Date of Filing:24.11.2008
Date of Order: 04.03.2009
BEFORE THE I ADDITIONAL DISTRICT CONSUMER DISPUTES REDRESSAL FORUM SESHADRIPURAM BANGALORE-20
Dated: 4th DAY OF MARCH 2009
PRESENT

Sri. Bajentri H.M, B.A, LL.B., President
Smt.C.V. Rajamma, B.Sc., LL.B., PGDPR, Member


COMPLAINT NO. 2540 OF 2008

Isometric Solutions,
12/25, 3rd Floor, 9th Cross,
1st Phase, J.P. Nagar,
BANGALORE-560 078.
Rep. by its Chief Executive
Officer Sri. Vasuki. B.K. …. Complainant.

-V/s-

Gateway Technologies,
28, 12th Main Road,
4th Block, Jayanagar,
Next to Sub Registrar’s Office,
BANGALORE-560 011.
Rep. by its Proprietor:
Sri. Shamsundar. …. Opposite Party.
ORDER
This complaint is for a direction to the opposite party to refund Rs.28,972/- paid towards cost of the UPS, Rs.1,969/- paid towards cost of annual maintenance contract, with interest thereon at the rate of 18% per annum and to pay Rs.5,00,000/- as damages for the loss suffered by the complainant. The case of the complainant is as under:-
The complainant is an Engineering Service Provider and their job is to conceptualize, design and develop products for various clients in India and abroad. The complainant has employed professionals to carry-out these projects and has installed six computers with latest technology to carry-out the projects. Since the work involved use of computers depending on electricity, and since the same was not regular the complainant was constrained to buy UPS equipment. Accordingly on 30.11.2005 they purchased “DB” UPS 2 KVA line interactive with 10 IP and 10 OP from the opposite party so also batteries for a total sum of Rs.28,972/-. The UPS and the battery were covered with warranty of one year from the date of purchase. The opposite party also assured that their service engineers would visit once in three months, to monitor the working of the UPS and the battery. In October 2006, the UPS started giving serious problems. The power back-up which was promised as two hours for 6 to 7 computers drastically came down to 30 minutes. The efforts of the complainant to contact the opposite party to remind them of the periodical visit to check the UPS and battery as promised was in vain as there was no response from the opposite party. As a result, there was delay on the part of the complainant to execute different projects as undertaken and the complainant was forced to give excuses to its clients for executing the work beyond schedule. The complainant was also unable to accept new projects and thus lost lucrative projects and suffered huge monetary loss. In December-2006 the Service Engineers of the opposite party called on the complainant promoting an offer of “ANNUAL MAINTENANCE CONTRACT” starting from January-2007 for a period of one year and assuring rectification of power back-up issue with the UPS and periodical maintenance by the service engineers. Hoping that the opposite party would offer good service, the complainant accepted the offer by paying the necessary charges of Rs.1,969/- through Account Payee cheque. Contrary to the assurance the opposite party did not offer the expected service and the UPS was not even providing 30 minutes back-up instead of two hours. Whenever he called upon the opposite party to attend to the problem, the same were ignored and neglected. In the last week of January-2007, the opposite party visited the complainant to monitor and check the UPS and found that, the UPS was not giving the required back-up. The Service Engineers of the opposite party could not pin down the exact problem, but repeatedly pointed-out that the batteries were defective. In the service report dated: 13.03.2007 the service engineers made an entry that the equipment needed to be checked again. On 14.03.2007 the service engineers found that, the total battery voltage was 26.68 Volts when the individual batteries were showing 12.65 and 12.63 Volts respectively. But nobody from the opposite party followed it up and rectified the UPS. Repeated complaints to the opposite party were of no avail. On 22.6.2007 Mr. Maheshwara the customer support engineer of the opposite party found that, one of the batteries was faulty. Thereafter nobody visited the complainant for a month and after repeated calls another customer support engineer visited and observed that voltage in one of the batteries was low and it needed replacement. During September-2007 another customer support engineer came and remarked that the batteries required replacement. Being not happy with series of battery replacement and the constant checking undertaken by the opposite party, the complainant remarked in the service report dated: 08.09.2007 that he was not sure whether the battery drains due to UPS problem and it needed to be checked thoroughly. The service engineers of the opposite party were still under the impression that the problem was with the batteries and replaced the same frequently. On 23.01.2008 again the batteries were replaced. The complainant suggested that the UPS would ‘appear’ to work fine as new batteries were installed and insisted that, the batteries be fully discharged and then the UPS checked to see if it was properly charging the batteries and then check if the UPS can give necessary back-up and would work, but the customer support engineer could not understand and once again told that the UPS was in working condition. The checking and replacement of the batteries continued from June-2007 onwards, but the engineers were unable to detect and set-right the defective UPS. On 26.02.2008 the customer support engineer of the opposite party came with an old and out-dated UPS of ‘ESSMA’ make and informed that, he was taking back the ‘DB’ make UPS for service and replacing it with ‘ESSMA’ make UPS which was only a spare and it would work with three batteries. Accordingly the ‘ESSMA’ make UPS was installed with 3 batteries with an assurance to install ‘DB’ UPS within three days after service. But so far the opposite party has not installed the UPS and all the efforts to contact and remind the opposite party went in vain. On installation of the spare ‘ESSMA’ UPS, a new problem occurred. The computers would start resetting on power failure due to defect in the UPS. The maintenance engineer made it clear that the problem was with the UPS and if the same is not rectified, the computer system would crash. The earthing in the premises was also got checked with the electricians and it was confirmed that the earthing was in good condition. In April-2008 a computer system crashed and two systems are on the verge of crashing. They issued legal notice dated: 26.06.2008 calling upon the opposite party to refund Rs.28,972/- paid for the UPS and claiming refund of Rs.1,969/- paid towards the annual maintenance contract. The opposite party gave untenable reply to the said notice. The opposite party failed to provide good, proper and effective service which amounts to deficiency in service. As a result the complainant suffered huge loss in business and lost good projects from the clients. Without any alternative he purchased a new UPS and new battery at a total cost of Rs.67,020/- and the same has resulted in the additional investment. The replaced batteries and the UPS supplied by the opposite party have become redundant and are lying as a dead investment. Hence the complaint.

2. In spite of service of notice, the opposite party has remained absent. In support of the claim, the Chief Executive Officer of the complainant firm has filed his affidavit. We have heard the learned counsel for the complainant.

3. The points for consideration are:-
(1)Whether the complainant is a ‘Consumer’ within the meaning of Section 2(1)(d) of the Consumer Protection Act?

(2)Whether the complainant has proved deficiency in service on the part of the opposite party?

(3)Whether the complainant entitled to the relief prayed for in the complaint?

4. Our findings on the above points are:-
POINT No.1:- In the Negative
POINT Nos.2 & 3:- Does not survive.
REASONS
POINT NO.1:-
5. From what is stated in Para- 3 & 5 of the complaint it is clear that, the complainant is a firm doing business for the purpose of earning profit and therefore a commercial establishment. In Para-3 of the complaint it is stated that, the complainant is an Engineering Service Provider in the matter of conceptualize, design and develop products for various clients and has employed professionals to carry-out the project and has installed six computers for the purpose of his business. In Para-5 of the complaint it is stated that, due to the problems in the UPS system there was delay in executing the different projects as under taken and therefore the complainant was forced to give excuses to the clients for executing the work beyond schedule and lost lucrative projects and as a result, suffered huge monitory loss. The contention of the complainant that, they have employed professionals to carry-out the projects makes it clear that, the firm is not established to earn livelihood by self-employment, but it is a firm established for commercial purposes. Admittedly the complainant has purchased the UPS from the opposite party for use in the commercial establishment on 30.11.2005. The UPS was provided with warranty for one year from the date of purchase and as such the warranty itself came to end on 30.11.2005. Though in Para-5 of the complaint it is alleged that, in October-2006 the last month of the warranty period the UPS started giving problems, nothing is produced to show that in October-2006 itself the opposite party was called upon to attend and set-right the defects in the UPS equipment. As such, it appears that during the warranty period of one year no problems were developed in the UPS equipment. The complaint is filed on 24.11.2008 within two years from the date of expiry of the warranty period. But in the absence of material to show that any defects was noticed in the UPS equipment within the warranty period, the complainant who had purchased the UPS equipment for commercial purpose cannot be construed as a ‘Consumer’ within the meaning of Section 2(1)(d) of the Consumer Protection Act. Because a person purchasing the goods or availing services for commercial purpose is excluded from the definition of a ‘Consumer’. Therefore when the complainant has purchased the UPS equipment for commercial purpose and no defects were noticed during the warranty period after the expiry of the warranty period the complainant cannot be construed as a ‘Consumer’ as defined under the Consumer Protection Act. Accordingly, we answer point No.1 in the Negative holding that, the complainant is not a ‘Consumer’ as defined under the Act.

POINT Nos. 2 & 3:-
6. In view of our findings on Point No.1 these two points will not survive for consideration. The complainant not being a ‘Consumer’ has to seek remedy elsewhere and not under the Consumer Protection Act. In the result, we pass the following:-
ORDER
7. The complaint is dismissed. No order as to costs.

8. Send a copy of this order to both the parties free of costs immediately.

9. Pronounced in the Open Forum on this 4th DAY OF MARCH 2009.

-Sd/- -Sd/-
MEMBER PRESIDENT