DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II

U.T. CHANDIGARH

[Complaint Case No: 485 of 2011]

Punjab Small Industries & Export Corporation Ltd., having its registered office at Udyog Bhawan, Sector 17-A, Chandigarh through Sh. Mohinder Pal, its Section Officer  (Legal) and duly authorised representative.

                                                                   ---Complainant.

Versus

1.                 M/s Accord Computech (Pvt.) Ltd. through its Managing Director, SCO No.44, Ground Floor, Sector 20-C, Chandigarh

2.                 M/s Hewlett Packard India Sales (Pvt.) Ltd., 24, Salarpuria Arena, Adugodi, Hosur Road, Bangalore-560030.

---Opposite Parties.

BEFORE:  SHRI LAKSHMAN SHARMA                 PRESIDENT

                   SMT. MADHU MUTNEJA                       MEMBER

                   SHRI JASWINDER SINGH SIDHU       MEMBER

Argued by: Sh. Vaneesh Khanna, Advocate for the complainant.

                   OP-1 already exparte

                   Sh. Vipul Dharmani, Advocate for the OP-2

PER LAKSHMAN SHARMA, PRESIDENT

1.                           Punjab Small Industries & Export Corporation Ltd. has filed this complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter referred to as the Act only) praying for the following relief against the opposite parties :-

“It is, therefore, prayed that the OPs be directed to replace the defective fax machines, with properly working fax machines, or in the alternative, the OPs be directed to refund the cost of the machines, alongwith 12% p.a. interest.  The OPs be further directed to pay a sum of Rs.50,000/- on account of compensation and litigation expenses.”

2.                           In brief, the case of the complainant is that it purchased two Office Jet 4500 fax machines from opposite party No.1, for a sum of Rs.15,000/- vide invoice dated 25.10.2010.  The said fax machines were manufactured by opposite party No.2 and were having one year onsite replacement warranty.  It has been pleaded that the aforesaid fax machines did not work properly since purchase.  The defect could not be rectified despite the fact that the said machines were repaired by the authorised Service Centre of the opposite party.  Ultimately opposite party No.2 replaced the fax machines with new one but the said replaced (new) fax machine also did not work. So, the complainant again approached the opposite parties, but to no effect. Subsequently the complainant also sent a legal notice dated 19.9.2011 to opposite party No.1 seeking either the replacement of the defective machines or for refund of the cost of the machine with interest, but to no avail. 

                    According to the complainant, the failure of the opposite parties to either replace the defective machines or to refund their amount alongwith interest, amounts to deficiency in service and unfair trade practice.  In such circumstances the present complaint has been filed. 

3.                           Opposite party No.1, was duly served but as none appeared on its behalf, hence it was proceeded against exparte.

4.                           Opposite party No.2 in its written reply, at the outset, took some preliminary objections inter alia that the complainant has suppressed material facts; that the complainant is not a consumer; that the complainant has failed to produce any expert opinion etc.  On merits it has been stated that in response to the complaint lodged by the complainant with Nexgen (the authorised Centre of opposite party), the all in one printer was replaced on 10.2.2011.  It has been denied that opposite party No.1 is its authorised dealer or that there was any manufacturing defect in the printer.  According to it, there was no deficiency in service on its part and the complaint deserves dismissal.

5.                           We have heard the learned counsel for the contesting parties and have gone through the documents on record.

6.                           It was vehemently argued by the Counsel for the opposite parties that the complaint deserves dismissal on the ground that the complainant is not a ‘consumer’ as per Section 2(1)(d) of the Act.  It was further argued that the complainant is a Corporation which is working to earn profits.  The fax machines in question were purchased by complainant for commercial activity and, therefore, the complainant is not a ‘consumer’ as defined under the Act.  In support of his contention, the learned Counsel has cited Laxmi Engineering Works Vs. P.S.G. Industrial Institute-1995 AIR (SC) 1428 and Birla Technologies Ltd. Vs. Neutral Glass and Allied Industries Ltd.-2011 (1) SCC 525.

7.                           On the other hand, it was argued by the learned counsel for the complainant that the said machines were required for its day-to-day working.

8.                           Section 2(1)(d) of the Act reads as under :-

“(d)    "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 who 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; or

(ii)     hires or avails of any services 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 beneficiary of such services other than the person who hires or avails of the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person but does not include a person who avails of such services for any commercial purposes;

Explanation.— For the purposes of this clause, “commercial purpose” does not include use by a person of goods bought and used by him and services availed by him exclusively for the purposes of earning his livelihood by means of self-employment;” 

9.                           Admittedly, the complainant is a Corporation and is working for earning profits.  The fax machines were purchased by the said Corporation for better management of its business and to bring efficiency in its business.  So, the said machines were not purchased for use by itself exclusively for the purpose of earning livelihood by means of self-employment.  In these circumstances, the said machines were purchased for commercial purpose, hence the complainant is not a ‘consumer’ in view of Section 2(1)(d) of the Act and, thus, the complaint is not maintainable.

10.                       In view of the above discussion, the present complaint is dismissed, being not maintainable.  The parties are left to bear their own costs.

11.                       Certified copy of this order be communicated to the parties, free of charge. After compliance file be consigned to record room.

Announced

26.7.2012.

Sd/-

(LAKSHMAN SHARMA)

PRESIDENT

(MADHU MUTNEJA)

MEMBER

Sd/-

(JASWINDER SINGH SIDHU)

MEMBER