D.THANIGAIVELAN vs HUMMINGBIRD AUTOMATION TECHNOLOGIES PVT. LTD.

IN this complaint, the Complainant under Section 17 r/w Section 12 of the Consumer Protection Act, 1986, has sought refund of a sum of Rs. 1,32,000/- with interest thereon and also compensation in a sum of Rs. 35,000/- from the Opp. Party.

THE Complainant placed an order with the Opp. Party for the supply of SIVA PC/AT 386 Computer with accessories on 14.10.1992 and made an advance payment of a sum of Rs. 1,32,000/- the full value of the computer to the Opp. Party under Ex. C-2. It is the case of the Complainant that the Opp. Party assured the delivery of the computer to the Complainant on or before 31.10.1992. The Opp. Party installed the computer on 14.11.1992 without VCA Colour Monitor, under Ex. C-3 - equipment installation report. The Opp. Party also did not deliver the accessories like - Logitech Mouse with manual softwares and floppies. The O.P. in place of the said SIVA PC/AT 386 Computer gave a mono block as stand-by and assured to replace it within a week''s time with the colour monitor.

It is the further case of the Complainant that inspite of several reminders the Opp. Party did not supply the colour monitor and also failed to arrange for training. The Complainant, finally by his letter dated 24.12.1992, as per Ex. C-4, cancelled the order and requested the Opp. Party to refund the said sum of Rs. 1,32,000/-.

THE Opp. Party, on receipt of the said letter addressed a letter Ex. C-5 to the Sterling Computers and requested to refund the money which Sterling Computers had collected from the Opp. Party, so as to enable the Opp. Party to refund the same to the Complainant. THE copy of the said letter, Ex. C-5 was forwarded to the Complainant. The Complainant, by his letter dated 2.1.1993, as per Ex.C-5, declined to accept any supply of any colour monitor from the own source of the Opp. Party, as referred to by the Opp. Party, in Ex.C-5, and requested the Opp. Party to refund the money paid by the Complainant. The Opp. Party, though asked to accept the supply of colour monitor, by their letter dated 6.2.1993, as per Ex.C-7, but the Complainant by his letter dated 11.2.1993, Ex. C-8, declined to accept this delayed delivery as he had already cancelled the order by his letter Ex. C-4.

THE Complainant averred that he had suffered a loss for non-supply of the colour monitor by the Opp. Party as promised to supply on or before 31.10.1992. THE Complainant, on the basis of these averments, sought the refund of the money value of the computer - Rs. 1,32,000/- with interest thereon and compensation in a sum of Rs. 35,000/-. The Opp. Party filed its version, admitted the fact of sale of the said computer to the Complainant, as averred by him. The O.P. also admitted the payment of the sale price of the computer made by the Complainant, as per Ex. C-2. The Opp. Party also admitted the fact that the computer was supplied to the Complainant on 14.11.1992 without the colour monitor. The O.P. averred that it was the duty of manufacturer of the computer, it had only supplied the computer from the Sterling Computers Ltd., and so the Complainant had no right to file the Complainant as against the Opp. Party. The Opp. Party averred that the purchase of the computer by the Complainant was for ''commercial'' purpose and, therefore, the Complainant cannot be classified as a ''consumer'' and so the complaint was untenable. The Opp. Party, on the basis of these averments, sought the complaint to be dismissed.

DURING enquiry, the parties filed their affidavits in evidence. The documents filed by the Complainant came to be marked as Exs. C-1 to C-8 and the documents filed by the Opp. Party came to be marked as Exs. R-l to R-3.

WE heard the learned Counsel for the parties, perused the pleadings and the material placed on record. It is not disputed that the Complainant placed an order for a computer with the Opp. Party on 14.10.1992 and on that day itself made the payment of the full value of the said computer as per Ex. C-l. The letter, Ex. C-l, shows that the computer was to be delivered on or before 31.10.1992. Ex. C-3 is the equipment installation report which is dated 14.11.1992. On that day the Opp. Party installed the computer at the premises of the complainant. The remarks made by the engineer who installed the said computer shows that the colour monitor was not supplied. The said remarks of the engineer, reads as under: "Engineer''s Remarks : VGA MONO Monitor has been as standby would shortly provide VGA colour monitor."

Ex. C-4 is the letter written by the Complainant to. the Opp. Party which is dated 24.12.1992. It shows the Complainant when the colour monitor was not supplied even after several reminders, cancelled the order. The said letter reads, as under: "We have placed the order for the supply of computer Siva PC/AT 386 with VGA Colour Monitor and paid 100% payment of Rs. 1,32,000/- alongwith the order to be delivered Before 31.10.1992, vide our order No. EDT/094/92-93 dated 14.10.1992. After so many reminders you have delivered some part supply without VGA Colour Monitor on l4.11.1992. Now, even after two and half months you are not able to deliver the full supply. Whenever we have contacted you, you have promised that it. will be delivered shortly. Anyhow, now we are not interested in this type of supply and service. We request you to pay back our money and take back the supply immediately within a week''s time please. Thanking you,"

THE. Opp. Party on receipt of the said letter from the Complainant, wrote a letter to M/s. Sterling Computers Ltd., Bangalore, as per Ex.C-5. THE material part of it, reads as under: "Under the circumstances, we request you to refund the money paid by us, by Demand Draft payable at Mysore so that we can collect the machine from the customer and send it back to you. THE customer is not using the systems and we share his anxiety for not being able to use the systems because of partial deliveries from you. THE customer has placed the order on us in good faith and as we are authorised dealers we have made our commitments based on your assurances which is not been fulfilled by you. We are making it clear through this letter that if the customer chooses to take legal action the consequences would squarely rest on you since we have acted only as your agents. To avoid any further embarrassment we strongly recommend that you refund the entire money you have received from us for onward transmission to our customer. We may place on record here that we are extremely unhappy with this deal as we have not been able to render services to our customer who came to us in good faith."

This would go to show that the Opp. Party accepted the fact that it could not keep up the promise made to the Complainant and so it was making efforts to refund the entire amount of Rs. 1,32,000/- collected from the Complainant.

THE Opp. Party, by its letter dated 6.2.1993, Ex. C-7, offered to supply the colour monitor to the Complainant but the Complainant, by his letter dated 11.2.1993, Ex. C-8, declined to accept the said colour monitor as he had already cancelled the order in the month of December, 1992 itself. THEse circumstances would clearly go to show the negligence on the part of the Opp. Party in not supplying the colour monitor as promised alongwith the computer on 14.11.1992. The Opp. Party submitted that the purchase of a computer by the Complainant was for a ''commercial'' purpose and so the Complainant cannot be classified as a ''consumer'' under the provisions of Section 2(1)(d) of the Consumer Protection Act, 1986, and so the complaint was untenable. The Complainant is an Engineer, having done his B.E., M.Sc. Engineering. He filed the affidavit and stated that the said computer was purchased by him for his exclusive use and for the purpose of earning his livelihood, by means of self employment. The Managing Director of the Opp. Party-Company has filed the affidavit and has not denied this statement by the Complainant. The Opp. Party has simply stated that as the Complainant is Managing Partner of the Complainant-firm, so the purchase of the computer by the firm was for a ''commercial'' purpose. The Complainant has made it clear in his affidavit that the firm consists of himself and his wife as partners. On this basis, it cannot be said that this purchase of the computer was for a ''commercial'' purpose.

THE expression ''consumer'' under the provisions of Section 2(1)(d)(i), reads as under: "2(1)(d)(i): "Consumer" means any person who, - (i) buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commerce purpose; or"

If the purchase of an article were to be for resale or for any commercial purpose then such a person cannot be classified as a ''consumer''.

THE expression ''commercial purpose'' came up for consideration before the Hon''ble Supreme Court in Laxmi Engineering Works v. P.S.C. Indl. Institute, reported in II (1995) CPJ 1 (SC) wherein the Hon''ble Supreme Court, at para 10, considered the expression ''commercial purpose'' and has held as under: "10. Now coming back to the definition of the expression ''consumer'' in Sec. 2(d), a consumer means in so far as is relevant for the purpose of this appeal, (i) a person who buys any goods for consideration; it is immaterial whether the consideration is paid or promised, or partly paid and partly promised or .whether the payment of consideration is deferred; (ii) a person who uses such goods with the approval of the person who buys such goods for consideration, (iii) but does not include a person who buys such goods for resale or for any commercial purpose. THE expression "resale" is clear enough. Controversy has, however, arisen with respect to meaning of the expression ''commercial purpose''. It is also not; defined in the Act. In the absence of definition, we have to go by its ordinary meaning. ''Commercial'' denotes ''pertaining to commerce'' (Chamber''s Twentieth Century Dictionary); it means ''connected with, or engaged in commerce; mercantile; having profit as the main aim'' (Collins English Dictionary) whereas the word ''commerce'' means ''financial transactions "especially buying and selling of merchandise, on a large scale (Condse Qxford Dictionary). THE National Commission appears to have been taking a consistent view that where a person purchases goods with a view to using such goods for carrying on any activity on a large scale for the purpose of earning profit'' he will not be a ''consumer'' within the meaning of Sec. 2(d)(i) of the Act. Broadly affirming the said view and more particularly with a view to obviate any confusion - the expression ''large-scale'' is not a very precise expression - the Parliament stepped in and added the explanation to Sec. 2(d)(i) by Ordinance/Amendment Act, 1993. THE explanation excludes certain purposes from the purview of the expression ''commercial purpose'' a case of exception to an exception. Let us elaborate: a person who buys a typewriter or a car and uses them for his personal use is certainly a consumer but a person who buys a typewriter or a car for typing others'' work for consideration or for plying the car as a taxi can be said to be using the typewriter/car for a commercial purpose. THE explanation however clarifies that in certain situations, purchase of goods for ''commercial purpose'' would not yet take the purchaser out of the definition of expression ''consumer''. If the commercial use is by the purchaser himself for the purpose of earning his livelihood by means of self-employment, such purchaser of goods is yet a ''consumer''. In the illustration given above, if the purchaser himself works on typewriter or plies the car as a taxi himself, he does not cease to be a consumer. In other words, if the buyer of goods uses them himself, i.e., by self employment, for earning his livelihood, it would not be treated as a ''commercial purpose'' and he does not cease to be a consumer for the purposes of the Act. THE explanation reduces the question, what is a ''commercial purpose'', to a question of fact to be decided in the facts of each case. It is not the value of the goods that matters but the purpose to which the goods bought are put to. THE several words employed in the explanation, viz, , ''uses them by himself, ''exclusively for the purpose of earning his livelihood'' and ''by means of self-employment'' make the intention of Parliament abundantly clear, that the goods bought must be used by the buyer himself, by employing himself for earning his livelihood. A few more illustrations would serve to emphasize what we say. A person who purchases an auto-rickshaw to ply it himself on hire for earning his livelihood would be a consumer. Similarly, a purchaser of a truck who purchases it for plying it as a public carrier by himself would be a consumer. A person who purchases a lathe machine or other machine to operate it himself for earning his livelihood would be a consumer. (In the above illustrations, if such buyer takes the assistance of one or two persons to assist/help him in operating the vehicle or machinery, he does not cease to be a consumer). As against this a person who purchases an auto-rickshaw, a car or a lathe machine or other machine to be plied or operated exclusively by another person would not be a consumer. This is the necessary limitation flowing from the expressions ''used by him'', and ''by means of self-employment'' in the explanation. THE ambiguity in the meaning of the words ''for the purpose of earning his livelihood'' is explained and clarified by the other two sets of words."

This would go to show that if an article were to be purchased for the purpose of earning his livelihood, such a purchase cannot be classified as ''for commercial purpose'' and so such a person can be classified as a ''consumer'' under the provisions of Section 2(1)(d)(i) of the C.P. Act.

In the present case, as referred to above, the Complainant has stated on oath that he had purchased the said computer for his exclusive use and for the purpose of his earning livelihood by means of self-employment. There is no rebuttal evidence adduced by the Opp. Party, in this regard. Therefore, there are absolutely no reasons for us to suspect the statement made by the Complainant. It is also an admitted fact on record as per Ex. C-5 that the Complainant did not make use of the computer supplied by the Opp. Party. Having regard to these facts and in the circumstances of the case, the Complainant is a ''consumer'' under the C.P. Act and the complaint is tenable. ORDER In the result, therefore, this complaint is allowed. The Opp. Party is directed to refund a sum of Rs. 1,32,000/- with interest thereon at 15% p.a. form 14.11.1992 till the date of its payment to the Complainant. The Opp. Party shall also pay a sum of Rs. 1,500/- to the Complainant towards the costs of this proceeding. The Opp. Party shall pay the sums so awarded to the Complainant within a period of 60 (sixty) days from this day. Complaint allowed with costs.