KALPAVRUKSHA CHARITABLE TRUSTversusTOSHNIWAL BROTHERS (BOMBAY) PVT. LTD. AND ANR.

          KALPAVRUKSHA CHARITABLE TRUST                                        A
                         v
   TOSHNIWAL BROTHERS (BOMBAY) PVT. LTD. AND ANR.

                           OCTOBER 12, 1999

             [S. SAGHIR AHMAD AND R.P. SETHI, JJ.]                             B

      Consumer Protection Act, 1986: Section 2(1)(d)(i).

      Consumer--Who is-Expression 'Commercial purpose'-Scope and
meaning of-Diagnostic Centre nm by Appellant Trust-CT Scan Machine             C
used by Centre-Patients required to pay for use of m~chine--Only ten per
cent patients provided free service-Held machine purchased by Trust was
meant for 'Commercial purpose'-Appellant-Trust held not a consumer.

      The Appellant-Trust was running a Diagnostic Centre. It purchased
a CT Scan Machine for use of which patients were paying fee. Only ten per      D
cent of the patients were being provided free service. On the question
whether the appellant was a 'Consumer' under the Consumer Protection
Act, 1986, the National Commission held that the Appellant was not a
'Consumer' as the machinery was installed for 'Commercial Purpose'. The
Appellant-Trust preferred appeal before this Court.                            E
      Dismissing the appeal, this Court

       HELD : In spite of the Commercial activity, whether a person would
fall within the definition of "consumer" or not would be a question of fact
in every case. Every patient referred to the Diagnostic Centre of the appel-   F
Iant and who takes advantage of the CT Scan etc., has to pay for it and the
service rendered by the appellant is not free. Only ten percent of the
patients are provided free service. That being so, the "goods" (machinery)
which were obtained by the appellant were being used for 'commercial
purpose'. The appellant-Trust is not a consumer.[622-F;.G; HJ                  G

      Laxmi Engineering Works v. P.S.G. lndustriai Institute, [1995] 3 SCC
583, explained and held inapplicable.

     Addi. Commissioner of lncome Tax, Gujarat Y. Surat Art Silk Cloth
Manufacturers Association, (1980) 121 ITR 1 and Commissioner of income         H
                                   619
    620                    SUPREME COURT REPORTS (1999] SUPP. 3 S.C.R.

A Tax, New Delhi v. Federation of Indian Chambers of Commerce & Industries,
    New Delhi,,(1981) 3 SCR 489, held inapplicable.

            CIVIL APPELLATE JURISDICTION : Civil Appeal No. 9737 of
    1996.

B                                        In

            Inteilocutory Application No. 2.

          From the Judgment and Order dated 26.7.94 of the National
    Consumer Disputes Redressal Commission New Delhi in O.P. No. 96 of
c   1993.

         S.P. Mithal, · R.N. Keswani, Ms. Chandrakanta Nayak and Ramlal
    Roy for the Appellant.

         S.C. Agrawala, Ms. Nina Gupta, Ms. Arpita R. Choudhary, Sanjay
D   Choudhary, Vineet Kumar, for the Respondents.

            The Judgment of the Court was delivered by

         S. SAGHIR AHMAD, J. This appeal was disposed of by us by our
E   judgment dated 12th August, 1999.

           Mr. R.N. Keswani, appearing on behalf of the appellant, has filed the
    instant Application stating that he was the only counsel appearing on behalf
    of the appellant on 12.8.1999, but since he was busy in some other Court
    when the matter was taken up by us, he could not come and argue the
F   appeal. He also stated that the counsel who was deputed to make a
    mention that he (Mr. R.N. Keswani) was busy in some other Court was not
    entitled to argue the appeal.

            The appeal was heard by us in detail and elaborate arguments were
G made on behalf of the appellant also, but having regard to the fact that Mr.
    Keswani was the only counsel in the appeal and he has stated that the other
    counsel was not entitled to argue the appeal, we have heard Mr. Keswani
    as also Mr. S.P.Mithal.

            The main reliance on behalf of the appellant has been placed on the
H decision of this Court in Laxmi Engineering Works v. P.S.G. Industrial
    KALP AVRUKSHA CHARITABLE TRUST v. TOSHNIWAL BROS. [S. SAGHIR AHMAD, J.]   621

    Institute, (1995) 3 sec 583 in support of the contention that the appellant      A

-   was a "consumer" within the meaning of the definition set out in the
    Consumer Protection Act, 1986. The definition was considered by us and
    it was held that since the machinery in question was installed by the
    appellant for commercial purpose, it would not be a "consumer".

          It is contended by the counsel for the appellant that the term
                                                                                     B
    "commercial purpose" has been considered by this Court in the case of
    Laxmi Engineering Works (supra) and the observation of National
    Commission that "commercial purpose" would mean "profit-making
    activity on a large scale" was approved and, 'therefore, the activity of the
    present appellant would not be a commercial activity as no "profit-making        c
    on a large scale" is involved. We do not agree. This Court in that decision
    had further held in para 21 as under :

          "21. We must, therefore, hold that :

          (i)     The explanation added by the Consumer Protection (Amend-           D
                  ment) Act 50 of 1993 (replacing Ordinance 24 of 1993) with
                  effect from 18.6.1993 is clarificatory in nature and applies to
                  all pending proceedings.

          (ii)    Whether the purpose for which a person has bought goods is         E
                  a "commercial purpose" within the meaning of the definition
                  of expression 'consumer' in Section 2( d) of the Act is always
                  a question of fact to be decided in the facts and circumstances
                  of each case.

          (iii)   A person who buys goods and uses them himself, exclusively         F
                  for the purpose of earning his livelihood, by means of self-
                  employment is within the definition of the expression,
                  'consumer) "

    Applying those tests, the Court in the case of Laxmi Engineering Works           G
    (supra) held that the appellant was not a 'consumer' as the machinery in
    that case were not purchased for self-employment, but were purchased for
    "commercial purposes."

         It is, therefore, clear that in spite of the commercial activity, whether
    a person would fall within the definition of "consumer" or not would be a H
     622                  SUPREME COURT REPORTS [1999] SUPP. 3 S.C.R.

A question of fact in every case. The National Commission had already held
     on the basis of the evidence on record that the appellant was not a
     "consumer" as the machinery was installed for "commercial purpose''. We
     have been again referred to various documents, including the "Project
                                                                                      -
     document", submitted by the appellant itself to the Bank for a loan to
.B   enable it to purchase the machinery in question, but we could not persuade
     ourselves to take a different view.

            Learned counsel for the appellant then referred to the case of Addi.
     Commissioner of Income Tax, Gujarat v. Surat A1t Silk Cloth Manufacturers
     Association, (1980) 121 ITR 1 wherein the activity of a charitable
C    institution, though commercial in nature, was held to be a part of the
     charitable activity. This decision does not help the appellant as it was a
     decision rendered under the Income Tax Act and the question which we
     are considering here had not arisen in that case.

D          Learned counsel for the appellant then referred to the decision of
    this Court in Commissioner of Income Tax, New Delhi v. Federation of
    Indian Chambers of Commerce & Industries, New Delhi, [1981] 3 SCR 489,
    and contended that if the dominant object of the trust or institution is
    charitable, the activity carried on by it would not be treated as an activity
E for profit. It is contended on the basis of the above decision that the
    activities carried on by the appellant were not profit- oriented nor was
    there any intention or object to carry on those activities to earn profit. This
    again was the decision rendered under the Income Tax Act and is not on
    the point involved in the present case whether the appellant was a
F · "consumer" within the meaning of the Consumer Protection Act, 1986.

        In the instant case, what is to be considered is whether the appellant
  was a "consumer" within the meaning of the Consumer Protection Act,
  1986, and whether the goods in question were obtained by him for "re-sale"
  or for any "commercial purpose". It is the case of the appellant that every
G patient who is referred to the Diagnostic Centre of the appellant and who
  takes advantage of the CT Scan etc., has to pay for it and the service
  rendered by the appellant is not free. It is also the case of the appellant
  that only ten per cent of the patients arc provided free service. That being
  so, the "goods" (machinery) which were obtained by the appellant were
H being used for "commercial purpose''.
KALP AVRUKSHA CHARITABLE TRUSTv. TOSHNIWAL BROS. [S. SAGHIR AHMAD, J.]   623

      No other point was pressed before us. We, therefore, maintain our        A
judgment dated 12th August, 1999 even after having heard Mr. Keswani
who insisted for a hearing through this Application. The Application shall
be treated as disposed of.

T.N.A.                                                    I.A. disposed of.