Kerala

Idukki

CC/87/2022

Sanal Joly - Complainant(s)

Versus

Kevinli joseph - Opp.Party(s)

19 Jan 2023

ORDER

A

DATE OF FILING : 17/05/2022

IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, IDUKKI

Dated this the   19^th day of January 2023

Present :

              SRI.C.SURESHKUMAR                                               PRESIDENT

              SMT.ASAMOL P.                                                          MEMBER

              SRI.AMPADY K.S.                                                        MEMBER

CC NO.87/2022

Between

Complainant                          :  Sanal Jolly,

                                                  Panikkulangara House,

                                                  Adimaly P.O., Adimaly, 685 561.

                                                   (By Adv.Lissy M.M.)

                                                           And

Opposite Party :                      :  Kevinly Joseph, Proprietor,

                                                   COV HOIST Division, 73/45,
                                                   Ground Floor, PRRA 12,

                                                  Anglo Indian School Cross Road,

                                                  Vaduthala, Ernakulam, 682 023.

 

O R D E R

SRI.AMPADY K.S., MEMBER

 

Complainant filed this complaint against opposite party raising certain allegations and prayed for the reliefs hereinafter mentioned.  Later he filed amendment application and the same was carried out.  Averments as amended in the complaint are:-

 

Complainant is conducting a concern in the name and style Panikulangara Spices Trading Co.  It is a proprietorship concern and it was started for earning his livelihood.  For erecting a lift in his above concern situated at Rajakkad, he contacted one Kevinly Joseph, Proprietor of  Cov Hoist division situated at Vaduthala, Kochi.  Immediately thereafter he visited his concern and gave quotation for the same.  Complainant transferred

 

                                                                                               (Cont....2)

-2-

 

Rs.80,000/- (Rupees Eighty Thousand only) being half of the quotation amount of Rs.1.60 Lakhs to the account of opposite party on 28/10/2021.  Opposite party promised to complete the work within 30 days from the receipt of advance amount.  As opposite party had not done anything  till December 2021.  So he filed  complaint before police station.  Whenever he contacted him over phone from 28/11/2021, opposite party replied that everything was ready and will come soon.  On enquiry through police station it is known that there was previous history of manufacturing defect in respect of his product and many complaints were received by police.  Opposite party stated that due to non-availability of workers, covid 19 etc, delay occurred.  It is not correct. At any rate, lift ought to be erected within 15 days.  As 2 months were elapsed, complaint was registered and opposite party appeared and undertook before the police to refund money before 01/03/2022.

 

But he did not pay the amount as agreed and against complainant approached police and on call from police station, Rs.20,000/- and Rs.10,000/- /each on 2 occasions (total Rs.40,000/-) was refunded by the opposite party. Balance Rs.40,000/- was not given till date and he says that it will be given at an early date.

 

Hence complainant prayed for the following reliefs.

 

1 . Direct opposite party to give Rs.40,000/- to complainant being balance amount of advance paid.

2 . An amount of Rs.40,000/- may be granted towards loss in business due to the delay caused by opposite party.

3 . Litigation costs of Rs.10,000/- may be allowed.

 

Notice sent from this commission was received by opposite party.  But he has not appeared or filed written version.  Hence he was declared exparte

 

Complainant filed proof affidavit and produced copy of following documents and marked  the same as Exts.P1, P2, P2(a) and P3 respectively.

 

                                                                                               (Cont....3)

-3-

 

Ext.P1 – Quotation dated 20/10/2021 for supply and installation of    

      goods lift.

Ext.P2 – Bank statement of transfer of Rs.80,000/- from the account of the  

               complainant’s concern to opposite party’s account.

Ext.P2(a) – Bank statement regarding transfer of Rs.20,000/- on 07/03/2022

               and Rs.10,000/- each on 15/03/2022 and 19/03/2022 from one

                Kevinly to the account of concern of complainant.

Ext.P3 – Receipt dated 05/01/2022 issued from Ernakulam Town North

               Police Station regarding filing of complaint by  Sanal Jolly

               (complainant) against Kevinly Joseph (opposite party).

 

Heard the complainant.

 

We have examined the averments in the complaint and perused the documents produced by him.  On a perusal of the same, following points arise for consideration.

 

1 . Whether the complainant succeeded in establishing  that he is a ‘consumer’ as defined in S.2(7) of Consumer Protection Act 2019?

2 . Whether there is any deficiency in service on the part of opposite party?

3 . If so, for what reliefs the complainant is entitled to?

4 . Litigation costs.

 

Point No.1 to 3 considered together

 

On going through the pleadings of amended complaint, it is noted that  complainant  has averred that said business is done for earning his livelihood.  He has not established that the business is done by means of self employment. It is also not stated that what is the capital of business, income derived therefrom, number of persons employed, and his dependent family members.  There is no allegation regarding deficiency in service on the part

 

 

                                                                                                  (Cont....4)

-4-

 

 

of opposite party.  Besides, installation of lift cannot be considered as a means for livelihood.  Moreover, proposed installation of lift reveals that he is doing  large scale business.    The said proposal for installation seems to be

for commercial purpose.   As per S.2(7) of Consumer Protection Act 2019, purchaser of goods for resale or for any commercial purpose would not come under the definition of  ‘consumer’. Similar is the situation in the matter of availing of service.

 

 As per explanation to clause (i) & (ii) of S.2(7), 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”.  Both these conditions must be conjointly satisfied to attract the explanation.  Complainant has miserably failed to establish that he comes under the explanation given to S.2(7).  Another aspect is that to come under the said  explanation, goods must be bought and used by him.  Here, purchase is not materialised.  In such circumstances, we are of the concrete view that complainant in this case is not a ‘consumer’ as defined in the Act.  As we found that he is not a ‘consumer’, complaint is not maintainable before this Commission and therefore question of deciding deficiency in service would not arise.

 

In the light of our findings shown above, we can safely conclude that complainant is not entitled to any relief as prayed for.  Point Nos.1 to 3 are answered as above.

 

 

 

 

 

                                                                                                  (Cont....5)

 

 

 

 

-5-

Point No.4

 

Considering the facts of the case, there will be no order as to costs.

 

In the result, complaint is dismissed as unsustainable before this Commission.  There will be  no order as to costs.

 

Extra copies to be taken back by party without delay.

 

 Pronounced by this Commission on this the 19^th day of January, 2023.

                                                                                  Sd/-                                                                                            

                                                                       SRI.AMPADY K.S., MEMBER

                                                                                           Sd/-

                                                                  SRI.C.SURESHKUMAR, PRESIDENT

                                                                                           Sd/-

                                                                        SMT.ASAMOL P., MEMBER                                                                                                                                                                                                                                                                                                                                                                                                                                  

APPENDIX

Depositions :

On the side of the Complainant :

Nil

On the side of the Opposite Party :

Nil

Exhibits :

On the side of the Complainant :

Ext.P1 – Quotation dated 20/10/2021 for supply and installation of   

      goods lift.

Ext.P2 – Bank statement of transfer of Rs.80,000/- from the account of the 

               complainant’s concern to opposite party’s account.

Ext.P2(a) – Bank statement regarding transfer of Rs.20,000/- on 07/03/2022

               and Rs.10,000/- each on 15/03/2022 and 19/03/2022 from one

                Kevinly to the account of concern of complainant.

Ext.P3 – Receipt dated 05/01/2022 issued from Ernakulam Town North

               Police Station regarding receipt of complaint filed by  Sanal Jolly

               (complainant) against Kevinly Joseph (opposite party).

On the side of the Opposite Party :

Nil                                                                                 Forwarded by Order

                                                                                                 

                                                                                          ASSISTANT REGISTRAR