PURSHOTTAM V.MOORJANI vs CHAIRMAN/MANAGING DIRECTOR MODI OLIVETTI LTD.

COMPLAINANT No. 1 is a Trustee and Secretary of "Jagrut Nagrik" a Public Trust registered under the Bombay Public Trust Act, Societies'' Registration Act and a voluntary association for consumer protection and providing help to consumers. COMPLAINANT No. 2, Pratik Gandhi, (COMPLAINANT for short) is proprietor of Laser Point carrying on business at Baroda and he is member of "Jagrut Nagrik". COMPLAINANT, with a view to earn his livelihood by engaging himself in doing computer graphic and pre-printing design work, placed order for machine called M 290 S PC/AT with 14" High Resolution colour monitor and PS/2 compatible Mouse with the opponent Modi Olivetti Limited, (Company for short), manufacturer of Computer DTP (Desk Top Publishing) system. Opponent No. 1 is the Chairman/Managing Director of the Company and Opponent No. 2 is the dealer of the Company at Vadodara. The order for the machine was placed with Opponent No. 2 by the COMPLAINANT. The total cost of the machine was Rs. 83,590/- which the COMPLAINANT paid in advance by demand draft dated April 15, 1991 by taking loan from a Co-operative Bank. According to the COMPLAINANT, Opponent No. 2 had assured him to deliver the machine within 15 days although the stipulated delivery period was of 30 days. The machine was expected to be delivered on or before May 14, 1991. The machine was, however, delivered on May 27, 1991 after repeated long distance telephonic talks and correspondence. It is submitted that as per the order placed by the COMPLAINANT, the Company was required to deliver the complete computer system including PS/2 Mouse which formed important operating tool of the system. However, at the time of delivery and installation of the machine on May 26, 1991, the Company had failed to supply (1) PS/2 compactible Mouse; and (2) reference and technical manual, which according to the COMPLAINANT were essential to make the system complete and operative. The machine, therefore, remained inoperative for desk top publishing house. It was further found that the computer system supplied by the Company was defective because its key board was not properly working and looking old. The COMPLAINANT had accepted initial work orders from Government and various other business organisations for executing DTP and creative graphic works through the said machine or system. He was, however, not able to execute the orders because the company supplied defective and incomplete system. According to the COMPLAINANT, defects in the machine have not been removed inspite of several requests made to the Company. PS/2 Mouse was also installed after a long delay on August 10, 1991. It is alleged that the machine is not functioning properly on account of the defects and old key board. On the above grounds, the COMPLAINANT has prayed for total compensation of Rs. 7,11,044/- together with interest @ 24% p.a. as per the details given in the complaint. In addition to this compensation, the COMPLAINANT has also prayed for legal expenses of Rs. 5,000/- and compensation of Rs. 5,000/- towards cost of conveyance and miscellaneous expenses.

THE Opponents have filed written statement Exh. 8 contesting the complaint. One of the contentions raised by them is that the Complainant is not a consumer as defined in Section 2 (1)(d)(i) of the Consumer Protection Act inasmuch as the machine which in the subject matter of the complaint was purchased for commercial purpose. Since, in our opinion, the Opponent must succeed on this ground, we do not consider it necessary to set out other contentions raised by the Opponents in their written statement. Relevant portion of Sction 2 (1)(d) which defines consumer reads as follows: "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 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 commercial purpose; (ii) xxxxxxxxx Explanation: For the purposes 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 may be mentioned here that explanation was inserted by Consumer Protection (Amendment) Act, 1993 with effect from June 18, 1993. It is contended on behalf of the Company and the Opponents that since the machine was purchased by the Complainant for commercial purpose, he would not be covered by definition of "consumer". On the other hand, it is contended on behalf of the Complainant that since the Complainant had purchased the machine for the purpose of livelihood by engaging himself by doing computer graphics and pre-printing designing work, it could not be said that the machine was purchased by him for "commercial purpose". Now, it appears that before filing the complaint "Jagrut Nagrik" whose member the Complainant is, had given notice Exh. 61, dated April 8, 1992 to Opponent No. 1. In that notice it is nowhere stated that Complainant had purchased machine to earn his livelihood. If we refer to the correspondence which has been produced by the Complainants, there is no doubt that the machine which the Complainants had purchased was for "commercial purpose". The relevant extracts from the correspondence has been reproduced in the opponent''s reply/written statement Exh. 8. Laser Point is proprietory concern of the Complainant. However, most of the correspondence on which the Complainant is relying is between Pratik Index Private Limited (Pratik for short) and the Company or the Opponents. Pratik is a private limited company in which the Complainant''s father I.G. Gandhi is the Managing Director. We do not know who else is member or shareholder in Pratik besides I.G. Gandhi. We, therefore, do not know whether the Complainant is a member or shareholder in the said Company. In letter Exh. 21, dated May 11, 1991, addressed to the Vice President of the Company by Pratik it is stated that Laser Point on whose behalf the letter was addressed were their associates. In letter Exh. 42, dated October 5, 1991 addressed by Managing Director of Pratik to the Company, it is stated to the effect that offer made by the Vice-President was full of short sightedness and could not compensate them ("us") in any way, for the business loss inflicted on them. In letter dated December 5, 1991 addressed by Pratik to the Company, it is stated "if MOL cannot rise to the occasion, we think it would be most befitting for MOL to take back the entire system and refund the full cost thereof and compensate us for the expenses, business loss and last but not the least, for the mental torture inflicted upon in all these days since May 27, 1991". In the letter dated December 26, 1991 addressed by Pratik to Mrs. Madhu Singh of the Company. It is stated "In the meantime as discussed with Mr. Shashi Uttal during his visit to our office in October last, MOL must have worked out a compensation formula/package for the loss of business due to non-utilisation of the system for the very purpose it was ordered". In the letter Exh. 57 dated February 11, 1992 addressed to the Company by Pratik, it is stated "had our problems been attended by MOL in the articulate meaning of OLISERVICE, on the most conservative estimate, we would have done business worth Rs. 30,000/- per month minimum. MOL is very well aware of the earning on this volume of business. We feel, we should not be considered "unreasonable" if we seek compensation from this angle of our earning, not business". In letter dated February 11, 1992 addressed to the Company by Pratik, it is stated "looking to the business (not simple DTP but. Graphics as our main stride), we are unable to generate, we cannot cope up with the existing two Apple Macintosh II and Mac SE systems. M290S would certainly have helped us, but looking to the 40 MBHD, which in our case could be consumed mostly by working Softwares like Windows, Microsoft Word, Pagemaker 4.0, Corel Draw, etc. we felt, we should think of a 386 model with a high HD space". In the notice given by "Jagrut Nagrik" on behalf of the Complainant referred to above in Claim No. 4 on account of loss of business it is stated as follows: "That if the system of proper quality as required by our member was supplied by you within the assured as well as stipulated delivery period, our member would have secured and continued to secure business and would have earned reasonable profit from same. But as stated in the foregoing para and on account of a totally defective system supplied by you which till date remained inoperative, our member suffered and continue to suffer business loss i.e., net earning out of business comes to Rs. 1,35,000/- which is required to be compensated by you."

It would thus appear from the correspondence referred to above that Laser Point was a sister concern or associate of Pratik. The Complainant had purchased the machine for a new business or expanding the business which was already carried on by Pratik. It is, therefore, obvious that the Complainant had purchased machine from the Company for commercial purpose. Statement made in the complaint that the Complainant had purchased the machine to earn his livelihood by engaging himself in doing computer graphics and pre-printing designing work appears to be an afterthought. This statement has been made only to show that the machine was not purchased for commercial purpose and to bring the case within the jurisdiction of this Commission. Considering all the facts and circumstances of the case, we are not inclined to believe that the Complainant had purchased the machine to earn his livelihood as stated in the complaint. As already observed above, the machine was purchased for commercial purpose. The Complainant would, therefore, not be a consumer "within the meaning of Section 2(1)(d) of the Consumer Protection Act". This complaint, therefore, deserves to be dismissed. In the view which we are taking, we do not consider it necessary to go into merits of other questions which are raised in the complaint.

IN the result, this complaint is dismissed. The Complainant shall pay Rs. 500/- by way of cost to the Opponents in one set. Complaint dismissed with cost.