1. THE complainant. Abacus Information Services Pvt. Ltd., a Company registered under the Companies Act claims more than Rs. 8 lacs as per details given in the complaint as compensation for the loss suffered as well as for harassment for delayed supply of six computers against opposite party No.1-PCL (Pertech Computers Ltd., Chandigarh) as well as opposite party No. 2-M/s. Paragon Computer System, Moga, their dealer. After getting the quotation from opposite party No. 1 for supply of computers, the complainant Company gave wide publicity for launching of their Centre w.e.f. February 6,1997. Subsequently on a fresh quotation from opposite party No. 1, on November 28, 1996 order was placed for supply of six computers. In advance a sum of Rs. 1.50 lacs was paid although the price of the computers ordered was Rs. 1,35,970/-. THE amount was paid through Bank draft. THE order was placed on December 17,1996 vide Annexure C3. As per agreement, computers were to be supplied by February 1, 1997. Reminders were issued calling upon the opposite party No. 1 to supply the computers within the time frame because of inauguration of the Centre fixed for February 6,1997. By that date, computers were not supplied, with the result the complainant suffered monetary loss. THE complainant was to charge Rs. 9,800/- per student for six months course. Another sum of Rs. 10,400/- was to be paid in instalments. THE course was to run as licencee of NIIT. Some parts of the computers were supplied vide delivery challan dated February 4,1997 for Rs.37,900/- but goods were delivered on February 13,1997. Other parts were supplied vide Challan dated February 19,1997. THE complainant vide their letter dated March 3, 1997 again wrote to opposite party No. 1 for delivery of the equipment (remaining parts) and to refund Rs. 15,000/- excess charged. This was followed by a reminder on March 10,1997.
2. UPTO March 1, 1997 only 74 students came to the complainant for joining the course. In fact only 15 joined and the remaining students declined to join on the ground that the laboratory of the complainant was not efficient and was incomplete. The complainant was to charge @ Rs. 1,600/- per student per month. In May, 1997, the complainant called upon opposite party No. 1 for refund of the amount and supply of the remaining parts. The complainant was forced to purchase the remaining parts from the open market at Moga. Thus alleging deficiency in rendering service in the matter of late supply of the computers, compensation was claimed under different heads. Opposite party No. 1 contested the complaint by submitting its version. Preliminary objections were taken that the complainant was not a consumer as defined under the Act. The complainant purchased the computers for commercial/business purposes. Imaginary compensation was claimed. On merits, booking of the computers and supply thereof was primarily admitted. However, it was asserted that time was not the essence of the contract. Goods were to be supplied within 8 weeks from the date of receipt of the order by the opposite party. A tentative date of delivery as February 1, 1997 was fixed at the instance of the complainant. It was admitted that a sum of Rs. 1.50 lacs was received from the complainant. However, action to refund the excess amount could not be taken as the file was not traceable. Other facts alleged in the complaint regarding capacity of the complainant to train 112 students or that such numbers had approached for admission or had declined to join course were denied. The amounts to be charged by the complainant as alleged were also denied. The computers were supplied complete in all respect as per order. It was denied that the complainant had suffered any monetary loss. Opposite party No. 2 took up the stand that no relief against him could be granted as opposite party No. 2 was not the dealer of opposite party No. 1. They have not received any consideration from the complainant in the transaction. The complainant filed replication, on affidavit asserting the stand taken up in the complaint and denying the allegations of the opposite parties. On behalf of opposite party No. 2, affidavit of Tejinder Singh was produced but it was undated and unattested. No affidavit on behalf of opposite party No. 1 was filed though opportunities were allowed. Arguments of Mr. S.S. Minnas, Advocate for opposite party No. 1 who had put in appearance were heard. Nobody on behalf of the complainant appeared although initially the complaint was filed through an Advocate who subsequently chose to remain absent.
Preliminary objection was taken that the complainant is not a consumer as defined under the Consumer Protection Act and thus the complaint was not maintainable. This contention in the facts of the present case cannot be accepted. No doubt the complainant is a Company and started the business of running the course as licencee of NIIT. Computers were purchased for doing the aforesaid business. The stand taken up by the complainant that computers were purchased for self-employment in the facts of the present case, cannot be accepted as such. Be that as it may, since, terms and conditions of the contract if read as a whole, it would appear that it is not a simple case of sale of goods or the defects being pointed out therein that the element of commercial activity is relevant to be taken into consideration. The computers were to be installed by opposite party No. 1 through engineers. As per Clause 6 of the terms and conditions of the sale as given in Annexure C3, which are part of the contract, the first part relates to quotation and the latter part supply order. Terms and condition No. 7 provides for warranty which is governed by the terms of PCL standard warranty agreement. Thus, present is a case of supply of the computers which were to be installed by the opposite party at the place of the complainant through their own persons and there was warranty also. Thus, it was a case of hiring service of the opposite party for consideration and that being the position the element of commercial activity or purchase of the goods for commercial purpose is irrelevant in view of the definition of the consumer as given under Section 2(1)(d) of the Consumer Protection Act. The complainant is held to be a consumer.
At the outset, it may be stated that no defect in the goods supplied as such is pointed out. The only deficiency alleged is delay in supply of the computers, which resulted in causing loss to the complainant. Thus, question for consideration is as to whether time was essence of the contract and breach thereof should be considered as deficiency in rendering service. In the quotation Annexure C3, which is dated December 18,1996, time was given for delivery as February 1, 1997. It is on this quotation that supply order was issued. Immediately, thereafter the complainant vide their letter dated December 24,1996 brought to the notice of opposite party No. 1 that the commitment date of delivery was February 1,1997 and they were to start the course from February 6, 1997 and they should ensure delivery by the committed date. A reminder was also issued (Annexure C4). As per facts stated above, first delivery challan was issued on February 4,1997 and the computer were received on February 13,1997 and some parts on February 19,1997. Thus there was delay of only few days in supplying the computers. There was thus deficiency in rendering service.
3. THE further question for consideration is about the actual loss if any suffered by the complainants on account of any negligent act on the part of opposite party No. 1. Apart from the solitary affidavit produced on behalf of the complainant, which is in the form of rejoinder, there is no material produced that 112 students actually approached the complainant for seeking admission. In fact only 79 persons are alleged to have approached the complainant, out of which only 13 jointed the course. THE remaining declined to join the course. It is not clear from the affidavit or from the complaint as to when those persons declined to join the course i.e. before or after actual delivery of the computers by opposite party No. 1. If certain students of their own declined to join the course, it cannot be said that they did so causing loss to the complainant on account of any negligent action the part of opposite party No. 1. Some harassment of course was caused on account of late delivery of the computers for which notional damages could be fixed. THE complainant of course is entitled to a sum of Rs. 15,000/- (may be Rs. 14.030/-), the excess amount paid with interest from the date of deposit till payment. A sum of Rs. 5,000/- is considered just compensation on account of harassment caused to the complainant for the late delivery of the computers. Thus while allowing the complaint, a direction is given to opposite party No. 1 to pay Rs. 20,000/- rounded with 18% p.a. interest w.e.f. the date of placing of the order till payment alongwith costs of litigation of Rs.1,000/-.
No relief can be granted against opposite party No. 2 as no material has been produced that services of opposite party No. 2 were hired by the complainant for consideration. Claim against opposite party No. 2 is dismissed. Complaint allowed with costs.
