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WEST BENGAL STATE CONSUMER DISPUTES REDRESSAL COMMISSION
Manojit Mandal President, Samiksha Bhattacharya Member and Shyamal Kumar Ghosh Member
M/s. Shiv Kr. Sultania
Gopalpur and Anr. – Appellants
Versus
Sankar Kr. Pradhan (Proprietor)
Vill & P.O. Bhagatpur – Respondent
First Appeal No. A/220 of 2022
(Arisen out of Order Dated 18/07/2022 in Case No. Complaint Case No. CC/30/2019 of District South 24 Parganas)
Decided on 13.12.2022
Counsel for the Parties:
For the Appellant:Mr. Somnath Maiti, Advocate
For the Respondent:Nirmal Mukherjee, Advocate
IMPORTANT POINT
Commercial purpose - The complainant has not disclosed that how many employees are there in the restaurant-cum-bar or whether all the family members are engaged in the restaurant-cum-bar service – Therefore, the transaction clearly comes within the purview of commercial purpose.
Headnote:
Consumer Protection Act, 1986 – S.15[Consumer Protection Act, 2019 – S.41] – Appeal Against order of District Commission – Services – Defective quantity of foreign liquor – Consumer - Purchase of huge quantity of liquor - livelihood purpose – Self-employment - No proof of employees in restaurant-cum-bar - the complainant has made averments in the petition of complaint that the complainant is running his business for livelihood purpose. There is no document in support of his averments. The complainant has failed to produce any document in support of his argument that he is running his business for livelihood purpose by means of self employment - In the case in hand, from the three invoices dated 17.08.2019, it is clear that the complainant purchased huge number of bottles of whisky, beer , vodka and rum for his restaurant-cum-bar. There is no document filed by the complainant that his restaurant-cum-bar is maintained by means of self-employment. The complainant has not disclosed that how many employees are there in the restaurant-cum-bar or whether all the family members are engaged in the restaurant-cum-bar service – Therefore, the transaction clearly comes within the purview of commercial purpose. It cannot be said that the goods were purchased exclusively for the purpose of the business which the complainant is running for his livelihood by means of self-employment - Therefore, the complainant is not a consumer U/S 2(1)(d) of C.P. Act,1986. By no stretch of imagination, it can be said that complainant is running his business exclusively for the purpose of earning livelihood by means of self-employment – On facts, the complainant has failed to prove that he is a consumer and accordingly the consumer complaint should be failed – thus, Appeal is dismissed. [Paras 23 to 29].
ORDER
Smt. Samiksha Bhattacharya, Member—The instant appeal has been directed by the appellants challenging the order dated 18.07.2022 passed by the Ld. District Consumer Disputes Redressal Commission (DCDRC), South 24 Parganas in Complaint Case being No. CC/30/2019.
2. The facts of the case, in brief, are that the respondent/complainant (hereinafter referred to as ‘complainant’) namely, Shankar Kumar Pradhan being the Proprietor of Astha Restaurant-cum-FL Bar filed one complaint case against the present appellants/OPs (hereinafter referred to as ‘OPs’) alleging deficiency in service. The complainant being an unemployed young man for his livelihood started a business for the retail sale of foreign liquor for consumption on the premises of Restaurant-cum- Bar under the trade name and style ‘Astha Restaurant-cum-FL Bar’. The OPs are engaged in the business of selling various brands of foreign liquor and beer as distributor of South 24 Parganas. On 16.08.2017 the complainant placed an order over telephone to OP No. 1 for certain quantity of foreign liquor and beer and made over a payment amounting to Rs.4,08,760/- towards the price of the goods by transferring the amount to the account of the OPs. The OP No. 1 had assured that the entire consignment of ordered quantity of spirit and beer would be delivered at the address of complainant’s restaurant-cum-bar within 24 hours but no consignment was delivered till 18.08.2017. Then the complainant visited the office of the OP No. 1 on 19.08.2017 and OP No. 1 assured the complainant that the order would be delivered very soon. But the OP No. 1 failed to deliver the goods till date. Complainant again visited the office of the OP No. 1 but no fruitful result yielded. Then the complainant served a lawyer’s notice on 28.03.2018 to the OPs, but they did not reply to the same. Hence, the complainant filed a complaint case being No. CC/30/2019 praying for direction upon OPs to pay the complainant an amount of Rs.4,08,760/- as refund of price of Foreign liquor and spirit along with compensation of Rs.2,00,000/- and litigation cost of Rs.5,000/-.
3. The Ld. District Commission passed its order on 19.06.2019.
4. The order was passed by the Ld. DCDRC exparte and challenging the order dated 19.06.2019 the appellants/OPs. filed an appeal being No. A/535/219 before this Commission 0on the following aspects:—
i) ‘Commercial purpose’
ii) Exparte order. Opportunity be given to the Appellant to adduce evidence.
iii) Criminal case is pending.
5. This Commission has observed that the question of ‘ commercial purpose’ has not been discussed by bthe Ld. DCDRC. Accordingly, the same be decided on merit and opportunity be given to the Appellant/OP to conduct the case before the Ld. DCDRC.
6. The said appeal was allowed in part with cost of Rs.5,000/- to be paid by both the OPs in equal proportion to respondent/complainant.
7. The case was remanded back by this Commission to the Ld. DCDRC, South 24 Parganas for final adjudication of the matter as discussed above on merit. In the said order, since the question of commercial purpose has not been discussed by the Ld. DCDRC, this Commission has remanded back the case to the Ld. DCDRC.
8. After the case was remanded back to the Ld. DCDRC, the OPs No. 1 & 2 filed their written version.
9. In their written version, OPs No. 1 & 2 have stated that the complainant is not a consumer as defined under the Consumer Protection Act, 1986 and therefore, the Ld. DCDRC has no jurisdiction to try the case.
10. There is no denial that the complainant has placed an order to purchase certain quantity of foreign liquor and beer to OPs No. 1 & 2 and accordingly OPs No. 1 & 2 raised bill/invoice in respect of the said order for the amount of Rs.4,08,760/-. The complainant duly paid such amount in favour of the said company through bank transfer. On or about 16.08.2017 or on 17.08.2017 OPs delivered the goods from its godown to the complainant’s agent, who received the goods from th
