ORDER
B.K. Taimni, Member
1. Appellant was the complainant before the State Commission where a complaint was filed by her alleging deficiency in service on the part of the respondent, M/s. Mehta Computers.
2. Brief facts necessary to understand the case are that the complainant being a woman entrepreneur wanted to set up a small scale unit for Desk Top Printing requiring computer(s) for the purpose. Orders for two personal computers (PCS) along with a certain configuration software and accompanying items was placed by the complainant with the respondent for Rs. 4.50 lakhs. On receipt of these items, the complainant did not find the computers with the requisite specifications and non-supply of certain material. One PC, taken back for improvement and return, was never given back. The grounds for filing complaints also included over charging of price, non-supply of airconditioner, chairs/tables for keeping the computers. Thus alleging deficiency on the part of the opposite party, a complaint was filed by the complainant before the State Commission praying for following reliefs.
3. The complainant humbly submits before this Hon’ble Commission the following reliefs :
4. As per record the respondent neither filed written version in spite of notice nor any affidavit by way of evidence before the State Commission in spite of opportunity having been given to him. When the case was closed by the State Commission on 1.11.1993 preliminary
objections were filed by the respondent stating that the complainant is not a consumer as the whole transaction was for commercial purpose and also it is a case of settling of account and is not a consumer dispute. Taking these objections into consideration, the State Commission held the complainant not to be consumer within the meaning spelled out in the Act, and mentioned in passing that since non-supply of second computer is a breach of contract, compensation for breach of contract cannot be sought under Consumer Protection Act. The case of excessive price was also not found to be proved. Based on all these reasoning, complaint was dismissed. It is in these circumstances that an appeal has been filed before us. The respondent remained absent in spite of notice issued by the Commission and also by way of substituted service in the newspaper, hence is being proceeded ex parte.
5. The argument of learned Counsel for the appellant is that by no stretch of imagination can the appellant be not called a consumer. She is lady entrepreneur and started her business of Desk Top Printing after taking loan from the Bank. The State Commission has emphasized the word ‘Business loss’ in its order. Not a word is said that she is an entrepreneur doing business from own household with no other employee. She got these computers for self employment to earn her livelihood. Her husband also made use of it at times to prepare his lectures/training programmes which cannot make it a large commercial enterprise. What she suffered was a business loss hence had to be stated in these terms. The State Commission erred in not appreciating the full facts and law on the subject. Price was overcharged, second computer was taken away and not returned. Evidence given by them is not rebutted, hence, as per law, what was stated in the affidavits was to be accepted. The order of the State Commission needs to be set aside and the prayer of the complainant be allowed with costs.
6. We have seen the material on record and heard the arguments. There is no dispute about the complainant having placed the orders with
the respondent for Rs. 4.50 lakhs for the following items :
7. There is no dispute that they were initially supplied but they were not of the specifications mentioned in the above quotations. As per record, we see a receipt of Rs. 1,12,500/- signed by the respondent. Admittedly Rs. 3,37,500/- were paid by the Bank. Rs. 15,000/- were also paid by cheque on 2.11.1991 and Rs. 10,000/- had been paid earlier as advance by cheque on 21.9.1991. Thus in all as per record, Rs. 4.75 lakhs had been received by the respondent. There is nothing on record to rebut these figures as the respondent/
opposite party neither filed the written version nor any affidavit by way of evidence. Allegation of the complainant is that one computer, taken away for improving/upgradation, was not returned. Non-supply of material as per specification spelled out in the quotation and yet charging the amount given in the quotation in our view is a clear case of deficiency in service. In our view the State Commission seems to have been misled by the word ‘Business loss’. Complainant’s husband used the computer for allied purposes. As is made clear that Business loss by way of decreased turnover owing to absence of second Computer-(Rs. 50,000/-) relates to the period November, 1991 to July, 1992 making it a business of Rs. 5,000/- p.m. No way we can consider this a large business. There is nothing on record to show as to how much income she will be making out of this enterprise, after paying for the dues to the Bank. Her husband making use of it to prepare lectures or making other use like writing an article in a professional journal does not and cannot make it a commercial transaction thus taking it outside in purview of the Act. Seeing the material on record, we cannot but agree that the complainant is a consumer and she was using Desk Top Printing for livelihood with no outside help (no employee). Operating from a room in her house, is additional material, supporting the fact that she was using PCS for earning livelihood albeit at times permitting her husband to use the same. We are unable to sustain the orders of the State Commission and are set aside. Coming to the quantum of compensation we see from the prayers made, that the complainant shall be entitled for items (iii) & (iv) only, the total of which works out to Rs. 2,40,500/- plus Rs. 7,000/- excess amount charged (As mentioned earlier the respondent had received Rs. 4.75 lakhs against Rs. 4.5 lakhs; a further sum of 18 thousand was also returned by the respondent to the complainant leaving Rs. 7,000/- as unpaid). We see no merit in other items, as no proof is available on record in support of these claims. In these circumstances the respondent is directed to pay Rs. 2,47,500/-along with interest @ 9% from the date of filing
the complaint, 14.8.1992 till the date of payment. The appellant shall also be entitled to cost which we fix at Rs. 5,000/-. The respondent shall arrange to pay the above directed amounts within eight weeks of the order.