Dr.

Atul Harnath Seth vs Larsen &

Toubro Ltd on 20 July, 2010

State Consumer Disputes Redressal Commission

Dr. Atul Harnath Seth vs Larsen & Toubro Ltd on 20 July, 2010

IN THE STATE COMMISSION : DELHI

IN THE STATE
COMMISSION : DELHI

(Constituted under Section 9 clause (b)of

the Consumer Protection Act, 1986 )

Date of Decision:
20-07-2010

Case No. FA-09/879

Indian Kanoon - http://indiankanoon.org/doc/139924214/

1
Dr. Atul Harnath Seth vs Larsen & Toubro Ltd on 20 July, 2010

(Arising III, Janakpuri,

from the order dated 05-11-2009 passed in
Complaint No.-966/2009 by the District Consumer Redressal Forum

New Delhi )

DR.
ATUL HARNATH SETH, - APPELLANT/COMPLAINANT
Sole Proprietor of Dr. Alkas Ultrasound
And Imaging Centre, 46 Brass Market,
Rewari, Haryana

Versus

1. LARSEN & TOUBRO LTD., - RESPONDENT

No.1

Indian Kanoon - http://indiankanoon.org/doc/139924214/ 2

 Dr. Atul Harnath Seth vs Larsen & Toubro Ltd on
20 July, 2010

Having its office:

Medical EDquipment & System
32- Shivaji Marg, Near Moti Nagar,

New Delhi - 110015

2. MR.
A.M. NAIK, - RESPONDENT No.2

Chairman and Managing Director,

LARSEN & TOUBRO LTD.,

Mysore Campus, Kiadb Industrial

Area,

Hebbal-Hootagalli, Mysore - 570018

INDIA

CORAM :
JUSTICE BARKAT ALI ZAIDI - President

SHRI M.L. SAHNI - Member

Indian Kanoon - http://indiankanoon.org/doc/139924214/

3
 Dr. Atul Harnath Seth vs Larsen & Toubro Ltd on 20 July, 2010

1.
Whether
reporters of local newspapers be allowed to see the judgment?

2.
To
be referred to the Reporter or not?

SHRI M.L. SAHNI (ORAL)

ORDER

1. This appeal treated as a Revision has been filed against order dated 05-11-2009,
passed by the
District Forum III, Janakpuri, New Delhi whereby the complaint of the appellant has
been rejected
at the admission stage, on the ground that the Appellant was not a consumer as his
case falls under
commercial activity and the machine so purchased by him was for the purpose of
earning profits.

2. The case of the appellant is that he is the sole Proprietor- cum-Radiologist

authorized and
competent to conduct Ultrasonography and colour Doppler study. He placed an order
for the Colour
Dopppler Unit Sequina-unit Sr. No. D07Q3017 and thereby purchased a new brand
Colour Doppler
Unit Sequina with three probes (hereinafter referred to as the machine) from Larsen
& Toubro Ltd.,
New Delhi Office in the hope that the machine so purchased by him for sale
consideration of Rs.
9,80,000/- vide invoice No. 27000102416 in the month of October 2007 vide cheque
issued by
ICICI Bank Ltd., against the medical equipment loan in the name of complainant, Dr.
Atul Harnath

Indian Kanoon - http://indiankanoon.org/doc/139924214/ 4

 Dr. Atul Harnath Seth vs Larsen &
Toubro Ltd on 20 July, 2010

Seth, R/O R-501, Anupam Apartments, East Arjun Nagar, 4CBD, Shahdara, Delhi 110032.

3. On 5th November 2007, the machine was installed at Dr. Alkas Ultrasound and
Imaging Centre,
46- Brass Market, Rewari, Haryana by the OP. Warranty period for the machine was
two years and
for probes one year from 5th November 2007, i.e. from the date of its installation.

4. It is alleged that since the day of installation of the unit, many defects and
deficiencies were
noticed in the smooth functioning of the machine due to recurring problems while
scanning on live
patients, deterioration of image quality occurred, difficulty to view early intra-
uterine pregnancy
cases on trans abdominal ultrasound due to band artifact/poor quality
image/inaccurate resolution,
difficulty to diagnose abnormality/pathology, if it lay in the region of superior
part of screen while
performing colour, Doppler Ultrasound, hanging of Colour Doppler Unit.

5. We have heard the Ld. Counsel for the appellant and have considered the Case Law
relied upon by
the Appellant.

6. Section 2 (1)(d) defines the term consumer as a person who buys any goods for
consideration, or
hires or avails of any services for a consideration but does not include a person
who obtains such
goods for resale or for any commercial purpose.

7. Explanation to this clause further clarifies that commercial purpose does not
include use by a
person of goods bought and used by him and service availed by him exclusively for
the purposes of
earning his livelihood by means of self-employment.

8. A bare perusal of the facts stated by the appellant in the complaint makes it
abundantly clear that
appellants case squarely falls within the explanation to clause (d) of Sub Section
(1) of Section 2 of
the Consumer Protection Act.

9. The Case Law cited on behalf of the appellant further fortifies his claim that
he is a consumer and
is entitled to maintain a consumer complaint against the OP.

Indian Kanoon - http://indiankanoon.org/doc/139924214/

5
 Dr. Atul Harnath Seth vs Larsen &
Toubro Ltd on 20 July, 2010

10. It was held as long back as in 1997 by the National Commission that machine
purchased by a
Medical Practitioner, a professional working by way of self employment using his
knowledge and
skill to earn his livelihood, was not for commercial purpose but to pursue his
professional activities
and hence are in the nature of self employment (see Rampion Pharmaceuticals vs Dr.
Preetam Shah
I (1997) CPJ 23 (NC).

11. In a recent judgment reported as 2009 (3) Apex Court judgment 440 (SC) Madan
Kumar Singh
(dead) through LRs vs District Magistrate Sultanpur & Ors, it has been held that
purchaser of a
truck for consideration, to be used exclusively for the purpose of earning his
livelihood by means of
self employment is a consumer even if he engaged a driver, because the purchaser
still continues to
earn his livelihood from the truck.

12. An another earlier case reported as K.S. Dabas vs Rajinder Kumar Chhabra (1997
(2) CPC 118)
Honble National Commission, allowing the Revision filed by the Petitioners, wherein
objection was
raised about the X-ray machine having been purchased for a commercial purpose held
that the
question required adjudication on the basis of cogent evidence, which fact was not
taken note of by
the District Forum and hence remanded the case for de-novo enquiry. It was observed
by the
National Commission in that case that holding the purchase of X-ray machine for
commercial
purpose, it was necessary to record a finding on the question whether the person
purchasing the
machine was engaged in a business of large scale with a view to earn large profits
or whether it was a
case of self-employment for making a living for himself.

13. The facts of the above cited case are quite akin to those of the instant case
before us.

14. We, therefore, find sufficient force in the contention of the Ld. Counsel for
the Appellant that
impugned order, which is non-speaking, deserves to be set-aside. Without expressing
any opinion
on the merits of the case, we allow the appeal and set- aside the impugned order.
The case is
remanded to the District Forum, Janakpuri to reconsider the complaint in the light
of explanation to
section 2 (1) (d) of the Act and the case Law relied upon by the complainant. No
costs.

15. Copy of the order be sent to the complainant and the District Forum concerned
for further
necessary action.
Indian Kanoon - http://indiankanoon.org/doc/139924214/
6
 Dr. Atul Harnath Seth vs Larsen &
Toubro Ltd on 20 July, 2010

16. Announced on 20th July 2010.

(JUSTICE BARKAT ALI ZAIDI) PRESIDENT (M.L. SAHNI) MEMBER AV

Indian Kanoon - http://indiankanoon.org/doc/139924214/

7