TECHNOLOGIES PVT. LTD. vs D.THANIGAIYELAN

XTHIS appeal has been filed by the appellant Hummingbird Automation Technologies Pvt. Ltd. against the order of State Commission allowing the complaint against the appellant.

THE facts of the case are that the Complainant D. Thanigaivalan purchased a computer from the appellant against 100% payment by cheque for Rs. 1,32,000/-. Admittedly, there was short supply of colour monitor and certain other accessories while the computer was installed with the complainant. When after exchange of correspondence the complainant was not successful in getting the colour monitor and other accessories he approached the State Commission who after hearing both the parties directed the petitioner to refund the price of computer i.e. Rs. 1,32,000/- along with interest @ 15% from 14.11.1992 till the date of payment and cost of Rs. 1,500/-. It is against this order that the appellant has filed this appeal. It is argued by learned Counsel for the appellant that the complainant is not a "consumer" as the purchase was for a commercial purpose as the complainant is a Managing Partner of the firm i.e. a small scale industry. It was also stated by him that time was not the essence of the contract. The State Commission was not able to pin-point any negligence on the part of the appellant. There was no negligence on the part of the appellant as colour monitor was not forthcoming from the supplier, Sterling Computers Ltd. Having accepted the installation of the computer the complainant was estopped from raising any claim later on. The State Commission also erred in not directing the complainant to return the computer. The State Commission misread the ratio laid down by the Hon''ble Supreme Court in II (1995) CPJ 1 (SC). On the other hand, it was argued by the learned Counsel for the complainant that the order of the State Commission is as per law and is based on correct facts and law laid down on the subject. He had purchased the computer for self-employment purpose as part of a small scale industry. Failure of the complainant not to supply colour monitor is a deficiency in service. The appellant cannot get away from it. There is nothing wrong with the reasoned order of the State Commission which must be upheld. Appeal needs to be dismissed with costs.

After perusal of material on record and hearing the arguments of both the parties, we find that undisputed facts are that the Complainant runs a small scale industry as a partnership wherein the complainant and his wife are partners - the complainant being a Managing Partner. The complainant is an Engineering Graduate doing business in programming geometrical profiles with the help of one wire cut electric discharge machine which is imported equipment. Cost of the unit is Rs. 20 lakhs much within the definition of a small scale industry unit. It is also not disputed that the complainant placed an order for purchase of the given computer which was also installed on 14.11.1992 in the basement of respondent''s residence as also the fact that at the time of installation, the colour monitor and certain other accessories were not provided with a promise to supply them soon. It is this inability of the appellant to supply the colour monitor which is the root cause of the dispute which led the complainant to ask back his money i.e. Rs. 1,32,000/- and other damages from the appellant and on not getting the same moving the State Consumer Commission. The main ground on which the complaint was opposed and in appeal, - the order of the State Commission is sought to be assailed is that the complainant is not a consumer as the purchase was for a commercial purpose i.e. for use in the factory of which the complainant is a Managing Partner. In our view two points are important. First, any small scale industry especially hi-tech industry may not be a commercial enterprises within the meaning of C.P.A. The explanation given in Section 2(1)(a) clearly exempts a commercial enterprises if it is for the purpose of earning his livelihood by means of self-employment. Secondly, in the affidavit filed by the complainant before the State Commission the complainant has clearly stated that the said computer was purchased by them for his exclusive use and for the purpose of earning his livelihood. Now there is no rebuttal to this statement on oath by the complainant. It is not possible for us to go along with the applicant to accept his plea that purchase was for commercial purpose just because purchase has been made by a Managing Partner. In our view, not only the appellant has completely misread the whole situation, he also failed to rebut the statement of the complainant, on oath that the computer was purchased to earn his livelihood, he is also trying to lead us astray by continuously harping on one point that the complainanat is not a consumer in the vain hope that we may fail for the argument. There is no material on record brought on by the appellant to support his contention. There is no proof that the computer is not being used exclusively by the complainant, there is no proof that his unit is engaging a large number of employees. By merely stating that he is registered for Central and Sales Tax, does not make him a commercial enterprise within the meaning of CPA. Earning livelihood is also a commercial enterprise. The measures necessary to differentiate whether it is a for commercial purpose within the meaning of CPA or not, the District Forum has taken pain to quote at length the discussion on the very issue by the Hon''ble Supreme Court in Laxmi Engineering Works v. P.S.C. Industrial Institute II (1995) CPJ 1 (SC). The test laid down is that the goods bought must be used by the buyer himself, by employing himself for earning his livelihood. Against the affidavit filed by the complainant in support of above test, nothing has been said to the contrary on affidavit that it was not being used exclusively by the complainant to earn his livelihood, albeit through a small scale unit. We have no doubt in our mind in accepting the complainant very much a consumer within the meaning of the CPA. We see no merits in other arguments like time is not the essence of the contract. It is amazing to hear such an argument. Having accepted the money in full and then not to supply the goods in exchange itself is a deficiency. It should have been given/installed in the first instance along with the computer. Computer was installed on 14.11.1992. Report of the Engineer is that ".... would shortly provide VGA Colour monitor". This shortly, cannot be extended endlessly. The doctrine of estoppel, sought to be invoked by the appellant does not help him at all. In good faith he accepts the installation on a written assurance by the Engineer of the appellant that "colour monitor" shall be provided shortly. The complainant waits for some time. It is only after that the complainant waits for some time. It is only after that the complainant asks the appellant, in January, 1993, calling upon him to either supply the colour monitor or to refund the amount. How does the installation of computer on qualified basis estop the complainant from raising his claim is not understandable. We see no merit in this contention. There is only one point on which we see merit on the arguments of the appellant and that relates to the silence in the State Commission''s order on the return of the computer. It cannot be the case of the complainant while he asks for refund he should also be permitted to keep the computer. Only to this extent the order of the State Commission is modified and appeal allowed that the complainant shall return the computer within seven days of receipt of the amount directed to be paid by the State Commission which must be done within a period of four weeks from the date of this order. The appellant shall also pay cost fixed at Rs. 3,000/- to the complainant. Appeal allowed.