RABA CONTEL PVT. LTD. vs PRINTER

THIS is an appeal against the order of 8th October, 1992 passed by the State Commission of Uttar Pradesh at Lucknow in Case No. 75/SC/90.

THE State Commission has found in favour of the Complainant and directed the Opposite Party No.1 (appellant herein) to comply with its commitments to the Complainant under its letter of 23.1.1990 and to pay a compensation of Rs. 25,000/-. I further directed that the defects in the equipment should also be removed by the opposite party by the specified date. The facts, as given in the order of the State Commission, briefly are that the Respondent/complainant M/s. Printek, Allahabad is a registered partnership firm, who purchased an Apple Disk Top Publishing Computer through M/s. Narain Enterprises, Allahabad who are the Agents of appellant M/s. Raba Contel Pvt. Ltd. New Delhi. The machine was to be imported from Hongkong. The machine was delivered at the appointed place on 7th September,1989. The machine, however, was found to be defective by the Complainant. The 40 MB Hard Disk was damaged and the suppliers agreed to change the machine which has, however, not been done nor the machine set right. It was also alleged that the machine was found to be defective when the same was received in Allahabad.

The State Commission held that the Appellant/Respondent had undertaken by its letter of 23rd June, 1990 to remove the defects in the machine.

THE goods in question are manufactured by the Opposite Party No. 4 in America and are supplied through the Opposite Party No. 3 located at Hongkong. Opposite Party No. 1 is the distributor of Opposite Party No. 4. who is the manufacturer in U.S.A. Opposite Party No. 1 is not the manufacturer of goods in question. Further, the purchase was made by the Complainant directly from the supplier, i.e., Opposite Party No. 3 in whose favour the Respondent/complainant opened a Letter of Credit. THE goods were insured against damage in transit and on arrival at Allahabad airport, the parcels were found to be damaged. THE Respondent Complainant, therefore, lodged a claim against the Insurance Company as also against Airlines for damage during transport of the goods. THE Opposite Party No. 1 declined its liability on the ground that the damage was caused in air while in transit. THEre was no negligence on its part. Also the Appellant was not the supplier & seller of goods and no cause of action could be maintained against it. It was responsible only for warranty transfer, for providing technical services including installation for which it received Rs. 72,000/- as consideration. In short the Appellant was to install the computer in working condition at Allahabad. It is not necessary to go into the facts of the case further. There is no dispute that the goods were damaged before delivery but the goods were purchased by the Opposite Party No. 1 for commercial purpose.

THE question to be considered is whether Opposite Party No. 1 M/s. Printer is a comercial concern not. THEy have filed the Income Tax assessment orders for the years 1991-92,1992-93 and 1993-94 which all disclose a loss. THE balance sheet for the year ending 31st March, 1993 shows the fixed assets at Rs. 2.71 lakhs; the expenditure in the Profit & Loss A/c. for the year ending 31st March, 1993 amounts to Rs. 5.22 lakhs and printing receipts Rs. 5.13 lakhs. It is evident from the above data that the Opposite Parties No. 1 is a commercial concern and its proprietor is not engaged in running the industry for the purpose of making a living only but its carrying on large scale business activity for earning profits. This question was raised before the State Commission but was not considered by the State Commission in its order. It is established beyond doubt that the complainant-opposite party is a commercial concern and it had purchased the equipment in question for commercial purpose and as such it is not a ''consumer'' as per the Consumer Protection Act. Therefore, it has to seek redress for its grievance not from a Consumer Forum but from but from a Civil Court if it is so advised. The appeal is, therefore, allowed and the order of the State Commission is set aside. There is no order as to costs. Appeal allowed with costs.