P.Ramankutty vs STERLING COMPUTERS LIMITED

MR. Justice S.A. Kader, President-This is a complaint under Section 17 read with Section 12 of the Consumer Protection Act.

THE Complainant who is a leading contractor evinced interest in the purchase of a personal computer so that it will be advantageous to his profession which involves precision designs, specifications and details of execution. He placed orders with the Opposite Party for one SIVA PC/AT-386 system and paid a sum of Rs. 1,86,461/-under two cheques. THE computer was agreed to be delivered by 29.6.1992, but the Opposite Party failed to deliver the computer within the time. THE enquiries were made by the Complainant and the Opposite Party was giving evasive replies. By letter dated 30.6.1992, the Opposite Party informed the Complainant that it would return the entire amount on or before 25.7.1992. THE Complainant issued a legal notice on 1.7.1992 calling-upon the Opposite Party to refund the amount with interest at 24%. After receipt of the notice the Opposite Party delivered on 23.7.1992 a computer which was not accompanied with any software or accessories. Consequently the system could not be commissioned and operated. Hence this Complaint for refund of the entire amount with interest at 24% per annum and compensation in the sum of Rs. 50,000/-. The Opposite Party admitted the placing of the order for this computer system by the Complainant. It is further admitted that the delay in the supply of system was due to non-availability of certain essential components which go into the manufacture of AT 386 Color kit and the Business Grips Software were not available. It is averred that the delay was explained and the complainant was convinced. The Opposite Party agreed to compensate the Complainant by supplying one K.V.A. Keycard Stabilizer worth about Rs. 6,000/- free. The computer hardware and the stabilizer were delivered on 23.7.1992. The Business Grips Software was delivered on 30.10.1992 and the Colour Kit on 9.12.1992 and they were accepted by the Complainant without protest. In the circumstances, the complainant cannot have any grievance and the complaint must fail.

Exhibits A-1 to A-8 and B-1 to B-13 are marked by consent. Proof affidavits are filed. No oral evidence has been let-in.

THE first contention advanced by the learned Counsel for the Opposite Party is that the Complainant is not a consumer within the meaning of Section 2(1)(d)(i) of the Consumer Protection Act as the computer system has been purchased for commercial purpose. Though his point has not been specifically raised in the counter statement, the Opposite Party was allowed advance argument on that matter. No doubt, the Complainant is a contractor registered with the Tamil Nadu Housing Board, the Madras Metropolitan Development Authority, the Highways Department and other Government and Quasi Government Department. But according to the Complainant he is also a consultant contractor by profession which involve preparation of precision designs and specification and he Purchased the personal computer system only for the purpose of his profession. We accept the contention of the Complainant and hold that the Complainant has purchased this computer system for the discharge of his professional work. THE question which now arises is whether a professional work is commercial in nature. As pointed-out in P. Ramanatha Aiyar Law Lexicon the term, "Commerce" comprehends intercourse for the purposes of trade in any and all its forms, including transportation, purchase, sale, and exchange of commodities between the citizens of one country and the citizens or subjects of other countries, and between the citizens of different provinces in the same State or Country. It is an exchange or mutual change of goods, wares, productions or property of any kind, between nations or individuals, either by barter or by purchase and sale; trade; traffic". (Webster Dictionary). THE definition of a profession is an employment, especially an employment requiring a learned education, as those of law and physic. (Worcest Dictionary). In the Century Dictionary, the definition of profession is given, among others, as a vocation in which a professional knowledge of some department of science or learning is used by its practical application to the affairs of others, either in advising, guiding, or teaching them, or in serving, their interest or welfare in the practice of an art founded on it. It follows that profession cannot be exuviated with commerce. Since the Complainant has purchased this computer system for his professional work, it cannot be said that he has purchased the system for a commercial purpose. It has been purchased only for the professional purpose and the Complainant is therefore a consumer within the meaning of Section 2(1)(d)(i) of the Consumer Protection Act. Assuming that the Complainant is not a consumer within the meaning of Section 2(1)(d)(i) of the Act, he will certainly be a consumer under Section 2(1)(d)(ii) of the Act in respect of the service rendered or to be rendered by the Opposite Party for the proper functioning of the computer system supplied by him during the period of warrantee which this sale carries as is seen from Exhibit A3(a). This is a view taken by the State Commission of Maharashtra in Padma Amrapurkar v. Williams & Co., I (1992) CPJ 150 and Viswa Jyothi Printers v. Mollings of India I (1992) CPJ 93. In Viswa Jyothi Printers v. Mollings of India and Mollings of India v. Vishwa Jyothi Printers I (1992) CPJ 167 (NC), the National Commission has observed as follows : "We would like to mention that the Appellant has stated that he was rendering free service for the maintenance of the machine for a period of one year under the warranty and as such in the absence of consideration, the Complainant was not a consumer and did not render any service as defined under the Consumer Protection Act. We do not accept this contention of the Appellant. The warranty was a part of the composite contract for the supply of printing machine and its maintenance for a period of one year. The consideration for service to be rendered under the warranty is obviously included in the sale price of the machine. In any case there cannot be an agreement including warranty without consideration. In other words, it is wrong to maintain that the warranty obligations were being rendered gratis."

As pointed-out this sale of the computer system carries with it a warranty for a period of one year and it is the duty of the Opposite Party to see it the proper working of the machinery during the period of warranty. Failure on the part of the Opposite Party to see that the system works satisfactorily amounts to deficiency of service for which it is liable. We therefore hold that the Complainant is a consumer both under Sections 2(1)(d)(i) and 2(1)(d)(ii) of the Consumer Protection Act and the Complaint is maintainable.

THE Complainant has purchased the personal computer system from the Opposite Party and paid a sum of Rs. 1,86,461/-under two cheques, one under Exhibit A2 for Rs. 1,47,461/- dated 17.6.92, and another under Exhibit A-2(a) for Rs. 39,000/- dated 17.6.1992. Exhibit A-3(a) quotation shows the delivery will be effected within three weeks. But the Opposite Party failed to deliver the system in time. On enquiry made by the Complainant, the Opposite Party has written Exhibit A-4 letlter dated 29.6.1992 apologizing for the delay in delivery was due to non-availability of certain essential components and promising to effect delivery by the first week of July 1992. THEre has been discussion between the parties immediately thereafter and Exhibit A-5 is the letter of the Opposite Party dated 30"6.1992 agreeing to return the amount on or before 25.7.1992. THE Opposite Party has again failed to repay the amount as promised Under Exhibit A-5. Consequently the Complainant has issued Exhibit A-6 notice through Advocate on 1.7.1992. After receipt of this notice, the Opposite Party has delivered part of the computer system to the Complainant and Point Line Cad under Exhibits B-6 and B-7 invoices dated 21.7.1992 and they have been delivered to the Complainant''s representative under Exhibits B-10 and B-11 delivery challan. What has been delivered under Exhibits B-10 to B-11 do not constitute the entire computer system. THE Business Grip Codeless Software Package was delivered to the Complainant as per Exhibit B-8 invoices dated 30.10.1992 under Exhibit B-13 delivery challan and the Colour Kit as per Exhibit B-9 invoices dated 9.12.1992 was delivered to the Complainant under Exhibit B-12 delivery challan. THE Complainant denies flatly having received these two parts viz., the Business Grip Codeless Software Package and the Colour Kit. Exhibits B-12 and B-13 under which they are said to have been delivered to the Complainant are not signed by the Complainant or his representative. If they had really been delivered to the Complainant, the Opposite Parties could not have failed to obtain the signature from the Complainant or his representative in Exhibit B-12 or Exhibit B-13. THE conclusion is therefore irresistible that these two vital parts have not been delivered to the Complainant and consequently the computer system supplied by the Opposite Party could not be commissioned and is lying in-operative with the Complainant. THE Opposite Party has been supplied defective computer system and its failure to supply the necessary parts and commission the machine amounts also to grave deficiency of service and negligence. THE Complainant is now in the unenviable position of receiving part of the computer system without being able to operate the same. THE Opposite Party is therefore liable in damages to the Complainant. The Complainant is entitled to get back the money with interest at 18%. The Opposite Party is bound to refund the said amount at 18 % and take back the systems supplied under Exhibits B-10 and B-11 delivery challans. The Complainant is also entitled to compensation for mental pain and agony which we estimate at Rs. 25,000/-. In the result, we order as follows : (a) The Opposite Party shall pay to the Complainant the sum of Rs. 1,86,461/- with interest thereon at 18% from 17.6.1992 till repayment and take back the machineries supplied under Exhibits B-10 and B-11 delivery challans. (b) The Opposite Party shall pay a sum of Rs. 25,000/- as damages to the Complainant, (c) The Opposite Party shall also pay Rs. 2,000/- as costs to the Complainant.

Complaint allowed with costs.