JUDGEMENT By Sri. Gururaj Member:- This is a complaint filed U/s. 12 of Consumer Protection Act by the complainant- Sri. Dr. B. Mahalinga, Managing Trustee of complainant Institutions against the Opposite Parties (1) M/s. ADS Computers, Raichur and (2) M/s. Birla-Tech Pune, The brief facts of the complaint are as under: The complainant was in requirement of computers system and soft-ware to support medical/hospital institutions and accordingly the complainant contacted the Op-1 and offered to sell two PC/s, 3 numbers of UPS, Printers, Cable etc., and also Hospital Management Software for 50 beds and accordingly the Op-1 issued a quotation on 03-11-06 for Rs. 1,76,800/-. After receiving the quotation issued by Op-1 the complainant requested the OP-1 for the supply of the goods quoted by Op-1 at reduced prices and it was finalized for Rs. 1,65,000/- on 15-11-06 and the said Op-1 agreed to supply the same at the earliest and as per promise and request of the Op-1 the complainant paid an amount of Rs. 50,000/- to Op-1 as advance and remaining amount of Rs. 55,000/- was also paid to Op-1 on 30-11-06. It is the case of the complainant that after receipt of the amount as stated above amounting to Rs. 1,05,000/- the Op-1 brought two PCs and other materials to the complainant hospital and requested further payment for bring the Hospital Management Soft-ware and accordingly the complainant paid further amount of Rs. 30,000/- to the Op-1 on 05-12-06. The Op-1 brought the Birla Medi Soft Hospital Management Soft- ware developed by Op-2 bearing Sl.No. 06131590227767 to complainant hospital on 25-12-06 and told to the complainant that the technical person for installing the software will be coming in next few days and collected the balance amount of Rs. 30,000/-. It is further case of the complainant that even after period of one week the Op-1 did not turned up and as such complainant called the Op-1 but Op-1 again sought for time stating that the engineer has not come and promised that he will attend the work within 2-3 days. After the said promise the Op-1 failed to bring the technical person to get the Hospital Management Software install in the complainant premises in-spite of several demands. At last the complainant fed up by attitude of the Op-1 searched for a technical hand and got the hospital management soft ware installed but it could not function properly and is mal-functioning and due to which the complainant tried to communicate the difficulties with the Op-2 and when they were contacted over phone the Op-2 asked to contact the Op-1 and dis-connected the call. It is further case of the complainant that due to all these factors the complainant is wholly depressed by the acts of Ops, conduct, attitude and as such the complainant demanded for the invoice, receipts etc., for his records. The Op-1 has given irrelevant invoice and receipts which do not match with the date, amount etc., Further the complainant contended that prior to issuance of quotation by Op-1 on 01-12-06 the complainant had no contact with Op-1 in any manner and this being the case the Op-1 has issued the invoice dt. 25-11-06 by anti-dating the invoice by creating forged and fabricating invoice and further has issued receipts for Rs. 1,90,000/- when the complainant has paid to Op-1 only Rs. 1,65,000/- as stated above and the receipts issued by Op-1 are not resembling with the date of the payment made by the complainant and they are all created by Op-1. These are all clearly shows that Op-1 is in the habit of creating false and fabricated documents and records. Thus, the Op-1 has not only committed fraud upon the complainant but also upon the government exchequer and taxing authorities. For this reason complainant got issued the legal notice against the Ops on 12-05-08 and same came to be served upon the Op-1 and the Op-2 has refused the service of the same. But in-spite of the issuance of legal notice the Ops have not cared to have the soft-ware properly installed and as such same has resulted for the complainant for approaching this Honble Forum. Further the complainant has contended that the act of the Ops is crystal clear about the corrupt and un-lawful trade practice being adopted by them, hence for all these reasons the complainant needs to be suitably compensated with an amount of Rs. 50,000/- for the in-convenience caused, monetary and other losses suffered and further prayed this Forum to issue a direction against the Ops to properly install the hospital management software and see that it functions properly as promised and the complainant has also prayed interest over the sale price of Rs. 1,65,000/- since from the date of payment @ of 18% p.a. and entire cost of the litigation. 2. The Op-1 appeared through his counsel and has filed his written version: The Op-2 remained absent and placed Ex-parte. The Op-1 in his written version has contended that according to the complainant it is running a Multi-beded Hospital and is providing treatment facilities for variety of deceases and ailments of patients and employed number of male & female nurses and other para-medical, staff and provides services of various doctors to the patients. It has both in-patient and out-patient wards and these facilities are provided on costs/charges and it has been equipped with modern medical gadgetries and machineries for taking x-ray, scanning facility, labs for pathology diagnosis etc., it is a commercial undertaking therefore the purchase of computer hardware and software developed by Op-2 is for its commercial use in the hospital and it being purchased for commercial use. The complainant cannot be a consumer as understood in the C.P. Act U/s. 2 (1) (d) (i). Hence the complaint is not maintainable and it is fit to be dismissed. Further contended that as contended by the complainant the Op-1 has supplied machineries and soft-wares of an worth of Rs. 1,65,000/- on 25-12-06 itself as per the order placed by the complainant and further contended that the soft ware developers were Op-2 and they alone can rectify any defects etc., in it and none else because the manufacturer has the soft ware CODE with him only and without the CODE nothing can be done by any others. The complainant has purchased the machineries and soft ware only after being satisfied about its future in demonstration given earlier to purchasing the same hence complainant claims and contention regarding soft ware is not functioning properly and mal-functioning or baseless and un-acceptable one. It is only an after thought alleged to create a base for the case put up. The Op-1 has further contended that the installation by authorized company engineer is very essential the complainant has taken a uni-lateral decision to get the soft ware install through some other agency without waiting for the arrival of company engineer. Therefore the complainant has last rights to complain about mal-functioning of the machineries purchased by him. Hence the complaint is fit to be dismissed. It is the case of the Op-1 that the purchase of machineries was completed on 25-12-06 when the goods were delivered to the complainant, the warranty period of one year expired by December-2007. Therefore the complaint in July-2008 is barred by limitation. The Op further contented that the complainant has not given the date of getting the machineries installed through other agency and the date when he noticed improper and mal-functioning of the machineries which is very essential. If the complainant got it installed even by the month of January-07 then also the complaint is belated and cannot be said to be bonafide one. The Op-1 further contended that the cash receipts were issued by him only on the insistence of complainant as he has requested to be produced before the bank where finance is sought and at his instance only the dates on cash receipts were put in good-faith as told by the complainant. The fact that the complainant has made payment of Rs. 1,65,000/- and if the amount mentioned in receipts i.e, in document in Sl.No. 4 to 10 are added the total comes to Rs. 2,20,000/- this proves that the contention of the Op-1 has issued the receipts were on the request of the complainant only. Therefore the allegations made in this regard are false. The Op-1 further contended that he is not manufacturer of the goods the claim based on allegations of deficiency of service against Op-1 is liable to be dismissed. As the complainant purchased the machineries and soft- ware being fully satisfied with the functioning of system and also about the results and usefulness of the software for use in the hospital after watching the demonstration given to the complainant, is estopped from complaining about its functioning and use-fulness for the requirements of his hospital. Therefore the complaint of the complainant is fit to be dismissed with cost. 3. During the course of enquiry the complainant has filed his sworn-affidavit by way of examination-in-chief In-rebuttal one Sri. Mohd. Asim Farooq, Raichur, has filed his sworn affidavit by way of examination-in-chief on behalf of Op-1. Op-2 remained absent and placed Ex-parte. Hence no evidence by the Op-2. On behalf of complainant (14) documents were got marked as Ex.P-1 to Ex.P-14. Similarly on behalf of the Op-1 no documents were filed. Hence no documents were marked on his behalf. 4. On behalf of the complainant written arguments has been filed perused the written arguments of the complainant and apart from that oral argument is also submitted. Heard the arguments of both sides and perused the records. The following points arise for our consideration and determination: 1. Whether the complainant proves corrupt and unfair trade practice by the Ops, as alleged.? 2. Whether the complainant is entitled for the reliefs sought for.? 5. Our finding on the above points are as under:- 1. In the Negative. 2. As per final order for the following REASONS POINT NO.1:- 6. The complainant has produced in all (14) documents at Ex.P-1 to Ex.P-14. Ex.P-1 is the Quotation Form from Op-1. Ex.P-2 Cash Paid to the Op-1 by the complainant. Ex.p-3 is the Tax Invoice. Ex.P-4 to Ex.P10 are the Cash Receipts. Ex.P-11 is the Office Copy of Legal Demand Notice. Ex.P-12 (1) & Ex.P-12(2) are the Postal Receipts. Ex.P-13 is the Postal acknowledgement. Ex.P-14 Proposal submitted by Op-1. 7. There is no dispute that complainant has purchased two PCs three numbers of UPS, printer, Cable etc., from OP-1 for Rs. 1,65,000/- and the Op-1 has supplied the materials to the complainant and in-turn received the consideration amount of Rs. 1,65,000/- from the complainant. The Op-1 in his written version contended that the complainant is running a Multi-beded Hospital for providing treatment facilities for variety of diseases and ailments of patients. Further he contended that the complainant has employed number of male & female nurses and other para medical staff and provides services of various doctors to the patients. The complainant hospital has both in-patient and out-patient wards these facilities are provided on cost/charges and it has been equipped with modern gadgetries and machineries for taking x-ray scanning labs for pathology diagnosis etc., therefore it is a commercial undertaking hence purchase of computer, hardware and software and other materials developed by Op-2, being purchased, for commercial use the complainant cannot be a consumer as per section 2 (1) (d) (i) of the C.P. Act. Further it is contended that the Op-2 is alone can rectify the defects if any because the developers has the soft ware CODE and nothing can be done by any other. However at the time of purchase of the PCs and soft ware he has demonstrated to the complainant and after being satisfied by the complainant he has sold the materials, hence claim and contention of the complainant are all after thoughts. The Op-2 Engineer are the proper persons to install the software but without waiting for the arrival of Op-2 Engineers, the complainant has taken unilateral decision to get the software installed through some other agency, hence the complainant has lost his rights to complain about non functioning or mal-functioning of the machineries purchased by the complainant. It is also the case of the Op that the goods were delivered on 25-12-06. The warranty period of one year expired by December-2007 hence the complaint is barred by limitation due to expiry of the warranty period. It is also the case of the Op-1 that the complainant has not given the date on which he has got installed the machineries through the other agencies and when he noticed about improper and mal-functioning of the machineries. 8. From the close perusal of the complaint of the complainant and documents filed by the complainant more particularly Ex.P-1 quotation issued by Op-1 it is very clear that the complainant has purchased the materials from the Op-1 under Ex.P-1 for the purposes 50 of bedded hospital run by him and these materials are equipped with modern medical gadgetries and machineries for taking x-ray, scanning facility, lab for pathology diagnosis etc., for the in & out patient of the hospital on cost / charges and to provide services of the various doctors and other Para medical staff to the patient as contended by Op-1. This itself would goes to show that the complainant has purchased the materials with a view to using such materials for carrying on medical business at a large scale for the purposes of earning profit, therefore we feel that the complainant will not be a consumer within the meaning of section (2) (d) (i) of C.P. Act. Similarly no where in the complaint the complainant has mentioned that he is using the materials purchased by the OP-1, for his own use or same have been purchased in-order to earn his livelihood. On the contrary Para- 1 of the complaint itself clearly speaks that the materials purchased are in need for medical/hospital purpose. So under these circumstances the purchase of materials by the complainant is nothing but a commercial purpose hence under this meaning also the complainant will not be a consumer as stated above. 9. Further, from the perusal of the complaint we do not find any reasons to believe that the claim of the complainant is within the warranty period as contended by the Op-1. Because no where in the complaint the complainant has stated as to on what date he has installed the soft ware by the other agencies and when he has noticed his alleged problems with the systems, though the Op-1 has strongly contended this point in his written version. The complainant even has not whispered the same in his evidence or placed any documents in order to over come the contention of Op-1 in his written version. Added to it the complainant has not even made any efforts to show the warranty period which was incumbent on him to produce the same to show the warranty period. Hence the complainant has utterly failed to prove that his claim is within the period of warranty, so as to hold that, he is consumer though he has purchased the articles for the purpose of commercial use. 10. The Op-1 in his written version contended that the complainant has got installed the instrument with the help of other than the agency of Op-2 who is developers of materials supplied by Op-1, we find some substance in this contention because admittedly Op-2 is the developers and Op-1 is supplier of products produced / developed by Op-2. Naturally the Op-2 being the master of his products the CODE Numbers and other technical things, are with the Op-2 itself. The Engineers of Op-2 are the competent persons to install the software purchased by the complainant. But without waiting for the arrival of the Engineers of Op-2, the complainant has got installed the soft wares by other agency. This act of the complainant itself clearly goes to show that he has lost his right to claim against the Ops as contended by the Op No.1. Of curse the complainant has stated in his complaint that he has made efforts to call the Ops to install the softwares but in order to prove this contentions the complainant has not produced any evidence to show that he has made efforts to call the Ops to install the software. In the absence of any evidence in this regard we cannot hold that the complainant is fair enough in his efforts. Hence this contention of the complainant cannot be accepted. 11. The Learned Counsel for complainant has relied upon the following Rulings reported in (1) I (2006) CPJ 196 of Honble State Commission of Karnataka in Hubli Diagnostic Medi Care & Research Center Private Ltd., V/s. E. MERCKINDIA Ltd., & Others (2) I (2006) CPJ 369 of Honble Gujrath State Commission Ahemadabad in Mahindra & Mahindra Ltd., & Ors. V/s. Morwal Brother Pvt. Ltd., (3) IV (2005) CPJ 206 (NC) of Honble National Commission in Dr. Vijay Prakasha Goel V/s. The Net Work Ltd., (4) IV (2005) CPJ 74 (NC) of Honble National Commission, in Punjab Tractors Ltd., V/s. Hamamsingh & Another Case, (5) IV (2006) CPJ 375 (NC) of Honble National Commission in Pearliteliners Ltd., V/s. Thermo Jarrell Ash Corporatio & Another., (6) IV (2006) CPJ 172 (NC) of Honble National Commission in Polymech plast machines Ltd., & Another V/s. Apple plast Private Ltd., (7) II (2003) CPJ 128 of Honble State Commission in Jammu & Kashmir State Jammu in Anilkumar Gupta V/s. Managing Director Turning Point Computer Education Center Private Ltd., and (8) II (2003) CPJ 50 of Honble Andhra Pradesh State Commission Hyderabad, in Steel City Securities Limited V/s. Innovative Information Technology & Others. 12. From the perusal of the above cited rulings it is very clear that the period of warranty is a must in order to hold that the complainant is consumer though he has purchased the articles for the purposes of commercial use. The case of the complainant is lacking with the period of warranty. Under these circumstances the rulings cited by the complainant are going against the complainant rather than supporting his case, Hence the above said rulings are not help-full to him. The Op-1 in support of his case has relied upon the decision laid down in Kalparuksha Charitable Trust V/s. Toshniwal Brothers (Bombay) Private ltd., reported in 2000 NCJ (SC) 1 : 1999 (10) SRJ 195. We have considered this ruling which is clearly in favor of the case of the Op-1. 12. Under these circumstances we hold that the complainant has failed to prove his case against the Ops. So we do not find any reasons to hold that the Ops have made any unfair trade practice as contended by the complainant. Hence Point No-1 is answered in the Negative. POINT NO.2:- 12. In view of our discussion and findings on Point NO-1, holding that the complainant has failed to prove unfair trade practice by the Ops so he is not entitled for reliefs sought for. In the result we pass the following order: ORDER The complaint of the complainant being devoid of merits is hereby dismissed. No order as to cost. Office to furnish certified copy of this order to both the parties forth with free of cost. (Dictated to the Stenographer, typed, corrected and then pronounced in the open Forum on 30-04-09) Sd/- Sri. N.H. Savalagi, President, District Forum-Raichur. Sd/- Sri. Gururaj, Member, District Forum-Raichur. Sd/- Smt.Pratibha Rani Hiremath, Member. District Forum-Raichur.
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