National Consumer Disputes Redressal
Sanjay D. Ghodawat vs R.R.B. Energy Ltd. on 17 December, 2009
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION
NATIONAL CONSUMER
DISPUTES REDRESSAL COMMISSION
NEW DELHI
CONSUMER COMPLAINT NO.
155 OF 2008
Sanjay D. Ghodawat
Hindu, Indian Inhabitant, at
present residing
And carrying on business from
2549, Sushreya,
Yashwant Co-operative Housing
Society Ltd.,
Jaysingpur 416 101, Taluka
Shirol,
Distt. Kolhapuar
........ Complainant
Vs.
R.R.B. Energy Ltd.
(Erstwhile Vestas RRB India Ltd)
17, Vembuliamman Koil Street,
K.K. Nagar (West),
Chennai 660 078 Opposite Party
CONSUMER COMPLAINT NO. 38 OF 2009
M/s. Radhe Enterprise
Gondal Road,
National Highway 8-B,
Opp. Jay Ganesh Auto,
Vavdi, Rajkot, Gujarat
Through its Prop.
Mr. Chamanbhai Shingala ........ Complainant
Vs.
Suzlon Energy Ltd.
Suzlon House
5, Shri Madi Society
Near Shrikrishna Complex
Navrangpura, Ahmedabad-380 009
Gujarat Opposite Party
&
FIRST APPEAL NO. 218 OF 2004
(Against the order dated 8.8.03 in Complaint No.79/98
of the State Commission, Andhra Pradesh)
M/s. Neutral Glass & Allied
Industries Ltd.,
Vazir Glass Works Ltd., J.B.
Nagar
M. Vasanji Road, Andheri (East),
MUMBAI 400 059
........ Complainant
Vs.
Birla Technologist Ltd.
Ahura Centre,C-Wing,
3rd Floor, Mahakali Caves Road
Andheri (East)
Mumbai 400 093 Opposite Party
BEFORE :
HON'BLE MR. JUSTICE ASHOK BHAN,
PRESIDENT
HONBLE MR. B.K. TAIMNI, MEMBER
HON'BLE MR. JUSTICE R.K. BATTA,
MEMBER
For the Complainants in
CC No.155/08 and 38/09: Mr. Ramesh Singh, MS. Bina Singh,
Mr. Gaurav
Singh & Mr. Ankur,Advocates
For Opp. Parties in
CC No.155/08 and 38/09: Mr. Sandeep Mahapatra and Mr.
Anshu Bhanot,
Advocates
For the Appellant in
FA No.218/04 :
Mr. J.B. Prabhavalkar, Advocate
For the Respondents :
Mr. Bharat Sangal, Mr. R.R. Kumar, Ms. Vernika
Tomar and Ms. Mrinalini Oinam, Advocates
Pronounced on : 17th
December, 2009
ORDER
PER JUSTICE R.K. BATTA, PRESIDING MEMBER The Original Complaint No.155 of 2008 was ordered to be placed before the larger bench in view of order dated 16.12.2008 passed by a bench of this Commission. The said order reads as under:
We have heard Mr. S.B. Prabhavalkar, Advocate, learned counsel for the complainant at length on the question of maintainability of the p resent complaint before this Commission.
As per the complainant, he had purchased Wind Electric Generators (WEGs) at a cost of more than Rs.73 crore from the opposite party for generating and distributing/selling electric energy, i.e., for a clearly commercial purpose. It is alleged that certain defects were noticed in the insjtallation of the said WEGs during the warranty/extended warranty period, which would entitle the complainant to seek remedy against the opposite party under the Consumer Protection Act, 1986 even if the purchase of the WEGs (and installation and related services rendered in that context) was (were) for a commercial purpose. For this Mr. Prabhavalkar relies on the judgement of this Commission in the case of Amtrex Ambience Ltd. Vs. M/s. Alpha Radios & Anr. 1986-96 Consumer 1999 (NS):
1996(1) CCC 167 (NS), Meera & Co. Ltd. Vs. Chinar Syntex Ltd. 1986-2005 Consumer 9599 (NS), M/s. Pearlite Lines Ltd., Vs. M/s. Thermo Jarrell Ash Corporation & Anr. 1986-2006 Consumer 10367 (NS), which dealt with the situation prior to the amendment of definition of Consumer by the amending Act of 62 of 2002.
Having regard to these facts, circumstances and contentions, an important question has arisen about the maintainability of the present complaint (as well as such future complaints if any) before a Consumer Forum, including this Commission. In our view, this important question needs consideration and determination by a larger Bench of this Commission. We therefore, direct the Registy to list the matter before a larger Bench of the Commission after obtaining orders from the Honble President.
A copy of this order may be sent to the learned counsel for the complainant.
The Original Complaint No.38 of 2009 was admitted and was ordered to be listed along with OP NO. 155 of 2008. F.A. No. 218 of 2004 was ordered to be placed before the larger bench in view of the order passed on 14.1.2008, which reads as under:
Considering the judgement rendered by three judges Bench in First Appeal No.112/1992 decided on 7th February, 1992, the matter be placed before the larger Bench for consideration.
In all these matters, the issue involved is the same and as such the matters were heard together and are being disposed of by a common order.
The issue in question is whether a person who has purchased goods for commercial purpose after coming into force of the Amendment Act, 62 of 2002 w.e.f. 15.3.2003 would fall within the ambit of consumer when he avails of services in the nature of warranty attached to the goods purchased.
We shall first narrate the facts in each matter, which are relevant for the purpose of deciding the issue in question.
The complainant in Original Complaint No. 155 of 2008 is an entrepreneur by profession and is carrying on business of power generation and running wind mills at various places in the States viz.Karnataka, Maharashtra, Rajasthan and Gujarat. The complainant had engaged/availed the services of OP for consideration for commissioning of Vestas RRB make Pawan Shakthi type 600 KW Wind Electric Generators (For short WEGs) with 47 meter Rotor Dia on 50 meter tower height at the Wind mill project site. The OP had offered to supply WEGs manufactured by it and to erect and commission the same at various sites in Karnataka. Despite the purchase order dated 22.7.2006 and payments made, the OP could not erect/commission the said wind mills at its original agreed site at Malgatti, Karnataka. By agreement the site was shifted to Harihar and the complainant conveyed his consent in respect of 7 wind mills. According to the complainant, the generation of 7 WEGs installed at Karnataka site was less than 5,00,000 units per WEG per annum compared to guaranteed generation of 15,00,000 units per WEG per annum. The complainant had invested a sum of Rs.73,75,000/- in the said project and there was no return of whatsoever nature. According to the complainant, the OP had confirmed in the warranty that if the generation at 100% grid availability and 95% machine availability as per LCS reading is less than the guaranteed generation in units based on the wind data available and power curve, by less than 5%, then the OP will compensate such shortfall generation at the prevailing power purchase rate @ 3.40 per unit. The case of the complainant further is that the actual generation of project is less than the estimated generation of the project from 1.10.2007 till 30.9.2008 and the short fall of units in respect of the 25 windmills is 1,45,090 units and the total loss suffered on account of defective erection/commissioning of wind mills and on account of deficiency of service on the part of the OP amounts to Rs.6,98,75,270/-.
Accordingly, the complainant approached the National Commission for directions to the OP to rectify the defects in its services noticed during the warranty period and shift the said 25 windmills from its present location to the proper nearby location as agreed by the OP vide minutes of meeting dated 3.11.2007 and Corporate Guarantee dated 20.12.2007 at its own cost and to ensure the desired generation of power of 15,00,000 units per WEG per annum and to pay compensation of Rs.6,98,75,270/- with 18% interest towards shortfall of units after adjusting the balance consideration of Rs.5,64,56,650/-payable to the OP as per the purchase order of the windmills. Alternatively, it was prayed that if the OP is not in a position to re-erect and commission the 25 windmills to a suitable nearby location then OP be directed to refund the entire amount received by it vide purchase order with interest @ 18% and in addition to pay the agreed compensation of Rs.6,98,75,270/- together with interest @ 18% from the date of complaint till realization with cost of Rs.2,00,000/-.
Counsel for the parties have filed written submissions. Counsel for the complainant has submitted that the complainant in his individual capacity bought 25 windmills from the OP exclusively for the purpose of earning his livelihood by means of self-employment. The total cost of the project was Rs. 73.75 crores with per windmill cost at Rs.2.95 crores. The complainant had paid around Rs.68.10 crores and balance of Rs.5.65 crores remains to be paid. WEGs installed during the first phase did not generate electricity as guaranteed and in fact the performance was dismal and there was no return at all on the investments made by the complainant. It is contended that the complainant had availed of the services for earning his livelihood by means of self-employment and as such, the complainant is a consumer within the meaning of Section 2(1)(d) of the Consumer Protection Act. It was also contended that the present commercial venture requires the involvement of the complainant with assistance/help of few employees. In this connection, reliance was placed on the judgment of the Apex Court in the case of Laxmi Engineering Works Vs. PSG Industrial Institute (1995) 3 SCC 583. Finally, it has been urged that the amended explanation not only includes the case of services, but also the word Consumer has been replaced by the word person and as such, the term earning livelihood by means of self-employment has to be given a wider meaning on account of the fact that the word person not only includes an individual consumer but also a corporate entity in view of the judgement of the Apex Court in the case of Karnataka Power Transport Corporation Vs. Ashok Iron Works Pvt. Ltd. 2009 (2) Scale 337.
Counsel for the Opposite party has submitted that the complainant is the found Chairman of the Sanjay Ghodawat Group of Industries, a conglomerate of nine private limited companies, having interests in Agro, Food Products, Pan, Aviation, Chemicals, Engineering Products, Exports, Textiles, Real Estate, Wind Farms etc. The complainant had purchased 25 WEGs for commercial purpose and the complainant has alleged about the purported deficiency of service in the performance of the WEGs during the period of warranty. It is alleged by the complainant that certain defects were noticed in the installation of WEGs during the warranty and extended warranty period. Therefore, in the light of the facts it has to be decided as to whether the complainant is a consumer within the meaning under Section 2(1)(d) of the Act. It has been urged that prior to amendment, Section 2(1)(d)(ii) did not specifically exclude services hired or availed for commercial purpose. It has been pointed out that the windmills have been set up for commercial purpose and for making profit and for the first time the complainant had taken a stand in the written submissions that the WEGs were purchased for self-employment and for earning his livelihood. It is further submitted that during the course of written submissions it has been stated that a few employees are required to take meter reading, but there were no such pleadings in the complaint. According to the ld.
Counsel for the OP, the WEGs were purchased for commercial purpose and the services in the nature of warranty do not come within the purview of Section 2(1)(d) of the Act and the complainant by no stretch of imagination can be said to be a consumer, which is essential for maintaining the complaint under the Consumer Protection Act. It is also pointed out that the OP has filed a suit for recovery of money for the subject goods sold and delivered being C.S.64 of 2009 before the Honble High Court of Madras and the same is pending adjudication.
Finally, it is urged that a person buying any goods or any availing services for commercial purpose will not come under the purview of consumer under the Act.
In Complaint No.38 of 2009, the grievance of the complainant is that the opponent had installed windmill turbine generator (for short WTG) on 27.3.2006 and guaranteed annual generation of 28 lakhs units. According to the complainant the opponent had not removed the defects from the WTG during guarantee period, which amounts to gross deficiency of service.
Accordingly directions have been sought for refund of the sum of Rs.6.18 lakhs paid towards purchase of WTG or alternatively, directions to replace the WTG with fresh guarantee. The complainant has also claimed Rs.1.5 lakhs for mental agony and costs. The complainant has placed reliance on judgements of this Commission, which relates to unamended provisions of Section 2(1)(d) of the Act.
In FA No.218/04, the complainant is carrying on business of manufacturing and selling glass vials and bottles. The complainant company with intention to improve the efficiency of its employees and with intention to modernize the various systems in its office and factory had decided to develop software system for improving the activities of its various departments and had engaged the services of the OP for the said purpose.
The complainant entered into contract with OP on 1.6.1998. The software was to be developed in 15 months from 1st April, 1998 till 30th June,1999. The complainant found deficiencies in April, 2000 during warranty which were not rectified and complaint was filed on 1.8.2000. According to the complainant, the services engaged/availed by the complainant-company are not for commercial purpose but for improving the efficiency of its staff members. The services of the software company were engaged to provide various modules such as Financial Accounting, Production, Marketing, Purchase, Stores/Inventory, Fixed Assets and payroll/Personnel system. The OP had agreed to develop the software for an agreed and aggregate consideration of Rs.36,00,000/-. The OP had agreed to provide one year warranty and annual maintenance. The complainant paid more than Rs.27,50,000/- out of total consideration of Rs.36,00,000/-. The complainant noticed defects in the modules provided by the OP as also shortcomings in OPs services and the OP was called to rectify the said defects. In this set of facts, the complainant claimed to be a consumer within the meaning of Section 2(1)(d).
The complainant had sought directions to the OP to rectify the defects in their services relating to 7 modules or alternatively to refund the entire consideration of Rs.27,91,501/- with 18% interest thereon. A sum of Rs.5,00,000/- is claimed towards compensation for deficiency in service and cost of Rs.25,000/-.
In the written statement filed by the OP, it is submitted that 7 software modules had been purchased for commercial purpose and after the Amendment Act, 2002, the definition of consumer excludes services hired or availed for commercial purpose, unless the services are availed by a person exclusively for the purpose of earning his livelihood by means of self-employment. According to the OP, the Complainant-Company has availed the services of goods and service for commercial purpose in order to increase the profit.
The State Commission held that the sole object of the complainants to improve efficiency of its staff members is in terms of skill and efficiency to facilitate it to carry on its commercial venture. The status of the complainant is that of commercial entity and that it has availed of the services from the OP for furthering and advancing its business profits etc. on account of which, the complaint as filed, as consumer dispute is not maintainable and the complainant may pursue its remedy before an appropriate Forum. It was clarified that the complainants will be entitled to the benefits of Section 14 of the Limitation Act for the period the matter remained pending before the Commission. Accordingly, complaint was rejected. The complainant has come in appeal.
Written submissions have been filed by the Appellant and Counsel for the Appellant was heard. According to the Counsel for the Appellant, the core issue involved is whether the services engaged for commercial purpose is outside the purview of Consumer Protection Act. According to him, the Complainant-Co. had engaged / availed the services for improving the efficiency of its staff members and as such, the services of the OP cannot be construed as services for commercial purpose. He, therefore, contends that when the goods purchased or services hired are not intended to generate profit, it would not be a commercial purpose. It has been further submitted that on the analogy of the judgement in M/s. Hansolia Motors Vs. National Insurance Co. Ltd. 1986 2005 Consumer 9756 (NS) and considering the fact that the original complainant had engaged the services only with an intention to improve the efficiency of its employees and with an intention to modernize the various systems in its office and factory and since the said services had no nexus with the profit making activity by the Appellant Company, the services engaged by the Appellant are within the purview of the Consumer Protection Act and not appeared under Section 2(1)(o) of the Consumer Protection Act. It is pointed out that prior to amendment of CP Act, this Commission in the case of M/s. Sarat Equipment Vs. Interuniversity Consortium - 1986-99 Consumer 4244 (NS) had observed that the main purpose of the activity must be to generate profit by using goods purchased.
Reliance was also placed on judgement of Jindal Drilling and Industries Vs. Indocon Engineers (1986-2006) Consumer 10167 which deals with the defects noticed during warranty period in a case prior to the amendment. Finally, it has been urged that the services engaged /availed are not for commercial purpose but for improving efficiency of it is staff members and services so engaged had no nexus with the profit making activities of the appellant/complainant.
Ld. Counsel for the respondent referred to the executive summary at page 37 of the record as also the ownership clause at page 53 of the record, which provides that software/plans/reports/documents etc. developed for NGAIL by BCSS shall be the exclusive property of NGAIL including the rights of intellectual property. He, therefore, contends that it is a case of sale of goods and not services as such and the goods have been sold for commercial purpose.
In O.P. No. 155/08 and OP No.38/09, the issue relates to deficiency in services during the warranty period. Both cases relate to purchase and availing services and complaint of deficiency of services during warranty period after the coming into force amendment vide Act, 2002.
In OP No.155/08, the complainant is an entrepreneur by profession carrying on business of generating power by running power plants at various places in different States. The complainant had entered into contract with the OP for supply of WEG and to erect and commission the same at various sites in Karnataka. The complainant had invested Rs.73.75 crores in the said projects and there was absolutely no return of whatsoever nature. It was contended that generation of 7 WEGs installed in different places in Karnataka was less than 5,00,000 units per WEG per annum compared to 15,00,000 units per WEG per annum. Similarly, there was shortfall in 18 other WEGs installed at various places. The complainant alleged that the OP failed to rectify the defects notices during the warranty period. Section 2(1)(d) and Section 2(1)(o) define the consumer and service respectively as under:
Section 2(1)(d) defines service as under:
"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 'hires or avails of the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person but does not include a person who avails of such services for any commercial purposes; ] Added by Act 62 0f 2002 w.e.f. 15.3.2003.
Explanation. For the purposes of this clause, commercial purpose does not include use by a person of goods bought and used by him and services availed by him exclusively for the purposes of earning his livelihood by means of self-employment;
Section 2(1)(o) defines service as under:
"service" means service of any description which is made available to potential users and includes, but not limited to, the provision of facilities in connection with banking, financing insurance, transport, processing, supply of electrical or other energy, board or lodging or both, housing construction, entertainment, amusement or the purveying of news or other information, but does not include the rendering of any service free of charge or under a contract of personal service.
According to Section 2(1)(d)(i) of the Act the consumer does not include a person who obtains such goods for re-sale or for any commercial purpose. According to Section 2(1i)(d)(ii) a person who avails of such services for any commercial purpose would not fall within the ambit of consumer. In order to qualify as consumer the complainant in OP No. 155/08 for the first time in the written submissions came out with a case that the complainant had bought windmills exclusively for the purpose of earning his livelihood by means of self-employment. It was also stated for the first time in the written submissions that the present commercial ventures require the involvement of complainant with assistance/help of few employees and hence the complainant is clearly a consumer in view of the aforesaid explanation. There are no pleadings to this effect in the complaint and obviously on the basis of pleadings in the complaint it is clearly established that the complainant had entered into a contract of supply WEGs as also to erect and commission the same for commercial purpose. Besides this, if any services are availed for commercial purpose, the same would not come within the ambit of definition of consumer. This aspect has been dealt with by a bench of this Commission of which one of us (R.K. Batta, J) is a party, in Meera Industries, Howrah Vs. Modern Constructions, Howrah (R.P. No.1765/07). In the said judgement the definition of consumer under Section 2(1)(d) and the definition of service under Section 2(1)(o) has been referred and the matter has been examined in connection with the deficiency in service during the warranty period. The short controversy therein was that when the goods are purchased for commercial purpose, whether the purchaser would be a consumer during the warranty period in terms of Section 2(1)(d)(ii) of the Act. In the said judgement various judgements of this Commission prior to the amendment were examined. It was held :
In so far as purchase of goods, which is covered by Section 2(1)(d)(i) is concerned, a person who purchases goods for commercial purpose is not a consumer. However, in so far as hire or availing of services is concerned, after amendment, which came into force on 15.3.2003, any person who avails of such services for any commercial purpose has been excluded from the ambit of service.
We have scanned through the judgements of this Commission, which primarily rely upon judgments of this Commission in Amtrex Ambience Ltd. Vs. M/s. Alpha Radios & Anr. I (1996) CPJ 324 (NC) and Jay Kay Puri Engineers & Anr. Vs. Mohan Breweries & Distilleries Ltd. I (1998) CPJ 38 (NC). Both these judgements relate to pre-amended Section 2(1)(d) (ii) of the Act. The other rulings of the Commission which are primarily based on the said rulings are namely, Meera & Co. Ltd.
Vs. Chinar Syntex Ltd. 2004 CTJ 1086 (CP) (NCDRC), Dr. Vinjai Prakash Goyal Vs. The Network Limited IV (2005) 206 (NC), Super Computer Centre Vs. Globiz Investment Pvt. Ltd. III (2006) CPJ 256 (NC), Jindal Drilling & Industries Ltd. Vs. Indocon Engineers Pvt. Ltd. & Anr. III (2006) CPJ 264 (NC), East India Construction Co. & Anr. Vs. Modern Consultancy Services & Ors. II (2006) CPJ 289 (NC), Pearlite Liners Ltd. Vs. Thermo Jarrell Ash Corporation & Anr. IV (2006) CPJ 375 (NC) and Larsen & Toubro Ltd. & Ors. Vs. Sunder Steels Limited & Ors. 1 (2009) CPJ 256 (NC).
In all these judgements, it is held that even if a consumer purchases goods for a commercial purpose, yet in so far as warranty attached to the goods is concerned, he would still be a consumer if some defect is found during the warranty period.
All these judgements relate to goods purchased prior to amendment to Section 2(1)(d)(ii) of the Act. None of these judgements have considered the effect of amendment to Section 2(1)(d)(ii) of the Act. All the decisions of this Commission, which have been rendered, are with reference to the provisions of unamended Section 2(1)(d)(ii) of the Act where hiring or availing of services for commercial purpose had not been excluded. In these judgements, the position after amendment to Section 2(1)(d)(ii) of the Act, which came into effect from 15.3.2003 by which, a person who avails of such services for any commercial purpose is excluded has not been considered. Warranty, which comes along with purchase of goods is nothing but service attached to the goods during the period of warranty. Therefore, even the service availed for commercial purpose is purely excluded from the scope and ambit of consumer.
In view of the above, we are of the opinion that whether a customer buys goods for commercial purpose and avails of services attached to the goods in the nature of warranty, he cannot be considered to be a consumer even for the purpose of services during the warranty period in view of the amendment to Section 2(d)(ii) of the Act, which came into force w.e.f. 15.3.2003. In view of this, the complainant cannot be held to be a consumer with reference to the services attached to the warranty and the complaint is not maintainable.
In an another judgement of this Commission in Jayant Kumar Sahu Vs. Dr. Prasanna Kumar Patel 2006 (CTJ 324 (CP)(NCDRC) to which one of us (B.K. Taimni, Member) was party, cognizance of amendment to Section 2(1)(d)(ii) of the Act w.e.f. 15.3.2003 was taken, it was observed that service rendered for commercial activity has been excluded w.e.f. 15.3.03. However, before that date service rendered for commercial purpose was within the ambit of Consumer Forum.
In view of the above, the complaint in OP No.155/08 cannot be considered as consumer so as to maintain complaint under the Consumer Protection Act.
Complaint is accordingly dismissed on this account with no order as to cost.
Coming to OP No. 38/09, the complainant had purchased WTG for a sum of Rs. 6,18,000/- and the complainant had claimed of deficiency of service during warranty period. In view of discussion with reference to OP No.155/08 and on the basis of the averments made in the complaint it is clear that the said WTG were purchased for commercial purpose and deficiency of service during the warranty period does not bring the complainant with the ambit of consumer and as such, the complaint is not maintainable.
The said complaint is accordingly dismissed with no order as to cost.
Coming to FA No.218/04, the complainant had entered into a contract with OP for developing software system and to provide various modules for performances such as financial accounting, production, marketing, purchase, stores/investment fixed assets and payroll personnel system.
OP had offered to develop the software for aggregate consideration of Rs.36 lakhs. The OP had agreed to provide one-year warranty. The complainant found defects in the modules during the warranty period and called upon to rectify the defects. The case of the complainant is that the software was meant for improving efficiency of its staff members and as such, the services of the OP cannot be construed as services for commercial purpose. According to the Counsel for the complainant, goods purchased or services hired or availed in the activity directly intended to generate profit profit being the main aim would only fall within the ambit of commercial purpose.
However, according to him in the case under consideration, the services had no nexus with the profit making activity of the Appellant Co. On the other hand ld Counsel for the OP has pointed out that the software, plans, reports documents etc. developed for the appellant by the OP shall be exclusively property of the complainant including the rights of the intellectual property which means that the ownership of the goods shall be that of the complainant.
Under Section 2(1)(d)(i) any person who buys goods for consideration for commercial purpose is excluded from the ambit of consumer. Besides this, the services of OP were availed by the complainant for commercial purpose for augmentation of profit by increasing the efficiency and thereby the output of the Company with the help of the software. After lifting the veil, it is clear that the complainant has put in the forefront efficiency card though actually the whole exercises is increasing the profit. All this goes to show that the software in question is sale of goods by the OP to the complainant for commercial purpose on account of which the complainant would be excluded for being considered as consumer in terms of provisions of Section 2(1)(d)(i) of the CPA. The complainant in our opinion does not qualify to be a consumer in view of the provisions of Section 2(1)(d)(i) of the CPA.
In the complaint it was contended that the complainant is a consumer within the meaning of Section 2(1)(d)(ii) of the Consumer Protection Act, since the complainant had engaged and availed the services of OP for providing software. The main prayer in the complaint was seeking directions to the OP to rectify the defects in the services to provide 7 modules (software system). It was only in the alternative that refund of the entire consideration was sought with interest. In the complaint, the complainant had alleged that contract with OP was entered into on 1.6.1998 pursuant to which, the software was to be developed in 15 months from 1st April, 1998 till 30th July, 1999. The complainant had also pleaded that the OP had agreed to provide one year warranty from the final date of installation for one year and annual maintenance. The complainant noted defects in the modules as also shortcomings in OPs services during the warranty period in the year 2000. The grievance of the complainant is that the services during the warranty period were not provided and the defects were not rectified. Hence, complaint was filed on 1.8.2000. Prior to the amendment Section 2(1)(d)(ii) by Amendment Act, 2002 a person hiring or availing services for consideration was not excluded even though the services were availed for any commercial purpose. Therefore, in this case, if there was any deficiency in service during the warranty period, the complaint could be maintained before the Consumer Forum for the said purpose. Accordingly, in so far as defects in service during the warranty period are concerned, the case is governed and covered by the judgements of this Commission relating to the pre-amendment period, which has been referred to in Meera Industries, Howrah Vs. Modern Constructions, Howrah (Supra).
Therefore, the complaint in F.A. No.218/04with respect to the deficiency of service during the warranty period is maintainable and appeal to that extent is allowed and the order of the State Commission to that extent is modified with no order as to costs.
Following observations of the Apex Court in Laxmi Engineering Works Vs. PSG Industrial Institute (Supra), we wish to state that if the complainant in OP No. 155/2000 and OP NO. 38/09 choose to file a suit for relief claimed in these proceedings they can do so according to law and in such a case they can claimed benefit of Section 14 of the Limitation Act to exclude the period spent in prosecuting proceedings under the CPA while computing the period of limitation prescribed for such a suit.
In the light of the above, the complaints OP No. 155/00 and OP no.38/09 are accordingly dismissed with no order as to costs.
..J ( ASHOK BHAN) PRESIDENT .
( B.K. TAIMNI) MEMBER ..J (R.K. BATTA) MEMBER k