Anil Kumar Gupta vs MANAGING DIRECTOR, TURNING POINT COMPUTER EDUCATION CENTRE (P) LTD.

THIS appeal is directed against the order dated 22.10.2002 passed by the DF whereby the DF has dismissed the complaint of the appellant.

SIMPLE point involved in this case is that the appellant is Chartered Accountant by profession who is carrying it at Kanak Mandi Jammu. He purchased Computer Software for his personal use on 10.7.1999 for an amount of Rs. 6,950.00. The case of complainant is that the said Computer Software when was used by him for preparation of accounts of the clients it could not run and give the results. It was found unable to serve the complainant. He made a complaint to the respondent that the Computer Software was defective. Defect was got to the notice of the respondent but despite the best efforts made by the respondent CSW could not be repaired nor it was made to run. Complainant has averred that he has lost many of his clients and suffered a loss. Respondent did not replace the CSW nor returned the principal amount, so he made the complaint. Divisional Forum summoned the respondent and the respondent resisted the complaint, inter alia, on the ground that the appellant was not a consumer because he was using the CSW for commercial purposes. DF after hearing the arguments dismissed the complaint on the ground that the complainant has purchased the CSW and he was using it for the commercial purposes. Heard learned Counsel for the parties. Learned Counsel for the respondent has reiterated Section 2(1)(d) of the Consumer Protection Act and has argued that the complainant has purchased the CSW for preparing the accounts of his client being a chartered Accountant so he was using it for the commercial purpose. According to the Counsel for appellant/complainant has never pleaded that he was using it for his personal use and for earning his livelihood. We have addressed ourselves to the arguments advanced. The admitted position is that the appellant purchased the CSW for his personal use to prepare the accounts of the clients. He has admitted in his complaint that by providing a defective CSW a damage was caused to him because he could not prepare the accounts of so many clients. It is also a fact that the appellant has not taken the specific plea under the Explanation of Section 2(1)(d). Explanation of Section 2(1)(d) is quoted as under : "For the purpose of Sub-clause (i) ''Commercial purpose'' does not include use by a consumer of goods bought and used by him exclusively for the purpose of earning his livelihood by means of self-employment."

It is a fact that appellant has not in his complaint mentioned that the CSW was purchased by him for earning his livelihood by means of self-employment. It is the crux of the arguments of the learned Counsel for respondent.

Learned Counsel for the appellant has repelled these arguments and very rightly so by pleading that there was no need for the appellant to take plea under the Explanation of Section 2(1)(d) because the case itself squarely comes under the Explanation and it is obvious from the pleadings that the appellant has not purchased a CSW for any commercial purpose.

COMMERCIAL purpose is a specific term which is being used for the business and earning profits on large scale but it cannot be amalgamated with the term profession. Chartered Accountant or a Lawyer or a Doctor who are doing their profession solely to earn their livelihood if they use any apparatus or a machine which facilitates them in their work we cannot bracket that they are doing business on a large scale for earning huge profits. Suppose a Lawyer purchase a CSW to feed the cases we cannot term it that he is doing business on commercial lines. Similarly if the Chartered Accountant purchase a CSW just to facilitate his work in preparing the accounts this squarely does not come under the Section 2(1)(d) for commercial purposes. He is not doing business to earn huge profits. This is not a commercial transaction but this is simply a profession. He is doing and using the Software just to facilitate his profession. If he purchases a CSW we are unable to persuade ourselves to agree with that this is for a commercial purpose. Obviously, the appellant has purchased one CSW to get his work facilitated. We cannot say that he is doing a commercial business. Consumer Protection Act is socially oriented Act to protect the interest of a consumer. We cannot deny relief to a Chartered Accountant who is given a defective CSW instead of fresh one. We cannot say that this is for commercial purpose. We are of the view that the appellant was not required to take specific plea that he purchased a CSW for his livelihood because it is manifestly clear from the complaint itself that the appellant is a professionist Chartered Accountant. It is also clear from the complaint that he purchased a single CSW to get his work facilitated. Obviously, it was for his personal use for using it in his personal computer. Such view has been taken in the case titled M/s. Pertech Computers Ltd. v. Dr. Keshev Sood & Anr., 1999 (2) CON.LT 85 (Punj.). In this case Doctor purchased a computer for use for earning his livelihood. It was held that commercial activity in purchasing a CSW by Doctor for personal use was not for commercial activity and commercial activity in such cases is immaterial. In another case titled M/s. New Hawra Transport Co., Bombay v. Dr. K. Krishnan & Ors., 1998 (2) CON.LT 172 (Punj.). Here again Doctor has purchased a machine for his clinic for examination of Eyes of patients. He was held to be a consumer in this case. In the given circumstances of this case we are convinced that complainant has purchased Computer Software for his personal use to get his work facilitated. It is a fact that he was using it for preparing the accounts for his clients so it cannot be said that he was using it for commercial purposes for earning huge profits. For these reasons, therefore, we set aside the impugned order of the DF and remand the case back to the DF to dispose of the case on merits. Parties are directed to appear before the DF on 24.3.2003. Appeal allowed.