ORDER ON ADMISSION/MAINTAINABILITY

          Complainant advocate present, case called out in the Open Forum, perused the complaint and records. Heard the argument of complainant.

The nature of the complainant is that, the complainant is a business person and dealing in Electrical Materials Goods and he has use to supply the materials to the customers within the entire Jamkhandi Taluka since from many years and the OP is wholesale dealer of the Electrical Goods and the OP is use to supply Electrical Materials Goods to complainant since from many years.

It is further case of the complainant is that, the complainant was in need of Electrical Goods in the year 2014, he has approached/contacted the OP for purchasing the Electrical Goods and he has sent an amount of Rs.3,00,000/- through cheque bearing No.468764 to the OP and the said cheque has been cleared and credited in the OP Account on 29.12.2014 and thereafter the OP has sent a goods worth of Rs.1,59,246/- and he has sent invoice bills vide No’s.66186 of Rs.41,626/-, No.66194 of Rs.12,368/-, No.66195 of Rs.7,254/-, No.66196 of Rs.3,399/-, No.66197 of Rs.10,053/-, No.66198 of Rs.4,377/-, No.66199 of Rs.5,960/-, No.66200 of Rs.21,010/-, No.66201 of Rs.19,145/-, No.66202 of Rs.22,917/-, No.66203 of Rs.11,137/- total for an amount of Rs.1,59,246 on dtd:02.01.2015 the said invoice bills have been produced in this complaint and further balance goods were not supplied nor repay the amount of Rs.1,40,754/- to the complainant. Therefore, the complainant has requested to the OP to send the Electrical materials more than worth of Rs.1,40,754/-, but OP has not sent the goods. Finally, the complainant has sent letter to the OP on dtd: 01.02.2018 and requesting the OP that, to return the amount, but OP has requesting in phone call to send the goods, but neither he has supplied the goods nor return the amount till today to the complainant. Hence, this complaint.               

2.     The learned Counsel for the Complainant vehemently argued on the point of admission/maintainability and the case has been posted for order on maintainability, the complainant has produced 06 documents i.e. Invoice bills No.66186 to 66203 of Rs.1,59,246/- dtd: 02.01.2015, Copy of the requesting letter to the OP on dtd: 31.01.2018, Copy of the courier receipt, Copy of the Statement of Account of complainant from 01.04.2014 to 31.03.2015, Copy of the Legal Notice issued by the complainant on dtd: 22.10.2018 and Copy of the Postal receipts and Acknowledgement, which are marked as Ex.P-1 to Ex.P-6. Heard the counsel for the Complainant on the point of admissibility of the Complaint.

Now, the following points that would arise for our consideration in deciding the case are;

1.         Whether the complainant is a consumer within the meaning of the provision of the C.P Act 1986, so as to maintain the complaint against the OP for alleged deficiency in service ?
2.  What order ?

3.      Our findings to the above points are as under:

1. In the Negative.
2. As per the final order for the following:

R E A S O N S

4.      Point No.1:-  After careful going through the pleadings of the complaint, it is crystal clear that, the complainant is the business person and he has admitted in the complaint that, he has dealing in Electrical Material Goods and he has use to supply the materials to the customers within the entire Jamkhandi Taluka and OP has wholesale dealer of the said Electrical Goods and further the OP has supply the material goods to the complainant. Further case of the complainant is that, the complainant is not a Consumer as he has bought Electrical Goods for Commercial Purpose. Accordingly Sec. 2(1) (d) of C.P. Act 1986, wherein exclusion is provided when they are bought for resale or for any Commercial Purpose. As the complainant has bought this Electrical Material for Commercial purpose, it is not a Consumer.

          In this case the complainant has admitted that, the said business is purely for Commercial Purpose with a main intention to earn profit by doing business at large which has been pleaded in this complaint, then question does not arise to maintain the case as there is no any consumer case and there is no any relationship between the parties as consumer and service provider, which is not amounts to deficiency in service on the part of the OP and even, the complainant has not established that, the said business is come under the perview of Consumer Protection Act 1986.  Further in this case, the complainant has not clarified how the complainant become the Consumer of the OP and what is the negligence and deficiency in service on the part of the OP.  When the complainant has not produced any terms and conditions of the business how can we come to conclusion that, there is a negligence on the part of the OP and further the counsel of the complainant relied a decision of Hon’ble Supreme Court AIR 1995 Supreme Court 1428 Laxmi Engineering Works V/s. P.S.G. Industrial Institute, the above said decision is not helpful to the complainant.

          Hence in our considered opinion that, the complainant is failed to prove that, he is Consumer of the OP and the OP is a service provider to him and even the complainant has not proved that, he is a Consumer of the OP. Commonly such type of business running is for Commercial Purpose and profit earning.

5.      After perusing pleadings of the complaint and documents and after going through the above discussed facts, in order to maintain a complaint under the provisions of the C.P Act, 1986, the complainant must be a ‘consumer’ and the OP must be a ‘service providers’ as defined under the provisions of the C.P. Act, 1986, so as to maintain a complaint against the OP for the alleged deficiency in service, for that proposition of law, we would like to refer a decision of the Hon’ble National Commission, reported in 2012 (2) CPR 72 (NC) has held that, only a ‘consumer’ can maintain a ‘consumer complaint’ under the provisions of the C.P. Act against the service providers.  Further we would like to rely on another decision of the Hon’ble National Commission reported in IV (2011) CPJ 175 (NC), it has held by the Hon’ble National Commission that, when the averments made in the complaint does not disclose any relationship of ‘consumer’ and provider of the service between the parties, complaint is not maintainable, same is liable to be dismissed and any dispute arising between them would not be a consumer dispute.

          Further it is an important to note that and it is admitted in pleading of the complaint in respect of profit motive and also as per the averments made in his complaint, it is mentioned in para no.3 of complaint.  In order to prove that, the complainant has invested some money towards  for earning his livelihood by way of self-employment, the complainant has not placed any material, even he has not pleaded about the same in his complaint as per earning his livelihood and for self-employment, in our consider view, it is crystal clear that, when the pleading does not disclose regarding the said earning of complainant is for his livelihood and self-employment. So his complaint is not maintainable before the Consumer Forum, but his remedy will lies elsewhere. Naturally and always the invested money for doing business for earning profit motive and for dealing in Electrical Material goods to the customers which is nothing but commercial purpose and profit earning only. So, it cannot be said that, complainant is a consumer as per the Act and the matter does not come even under the explanation, Sec 2 (1) (d) which was introduced by way of amendment to the Act that, the commercial purpose did not include use by the complainant, exclusively for the purpose of earning his livelihood by means of self-employment, in that view it will have to be held that, the complaint itself is not maintainable.  In this regard we would like to refer a decision of the Hon’ble Supreme Court reported in I (2011) CPJ 1 (SC), wherein it is held that
“A person purchasing goods for commercial purposes is not a consumer”. 

Hence in the instant case also complaint does not fall within the meaning of ‘consumer’. In present case, looking to the pleadings and documents on record  prima-facia it shows that, as the complainant invested some money for profit motive and for the purpose to run the business activities in order to generate profit and not for sustaining/earning his livelihood and the complainant has not revealed this fact deliberately and intentionally just in order to get benefit, hence the present complaint is not maintainable on this ground alone.  Therefore any dispute arising between them would not be a consumer dispute. 

In the light of above observation made in the present complaint, the complaint is not maintainable before this Forum and the remedy of the complainant lies elsewhere and the complainant can seek his remedy before the competent authority. Therefore the question of deficiency in service on the part of the OP does not arise. Accordingly we answer this point in the Negative and proceed to pass the following:    

O R D E R

1. The complaint is hereby dismissed as not maintainable.

2. However liberty is reserved to approach appropriate authority for reddressal of his grievances elsewhere.

3.  No order as to costs.

 MEMBER                                               PRESIDENT