BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

VAZHUTHACAUD, THIRUVANANTHAPURAM.

PRESENT

SRI. G. SIVAPRASAD : PRESIDENT

SMT. BEENAKUMARI. A : MEMBER

SMT. S.K.SREELA : MEMBER

O.P. No. 449/2001 Filed on 02.11.2001

Dated : 15.12.2008

Complainant:

Shyamala Chandran, Proprietrix, M.C Computer Centre, 2^nd Floor, M.C. Building, Pappanamcode, Thiruvananthapuram.

(By adv. V. Satheesh Kumar)

Opposite parties:

1. M/s Silicon Softech India Ltd., B.O.Chiramel Chambers, 2^nd Floor, Kurisupally Road, Ravipuram, Kochi – 682 015.

    

2. Managing Director, M/s silicon softech India Ltd., Tower No. 7, Floor No.6, International Infotech Park, Navi, Mumbai – 400 075.

    

(By adv. P.A. Ahamed)

This complaint is disposed of after the period so specified under the Consumer Protection Act, 1986. Though the case was taken up for orders by the predecessors of this Forum on 26.12.2003, the order was not prepared accordingly. This Forum assumed office on 08.02.2008 and re-heard the complaint. This O.P having been heard on 15.11.2008, the Forum on 15.12.2008 delivered the following:

ORDER

SRI. G. SIVAPRASAD: PRESIDENT

The facts leading to the filing of the complaint are that complainant is a self employed woman and is the Proprietrix of a computer training institute namely M.C Computer Centre. Complainant purchased computers from the 1^st opposite party. 2^nd opposite party is the manufacturer of the computer systems

purchased by the complainant. Complainant placed order for the purchase of computer systems having the following configuration.

1. Server 1 No. P III/800/810 Chipset/128 MB RAM/20GB HDD/1.44 MB FDD/52xCD Drive Keyboard, Mouse/14” Colour Monitor/440 watt speaker/10/100 Mops Lan.

2. Node- 9 Nos. Above configuration with celeron/10-2GB HDD/64 MB RAM.

3. Hub 16 Port (10/100 mbps)

It was agreed by the opposite parties that all the parts of computers are having one year on site warranty from the date of installation. The rates were also quoted in the quotation. The computers were delivered to the complainant on 29.01.2001 at the office. All the computers were packed in carton boxes. Complainant has already effected payment as per the invoice prior to the delivery of computers vide D.D. No. 291776 dated 29.01.2001 for Rs. 307500/-. In spite of the complainant's repeated demands opposite parties never took any steps to install and network the computers. After a lapse of two months from the date of delivery complainant was compelled to install and network the said computers with an outside agency namely M/s Omega Enterprises. It is only at the time of installation and net working of the system complainant came to know that the computers supplied by the opposite parties did not have the quality configuration and specification as per the quotation and invoice submitted by the opposite parties. Computers were purchased by the complainant with financial assistance availed from SBT, Pappanamcode. Complainant intended to earn her livelihood out of income derived from this noble project. Complainant had acquired building having 2500 sq.ft. area to start this venture. The building was properly furnished with all infrastructure facilities to start the computer training centre. This matter was brought to the public through advertisement. Only due to the inaction of the opposite parties complainant could not start this venture in time. Complainant incurred additional expenses of about Rs. 10,000/- for installation and net working of the computers. Because of the delay caused in installation and net working of the computers complainant was put to heavy loss. Due to poor quality of computers complainant could not launch the project as planned and advertised. At the time of installation the following defects were noted.

1. For item No.1 instead of Pentium III 800 MHZ, Pentium 650 MHZ has been supplied.

2. For item No.1 instead of 128 MB RAM, 64 MB RAM has been supplied.

3. For item No.1 instead of 20 GB SCSI HDD, 20 GB Non SCSI HDD has been supplied.

4. For item No.2 set of speakers having 400 watts capacity was supposed to be supplied with all nine computers, nothing has been supplied.

Complainant was put to heavy loss and mental agony due to the inaction and deficiency in service of the opposite parties. Hence this complaint to replace the computers supplied by opposite parties as per configuration and specification stated in quotation or to refund the amount of Rs. 3,07,500/-, to pay an amount of Rs. 100000/- towards compensation and costs.

Opposite parties entered appearance and filed version contending that complainant is not a consumer as defined in the Consumer Protection Act. The nature of transaction between the complainant and opposite parties fall under the purview of commercial purposes. Complainant has no locus standi to approach this Forum. The cause of action for this complaint arose from the “Education Centre Affiliate Agreement”. Opposite parties are leading software solution providers and enjoys high reputation. The complaint is filed with malafide intention to tarnish the image and reputation of the opposite parties. Complainant did not describe the nature of agreement in the complaint. The nature of agreement between the complainant and opposite parties was based on an Education Centre Affiliate Agreement dated 26.12.2000. Though there was no agreement on the part of opposite parties to provide the computers at the centre, on the request of the complainant opposite parties agreed to provide the same. The computers were delivered to the centre long before the date of inauguration. Complainant after checking and verifying all the items issued a delivery receipt on 29.01.2001. As per the agreement complainant is to pay Rs. 3,00,000/- before the execution of agreement, but complainant paid Rs. 1.5 lakhs only. This fact has been suppressed by the complainant in the complaint. As per the Articles 2 clause (1) 1 (a) complainant had the duty to provide a full pledged computer laboratory. Complainant has failed to do so. Opposite parties were ready to install and net work the computers installed at the centre, but complainant has not taken any steps to equip computer laboratory at the centre. The allegation that complainant approached another agency for installation is made only with malafide intention to escape from the liability as per the agreement. After getting possession of important course materials and other valuable information the complainant is now trying to terminate the said agreement. Opposite parties had invested considerable time and money in the data information supplied to the complainant. The unethical activities of the complainant has caused huge financial loss. An invoice was issued by the opposite parties for the goods supplied and the same has been ratified by the complainant. The averment that “20 GB nos SCSI HDD” has been supplied instead of “20m GB SCSI HDD” is not true, as the invoice does not mention SCSI and just describes as HDD. The anomalies namely 64 MB RAM instead of 128 MB RAM and 600 MHZ instead of 800 MHZ are utter falsehood and alleged only to tarnish the good reputation of opposite parties. Opposite parties have acted as per the terms of the agreement. Hence opposite parties prayed for dismissal of the complaint with costs.

The points that would arise for consideration are:-

1. Whether the complainant is a consumer as defined in the Consumer Protection Act?

2. Whether the computers supplied by the opposite parties having the quality configuration and specification as per the quotation and invoice submitted by the opposite parties?

3. Whether there has been unfair trade practice and deficiency in service on the part of opposite parties?

4. Reliefs and costs.

In support of the complaint, complainant has filed proof affidavit and marked Exts. P1 to P8 and C1. In rebuttal, opposite parties did not file affidavit but marked four documents on the record as Exts. D1 to D4.

Points (i) to (iv):- It has been the case of the complainant that complainant is a self employed woman and is the proprietrix of M.C Computer Centre, a computer training institute, that complainant purchased computers from the 1^st opposite party for Rs. 3,07,500/- on the basis of quotations and invoice submitted by the 1^st opposite party, that all parts of computers are having one year on the site warranty

from the date of installation and that opposite parties delivered computers to the complainant on 29.01.2001. It has also been the case of the complainant that the opposite parties did not install and network the computers even after repeated requests, that after a lapse of two months from the date of delivery, the complainant was forced to install and net work the computers with M/s Omega Enterprises and that only at the time of installation and networking of the system the complainant came to know that the computers supplied by the opposite parties did not have the quality, configuration and specification as per the quotation and invoice submitted by the opposite parties. Ext. P1 is the copy of quotation and invoice submitted by the opposite parties. Ext. P2 is the copy of D.D for Rs. 3,07,500/- in the name of opposite party. Ext. P3 is the receipt issued by the opposite party. Main thrust of argument advanced by the counsel appearing for opposite parties was to the effect that complainant is not a consumer as defined in Sec. 2(1)(d) of the Consumer Protection Act as the nature of the transaction between the complainant and the opposite parties falls under the purview of commercial purpose and the cause of action for this complaint arose from the “Education Centre Affiliate Agreement” dated 26.12.2000. Ext. D1 is the copy of the said agreement. Complainant never denied the said Agreement in her proof affidavit. On a perusal of Ext. D2, it is found that both the complainant and opposite parties signed in the said Education Centre Affiliate Agreement. In the said Agreement it is stated that (1) the opposite party is a leading company in the field of Information Technology, with activities in the field of computer software and related services, export, manufacturing of computer equipments and peripherals, marketing of software products and computer education training and is desirous of making its computer education service commercially available to the public at large that (2) The opposite parties(the Affiliate) having on its own independently assessed the market condition and having satisfied about the viability of establishing a IQ Computer Education Centre (IQC) is desirous of establishing IQC in affiliation with the company and has therefore, approached the company with a request to establish at the M.C Computer Centre and (3) The affiliate agrees to co-operate with the company and makes available to the company certain facilities, services and equipment as described herein, to establish, maintain, conduct and operate a computer education centre of the company and recognizes the benefits to be derived from being associated with the company for establishment, maintenance, conducting the operation of a computer education centre under the name and style of IQ Computer Education Centre, as per terms and conditions in the agreement. Submission by the counsel for opposite parties was that there was no agreement on the part of opposite parties to provide the computers at the centre, on the request of the complainant, opposite parties agreed to provide the same and that as per article 2 clause (1)(1)(a) the complainant had duty to provide a full fledged computer laboratory, but complainant failed to do so and that as per article 3.1 complainant is to pay an amount of Rs. 3,00,000 before the execution of agreement and the complainant has only paid Rs. 1.5 lakhs. It has been contended by the opposite party that after getting possession of important course material data, and other valuable information the complainant is trying to terminate the agreement. On going through Ext. D2 it is apparent that prior to the purchase of the said computers by the complainant from the opposite parties, Education Centre Affiliate Agreement(Ext.D2) was executed by the opposite parties and the complainant. Article 1 of the said agreement deals with services by the company(opposite parties), article 2- deals with affiliate's (complainant's) obligation. Financial consideration, operating procedures are discussed under Articles 3 and 4 of the Agreement. Article 5 discusses the term of the agreement. As per Article 5 of the said agreement, the agreement shall remain force for a period of 3 years. The date of agreement is 26^th

December 2000. As per clause 1.3 of the Agreement the company(opposite parties) grants to the Affiliate(complainant), the licence and permission to use for and on behalf of the company, the course-ware, information and services provided solely and exclusively for the purposes of fulfilling affiliates obligation in relation to IQC as prescribed by the company from time to time. As per agreement (Ext. D2) complainant/affiliate is a licensee who shall use the course-ware, information and services etc. provided by the company(opposite parties) solely and exclusively for the purposes of the IQC being established pursuant to this Agreement. On going through various clauses of Articles of the Agreement we can see it is purely a commercial transaction between parties. The Agreement take care of the termination and consequences thereof. The question that arises for consideration is if the complainant is a consumer and if the agreement provides for any service which was deficient as defined in the Consumer Protection Act. In this regard, opposite parties made reliance on the decision of the Hon'ble National Commission in Softspec Pvt. Ltd. Vs. Digital Equipment (India) Ltd and others reported in 11(2002) CPJ 5 (NC) wherein complainant alleges himself as computer trainee, entered into agreement with the respondent Agreement, Terminated, Alleges unilateral termination of agreement-claims compensation. Respondent raised objection that the complainant is not a consumer as at the most the complainant can claim at best as one of granter of franchise. The Hon'ble Commission held that complainant is not a consumer. It was held that as to what is the relationship between granter of franchise and the franchisee holder certainly depends on the terms of the agreement between parties. Ordinarily a granter of franchise allows the franchise holder to use the name of the granter and to sell the product of the granter strictly in accordance with the agreement. While the granter keeps watch over the activities of the franchise to see that there was no breach of the agreement and the franchisee does not act in a manner which brings the name of the granter in disrepute. In such circumstances a granter of franchise does not provide services to its customers. Applying the same law as decided by the National Commission in this case and considering the terms of the agreement referred to above, it cannot be said the complainant is a consumer or that opposite party is to provide any service to the complainant. Moreover, assuming that any service was to be provided by the opposite parties, it could not be said that there was any deficiency as defined in the Consumer Protection Act. At this juncture, we need not consider other claims of the complainant on the ground that complainant is not a consumer. We are of the opinion that complaint is not maintainable under the Consumer Protection Act.

In the result, complaint is dismissed as not maintainable. Complainant is at liberty to seek redressal from appropriate courts.

A copy of this order as per the statutory requirements be forwarded to the parties free of charge and thereafter the file be consigned to the record room.

Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the Open Forum, this the day of 15^th December 2008.

G. SIVAPRASAD,

President.

BEENAKUMARI. A : MEMBER

S.K. SREELA : MEMBER