C. C. No-79/2019

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

SOUTH 24 PARGANAES

Amatran Bazer, Baruipur, Kolkata-700144

C. C. CASE NO- 79 Of 2019

Date of filing :-  25.06. 2019                            Date of Judgment- 03/12/2019

Present        :          President- Ananta Kumar Kapri

                               Members- Jhunu Prasad   and  Jagadish Chandra Barman

Complainant   :      Sujan Ghosh

                               Son of Lakshan Ghosh

                               Vill. &  P. O.-    Chandan Nagar

                                P. S. – Dimond Harbour

                                Dist.- South 24 Parganaes

                                Pin Code-  743366.

• VERSUS     -                                                                                               

  Opposite Party :     Amit Kumar Halder  (Prop.)

                                 Son of Bharat Chandra Halder

                                  TARAMAA AGARBATHI CENTRE

                                  Vill.  –Jelerhat, P. O. – Doltala  Ghola,

                                  P. S.- Baruipur, Dist.- South 24 Parganas

                                  Pin Code- 743376, West Bengal

_________________________________________________________________

JUDGEMENT

Sri Jagadish Chandra Barman, Member.      

       The facts leading to the filing of the instant case by the complainant may be epitomized as below:-    

        The complainant  filed this complaint petition on 25/06/2019 in this Ld. Forum under Section 12 of The Consumer Protection Act  1986   against the O.Ps .

      The complainant stated that he is the owner of M/S Radha Krishna Agarbatti Centre specialized in making incense sticks for supplying  in  local markets. The complainant entered into a contract for purchasing machines and tools to prepare incense sticks with the Opposite Party on 27/01/2019 and  paid Rs 20,000=00 (Rs twenty thousand) only as advance pay to the O. P.   O. P. also delivered a document vide challan no-503 dated- 27/01/2019 to the complainant against the total bill of Rs. 1,30,000 ( Rs one lac thirty thousand) only.

         The complainant  purchased  one Automatic Agarbatti Making Machine, (A. C.A. O. ) Indian worthing Rs. 92,000=00 only, one Mixture Machine (Indian) of worthing Rs. 27,000=00 only, one Weight Machine (deulox), and other raw materials from the O.P. Grand total  Rs. 1,36,200=00  only  vide challan cum invoice no.- 118   date-10/02/2019.

The Opposite party also clearly assured in black & white  in his challan cum invoice  as to his warranty  and free service for two  years from  10/02/2019.

        The complainant also stated that after few days from the date of purchasing the said machines and tools, they  started to develop disturbances. Thereafter, the complainant went to the opposite party, informed him, and requested him to either change the machine or repair the disturbed machines. But the opposite party did not pay any attention to his complaints. Hence the complainant came to this learned Forum and Filed this petition on 25/06/2019.

.   Due to the deficiency in service and unfair trade practice as alleged by the complainant, , the complainant demanded either to refund his total amount  Rs. 1,22,800=00 only ( Rs. One lac and twenty two thousand) paid to the opposite party or replace original machines in place of duplicate machines supplied by the opposite party.

       We heard the complaint and sent the copy of complaint to the opposite party. The copy was duly served on 08/08/2019 as per postal truck report available in this forum. But the opposite party did not turn up before the Forum on any day to contest the case and, therefore, the case proceeds exparte against the opposite party.

       Upon the averments of the complainant, the following points are formulated for the consideration.

POINTS FOR DETERMNATION.

1. Is the case maintainable in law ?
2. Is the complainant entitled to  get relief or relieves as prayed for?

EVIDENCE OF THE PARTY

Petition of complaint is treated as evidence of the complainant.

DECISION WITH REASONS

Points no 1 & 2.

 It is mentioned by the complainant that he is a consumer under Section  2(d)  of the Consumer Protection Act 1986 and filed this complaint on  25/06/2019 under Section 12 of the said Act before this Learned Forum of South 24 Parganas. But as per definition of the term “CONSUMER” means any person who

1.  buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of diferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose.
2. It is worthy to mention here the explanation of the term “Commercial purpose”.

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.

The complainant in his application/complaint in para 10 page (3) has clearly mentioned, “ that due to the duplicate machines being non functional the complainant faced lot of hardship in his business and incurred a bad loss in the output of the Agarbatti production thus damaging the goodwill and profit of the complainant`s business.”

 It is also very much pertinent to mention here that the complainant has not mentioned anywhere in his application that his business has been running for the purposes of earning his/her livelihood by means of self-employment.

From this statement, it is clear to us that the complainant is a business man and whatever he purchased from the opposite party only to gain money, even  not for the purposes of earning his livelihood by means of self-employment.

 From the above averments, we are of the opinion that the complainant is not a consumer under Section 2(d) of the Consumer Protection Act 1986 but a commercial trader. Therefore, his complaint is not maintainable in this Forum.

In the result, the case is dismissed.

Hence,

                                                             ORDERED

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

Register-in-Charge of this Forum is directed to send a certified copy of the judgment free of cost at once to the parties concerned by speed post.

Member                                      Member                                           President

Dictated and corrected by me

                   Member

The judgment in separate sheet is ready and is delivered in open Forum. As it is ,    

                                                             ORDERED

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

Register-in-Charge of this Forum is directed to send a certified copy of the judgment free of cost at once to the parties concerned by speed post.