Delhi

North East

CC/282/2017

Sh. Surender Kumar Sharma - Complainant(s)

Versus

M/S Goodwill Computers Ors. - Opp.Party(s)

05 Sep 2018

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM: NORTH-EAST

GOVT. OF NCT OF DELHI

D.C. OFFICE COMPLEX, BUNKAR VIHAR, NAND NAGRI, DELHI-93

 

Complaint Case No. 282/17

 

In the matter of:

 

	Surender Kumar Sharma H.No. 8/3, Shiv Mandir Marg, West Babarpur, Shahdara Delhi 110093	Complainant
	Versus
1       2         3	M/s. Goodwill Computers 1449/55, Street No. 06, Durga Puri, Shahdara, Delhi-110093   M/s. Regeneris India Pvt. Ltd. 10-A, Upper Ground Floor, Devika Tower, Nehru Place, Bldg. No. 6, New Delhi 110019   M/s. Dell India Pvt Ltd. Unit No. 259, 2nd Floor, The Great India Place, Ashok Marg, Sector 38, NOIDA, Uttar Pradesh 201301	Opposite Parties

 

DATE OF INSTITUTION:         JUDGMENT RESERVED ON:               DATE OF DECISION      :

11.09.2017 05.09.2018 05.09.2018

 

N.K. Sharma, President

Ms. Sonica Mehrotra, Member

Ravindra Shankar Nagar, Member

Order passed by Ms. Sonica Mehrotra, Member

 

 

 

ORDER

1. The grievance of the complainant as made out in the present complaint is that he had purchased a Dell Desktop 3647 bearing serial no. D73R9B2 manufactured by OP3 Company from its authorized dealer OP1 on 09.09.2016 vide invoice no. 325 for a sum of Rs. 35,000/- inclusive of vat. The said desktop was purchased by the complainant for commercial use to earn livelihood. The complainant has stated that initially the said desktop was working in good condition but since beginning of 2017, it started giving problems and hampering the work / purpose for which it was purchased. The complainant lodged a complaint with OP3 on 24.04.2017 about the malfunctioning of the said desktop when he was informed by the executive of OP3 that the warranty period for the said desktop was expiring on 27.04.2017 which shocked the complainant since he had purchased the said desktop on 09.09.2016 and was intimated by OP1 at the time of purchase that the warranty period shall last till 09.09.2017. The complainant contacted OP1 seller / authorized dealer who assured the complainant of warranty validity till 09.09.2017 but despite the assurance, the said desktop remained out of warranty for the period 27.04.2017 to 20.06.2017 due to negligence of OP1 and OP3 in recording the exact warranty period for which period no services were provided to the complainant by the OPs. The complainant has further submitted that even thereafter when the warranty period was updated in the records of the OP3 the unserved warranty period was not excluded by OP3 which shows the deficiency in service rendered by OP3 to its customers. The complainant alleged manufacturing defects in the said desktop since the same had been repaired and various parts therein replaced more than four times in just four months by OP2 (authorized service centre of OP3) but without any satisfactory result. The OP3 vide e-mail dated 20.07.2017 to the complainant informed the complainant of repair of the subject desktop as per Dell’s warranty terms and conditions and refused to provide a system replacement. In the said e-mail the OP3 sent the call logs of complaints made by the complainant to OP3 from 23.01.2017 to 16.06.2017 regarding system repair. The complainant wrote e-mail dated 25.07.2017 to OP1 and OP3 to take action in terms of replacing the old desktop with a new one or refunding the cost of the same alongwith compensation of Rs. 50,000/- for harassment and mental agony to which the OP3, vide reply e-mail dated 26.07.2017 again expressed their regret and inability to provide a system replacement and informed the complainant that his case has been closed of at their end. Therefore the complainant feeling aggrieved by the acts of OPs in having sold a defective desktop and failing to make the same work efficiently despite repairs and replacement of parts was constrained to file the present complaint before this Forum alleging deficiency of service and negligence on the part of OPs and prayed for issuance of directions to the OPs to pay jointly or severally the cost of defective desktop i.e. Rs. 35,000/- alongwith interest @ 24% p.a. till realization or in the alternative replacement with a new desktop. The complainant further prayed for directions to the OPs to pay jointly or severally a sum of Rs. 2 Lacs as compensation for mental harassment and torture.

Complainant has attached invoice dated 09.09.2016, copy of e-mails dated 20.07.2017 and 25.07.2016.

Complainant placed on record jobsheets dated 17.04.2017, 19.06.2017, 07.07.2017 and 28.07.2017 for repair of the subject desktop on record.

2. Notice was issued to the OPs which was served on them on 17.10.2017 and 18.10.2017 respectively however, they failed to appear before this Forum and were therefore proceeded against ex-parte vide order dated 07.02.2018.
3. Ex-parte evidence by way of affidavit and written arguments were filed by the complainant on 27.04.2017 and 03.07.2017 respectively in reassertion and reinforcement of his grievance made out in the complaint.
4. We have heard the arguments addressed by the complainant and have thoroughly perused the documentary evidence and pleading on record.

A specific question was put to the complainant in the light of averment made by him in Para 6 of his complaint that the sole purpose of purchasing the said desktop was for commercial use to earn livelihood that what business is the complainant engaged in since the e-mails have been sent by him to OP3 from an ID balajisevasangh@gmail.com to which the complainant has never disclosed in any of his pleadings filed in this Forum. The Email from which he sent mails to OP3 also is that of an organization which raised a doubt on the usage / purpose of purchase of desktop in question which the complainant had failed to clear or elucidate in terms of documentary evidence to prove usage of desktop for self employment. No proof to substantiate the same has been placed on record in support of the said desktop having been purchased for earning livelihood for self employment. Section 2 (1) (d) (ii) of CPA excludes any such person from the definition of consumer who hires or avails of any service for a consideration for any commercial purpose which amendment was brought in the act w.e.f. 15.03.2003 which excluded services of commercial purpose from the ambit of Consumer Protection Act. The Hon’ble National Commission in the judgment of Hajarimal Moonat Vs Kumar Iron Works 1997 (1) CPR 18 had observed that to arrive at a conclusion whether a purchase is for a commercial purpose, it has be decided whether the purchase of goods by the complainant was intended for commercial purpose or whether it was only for the purpose of carrying on a small business in which he was engaged for the purpose of eking out his livelihood by way of self employment. The Hon’ble Supreme Court in the landmark Judgment of Cheema Engineering Services Vs Rajan Singh 1997 (1) CPR 30 (SC) had observed that the word ‘self employment’ is not defined and is a matter of evidence which connotes all together a different concept namely he alone uses the machinery purchased for the purpose of manufacturer by employing himself in working out or producing the goods for earning his livelihood. In the present case, however, not only did the complainant himself admit that he had purchased the desktop in question for “commercial purpose” but also failed to place on record any document of evidentiary value in support of his contention that the same was purchased for earning livelihood as the two terms and contradictory and in contravention to each other.

5. We, therefore, are of the considered opinion that the present complaint does not fall within the ambit of the consumer complaint and the complainant is not a consumer within the meaning of Section 2 (1) (d) (ii) of CPA more specifically enforced by the 2003 amendment in the CPA excluding commercial transaction. We, therefore, dismiss the present complaint as non maintainable with no order as to costs.  
6.  Let a copy of this order be sent to each party free of cost as per regulation 21 of the Consumer Protection Regulations, 2005.
7.   File be consigned to record room.
8.   Announced on 05.09.2018 

(N.K. Sharma)      President

(Sonica Mehrotra) Member

(Ravindra Shankar Nagar) Member