JUDGMENT

Heard Mr. Koushik Roy, learned counsel appearing on behalf of the appellant. Also heard Mr. Tapan Saha, learned counsel and Mr. Prabir Kumar Chakraborty, learned counsel appearing for the opposite parties i.e. the respondents herein.

2. The fact of the case in short is that M/s. B.K. Petroleum, engaged in retail selling of fuel for vehicles and bikes etc., had purchased a 7 kW Solar Electrical System from the respondents, M/s. Gilbarco Veeder Root India Pvt. Ltd. amounting to Rs.8,00,000/- and installed in the M/s. B.K. Petroleum building/premises for use in the petrol pump itself to reduce huge electricity cost and smooth running of the petrol pump. After one and half year of installation, the solar system had become functionless. The matter was communicated to the opposite party repeatedly to make it functional, but they have not removed the fault.

3. Being aggrieved, M/s. B.K. Petroleum made a complaint to the learned District Commission for relief. Learned District Commission in their order dated 13.01.2023 dismissed the complaint by observing that the subject solar system has been installed in the petrol pump for commercial purpose only and not for earning his livelihood by means of self employment. Hence, the complaint petition is not maintainable as per provision of Section 2(7) of the Consumer Protection Act, 2019.

4. Being aggrieved by the order of the learned District Commission, the complainant made an appeal before this Commission. This Commission vide its ex parte order dated 03.04.2023 directed the respondents to compensate M/s. B.K. Petroleum for making payment of Rs.8,00,000/- against the cost of the solar system, Rs.1,50,000/- for installation and Rs.2,00,000/- for deficiency in service along with @6% interest and further Rs.25,000/- towards costs of litigation.

5. Against the order of the State Commission, the respondents made an appeal before the National Commission. The Hon’ble National Commission had observed that the order passed by the State Commission on 03.04.2023 against the appeal of the complainant dated 13.03.2023, which is less than 30 days after the appeal made out and without the presence of the respondent. Hon’ble National Commission after having the appeal set aside the impugned order dated 03.04.2023 passed by the State Commission observing that the State Commission had passed the order on 03.04.2023, in absence of the respondent. It was also observed that the appeal was filed by the complainant before the State Commission on 13.03.2023 and the impugned order was passed by the State Commission on 03.04.2023, which is less than 30 days. Accordingly, the case was remanded to the State Commission with a direction to afford an opportunity to the respondent to be heard and to decide the appeal on merit.

6. Accordingly, the State Commission re-heard the case again giving sufficient opportunity to the respondent (M/s. Gilbarco Veeder Root India Pvt. Ltd.). In course of hearing, the respondent argued the point that M/s. B.K. Petroleum is an MSME business enterprise and had purchased and installed the 7 kW Solar System for commercial purpose only and not for self employment or for earning livelihood. Hence, M/s. B.K. Petroleum is not a consumer and not covered by Consumer Protection Act, 2019 under Section 2(7).

7. In support of their argument, they have referred three numbers of case laws decided in the State Commission/National Commission. These are as follows:—

(a) Innova Rubbers Pvt. Ltd. Vs Lucifer Lights Ltd. decided on 10.12.2013 by the Hon’ble State Commission, Maharashtra.

(b) R.K. Handicraft and Anr. Vs. M/s. Parmanand Ganda Singh & Co. & Ors. decided on 28.01.2015 by the Hon’ble National Commission.

(c) M.T. James Vs. P.M. Baburajan decided on 27.01.2015 by the Hon’ble National Commission, New Delhi.

In all these case laws, it is decided that when the goods/assets are used for commercial purpose, the complainant would not be treated as ‘consumer’. These case laws are elaborate