DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II, U.T. CHANDIGARH

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R.G. Forging Pvt. Limited, E-164, Phase VII, Industrial Area, SAS Nagar, Mohali, through Sham Lal Authorized Officer.

                                                                   ---Complainant

Vs

[1]     M/s HUGHES Communication India Ltd., Plot No. 1 & 2, Sector 18, Electronic City, Gurgaon, through its Director.

[2]          Netcom Associates, SCO No. 179-180, 3^rd Floor, Sector 17-C, Chandigarh, through its Director/ Manager.

---- Opposite Parties

BEFORE:          SH.LAKSHMAN SHARMA              PRESIDENT

MRS.MADHU MUTNEJA           MEMBER

                    SH.JASWINDER SINGH SIDHU          MEMBER

Argued By: Sh. Jai Pal Singh, Advocate for the Complainant.

Sh. Animesh Kumar, Adv. for Opposite Party No.1..

Opposite Party No. 2 Ex-parte.

PER MADHU MUTNEJA, MEMBER

1.                 The Complainant had purchased an internet connection from the Opposite Parties and paid `49,609/- for the same. The Complainant has alleged that the Opposite Parties failed to keep the promise of the committed speed and service. Hence being eligible to terminate the agreement, it issued a legal notice for refund of the amount to the Opposite Party No.1, as they had not used the connection even for a single day. As the Opposite Parties have not complied with the request, the Complainant has filed this complaint with a request for refund of the amount spent along with interest and compensation.   

2.                 After admission of the complaint, notices were sent to the Opposite Parties. However, despite service, nobody has appeared on behalf of Opposite Party No.2, therefore, it was proceeded against exparte on 30.11.2011.

3.                 Opposite Party No.1 in reply has taken the preliminary objection that the Complainant had obtained the internet connection to be used on 5 different computers for usage on its network for its organized business and commercial activity. It was later extended for 20 computers. Hence, taking the plea of commercial purpose, Opposite Party No.1 has maintained that Complainant is not a consumer within the meaning of Consumer Protection Act, 1986. They have also stated that as there is an arbitration clause, this Form has no territorial jurisdiction to entertain the complaint.

                    Opposite Party No. 1 has further added that the Complainant is a large industrial undertaking and had entered into a separate agreement with Opposite Party No. 1 for availing internet service under agreed terms and conditions. Opposite Party No. 2 is the authorized partners of Opposite Party No.1 and is engaged in the business of selling and letting out VSAT equipment. As per the quotation, the connection was installed at the premises of the Complainant against a one time charge of `15,000/-  refundable security deposit of `15,000/-, installation charges of `2,500/-, freight charges of `3,000/- and VAT @ 5% i.e. `750/- i.e. a total sum of `36,250/-. Out of this amount only a part of the security deposit was refundable as per rules of refund, which are as under:-  

“(1) `10,000/- out of the `15,000/- to be returned if the customer decides to terminate the contract in less than one year from activation of service (as in this case)

(2) `15,000/- to be returned if the customer decides to terminate the contract in more than 1 year from activation of service.”

                    The Complainant entered into a subscription agreement on June 2, 2010, as per the agreed tariff plan and internet speed at a monthly tariff of `5,490/-.  The equipment was installed on 18.06.2010. However, it appeared that the usage and requirements of the Complainant were much higher than the tariff plan opted for as they had 20 computer on their network. Hence as per their request the limit was increased from 5 computers to 20. The Complainant vide e-mail dated 22.7.2010 again requested for demo of another plan as their requirements were not matching with the existing plan. The demo was provided and a suggestion was made to the Complainant that due to heavy down loading, their requirements of G.B. also needed to be increased, which would cost the Complainant more than the opted plan. Since the commercial requirement of the Complainant was beyond the capacity of the existing plan and also beyond their budget, they requested for disconnection on 2.8.2010.  The connection was disconnected as per the policy of giving one month’s advance notice on 2.9.2010. As per the terms of agreement, a sum of `10,000/- was refundable after the hardware equipment was returned in working condition to Opposite Party No.2. The Complainant has not yet returned the equipment. Denying all other allegations Opposite Party No.1 has prayed for dismissal of complaint.

4.                 Parties led evidence in support of their contentions.

5.                 We have heard the learned counsel for the Complainant and learned counsel for the Opposite Party No.1 and have perused the record.

6.                 The Complainant has alleged that as the internet connection installed by the Opposite Parties at their business premises was found unsuitable, a request had been made to the Opposite Party No.1 for disconnection on 02.08.2010. Though the connection was disconnected, the Opposite Party No.1 has not yet refunded the money. The Complainant has stated that the connection has not been used for a single day. Interestingly, as per the version of the Opposite Party, as well as the e-mails placed on record it is evident that the Complainant has used the connection from the beginning and has even asked for permission to increase the limit from 5 computers to 20. E-mail dated 22 July, 2010, is a request for demo of another plan as the existing speed was not found good. E-mail dated 02 August, 2010 mentions that the Complainant is not satisfied with the speed of the connection and hence disconnection has been requested. If the connection had not been used how could the Complainant know about the speed. The version of the Complainant that they have not used the connection even for a single day is thus, unbelievable. The connection has been disconnected by the Opposite Party as per the terms and conditions of one month notice period on 2.9.2010.  The security amount due as per the terms and conditions has not been paid as the Complainant has not requested for or offered to return the equipment to the Opposite Parties. 

7.                 The Opposite Party No.1 has made a preliminary objection that the dispute is not maintainable as the Complainant is a commercial organization. The Complainant has not rebutted this contention. It is evident that from the usage and requirement of the Complainant that it is a commercial organization and the computers are being used for business purposes. Section 2(d) of the Consumer Protection Act, 1986 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 1[hires or avails of] the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payments, when such services are availed of with the approval of the first-mentioned person;

[Explanation : For the purposes of sub-clause (i), commercial purpose does not include use by a consumer of goods bought and used by him exclusively for the purpose of earning his livelihood, by means of self-employment;]

                    The proviso regarding commercial purpose will thus, not entitle the Complainant for any benefit from the Opposite Parties from this Forum with the given facts. The complaint is thus dismissed, with no order as to costs.

                    However, the Complainant may return the equipment to the Opposite Parties and seek refund of `10,000/- as per terms and conditions of contract.  

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

Announced

31^st May,  2012.                                                                       

Sd/-

(LAKSHMAN SHARMA)

PRESIDENT

Sd/-

(MADHU MUTNEJA)

MEMBER

Sd/-

(JASWINDER SINGH SIDHU)

MEMBER