Rampion Pharmaceuticals                                               ----  Petitioner
Vs.
Dr. Preetam Shah                                                           ----  Respondent

Before :
            Hon'ble Mr. Justice V. Balakrishna Eradi, President
            Mr. Justice S.S. Chadha, Member
            Dr.(Mrs.) R. Thamarajakshi, Member &
            Mr. S.P. Bagla, Member.

Mr. S.P. Bagla, Member

                  Rampion Pharmaceuticals, Ahmedabad are the appellants and Dr. Preetam Ratanchand Shah, Kolhapur, is the respondent in this appeal which is against the Order dated 15-7-93 in Complaint Case No. 82/92 of the Maharashtra State Commission directing the appellant to pay Rs.71,000/- with interest at the rate of 18 % per annum from 21-10-91 till realisation, to the respondent on account the price of one KOI 3000 x Ultrasonic Pachymeter Lot No. 1047 holding that the said machine was defective and did not serve the purpose for which it was bought by the respondent.  The appellants have urged that the submission made by them in reply to the complaint of Dr. Shah were not considered by the State Commission while considering the complaint and hence the order passed by it deserves to be set aside. They have reiterated the same issues in appeal, as they claimed to have urged before the State Commission. These are in regard to jurisdiction of the State Commission of Maharashtra, the purpose for which the machine was bought, the machine being defective in its performance and the responsibility of the appellants in regard to any liability for this machine.

                   It is admitted that the machine was purchased by Mr. Shah of Kolhapur from the appellants for the professional purpose of his practice as an eye surgeon in the hospital run by him. Dr. Shah, the complainant respondent, is based at Kolhapur which is in the State of Maharashtra. The territorial jurisdiction of the Consumer Disputes Redressal Agencies covers a complaint filed at a place where the cause of action wholly or in part arises vide Section 11(2)(c) of the Consumer Protection Act.   Clearly the cause of action as far as the complainant-respondent is concerned arose at Kolhapur where he has his hospital and, therefore, the Maharastra State Commission was within its right to entertain this complaint and make an appropriate order.

                    It has been contended with force by the appellant that the machine was purchased for a commercial purpose and, therefore, is not covered by the provisions of the Consumer Protection Act. This contention is not at all based on correct appreciation of the fact of this case.  Dr. Shah is a medical practitioner, a professional working by way of self-employment by using his knowledge and skill to earn his livelihood.  It has not been proved by any evidence that Dr. Shah is running a huge hospital and his business is on a scale which can be put in the category of commercial nature.  We, therefore, agree with the view taken by the State Commission that the machine was purchased not for commercial purpose but to pursue the professional activities by the complainant-respondent and, therefore, it is in the nature of self-employment.

                         To make the point that the machine was not defective but the  complainant- respondent was incompetent to use and maintain it, the appellants have stated that a foreign expert, namely, Mr. Jeorge Brisco, who had taken it to Australia and sent it back, after servicing, has certified that the Pachy Meter was working perfectly and what is needed is the proper maintenance of its battery which the respondents failed to ensure. The appellants also produced an extract from a book to urge that such instruments and more specifically the very instrument in question viz., KOI 3000 x Ultrasonic Pachymeter required proper recharging and maintenance of batteries and that the problems could arise in the absence of such maintenance. The literature also indicates that storage above 100 ^oF should be avoided and the preferred storage is at 70 ^oF, which requires an air conditioned room all the time.  The main point in this regard urged by them is that the instrument is not defective because it has been used by the respondent for more than a year.  Had it been a defective instrument how could the respondent use it at all?   On the other hand it has been pointed out by the State Commission that the complainant purchased the machine on 5-10-88 when it was installed at his hospital and that it was found to be not working even on that day.  According to the respondent the machine was redelivered to him on 20-10-91 after servicing in Australia and even after that it was not working.  The respondent was promised replacement of the machine by the opposite party but, the same was not done and therefore, a complaint was filed on 11th March, 1992, within the limitation period if taken from 21-10-91 when the machine was redelivered after servicing.  It is also mentioned that Mr. Joshi, a representative of the appellant replaced the circuit after the instrument completed reading when tested on the test box supplied by the appellant.  However, when the respondent tried to take readings on the patients the instrument refused to show any reading and, therefore, the machine failed to give the promised results as per the representation made by the opposite parties.  It is not clear to us as to why a professional medical practitioner would not maintain an instrument in proper condition particularly when such an instrument is of great help and assistance to him in pursuing his practice.  Nor can it be believed in the absence of any cogent evidence, that a Doctor would like to return such an instrument without reason in case its performance is satisfactory for his professional purposes. The allegation that it has not been maintained properly has not been supported by any evidence. A certificate from a foreign expert and that too in the nature of an advice only, that the battery should be charged and maintained properly cannot be taken as conclusive evidence that it was not being maintained by the respondent in the manner required by the manual.  We, therefore, agree with the findings of the State Commission that the machine supplied to the respondent was defective in as much as it did not render the service for which it was purchased even after it had been sent to Australia for repair and, thereafter delivered to the respondent.

                 The last point urged by the appellant is in regard to his responsibility on account of failure or defect in the machine on the ground that he was only a go-between and not a regular dealer for such Pachymeter, through he was a representative of its manufacturer viz., Cooper Vision of Australia for their other products. The respondent, according to the appellant, had contacted Cooper Vision directly and wanted to buy this machine from them on the basis of whatever information he had gathered about its usefulness for him.  Since the respondent did not want to go through the formalities of customs and import etc., he asked the appellants to import it for being supplied to him. In this manner the appellants, according to them were only acting as a go-between the respondent and manufacturer and, therefore, were in no way responsible for any defect in or failure of the machine. Though the manufacturers were made a party by the complainant-respondents in their complainant before the State Commission, notice could not be served on them as they are based abroad. We have  given our careful consideration to this contention of the appellants. We find that the machine was imported by the appellants and supplied to the respondent. They received the payment for the machine from the respondent. Their representative, Shri Joshi serviced it also and changed the circuit in the instrument after the complaint was lodged with them. We, therefore, do not see any force in their argument that they being only the go-between in this transaction are not responsible.

               The State Commission in their Order has directed the appellant to pay the price which they received from the respondents for this instrument, i.e., Rs. 71,000/- with interest at the rate of 18 % p.a. from 21-10-91 when the machine was redelivered after having been serviced in Australia. The State Commission has not awarded any compensation for loss of business alleged by the respondent in the absence of sufficient evidence to back it. We do not find any error in the order of the State Commission which we confirm. The Appeal is dismissed with no order as to costs.