JUDGMENT - Justice G.G. LONEY, President :—In this complaint allegations are made against the opposite parties for selling defective goods namely Kit-Ply. The complainant is a fresh medical practitioner and wanted to establish a diagnostic centre for the treatment of his patients. The complainant was in need of plywood and other wooden articles. The O.P. No. 2, Bhandari Brothers are the local dealers of plywood at Jalgaon and had long-standing family relations with the complainant. The complainant, therefore, approached the O.P. 2 for his requirement. The O.P. No. 2 assured complainant that he is having the Kitply, boiling water proof and it resists termites, cockroaches, wood borers, insects and other wood eating organism. The complainant was also shown the literature of the said Kit-ply published by the manufacturer. The complainant believed the oral and published representation of the company about the quality and standard of the Kitply and purchased from the O.P. No. 2 goods worth Rs. 1,50,000/-. The complainant utilised that Kitply in the construction of his dispensary. The complainant had also done pest control in his dispensary through Mr. Kamble Agency. To the surprise of the complainant, in the month of August, 1991, he noticed that the cabins constructed out of the Kitply in question was infested by the insects inside the plywood and as a result, the powder of the plywood was falling down. It is alleged by the complainant that the Kitply supplied to the complainant was not of standard quality as assured and, therefore, brought this fact to the notice of both the opponents. On behalf of the opposite party No. 1, Mr. Pathak, Branch Manager from Ragaon visited complainant's constructed dispensary in October, 1991 and found that the Kitply used was infested by borers. Similarly, on behalf of the O.P. No. 2, also, Khemchand Bhandari visited the premises of the complainant. Despite repeated requests of the complainant his grievance to replace the goods was not redressed and hence he filed this complaint claiming the loss and compensation on various grounds 2. Notice under section 13 of the C.P. Act, 1986 was issued to the opposite party on 20-6-1992. The opposite parties did not file any written version denying the allegations made by the complainant. The complaint was posted for hearing on 21-9-1992. On that date also no written version was filed. However, the complainant filed affidavits of his witnesses. Notice under section 13 of the C.P. Act, 1986 was issued to the opposite party on 20-6-1992. The opposite parties did not file any written version denying the allegations made by the complainant. The complaint was posted for hearing on 21-9-1992. On that date also no written version was filed. However, the complainant filed affidavits of his witnesses. The complaint was fixed for hearing on 4-11-1992. On that date also opposite party did not file the written version. 3. On the date of final hearing, the complainant was present with Shri S.M. Pandit, Advocate. The O.P. No. 1 was represented by Shri K. Kothari, Advocate. The O.P. No. 2 was represented by Shri B.T. Sheth, Advocate. 4. The purchase of Kitply by the complainant from the opposite party is not disputed. Similarly, the Kitply used in the dispensary was found infested by the wood borers is also admitted by O.P. No. 1 in his letter dated 12-10-1991. The quantity of Kitply purchased by the complainant and the price of the Kitply and the receipts of purchase also are not in dispute. The O.P. raised the legal objection about the maintainability of this complaint on the ground that the complainant has purchased the Kitply for "commercial purpose". It is, therefore, urged that the complainant is not a consumer within the meaning of section 2(1)(d) of the C.P. Act. (For, Short, hereinafter referred to as 'the Act'). In support of his arguments, Shri Kothari Advocate placed his reliance on the decision of the National Commission in the case of M/s. Larson Tubro Ltd. v. M/s. Pophale Nursing Home and another. 5. We have gone through the aforesaid decision and find that National Commission while rendering the aforesaid decision relied on its earlier decision in the case of (Cynco Textiles Pvt. Ltd. v. Greaves Cotton and Company Ltd.)1, 1(1991) P.J. 499. The National Commission while interpreting the 'commercial purpose' has held "it seems to us clear that the intention of the Parliament as can be gathered from the definition section is to deny the benefits of the Act to persons purchasing goods either for purpose of resale or for the purpose of being used in profit making activity engaged on a large-scale industry. It is obvious that Parliament intended to restrict the benefits of the Act to ordinary consumers purchasing the goods either for their own consumption or even for use in some small venture which they may have embarked upon in order to make a living as distinct from large-scale manufacture or process activity carried out for profit." The claim was denied to M/s Pophale Nursing Home on their own showing that it was quite a large hospital running for profit. In that case even the income figures were shown by complainant. The National Commission, therefore, interpreted the "commercial purpose". With reference to M/s. Pophale Nursing Home on the basis of the facts and circumstances appearing in that case. In the instant case, we find that the complainant is a fresh medical practitioner and ventured to have a diagnostic centre and purchased the Kitply in question for construction. The complainant has not even started the practice and, therefore, from the facts and circumstances, it cannot be established that the complainant has been engaged in a commercial activity for profit earning on large-scale. Whether any activity is a large-scale for profit earning or not depends on the facts and circumstances of a particular case. The Opposite Parties have not placed before us any material to show that the complainant's dispensary has been running on a large-scale for earning profit. Whether the complainant will earn profit or not in future is uncertain. At the moment, the circumstances show that the dispensary of the complainant is not running on large-scale activity. If the complainant fails in his medical practice, he may abandon it and have a different activity in the premises. Therefore, merely because the complainant is constructing the dispensary it cannot be inferred or imagined that it is for a large-scale profit making activity. However, it can safely be presumed that the complainant is constructing the dispensary for self-employment as a small venture. We, therefore, reject the objection of the opposite parties that the complainant is not a 'consumer' on the basis of facts appearing in this complaint. 6. Another argument is that out of the total purchase of Rs. 1,50,000/- the Kitply has been purchased worth Rs. 80,000/- only and out of that purchase made the payment of Rs. 35,000 and the rest of the amount is not paid to the O.P. No. 2. 6. Another argument is that out of the total purchase of Rs. 1,50,000/- the Kitply has been purchased worth Rs. 80,000/- only and out of that purchase made the payment of Rs. 35,000 and the rest of the amount is not paid to the O.P. No. 2. Even if complainant has not made the full payment, the maintainability of the complaint is not affected in any way as the part payment has proved that he is a consumer. 7. The complainant has stated in his complaint that in the month of August, he found that the cabin was infested by insects and the powder from the plywood was falling down. This allegation made by the complainant is supported by the affidavit of Omprakash Sharma who was working as a Carpenter to construct the dispensary of complainant. In his affidavit, he has stated that the Kitply in question was being purchased from O.P. No. 2 and on occasions he had brought it from Bhandari Brothers, the O.P. No. 2. It is also stated in his affidavit that the total construction contract was for Rs. 60,000/- out of which Rs. 40,000/- has been paid to him and Rs. 20,000/- are in balance. The witness has further stated in para 5 of his affidavit that yellowish powder started emitting from the plywood and it was infested by wood eating insects. There is another affidavit by Vijaya Moharil who also supported the allegation of the complainant of having seen the plywood infested. We are, therefore, satisfied that the Kitply sold to complainant by O.P. 2 and manufactured by O.P. 1 was defective. There cannot be a greater deficiency than the one which is demonstrated by the complainant by convincing evidence on record. The opposite parties had represented in their literature which is placed on record and it shows that the Kitply is resistant in termites, cockroaches, wood borers and other wood eating organism. The printed literature about the good quality of Kitply states that it is free from infection of wood borers. But we find that the Kitply sold to complainant was contrary to the claim of the opposite parties. The Kitply in question was found infested. Thus, we find that the opposite parties made a false claim and representation about the quality of their goods. It is a unfair trade practice, under section 36-A of the M.R.T.P Act. But we find that the Kitply sold to complainant was contrary to the claim of the opposite parties. The Kitply in question was found infested. Thus, we find that the opposite parties made a false claim and representation about the quality of their goods. It is a unfair trade practice, under section 36-A of the M.R.T.P Act. The 'Unfair trade practice" has been defined under section 36-A of the M.R.T.P. Act. The practice of making any statement whether orally or in writing which falsely represents that the goods are of a particular standard, quality, grade, composition, style or model amounts to "unfair trade practice". In the instant case, the opposite parties have also committed "unfair trade practice" by making a false representation as regards the quality of the Kitply. 8. In our considered view, therefore, the opposite party No. 1 manufactured the defective Kitply and the opposite parties No. 1 and 2 falsely represented that the Kitply in question is of a particular standard, quality, grade and composition. Their representation is proved to be false. We find that as a result of the "unfair trade practice" mentioned above adopted by the opposite parties, the complainant has suffered loss of his practice due to delay and expenses as well as suffered damage in the construction of his dispensary. 9. We also further find that the loss suffered by the complainant is due to the sale of a defective goods by the opposite party and due to defective manufacture by O.P. No. 1. 10. That the complainant has claimed in this complaint the loss of Rs. 1,50,000/- towards the purchase of the material which he has utilised in the construction of his dispensary. Although it is submitted by the opposite parties that the complainant has paid Rs. 35,000/- only towards purchase of the material, yet, the complainant carries on the liability to pay the price of the purchased material to the opposite party No. 2. In view of the admitted facts of purchase of the material duly supported by the receipts on record, we accept the claim of the complainant about the loss of Rs. 1,50,000/- due to purchase of the material for the construction of the dispensary. Similarly, we also accept the claim of the complainant that he was required to pay Rs. 40,000 being the labour charges. 1,50,000/- due to purchase of the material for the construction of the dispensary. Similarly, we also accept the claim of the complainant that he was required to pay Rs. 40,000 being the labour charges. The affidavit of the carpenter Omprakash Sharma clearly shows that the labour charges amounting to Rs. 40,000/- were actually paid to him by complainant. However, the complainant has failed to substantiate that he has suffered a loss of Rs. 5,00,000 towards the practice. Similarly, we are also unable to agree that the complainant is entitled to claim Rs. 2,00,000/- towards mental pain, agony, and worry. The complainant is a fresh practitioner and he is not expected to get practice so soon for income running into lakhs. In our view, therefore, the complainant deserves the grant of compensation for Rs. 1,50,000/- towards the cost of material and Rs. 40,000/- (Rs. forty thousand only) for the labour charges. Thus, we allow the complaint of the complainant and award the complainant the total compensation of Rs. 1,90,000/- for the loss suffered by him due to the supply of defective material by the opposite party. 11. Out of the aforesaid entitlement of the complainant, he has paid Rs. 35,000/- only as against the purchase of material from the opposite party. The complainant, therefore, is entitled to receive Rs. 35,000/- actually paid by him and the opposite party No. 2 shall not recover from the complainant the balance of the amount towards the material purchased. Similarly, the complainant is also entitled for Rs. 40,000/- towards labour charges paid to the contractor and cost of the proceedings. Hence, we pass the following order :— ORDER 12. The complainant be awarded Rs. 75,000/- by the opposite parties No. 1, towards the payment of amount towards Kitply and towards the labour charges. The complainant also be awarded cost of Rs. 1,000/- for pursuing the complaint. The aforesaid amount be paid to the complainant the opposite party No. 1 within 30 days from the receipt of this order failing which the complainant will be free to approach this Commission for execution of the order. Order accordingly. *****