THE PRESIDENT

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION: WEST TRIPURA : AGARTALA

 

CASE No. CC- 358 of 2022

 

B.K. Petroleum,

Briddhinagar, Ranir Bazar,

West Tripura, Pin- 799035,

Represented by its Proprietor

Sri Joydeep Podder,

Briddhinagar, Ranir Bazar,

P.O. & P.S. Ranir Bazar,

West Tripura, 799035. ..................Complainant.

 

-VERSUS-

 

1. Gilbarco Veeder Root India Pvt. Ltd.,

Sreeji Tower, 1st Floor- Office,

Tribe Coworking, Christian Basti,

G.S. Road, Guwahati- 781005.

 

2. Corporate Head Office,

Art Guild House,

B Wing- 1st Floor, 

Phoenix Market City,

LBS Marg, Kurla- West,

Mumbai- 400070. ..............Opposite Parties.

 

         __________PRESENT__________

 

 SRI RUHIDAS PAL

PRESIDENT,

  DISTRICT CONSUMER  

DISPUTES REDRESSAL COMMISSION

      WEST TRIPURA, AGARTALA. 

 

Dr (SMT) BINDU PAL

MEMBER,

  DISTRICT CONSUMER 

DISPUTES REDRESSAL COMMISSION

  WEST TRIPURA,  AGARTALA.

 

SRI SAMIR GUPTA,

MEMBER,

  DISTRICT CONSUMER 

DISPUTES REDRESSAL COMMISSION

  WEST TRIPURA,  AGARTALA.

 

C O U N S E L

 

For the Complainant : Sri Koushik Roy,

  Sri Udai Sankar Singha,

  Sri Rohan Chakraborty,

  Learned Advocates.

  

For the O.P.  : Sri Prabir Kr. Chakraborty.

  Learned Advocate.

 

JUDGMENT  DELIVERED  ON :  13.01.2023.

J U D G M E N T

The Complainant's case in short is that the complainant has a petroleum pump namely Bk Petroleum as a retail outlet of petrol and diesel since 2014 having good reputation in the market of Tripura and he had chosen the O.P. for installation of the Solar system for his petrol pump from the O.Ps company. There after the complainant paid Rs.8,00,000/- for installation of the same in his petrol pump and the O.P. had also issued money receipt dated 25.05.2019 vide GVR No. 05022019 for the amount of Rs.8,00,000/-. Warranty certificate was issued by the O.P. After installation about one and half year the services was carried on as usual but immediately  after expiry of one and half year the solar system had became functionless. On many occasions it was communicated to the O.P. but in vain. The complainant issued demand notice dated 14.05.2022 addressing to the O.P. claiming Rs.8,00,000/-  with 9% interest and Rs.1,50,000/- for installation of the solar panel along with Rs.5,00,000/- as cost of deficiency in service and Rs.2,00,000/- for pain agony and suffering with Rs.10,000/- as pleader's fee. But the O.P. did not respond to the same. Hence the complainant filed this case claiming Rs.18,80,000/- .

2. After getting notice from this Commission the O.Ps appeared and filed written statement denying all the allegations made by the complainant in his complaint petition.  In the written statement the O.Ps have stated that the complaint is not maintainable as the complainant is not a consumer since the complainant obtained the solar panel for commercial purpose. Faulty battery was replaced by the O.P. on 26.09.2020 after one and half year of installation. Second replacement was not the duty of the Gilbarco but of Exide Industries Limited inspite that Gilbarco replaced it out of good will towards the complainant. Service report was filed on 06.12.2020. The problem was detected was with the battery and needs to be resolved by the  team of Exide Industries Ltd. Warranty card was handed over to the complainant at the time of purchase but the complainant failed to show the same when Exide service personnel visited the site for repair/ replacement of the battery and the Exide service personnel rejected the complaint and submitted a service report dated 26.08.2022 having reasons mentioned  as acid level low in battery. Battery was disconnected for more than 4 months from the PV panels and no maintenance has been done by the complainant. Problem persisted thereafter was due to complainant's negligence and poor maintenance of the product and Gilbarco holds no responsibility. It is stated by the O.Ps that the complainant is misleading the Hon'ble Commission by providing incomplete information. The complainant is not entitled to get any relief from the O.Ps Gilbarco and the complainant has failed to prove any such manufacturing defect or deficiency in service in regard to the product. Hence, O.Ps prayed for dismissal of the complaint.

EVIDENCE ADDUCED BY THE COMPLAINANT:-

3. The complainant submitted his examination in chief on affidavit as P.W. 1. Another Shankar Saha, Manager of B.K. Petrol Pump submitted examination in chief  as P.W.2 on behalf of the complainant. Complainant submitted 07 documents vide firsithi dated 12.07.2022 which are marked as Exhibit-1 Series.  

On the other hand, one Nilotpal Dev Sarma, submitted examination in chief on affidavit on behalf of the O.Ps. The documents filed by the O.P. vide firisthi dated 26.10.2022 are marked as Exhibit -A Series.

 

4. POINTS TO BE DETERMINED: - 

(i) Whether the complaint is maintainable in law?

(ii) Whether there is deficiency of service on the part of the O.P?

  (iii) Whether the complainant is entitled to get compensation/ relief as prayed for?

 

A R G U M E N T:-

5. At the time of argument Learned Advocate Mr. Koushik Roy for the complainant submitted that there is no dispute in respect of installation of 7KW solar system by the O.P. as well as issuing of warranty certificate. After the installation about one and half year the service was carried out as usual but immediately after expiry of 1 and ½ year the installed solar system has become functionless and the complainant has noticed that the electricity bill which was almost lowered down has suddenly raised high and the installation become worthless. He further submitted that on many occasions the complainant communicated to the O.P. about the failure of the system but in vain. Finding no other alternative lastly on 23.03.2021 the complainant had ventilated his grievances stating interalia that, he became upset due to the deficiency of service on the part of O.P. The complainant also issued a demand notice dated 14.05.2022 addressing with the O.Ps claiming of Rs.8 lacs which was paid by the complainant to the O.P. with prevailing bank interest. Unfortunately after receipt of the notice the O.P. did not respond and hence complainant was compelled to approach this Commission for remedy and relief. Mr. Roy submitted that all the necessary documents were submitted and it is marked as Exhibit- 1 Series to prove the deficiency of service on the part of the O.P. He further submitted that the case is maintainable in law and O.Ps are liable to pay compensation as prayed for.

On the other hand, Learned Counsel Mr. P.K. Chakraborty appeared on behalf of the O.P. and submitted that the complaint is not maintainable under the provision of Section 2(7) of the Consumer Protection Act, 2019. In his argument he submitted that the complainant in his complaint at para- 2 and 3 specifically mentioned that B.K. Petroleum is a retail outlet of petrol and diesel and since the starting of the business 2014 the complainant is discharging their business with all responsibility with the utmost satisfaction of all concern with honest  and integrity having good reputation in the market of Tripura. In the same para the complainant averred that the O.P. is a solar system provider and they are also conducting the business throughout the territory, particularly in the petrol pump etc. Mr. Chakraborty submits that complainant herein the B.K. Petroleum is a business concern and it is a commercial unit. The agreement was made in respect of commercial purpose. He further submits that the definition of Consumer as per Section 2(7) of the Consumer Protection Act, 2019  does not includes the person who avails of such service for any commercial purpose. There is also an exceptional clause in respect of ''Commercial Purpose'' when use by a person exclusively for the purpose of earning his livelihood, by means of self employment. Mr. Chakraborty submitted that no where in the complaint or the evidence adduced by the complainant mentioned that complainant was earning for self employment by using the solar system. He at last submitted that there is no fault on the part of the O.P. The solar system was non functional due to the fault of the complainant due to mishandling. At the conclusion Mr. Chakraborty submitted that the complaint is not tenable in law and is liable to be dismissed. The O.Ps also submitted their written argument.

 

DECISION AND REASONS THEREOF:-  

6. We have gone through the pleadings as well as evidences adduced from both sides. We have also considered the arguments of both sides. Since O.P. raised question of maintainability of the complaint at first we will decide the issue No. (i) regarding maintainability. 

To decide this issue we have to look into the definition of 'Consumer'  which is provided in the clause 7 of Section 2 of Consumer Protection Act, 2019 and it is reproduced below:

“''consumer'' means any person who-

(i) buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred 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: or

  (ii) hires or avail of any service for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such  service other then the person who hires or avails of the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person, but does not include a person who avails of such service for any commercial purpose.

  Explanation- for the purposes of this clause-

  (a) the expression ''commercial purpose'' does not include use by a person of goods bought and used by him exclusively for the purpose of earning his livelihood, by means of self employment:

  (b) the expressions ''buys any goods'' and ''hires or avails any services'' includes offline or online transactions through  electronic means or by teleshopping or direct selling or multi-level marketing.”

 

7. At the time of argument Learned Counsel Mr. Prabir Kumar Chakraborty submitted that complainant has no locus standi to file the complaint in its present form before this Learned Commission since it does not fall under the definition of 'Consumer' as defined U/S 2(7) of the Act. It is further submitted that complainant can not be termed as 'Consumer' since the purchase/ installation of SPK 9162 solar power kit -7KW with 10KVA inverter was made by raising invoice dated 22.01.2019 vide no- 1818000415 in the firm name B.K. Petroleum Agency, Briddhinagar, Ranir Bazar. Solar kit unit along with Exide battery was procured by the owner of the firm B.K. Petroleum to use in the petrol pump with intention to earn from selling fuels by cutting down business expenditure of electricity consumption and thus comes within the purview of commercial transaction.

 

8. As per definition clause of Consumer it is crystal clear that availing of service does not include a person who avails such service for any commercial purpose. In the explanation it has been made clear that the expression Commercial Purpose does not include use by a person of goods bought and used by him exclusively for the purpose of earning his livelihood, by means of self employment. On perusal of the complaint petition as well as examination in chief  on affidavit submitted by Sri Joydeep Podder (P.W.-1) we do not find any specific averment that the solar system was used for the purpose of earning his livelihood by means of self employment. In the complaint petition at para 2 and 3 we find that there is specific averment that B.K. Petroleum is a retail outlet of Petrol and diesel and discharging their business with all responsibility since 2014. At Para- 3 it is also mentioned that in the petrol pump huge electric consumption are incurred and installation of solar system was done to curve the electricity bill that means solar system was installed for the commercial purpose. The complaint petition as well as the documentary evidences clearly speak that the solar system was installed for the commercial purpose only and not for earning his livelihood by means of self employment. In view of the above discussion, we hold that the complaint petition is not maintainable as per provision of Section 2(7) of the Consumer Protection Act, 2019. and complaint is liable to be dismissed.

 

9. Since the complaint is not maintainable we do not want to discuss and decide the other issues. 

In the result, the complaint is dismissed as not maintainable. No costs.  

Supply copy of this judgment to both the parties free of costs.

 

Announced.

 

SRI R. PAL

PRESIDENT, 

DISTRICT CONSUMER  

DISPUTES REDRESSAL COMMISSION,

WEST TRIPURA, AGARTALA. 

 

 

 

Dr (SMT) B. PAL

MEMBER,

  DISTRICT CONSUMER 

DISPUTES REDRESSAL COMMISSION, 

  WEST TRIPURA,  AGARTALA.

 

 

 

SRI SAMIR GUPTA,

MEMBER,

  DISTRICT CONSUMER 

DISPUTES REDRESSAL COMMISSION

  WEST TRIPURA,  AGARTALA.