Modi Olivetti Ltd. vs INTERSOFT PROFESSIONALS

M/s. Modi Olivetti Ltd., Nehru Place, New Delhi, has been ordered to pay a sum of Rs. 21,950/- on account of the expenses incurred by the respondent for hiring a qualified Engineer for the purpose of necessary repairs which were effected and a further sum of Rs. 71,700/- which is the estimated expenditure required to be incurred on the machines, in question. A general compensation of Rs. 5,000/- was also awarded and costs in the sum of Rs. 3,000 / were also allowed by the Consumer Disputes Redressal Forum, Union Territory, Chandigarh, on 21.4.94. Aggrieved against it the present appeal has been attempted.

BRIEFLY it has been alleged that M/s. Instersoft Professionals, Chandigarh, imparts education and training on computer and it had been running its centre as a kind of franchisee of M/s. Apple Industries Limited, Bombay. It was M/s. Appeal Industries, Bombay who placed an order on the respondent on 19.3.90 for the supply of computer machines. M/s. Modi Olivetti Limited, supplied ten machines to the complainant at Chandigarh on 5.6.90. However, only seven of these could be installed and the remaining three could not be installed originally but after replacement of their important parts. Those three were also installed on 11.4.91. The complainant started informing the appellant from 29.6.90 that the machines had manufacturing defects and were not according to the specifications. It was on 21.1.91 that Regional Manager of the appellant agreed to visit the computer centre but he did not fulfil the assurance. It was on 12.4.91 that same representatives of the respondent visited the complainant's computer centre and inspected the machines and reached the conclusion that the machines were irreparable and no further improvement could be made. The appellant had allegedly agreed to replace the ten computers but the complainant was expected to pay a sum of Rs. 9,000/- per machine extra. However the appellant failed to fulfil this assurance. The complainant sent a Bank draft of Rs. 9,000/- on 9.7.91 but it was returned by the respondent on 19.8.91 without assigning any reasons. The complainant had mainly prayed that the respondent be asked to replace the computers with M. 290SE and it should also be required to pay a sum of Rs. 21,650/- spent for the purpose of repair and maintenance upto December, 1991. After the proposed replacement the new machines should also be subject to examination for a period of two months for their flawless working at the complainant's centre under old terms and conditions. The learned Counsel for the appellant has argued that the respondent is a franchise of M/s. Apple Industries Limited and is running a computer centre at Chandigarh and there was no relationship between M/s. Apple Industries Ltd., Bombay and the complainant who has been running different business and has separate legal entity in the form of computer centre. The agreement for purchase of these machines dated 19.3.90 is Annexure I. A perusal thereof shows that 26 machines were supplied by the appellant manufacturer at various places including the premises of the respondent at the instance of M/s. Apple Industries Ltd. M/s. Intersoft Professionals, Chandigarh is a kind of frenchisee of M/s. Apple Industries, Bombay, notwithstanding the fact that the price was remitted by complainant. Thus M/s. Intersoft Professionals now respondent was the purchaser in respect of these machines.

On behalf of the appellant it has been argued that every purchaser cannot be deemed to be a consumer. The respondent is and had been running a Computer Centre where not simply one but as many as ten machines were being utilised for running it. Our attention has been invited to M/s. Star Paper Mills Ltd. v. M/s. Batlibai & Company, I (1992) CPJ 195 (NC), wherein it was observed that if the equipment was utilised for "commercial purpose" the complainant cannot be regarded as a "consumer". It is not a case that only a single machine was utilised for earning livelihood of an individual. On the other hand M/s. Intersoft Professional is a computer education centre and atleast ten computers were being utilised. The purpose was obviously commercial.

THE learned Counsel for the respondent has drawn our attention to revisional order dated 18.3.93 andhas stressed that the revision against the plea of maintainability was dismissed by the then Commission on 18.3.93 and it could not be re-agitated in the appeal. THE record shows that the plea of maintainability was disallowed by the Forum on 12.10.92. A revision against it was instituted and while it was pending the proceedings dated 18.3.93 reveal that there were some indications for a kind of compromise and the complainant felt satisfied on the assurance that M/s. Modi Olivetti Ltd. shall send a technical expert to the premises of the complainant for the rectification of the defects. It was on account of this approach for the purpose of bringing a mutual understanding inter se the parties, the revision was disposed of. It is not that the revision was decided after hearing on merits of that a finding was given at that time that the Forum had the jurisdiction. In the order dated 18.3.93 it was not recorded that the complainant was held to be a "consumer". The respondent has raised a plea that the appeal is not competent as the same has not been filed after due authorisation. In reply to this contention, our attention has been invited to the proceedings of the meeting held on 30.11.89, whereby necessary powers which were delegated to Mr. E. Silvestri were conferred upon to Dr. L. Sella. The acts of verifying the plaints, petitioners, written statements, memo of appeals, etc. were covered by Clause 11 of the powers conferred/delegated by virtue of the proceedings dated 27.12.89, a photocopy of which is on the record and the original was shown to us and returned to the learned Counsel for the respondent. In these circumstances, the plea that the appeal was not instituted by a competent person, has no force.

IN Laxmi Engineering Works v. PSG INdustrial INstitute, II (1995) CPJ 1 (SC)=JT 1995 (3) SC 433; it has beld as under :- "We must, therefore, hold that (i) the explanation added to be Consumer Protection (Amendment) Act, 50 of 1993 (replacing ordinance 24 of 1993) with effect from 18.6.93 is classificatory in nature and applies to all pending proceedings." In the present case, the order was placed by M/s. Apple Industries, Bombay on M/s. Modi Olivetti Ltd., and the complainant M/s. Intersoft Professionals are running the Chandigar1'' Centre as a kind of franchisee of M/s. Apple Industries Limited. It cannot be said that these computers had been purchased for the purpose of self employment. As such they cannot fall under the purview of explanation to Section 2(d) of the Consumer Protection Act, 1986. The complainant is, therefore, not covered under the Consumer Protection Act as the purposes for which the machines were purchased was and had been commercial throughout. Since it has come to the notice of this Commission that the District Forum erroneously held that the complainant was a "consumer", this Commission is competent by virtue of Section 17(b) of the Act that the District Forum exercised a jurisdiction which was not vested in it inasmuch as the complainant was not a "consumer". If view of the evidence and reasons discussed above, the conclusion is that the appeal succeeds. The order of the District Forum dated 21.4.94 is hereby set aside and the complaint stands dismissed. The parties are, however, left to bear their own costs.

ANNOUNCED. Order be communicated to the parties free of cost. Complaint dismissed.