ORDER

Samiksha Bhattacharya, Member

The instant Revision Petition has been filed by the Revisionist/Smt. Sumita Mitra questioning the propriety of Order No. 7 dated 07.07.2017 in the complaint case being no. CC/65 of 2017 pending before the Ld. DCDRC, Paschim Medinipore.

Ld. Counsel for the Revisionist has submitted that the Respondent No. 1/ Complainant of the complainant case filed one complaint being No. CC 65 of 2017 against the present Revisionist and the Respondent No. 2 for completion of repairing work of the machine of the Complainant and for installation of the old machine at the site of the Complainant. He has submitted that BERA FOOD PRODUCTS is a proprietorship concern of the Respondent for procuring cream through cream separator machine and the Respondent sells the same in the market. BERA FOOT PRODUCTS has been converted into a Pvt. Ltd. Company with effect from 13.03.2018. Therefore, the Respondent No. 1/Complainant cannot be termed as ‘Consumer’. He is using the machine for commercial purpose. Moreover, the cause of action has not arisen within the jurisdiction of the Ld. District Commission concerned. The Ld. DCDRC has failed to consider the petition challenging the maintainability of the complaint case filed by the Revisionist/OP No.1. Hence the instant Revision Petition has been filed praying for setting aside the Order dated 07.07.2017.

On the date of final hearing, none appeared on behalf of either of the Respondents.

Upon hearing the Revisionist and perusal of materials on record, It appears that the Complainant has filed one complaint case before the Ld. DCDRC concerned being No. CC 65 of 2017. Therefore, the OP No. 1/ the Revisionist herein filed one petition for dismissal of the complaint case on the ground of maintainability. The first issue of the petition was that the complaint has been filed in the wrong jurisdiction of the Ld. DCDRC, Paschim Medinipore and due to such jurisdictional error, the case is not maintainable and liable to be dismissed with cost. The second point of the petition is that the Complainant/Respondent No. 1 procured cream thorough the cream separator machine and after procuring cream, the Complainant sells it in the market and the cream separator machine is therefore used for the commercial purpose. As such, the Complainant is not a consumer at all, under Section 2 (1) (d) of the CP Act 1986. The Ld. DCDRC rejected the said petition filed by the Revisionist/OP no. 1 of the complaint case vide its Order dated 07.07.2017.

In the petition of the complaint, the Complainant has stated that after procuring cream, the Complainant sells it in the market and which is the only source of income of the Petitioner for his livelihood. The Explanation clause of section of 2(1)(d) of CP Act 1986 clearly indicates the following :

“Explanation – For the purpose of this clause, “commercial purpose” does not include use by a person of goods bought and used by him / her and services availed by him / her exclusively for the purposes of earning his / her livelihood by means of self-employment.”

Therefore, the Complainant is a consumer as per Section 2(1)(d) of CP Act 1986.

Another point of the maintainability petition is that the case is filed in wrong jurisdiction. In Para No. 4 of the petition of complaint, the Complainant has stated that he met with the OP No. 1/Revisionist for repairing the machine. As per quotation dated 15.01.2016 issued by the OP No. 1/Revisionist an inspection was held and the Revisionist further demanded Rs.3000 for extra work for dismantling and assembling the machine and also for some repair work. It appears from the record that the quotation of the Revisionist was issued on 15.11.2016 for “Inspection / Repairing/ Re-commissioning of 1 No. of Laxmi Make Cream Separator of capacity 3000 LPH at the Bera Food PRODUCTS, West Medinipore & Crown Engineering, Kolkata for necessary air trial” and for other heads also. Therefo

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