State Consumer Disputes Redressal Commission
S.D.K.L., Dav Centenary Senior ... vs Mehar Soft Technologies on 7 September, 2015
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB
DAKSHIN MARG, SECTOR 37-A, CHANDIGARH.
First Appeal No.408 of 2012
Date of institution : 03.04.2012
Date of decision : 07.09.2015
S.D.K.L., D.A.V. Centenary Senior Secondary Public School,
Mansa, through its Principal.
....Appellant/Complainant
Versus
Mehar Soft Technologies, Head Office, New Grain Market, SCO
156, Ground Floor, Malout, District Muktsar Sahib, through its
Managing Director.
....Respondent/Opposite Party
First Appeal against the order dated
01.03.2012 of the District Consumer
Disputes Redressal Forum, Mansa.
Quorum:-
Hon'ble Mr. Justice Gurdev Singh, President
Mr. Vinod Kumar Gupta, Member
Present:-
For the appellant : Shri Navdeep Monga, Advocate For the respondent: Shri Madan Sandhu, Advocate JUSTICE GURDEV SINGH, PRESIDENT :
This appeal has been preferred by the appellant/complainant against the order dated 01.03.2012 passed by District Consumer Disputes Redressal Forum, Mansa (in short, "District Forum"), vide which the complaint filed by it, under Section 12 of the Consumer Protection Act, 1986 (in short, "the Act"), for First Appeal No.408 of 2012 2 directing the respondent/opposite party to pay Rs.4,00,000/-, as damages for the inconvenience, mental agony, harassment, loss of time, loss of education and monetary losses; Rs.5,000/-, as counsel fee; Rs.1,000/-, as expenses of the complaint; and to refund Rs.13,000/-, was dismissed with Rs.5,000/- as costs.
2. The complainant alleged, in the complaint, that it is an educational institution and is a well reputed organization, serving the humanity. It purchased software; named, "School Management System" from the opposite party on 01.01.2009 for Rs.26,000/-, including VAT, for providing advance and better education to the students and paid Rs.13,000/- in advance. The software was installed by the opposite party and other services were also to be provided regarding the starting of the programme and maintenance of the accounts of the institution. Regarding the services, it showed irregularity and irresponsibility and did not bother to complete the assignments in time and on account thereof, it could not start the desired programme and suffered a lot. No fruitful result was achieved by the payment of Rs.13,000/- in advance for this software. It reminded the opposite party regarding its duties for providing of service, verbally as well as through telephone, but all in vain. On 05.11.2011, it received letter dated 29.10.2011 from its side regarding the balance amount of Rs.13,000/-. This demand is totally against the facts, norms and ethics. It sent letter to the opposite party on 07.11.2011, with the request to pay back the amount of Rs.13,000/- paid to it in advance; as it failed to get any fruitful result in respect of the service to be provided by it. The First Appeal No.408 of 2012 3 amount was not refunded, which caused great inconvenience, mental agony, harassment to it. The act of the opposite party resulted in loss of time, loss of education and monetary losses to the institute.
3. In the written reply, the opposite party admitted that the complainant purchased from it the software, in question, on 01.01.2009 for Rs.26,000/-; out of which Rs.13,000/- was paid in advance and that the said software was duly installed by it and it was also to provide the other services in connection therewith. It denied the other allegations made in the complaint and averred that it was to give training to the school staff and to remove any defect, which might have occurred in the software during the period of one year warranty. Its employee visited the complainant school on 06.03.2009, 09.03.2009, 27.03.2009, 06.04.2009, 23.04.2009, 15.05.2009, 16.06.2009, 17.06.2009 and 10.02.2010 for giving the training of the software to the staff. In addition to that, that employee also used to visit the school to enter the data for the admissions regarding Nursery to 10th class. When that software was being implemented, it was the responsibility of the complainant to provide Data Entry Operator for updating manual record. It failed to provide dedicated employee for data entry. Its employee himself fed the manual record provided by the complainant. When it started providing the software training to the employees of the complainant, it was found that the data entry was for the previous year admissions and not for the current status of the admissions. Even then to make the software live, it sent its employee again and First Appeal No.408 of 2012 4 whole of the data was changed. Its employees had been visiting the complainant to provide the various services from time to time and there was no irregularity or irresponsibility on its behalf. It did not receive any complaint from the complainant regarding the software during the period of warranty. A sum of Rs.13,000/- is still due from the complainant and for the payment thereof, request letter was written to it on 29.10.2011, but that amount was not paid. The letter written by the complainant was duly replied and the position was clarified. There was no such deficiency in service on its part and a false complaint has been filed to grab the balance amount of Rs.13,000/-. The software is being used for commercial purposes and, therefore, the District Forum has no jurisdiction to entertain and try the complaint. The complainant is not a consumer and the complaint filed by it is not maintainable. It prayed for the dismissal thereof with costs.
4. Both the sides produced evidence in support of their respective averments before the District Forum, which after going through the same and hearing learned counsel on their behalf, dismissed the complaint, vide aforesaid order.
5. We have heard learned counsel for both the sides and have carefully gone through the records of the case.
6. It was submitted by the learned counsel for the complainant that the District Forum committed an illegality, by holding that the complainant does not qualify to be a consumer, on the ground that the software was purchased by it for commercial purpose. The judgments relied upon by the District Forum while First Appeal No.408 of 2012 5 recording such a finding were not applicable to the facts of the present case. The software was purchased for providing better and advance education to the children and, therefore, it cannot be said that it was purchased for commercial purposes. The finding, so recorded by the District Forum, cannot be sustained and is liable to be set aside. In support of his arguments, he relied upon the following judgments:-
i) Wipro Limited Vs. Toppers Multimedia (P) Limited 2010 (2) CPC 177 (NC).
ii) L.I.C. of India Vs. Joginder Kaur and Another 2005 (1) CPC 52 (NC);
iii) International Airport Authority of India Vs. Solidaire India Ltd. 1999 (1) CPC 197 (NC); and
iv) M/s Bhushan Tyre House and Another Vs. M/s Hem Kunt Gases Private Limited 1999 (2) CPC 141.
7. On the other hand, it was submitted by the learned counsel for the opposite party that correct finding was recorded by the District Forum that the complainant purchased the software for commercial purpose and, as such, it does not fall under the definition of the "consumer", as contained in the Act. The running of the school amounts to commercial activity and any goods purchased for carrying on that activity is to be held to have been purchased for commercial purpose. There is no ground for upsetting the well reasoned finding recorded by the District Forum. He placed reliance on the following judgments:- First Appeal No.408 of 2012 6
a) Birla Technologies Limited Vs. Neutral Glass and Allied Industries Limited (2011) (1) Supreme Court Cases 525;
b) Sanjay D. Ghodawat Vs. R.R.B. Energy Ltd. 2011 (1) CLT 294 (NC); and
c) Sterling Computer Ltd. Vs. P. Raman Kutty 96 (1) CLT 89 (NC).
8. The judgments, so relied upon by the respective parties, are not in any way helpful in determining the matter in controversy. Those judgments are on the point that where the goods are purchased or services are hired for commercial purposes, then the purchaser of the goods or the person, hiring the services, does not fall under the definition of the "consumer". The question to be decided for the decision of the present appeal is, as to whether the software, in question, was purchased by the complainant-School for commercial purpose?
9. The District Forum, before recording the finding that the complainant does not qualify to be a "consumer", recorded the finding on merits that nothing was brought on the record by the complainant for proving that there was any deficiency in service on the part of the opposite party and that only in order to withhold the balance amount of Rs.13,000/-, the complainant filed the complaint. Before recording the findings on merits, the District Forum was first required to record a finding, as to whether the complainant fell within the definition of "consumer"? While recording the finding that the complainant is not a consumer, it observed that the services of First Appeal No.408 of 2012 7 the opposite party cannot be construed as "services" not for commercial purpose and the order placed by the complainant is basically intended to generate profit and further would only fall within the ambit of "commercial purpose". It relied upon the judgments reported in 2011 (1) CLT 294, Consumer Complaint No.155 of 2008 titled as "Sanjay D. Ghodawat Vs. R.R.B. Energy Ltd.; Consumer Complaint No.38 of 2009 titled as "Radhe Enterprises Vs. Suzion Energy Ltd."; and First Appeal No.218 of 2004 against order dated 8.8.2003 in complaint No.79/98 of Hon'ble State Commission Andhra Pradesh titled as "Neutral Glass & Allied Industries Ltd. Vs. Birla Technologies Ltd.". Neither the facts of those cases were discussed, nor it was mentioned as to how the ratio of those judgments applies to the facts of the present case. Only the head note of one of the judgments was reproduced. For want of complete particulars, it was not possible for us to lay our hands on those judgments.
10. The present case is squarely covered by the judgment of the Hon'ble National Commission reported in 1997 STPL (CL) 344 (NC) (Sarat Equipments Vs. Interuniversity Consortium). In that judgment, it was held as under:-
"6. On this point, the State Commission returned the finding that the Complainant had refuted the charge that fees was being charged for use of equipment. A commercial purpose envisaged profit making. The main purpose of the activity must be to generate profits by using the goods purchased. If an educational institution First Appeal No.408 of 2012 8 bought equipment for being used by the students and even if it charged certain amount of fees for allowing the equipment to be used for students, the main purpose of purchase could not be said to be commercial."
It becomes very much clear from the above said judgment that where the system is purchased for the purpose of education and research, it cannot be said to be purchased for commercial purpose. This very judgment was followed by the Hon'ble National Commission in its recent judgment given in case Delhi Public School Vs. The M.D., Uttar Haryana Bijli Vitran Nigam Ltd. & Others (2015 (1) CLT 103). In that case, the complainant was running an educational institution and it obtained an electric connection from the opposite party. The opposite party took up the defence that the electric connection had been obtained for commercial purpose and, as such, the complainant was not a consumer and the complaint filed by it under the Act was not maintainable. It was held therein that the electric connection obtained by the complainant does not fall within the purview of the electric connection for commercial purpose. If educational institution purchases equipment for use by the students, purchase of equipment cannot be said to be commercial, even if institution charges some amount for maintenance of equipment. The complainant was not generating anything by the use of electric connection, but the electricity connection had been taken only for the purpose of electrification of the school premises and for other First Appeal No.408 of 2012 9 facilities to the students and in such circumstances, merely because it is non-domestic connection, it cannot be said that the electric connection falls within the purview of the connection for commercial purpose.
11. In view of the ratio of the above said judgments, it is to be held that the software purchased by the complainant-School for advance and better education for the children and for other official purposes cannot be said to have been purchased for commercial purposes. Therefore, the complainant falls under the definition of the "consumer" and the finding recorded by the District Forum, to the contrary, is liable to be set aside.
12. Accordingly, the appeal is allowed, the order passed by the District Forum is set aside and the complaint is remanded back to it for deciding the same afresh, in view of the observations made above.
13. Parties are directed to appear before it on 14.10.2015. Records of the District Forum be returned immediately.
14. The sum of Rs.2,500/- deposited at the time of filing of the appeal, along with interest which has accrued thereon, if any, shall be remitted by the registry to the appellant/complainant by way of a crossed cheque/demand draft after the expiry of 45 days of the sending of certified copy of the order to them.
15. The arguments in this case were heard on 25.08.2015 and the order was reserved. Now, the order be communicated to the parties.
First Appeal No.408 of 2012 10
16. The appeal could not be decided within the statutory period due to heavy pendency of court cases.
(JUSTICE GURDEV SINGH) PRESIDENT (VINOD KUMAR GUPTA) MEMBER September 07, 2015 (Gurmeet S)