State Consumer Disputes Redressal Commission
Sri Arun Kumar Saraf vs M/S. Sagar Finstockes Pvt. Ltd. on 27 May, 2016
Cause Title/Judgement-Entry STATE CONSUMER DISPUTES REDRESSAL COMMISSION WEST BENGAL 11A, Mirza Ghalib Street, Kolkata - 700087 First Appeal No. FA/51/2013 (Arisen out of Order Dated 20/12/2012 in Case No. CC/487/2009 of District Kolkata-I(North)) 1. Sri Arun Kumar Saraf S/o Sri A. Saraf, 238B, Acharya Jagadish Chandra Bose Road, Kolkata - 700 020, P.S. Bhawanipur, Dist. South 24 Pgs. ...........Appellant(s) Versus 1. M/s. Sagar Finstockes Pvt. Ltd. 42, Gariahat Road, Kolkata - 700 029. 2. M/s. Sony India Pvt. Ltd. Manuja Towers (Gr. Floor), 32, Hazra Road, Kolkata - 700 029. 3. M/s. Sony India Pvt. Ltd., Unit - Legal Department A-31, Mohan Co-operative Industrial Estate, Mathura Road, New Delhi - 110 044. ...........Respondent(s) BEFORE: HON'BLE MR. SAMARESH PRASAD CHOWDHURY PRESIDING MEMBER HON'BLE MRS. MRIDULA ROY MEMBER For the Appellant: Mr. Dibanath Dey Mr. Anujit Biswas, Advocate For the Respondent: Mr. Prasanta Banerjee, Advocate ORDER Date of hearing : 11.04.2016 Date of judgement :27.05.2016 HON'BLE MR. SAMARESH PRASAD CHOWDHURY, PRESIDING MEMBER JUDGEMENT
The instant appeal is directed against the judgement and order dated 20.12.2012 passed by the Ld District Consumer Disputes Redressal Commision, Kolkata, Unit-I in complaint case being no. 487/2009 dismissing the same against of Opposite Parties on contest without cost holding that the Complainant of the complaint case was not a Consumer under the OPs since the goods in question was purchased by the Complainant for commercial purpose.
Being aggrieved by and dissatisfied with the impugned order the Complainant has preferred the instant appeal on the grounds inter alia, that Ld District Forum failed to consider the fact that the Complaint being a self-employed person having independent practice which is not covered within the purview of commercial purpose and accordingly prayed for setting aside of the impugned order.
The case of the Complainant in brief is that he is an Advocate practising income-tax dealing a good no. of cases purchased a Sony VAIO Laptop being model no.VGN-SZ56GN with accessories on 07.01.2008 from the OP No.1 saying consideration amount of Rs.91,500/-. The Complainant had further stated that initially the Laptop was covered under One year Warranty from the date of purchase which was subsequently extended by Two years. The Complainant has alleged that since purchase he had been facing problems in respect of the said Laptop regarding the better of the said Laptop and the touch pad of the said Laptop which were not working properly. The Complainant specifically mentioned that all those defects of the said Laptop developed during the warranty period. The Complainant further stated that on several occasion he intimated the same to the OPs on advance of the OP he handed over the said Laptop on 22.06.2009 to the OPs authorised Service Centre , M/s Sony India Pvt Ltd, Manjula Tower(Ground floor), 32, Hazra St., Kolkata 700029 which the OPs returned to him on 25.06.2009 without repairing the same. The Complainant also stated that though he has intimated the same to the OPs they initiated no step to get the laptop repaired. The Complainant has stated that due to the malfunction of the said Laptop he had to suffer from mental agony as well as incurred professional loss. Accordingly, by filing the Petition of Complaint he has prayed for direction upon the OPs to replace the said Laptop by new one of the same description free from any defect, alternatively, to refund the price of the Laptop to the Complainant, and to pay Rs.2,15,000/- to the Complainant towards compensation and also to pay the litigation cost.
The OPs appeared and contested and filed written statement denying and disputing all of materials allegations as made out in the Petition of Complainant against them.. The OP No.1 in the written filed on behalf of them contended , inter alia, that being dealer of the various products of Sony India Pvt Ltd they sold the said Laptop to the Complainant and they have not in which where the Complainant went to Service Centre being the OP No.2 in the petition of complaint for repair of said Laptop. The OP No.1 , however, stated that the petition of complaint is barred by limitation since the some had been filed long after expiry of the warranty period. Accordingly, the OP No.1 prays for dismissal of the complaint case in limini with exemplary cost.
The OP Nos.2 and 3 in their written version contended that though the Laptop had One year warranty initially, but, subsequently, the warranty period had been extended for Two years. The OP Nos. 2 & 3 specifically mentioned that as per the terms of warranty it was clearly stated that the consumable items (such as batteries) were not under the coverage of extended warranty. It was further contended by the OP Nos.2 & 3 that the Complainant himself refused to get the Laptop repaired although a proposal for replacement of the battery was given from the end of the OP No.3 and therefore, they have no deficiency in providing service. Accordingly, the OP Nos.2 & 3 prayed for dismissal of the Complainant with cost.
In course of hearing of the appeal Ld Advocate for the Appellant has submitted that Ld Forum below erroneously held that the Complainant was not a consumer under the OPs since he had been trading with the help of the Laptop in question. It was submitted that on behalf of the Appellant that the Laptop was not being used for making profit directly from the said machine. Ld Advocate for the Appellant has specifically submitted that though he availed facility from the Laptop to go with his practice but it cannot be said that the Laptop in question was a profit making gadget to him. In support of his contention Ld Advocate for the Appellant as cited several decisions which are as follows :
AIR 1964 MADRAS 131(v51 c 41) [M/s. L.M.Chitale and another, Petitioners V.The Commissioner of Labour, Respondents] (2O12) 2 Supreme Court Cases 506 [National Seeds Corporation Limited -Vs- M Madhusudhan Reddy and Another] Bombay High Court [Sakharam Narayan Kherdekar Vs City of Nagpur Corporation] decided on 25 September,1962 Madras High Court [K. Kanagasabai Vs The Superintending Engineer] decided on 23 December,2010 Ld Advocate for the Respondent Nos 2 & 3 of hearing, has submitted that the Ld District Forum rightly held that the Laptop in question was purchased for commercial purpose since it had been used for making profit, and, moreover, within four corners of the petition of Complainant no averment has been made to the effect that for earning livelihood the Complainant/Appellant used to run his business by dint of the laptop in question. Ld. Advocate for the Respondent No.2 & 3 has further submitted that the Appellant/Complainant has failed to substantiate that the said Laptop contained a manufacturing defects since no expert opinion has been obtained to that effect, and, therefore, the Complainant is not entitled to any relief. In support of his contention Ld Advocate for the Respondent No.2 & 3 has mentioned regarding the decisions of the Supreme Court in Economic Transport Organisation Vs- Charan Spinning Mills (P) Ltd and Anr and the decision of Hon'ble National Commission in M/s Harsolia Motors -Vs- National Insurance (2005) CPJ 27(NC) (2) Punjab Tractor Ltd. Vs- Vir Pratap (1977) II CPJ 81 (NC).
Having heard submission made by both sides and on perusal of the materials on record it appears that the Complainant purchased One Sony India Ltd made Laptop have not from the OP No.1 on 07.01.2008 making payment of Rs.91,500/-. The Laptop had one year warranty coverage initially but thereafter two years extended warranty was given by the OPs in respect of the said Laptop. The Appellant allegedly found defects in the said Laptop regarding malfunction of the touch pad and retention of inadequate charge of the battery of the said Laptop. The Appellant informed the same to the OP Service Centre and the said Service Centre took the said Laptop in their custody on 22.06.2009 and returned the same on 25.06.2009 without any repairing done on it. The Ld District Forum below held that since the Laptop in question had been used for commercial purpose the Complainant cannot be treated as consumer as per provision of the Section 2(1)(d) of the Consumer Protection Act. Now the moot points are i) whether the Complainant is a consumer and ii) whether the OPs have deficiency in providing service.
It appears from the record that Complainant being an Advocate ( as per pleading of the petition of complaint) used to deal with several cases of Income-tax by dint of the said Laptop. Then the point is to consider whether it can be held that the Laptop was used for commercial purpose. In M/s L.M.Chitale and another -Vs- the Commissioner of Labour the Hon'ble Apex Court held that the office of Chartered Accountant or architect is not a 'shop' and the same is not synonymous to carry any trade or business. In National Seeds Corporation Limited -Vs- M Madhusudhan Reddy and Another the Hon'ble Supreme Court held that the farmer covered under definition of consumer under Sec 2(1)(d) of the Consumer Protection Act. In Sakharam Narayan Kherdekar -Vs- City of Nagpur Corporation the Bombay High Court held that an activity to be a profession must be carried on by an individual by his personal skill, intelligence, individual characteristics as observed by the Supreme Court in National Union of Commercial Employees and another Vs Meher ( individual tribunal Bombay) and others which was a case regarding work solicitors and attorneys and wherein the Apex Court held that the core of Professional activity is the personal skill, intelligence, study integrity. In K. Kanagasabai Vs The Superintending Engineer Madras High Court taking into consideration the definition of law lexican gone to the 'profession' and observation made by the larger Bench of the Hon'ble Supreme Court which was also followed by the Division Bench of Rajanthan High Court in J.V.V.N. Limited and others -Vs- Smt Parinitoo Jain and another wherein it was held that in as much as the Petitioner was running his advocate office within his residential premises, the categorisation made by the Respondents classifying the service connection provided to the petitioner's office in H6 - 274 as Tariff V instead of domestic tariff IA is illegal, irrational and arbitrary and therefore it is ultra vires of Article 14 of the Constitution of India.
On the other hand, the Respondent Nos. 2 & 3 relied upon the decision of the Hon'ble Supreme Court wherein the Apex Court held that after amendment of the CP Act (w.e.f. 15.03.2003) if the service had been availed for any commercial purpose, then the person availing the service will not be a consumer.
Further, as the Respondent Nos.2 & 3 relied in M/s Harsolia Motors as well as in Punjab Tractors Ltd where the Hon'ble National Co held for any commercial purpose would men that goods purchased or service hired should be used in any activity directly intended to generate profit.
However, it is evident that the Appellant used to run his independent profession with the help of the Laptop in question. It is also evident that no case of reselling of the purchased goods has been occurred in respect of the laptop in question in the instant case. The Appellant, being an individual, purchased the Laptop for rendering his professional skill to his client. In our view, the same is not within the purview of "commercial purpose". Had it been so, the purchase of a pen by a writer would have been considered as purchase for commercial purpose. In such view of the matter, we are of opinion that the Ld District Forum below was not justified enough in holding the purchase as commercial purpose, and, therefore, the Complainant would not be considered as a consumer under the Opposite Parties.
Further, taking the 2nd point i.e. whether the OPs had any deficiency in service it appears from the record that the Complainant has alleged that 1) there was manufacturing defects in the said laptop, 2) the OPs did not repair the defects in the said laptop. The Complainant stated that he purchased the said Laptop on 7.01.2008 under warranty coverage of One year which subsequently extended by a further spell of two years. It appears from the said documents (in page No. 48 of the Petition of Complaint) relied by the Appellant that the warranty is limited.
It is clearly written in the said document "This warranty is limited as set out herein and does not cover, inter alia, any consumable items (such as batteries) supplied with the Product; any accessory products which is not contained in the Product (such as mouse, AC adaptor, port replicator and external speaker); damage or loss to any software programme, data, or removable storage media; or damage due to Acts of God, accident, misuse, abuse, negligence, commercial use or modifications of Product.
2.Improper operation or maintenance of the Product.
3.Connection to improper voltage supply; or
4.Attempted repair by any party other than a Sony authorised personal computer service facility
5.Dead pixels in LCD panel".
It further appears from the letter dated 8.10.2009 to the Appellant by the authorised signatory of Sony India P Ltd that an estimate of Rs.5,500 was provided to consumer by one Mr Uttam since the battery being one of the accessories does not come under coverage of extended warranty and needs to be replaced on payment of cost. However, after receiving the letter of Appellant did not pay any amount to the Respondent for replacement of the battery by new one. Regarding defecting touch pad, no authenticate document has been brought forward to us so that we can arrive at a decision of genuineness of allegation made by the appellant. Considering such factors we are of opinion that the onus had not been discharged in the instant case and therefore the Complainant / Appellant is not entitled to get any relief.
In view of the discussion as made hereinabove, we dispose the Appeal on contest without costs by holding that though the Appellant is a 'Consumer' within the meaning of Section 2(I) (d) of the Consumer Protection Act but he is not entitled to any relief as there was no deficiency in services on the part of Respondent.
Consequently, the petition of the complaint is dismissed. [HON'BLE MR. SAMARESH PRASAD CHOWDHURY] PRESIDING MEMBER [HON'BLE MRS. MRIDULA ROY] MEMBER