos. 1 and 2 in their written statement alleged that the complaint has been filed with wrongful intention. The complainant is not a consumer because the machine was purchased for commercial purposes. The learned Forum has no jurisdiction to try the complaint because the case is that of breach of contract. The advance of Rs. 50,000 was spent in C.S.T., Excise Duty, transport etc. of the machine.
3. THE learned Forum after taking the evidence of the parties and hearing them dismissed the complaint, against which order the present appeal has been filed.
4. WE have heard the learned Counsel for the parties and gone through the records. The first objection of the respondents was that the complainant is not a consumer because he has purchased the machine for commercial purposes. The complainant in para 1 of his complaint has specifically alleged that he is retired Senior Physician and has opened a nursing home ''Khanna Nursing Home'' at Kashipur after retirement for self -employment. In Para 4, it is stated that in order to earn his livelihood and to effictively diagnose the disease, the complainant opted for the machine. Thus the complainant has specifically mentioned that he had opened a nursing home for his self -employment and had opted to purchase the machine for earning his livelihood and for that he has made the advance payment of Rs. 50,000. The learned Counsel for the opposite party referred the ruling reported in II (1994) CPJ 33 (NC), Agfa Gevaert India Ltd. v. Jitpal X -ray Private Limited & Ors., in which it was held that the X -ray machine was purhcased for commercial purpose and as such the complainant is not a consumer. In this ruling the complainant was a private limited company and was running a Diagnostic Laboratory Skin and V.D. Clinics at Moradabad. A Private Limited Company is necessarily a commercial organization. But in this present case, the complainant is a retired Senior Physician and he is not a company and he is not doing the business on a large scale. Therefore, this ruling shall not apply to the facts of the present case. He further referred by ruling reported in Supreme Court Cases 131, Cheema Engineering Services v. Rajan Singh, wherein the Honble Supreme Court has observed that it is to be determined on the basis of evidence whether the goods were used for commercial purose or exclusively for the purpose of earning livelihood. The opposite party has not filed any evidence to show that the complainant is doing any business on a large scale or that the machine was used for commercial purpose. On the other hand the complainant has specifically proved by his affidavit that he has purchasd the machine for earning his livelihood. Same is the position with the ruling reported in II (1995) CPJ 119 (NC), Abhinav Publishing India Pvt. Ltd. v. Graphics & Prints. In para 11 of the complaint, the complainant has said that he had not purchased the machine to earn on large scale and for huge profits. Thus there is no force in the contention of the opposite party that the complainant is not a consumer. The complainant is definitely a consumer of the opposite parties.
The second objection of the opposite party was that the learned Forum had no jurisdiction to hear the complainant. The order was placed from Kashipur as is evident from letter of the complainant dated 25.11.2002. The machine was to be deliverd at Kashipur. The cheque was issued from Kashipur. The complainant is also a resident of Kashipur. Thus the learned Forum had full jurisdiction to try the complaint.
5. THE next question is whether there has been deficiency in the services of the opposite parties or not. In para 7 of his complaint, the complainant alleged that the opposite parties failed to impart training to the complainant and failed to give demonstration of the similar machine at his nursing home before the delivery of the machine but insisted to take the delivery first, which is deficiency in their services. The opposite parties in para 10, it is said that the complainant was fully aware of the fact that he has to pay the charges which will be incurreed towards taxes, freight and insurance by the opposite party. In para 14 of the written statement, it is said that there was neither any oral nor any written agreement between the opposite parties and the complainant regarding the training and demonstration of the machine prior to purchase and delivery of the same. It is further said that the complainant himself was in grave hurry to get the machine and that is why he sent sales tax Form 32 which is required for sending the machine from one State to another State and the said form was arranged by the complainant himself. In para 15, it is said that the sale tax incurred in sending the machine from Bangalore to Kashipur was 10% of the total price of the machine and Rs. 3,000 towards the freight and insurance charges and the same expense has been incurred in sending back the machine to its original destination. The total amount expended by the company comes around Rs. 80,000.
6. THERE is letter of the complainant to the Sales Manager, Wipro regarding refund of Rs. 50,000 against cancellation of his order. In this letter, it is specifically written, ''In spite of our repeated discussion on telephone and a visit to Lucknow on 27.2.2003 about the refund of Rs. 50,000 against cancellation of our order supply of U.S. Unit, I have not got any positive response from your side. A fax message was also sent by me on 1.1.2003. You were supposed to take back the delivery of U.S. Unit from TCI Office, Kashipur which has not beend one till 7.3.2003. Although I got back my cheque No. 854223 of Rs. 3,35,000 dated 22.12.2002 after long persuasion on 7.3.2003''. Then there is letter dated 25.11.2002 of the complainant, which is Annexure -II regarding purchase order. In para 5 of this letter, it is clearly mentioned, ''Ultrasound Training at Kapur/Bareilly/Delhi at your centre'' and in Para 6, it is written ''Teaching CD''. Annexure III is again the letter of the complainant, in which it is written that I am sending Form 32. In the second paragraph of this letter, it is written that please arrange my training from 19th December, 2002 as committed from your end. It is also mentioned that if training is not arranged, I will not take the delivery. Annexure IV is the letter by which the complainant informed the opposite party that he is submitting Form No. 32 and balance payment. It is evident form the papers available on record that the sale of machine was made on the condition of training and demonstration. Thus the opposite parties have committed deficiency in service by not providing training and demonstration. The opposite parties have alleged that the sale tax incurred in sending the machine from Bangalore to Kashipur was 10% of the total price of the machine and Rs. 3,000 towards the freight and insurance charges and the same expense has been incurred in sending back the machine to its original destination. There is no question of deduction of sale tax because there was no sale at all. Since the opposite parties have been guilty of deficiency in service, therefore, they should suffer the loss regarding the freight and insurance charges as well. For the defaut of opposite parties, the complainant cannot be penalised. In this way, the complainant is entitled to get a sum of Rs. 50,000 from the opposite parties along with interest @ 9% from the date of complaint till the date of actual payment.
In view of what has been said above, the learned Forum did not properly appreciate the facts of the case and the order passed by the learned Forum dismissing the complaint is not correct and is liable to be set aside. This appeal is fit to be allowed. ORDER The appeal is hereby allowed. The order dated 5.1.2005 passed by the learned Forum is hereby quashed. The complaint is also allowed. The opposite parties are directed to pay a sum of Rs. 50,000 to the complainant along with interest @ 9% from the date of complaint to the actual date of refund to the complainant. Cost of this appeal shall be easy. Appeal allowed.
