Y. Krishan, Member—The Complainant purchased a computer system Model Zenith SC complete with peripherals for Rs. 16,89,816/- (including cost of the equipment, taxes, freight, insurance, facility costs, etc.) from the Opposite Party in March, 1986. Under the purchase contract, the system was under a warranty for a period of twelve months from the date of installation (March, 1986). The Complainant in his Petition dated 14th September, 1989 and received by this Commission on the 27th September, 1989 complained that the computer system, after commissioning, had been giving constant trouble and remained idle for 414 days from 1986 to the date of filing the Petition, that after 14.8.1989, the computer system had remained unattended by the Opposite Party. The complainant, therefore, claimed that the Opposite Party had supplied “a faulty, imperfect equipment having shortcomings in quality, potency, standard which is required to be maintained for a computer system”. The complainant, therefore, claimed Rs. 14,64,456/- by way of damages/compensation/loss suffered by the Complainant and that the Opposite Party should remove and take away the computer from the Complainant’s premises.

2. The Opposite Party in its application in reply without date received in the Commission on 8.11.1989 has, inter alia, maintained that the Complainant had wrongfully, invoked the jurisdiction of the Commission and that any dispute between them had to be settled by arbitration under the Arbitration Act, 1940.

3. Before examining the merits of the case and whether the dispute between the parties has to be settled as per the arbitration agreement between them, the Commission drew the attention of the Complainant to Section 2(1)(d)(i) of the Consumer Protection Act, 1986 which defines “consumer” under the said Act. The said section stipulates that “consumer” does not include a person who obtains such goods (bought for a consideration) for resale or for any commercial purpose. The Commission felt, on the facts of the case, that the computer system was purchased by the Complainant for a commercial purpose viz., for being installed and used by the Complainant company M/s. Lohia Starlinger Ltd. As such, the Commission felt that the complaint was not maintainable before the Commission in as much as the complainant was not a consumer as defined in the Act.

4. The counsel for the Complainant vehemently argued that the computer system had not been acquired for commercial purpose, that it was not being used for commercial purposes, to increase the production, to cut down the costs of production or to promote sales, that at best, it could be deemed to have been used to computerize the performance of certain activities in the company which hitherto were being done manually and that it could not be fairly and correctly maintained that the computer was purchased and being used for commercial purpose. He, therefore, submitted that the Complainant was a bona fide consumer as defined in the Act and that the Commission had full jurisdiction to entertain this case.

5. The counsel for the complainant admitted that the cost of the computer system formed part of the assets in the balance sheet of the Complainant company, that the costs of maintenance and operation and depreciation of the computer system were charged to the Profit and Loss Account of the Complainant company, and that the expenses on account of the depreciation operation and maintenance form part of the overhead costs of the products manufactured and sold by the Complainant company. This leaves no room for doubt whatsoever that the computer system was and is being used for commercial purpose and had been acquired as such. In fact. in his affidavit of 22nd November, 1989, the Sr. Manager (Systems) of the Complainant company had stated “I am using the computer system delivered by the Opposite Party for purposes of the Complainant’s business...”

6. The Commission is, therefore, fully satisfied that the Complainant compan