DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

SOUTH 24 – PARGANAS , AMANTRAN BAZAR, BARUIPUR,

 KOLKATA-700 0144

      C.C. CASE NO. _38   _ OF ___2017

DATE OF FILING : 22.3.2017    DATE OF PASSING JUDGEMENT:  _9.7.2018_

Present                 :   President       :   Ananta Kumar Kapri

                                 Member(s)    :    Subrata Sarker  & Jhunu Prasad

COMPLAINANT        :       Loknath Traders, Prop. Probhat Kumar Roy A Unit of Diamond Beverages (P) Ltd. Auth A.M.C, of crystal Springs, 1343 Madurdaha, Kolkata – 107.

•  VERSUS  -

O.P/O.Ps                    :  1. M/s Lakshmi Narayan Enterprise, Sadarghat Old Market Burdwan, Pin-718310

                                     2.   Branch office of Lakshmi Narayan Enterprise, B17770 Santoshpur Block Road, Bye Lane 2, P.S Maheshtala, South 24-parganas, Kolkata -141.

                                     3.     APEXFUNFOODS INDUSTRIES PVT. LTD. Plandu P.O Raza, Ulhatu, P.S Namkum, Ranchi- Pin 834010.

_______________________________________________________________________

                                                J  U  D  G  M  E  N  T

Sri Ananta Kumar  Kapri, President

                  Briefly stated, the facts leading to the filing of the instant case by the complainant are that complainant is a small trader engaged in selling food products such as chips, snacks, (Bhujia) etc. for school children on Trolley in different parts of Kolkata and it is only the source of livelihood of his family. O.P-3 is the manufacturing company also engaged in selling packaged food products through O.P nos. 1 and 2. The complainant purchased a bulk of food products i.e chips, snacks (Bhujia) etc. in packets from O.P-3. But within a  few days of such purchase, he came to see that all those food packets were emitting bad smell and those became fungus infected. Then and then, he informed the O.P-3; representative of O.P-3 came and found the packets so infected. Complainant demanded return of price i.e Rs,1,544/- from O.P-3 ,but the demand of the complainant fell in deaf ear of O.P-3. So, the instant case is filed by the complainant  ,praying for refund of consideration price, compensation etc. alleging deficiency in service. Hence, this case.

                 The O.P nos. 1 and 2 entered into appearance in this case ,but thereafter they have not filed any written statement herein and, therefore, the case is heard exparte against them.

                 It is the O.P-3 who has filed written statement herein, contending inter alia that the complaint is not maintainable as the transaction was for commercial purpose. According to him, O.P-3 is a manufacturer of food items and also deals in food items prepared under the care of expertised  and experienced dietician ,maintaining hygienic and standard norms of Government. Complainant is a franchisee and the goods worth of Rs.1,44,087/- were consigned to him on 8.4.2016 vide Invoice no.AFFIPL/003/201617. Complainant received delivery of the goods on 8.4.2016 ,having been fully satisfied with the same. Their products are packed and the expiry date of those products was for four months. The complainant could not sell those products within four months and ,therefore, those products might have been damaged. There is no deficiency in service on the part of the O.Ps, and therefore, the complaint should be dismissed in limini with cost.

                  No evidence is filed by the O.P-3 and ,therefore,  the case is also proceeded exparte against him.

                  Upon the averments of the parties following points are formulated for consideration.

POINT FOR DETERMINATION

1. Is the case maintainable in its present form and in Law?
2. Is there any deficiency in service as alleged by the complainant?
3. Is the complainant entitled to get relief or reliefs as prayed for ?

EVIDENCE OF THE PARTIES

                 Evidence is filed by the complainant and the same is kept in the record.

DECISION WITH REASONS

Point no.1  :

                 In the instant case, it is to be seen whether the case is maintainable in law or not. The sine-qua-non of a case being maintainable before the Forum is that the complainant must be a consumer under section 2(1)(d) of the C.P Act, 1986. Coming to the facts of the case, it is found that the complainant is a businessman. He himself has stated in his petition of complaint that he is a small trader, having the business of chips, snacks (Bhujia) etc. It is further stated by him in his petition of complaint that he purchased some food products such as chips, snacks(Bhujia)etc. from O.P-3 through O.P nos. 1 and 2. O.P-3 is the manufacturer of food items and it is admitted by O.P-3 that he sold the food items to the complainant. From all these facts, it is found that the food items were purchased by the complainant not for his personal consumption , but for commercial purpose. But this commercial purpose will not be treated as commercial purpose if the transaction is safeguarded by the “ËXPLANATION”  as appended to Section 2(1)(d), C.P Act, 19896. It is provided in the said “EXPLANATION”  that commercial purpose will not include any service availed by a consumer exclusively for the purpose of earning his livelihood by means of self employment. So, it is found hat a commercial transaction will not be regarded as commercial transaction if two ingredients are satisfied by the complainant. The two ingredients are; (1) the business of the complainant must be exclusively for earning his livelihood and (2) the said business must be conducted by way of self employment. If the complainant fails to aver and proof these two ingredients, commercial transaction will not be excluded and in that case , complainant for commercial transaction will not be treated as a consumer under section 2(1)(d) of the C.P Act, 1986.

                     In the instant petition of complaint, there is no-where stated by the complainant that he conducts his business by way of self employment. In absence of such averment on the part of the complainant, we feel constrained to say that the business of the complainant as alleged in the petition of complaint cannot be excluded from the ambit of commercial transaction and, therefore, the complainant can never be treated as a consumer under section 2(1)(d) of the C.P Act, 1986. As the complainant is not a consumer under the aforesaid Act, the present case appears to be not maintainable in Law.

                    Point no.1 is thus answered in the negative against the complainant.

                    In view of the conclusion drawn under point no.1, it appears that any further discussion on these point nos. 2 and 3 are redundant.                

                    In the result, the case fails.

         Hence,

ORDERED

                     That the complaint case be and the same is dismissed exparte against the O.Ps, but without any cost.

     Let a free copy of this order be given to the parties concerned at once.   

                                                                                                                   President

I / We agree

                              Member                                            Member               

Dictated and corrected by me

                         President