BEFORE THE CONSUMER DISPUTES REDRESSAL FORUM, ERNAKULAM.
Dated this the 21st day of August 2014
Filed on : 12/10/2012
PRESENT:
Shri. A. Rajesh, President.
Shri. Sheen Jose, Member.
Smt. Beena Kumari V.K. Member.
CC. 642/2012
Between
Muhammad Ali, : Complainant
S/o. Jalaludheen Kunhi, (By Adv. James Abraham,
Proprietor, Nisa Traval Agency , Manjooran building, Opp. Income
Nisa Tower,C.P. Ummar road, Tax office, I.S. Press Road,
Near Ambedkar Stadium, Kochi-18)
Ernakulam.
And
Renjith, : Opposite party
Chief Executive Officer, (By Adv. Harish Gopinath,
Net BIOS Technologies (P) Ltd., “Srivatha” 61/335, Judges Avenue,
XXVIII/478A, First floor, Kaloor, Kochi-17)
Koonamthai, Edappally P.O.,
Cochin-682 024.
O R D E R
A. Rajesh, President.
This complaint has been filed by the complainant claiming refund of Rs. 40,000/- with interest which he had paid to the opposite party to develop a web based attestation management software namely “administrator login, office login, agent login, manager login and customer tracking (website)”. According to the complainant, the opposite party
agreed to complete the task within 45 working days, in which he failed and so he is entitled to get refund of the amount with interest.
2. The complainant was examined as PW1 and Exbts. A1 to A5 were marked on the side of the complainant. Exbt. B1 was marked on the part of the opposite party. At this juncture the opposite party raised the question of maintainability of this complaint in this Forum. The opposite party maintains that the complainant availed the service of the opposite party for developing web-based software for commercial purpose of the
complainant. According to the opposite party the complainant is the proprietor of Nisa Travel Agency having its Head Office at Delhi and having branches at various places.
3. Learned counsel for the complainant contended that the complainant has availed the service of the opposite party and there is deficiency in service on the part of the opposite party in completing the web site in time. The learned counsel for the opposite party vehemently contended that the complainant has availed the service of the opposite party for commercial purpose and so he is not a consumer within the purview of the Consumer Protection Act. The learned counsel for the opposite party relied on the following decisions rendered by the Higher Judiciary.
i. National Seeds Corporation Ltd. Vs. M. Madhusudhanan Reddy &
Anr (2012) 2 SCC 506.
ii. Birla Technologies Ltd. Vs. Natural Glass and Allied Industries Ltd.
2011 (1) CPR 1 (SC)
iii. Pahuja Takii Seed Ltd. Vs. Harihar Estate and Another FA No.
57/2008 HP State Commission.
4. Admittedly the complainant is the proprietor of Nisa Travel Agency which is having 10 branches all over India. Indisputably the complainant has availed the service of the opposite party for commercial purpose.
The complainant has nowhere pleaded in the complaint that the business is being conducted as self employment for livelihood. Nor has it been alleged that the service provided by the opposite party was being availed of exclusively for the purpose of livelihood by means of self employment by the complainant. This view stands fortified by the decision of the Hon’ble Appex Court in Economic Transport Organisation Vs. Charan Spinning Mills Pvt. Ltd. and another 2010 CPR (SC) (CP) 379.
5. Further, the decision rendered by the Hon’ble Apex Court in Birla technologies Ltd., Vs. Neutral Glass and Allied Industries Ltd. (Supra) squarely applies to the facts of the case on hand.
6. In view of the above we have no hesitation to hold that the complainant is not a consumer within the ambit of the Consumer Protection Act and his remedy lies else where. The complainant is directed to receive back the complaint and related documents to submit before the appropriate authority, if so advised.
Pronounced in the open Forum on this the 21st day of August 2014.
Sd/-
A. Rajesh, President.
Sd/-
Sheen Jose, Member.
Sd/-
Beena Kumari V.K., Member.
Forwarded/By Order,
Senior Superintendent.
Appendix
Complainant’s exhibits :
Ext. A1 : Copy of terms and conditions
A2 : Copy of cheque dt. 23-03-2011
A3 : Copy of letter dt. 23-03-2011
A4 : Copy of letter dt. 05-06-2012
A5 : Copy of A.D. card
Opposite party’s exhibits :
Ext. B1 : Copy of brochure
Depositions:
PW1 : Muhammedali
