Kerala

StateCommission

A/15/363

M/S CEAR INDIA - Complainant(s)

Versus

M/S DHANLAXMI BANK - Opp.Party(s)

K THYAGARAJAN

19 Sep 2017

ORDER

 

KERALA STATE CONSUMER DISPUTES REDRESSAL

COMMISSION  VAZHUTHACAUD, THIRUVANANTHAPURAM

APPEAL NO.363/15

 

JUDGMENT DATED:19.09.2017

 

PRESENT : 

HON’BLE JUSTICE SHRI. S.S. SATHEESACHANDRAN: PRESIDENT

SHRI.V.V.JOSE                                                                     : MEMBER

 

M/s Cear India, Rep. by its-

Proprietrix-Bindu Cherian,

Steel and Cement Distributors,

Gokulam Arcade, Vyttila,                                                              : APPELLANT

Kochi-682 019.

 

(By Adv: Sri. K. Thyagarajeswaran)

 

            Vs.

 

M/s Dhanalaxmi Bank,

Industrial Finance Branch,

Chittoor Road, YMCA Junction,

Ernakulam-602 302,                                                                       : RESPONDENT

Rep. by its Branch Manager.

 

(By Adv: Sri. Sijo George)

                                                           

JUDGMENT 

 

 

HON’BLE JUSTICE SHRI. S.S. SATHEESACHANDRAN :  PRESIDENT

Complainant is the appellant in CC.547/14 of the CDRF, Ernakulam. Accepting the challenge raised by respondent bank over the maintainability of complaint. District Forum dismissed the complaint with cost of Rs.5000/-.   Aggrieved complainant has preferred this appeal.

2.      Complainant is the proprietor of a concern namely ‘Cear India’ carrying business as distributor of steel and cement.  Complaint was filed against the respondent bank alleging deficiency of service and unfair trade practice with respect to transactions in a cash credit loan operated by the concern in the bank.  Respondent bank questioned the maintainability of the complaint contending that the complainant, a proprietary concern, is not a consumer and it is not entitled to raise any consumer complaint before the Forum.  That contention was accepted and the complaint was dismissed.

3.      We heard the counsel on both sides.

4.      Learned counsel for the appellant/complainant urged before us that the complainant is a proprietary concern run by its representative named in the complaint and he is eking out his livelihood by means of self-employment from such business.   By inadvertence complainant omitted to state that the representative named in the complaint is carrying the proprietary concern for the purpose of earning his livelihood by means of self-employment, is the further submission of the counsel.  Since he is earning his livelihood by means of self-employment the business by proprietary concern does not come under ‘commercial purpose’ and as such he is a consumer entitled to present and prosecute the complaint alleging deficiency of service and unfair trade practice against the bank, according to the counsel.  Adverting to the nature of the extensive business operations of the complainant which is engaged in business as distributor of cement and steel learned counsel for the respondent bank contended that the business activities of the complainant fall within ‘commercial purpose’ and it is not a consumer as concluded by the lLower Forum.

5.      Section 2(1)(d) of the Consumer Protection Act defines a consumer as thus:-

Consumer means any person who 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 use 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

[hires or avails of] any services 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 services other than 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 availed of with the approval of the first mentioned person [but does not include a person who avails of such services for any commercial purpose];

6.      Concededly, the complainant has not set forth necessary facts to canvass his status as a consumer falling under the explanation stated above.  Further more it is to be noted cash credit loan is provided by the bank to business concerns, whether it is proprietary or otherwise, when they maintain current accounts in the bank for commercial purpose.  That being so, in the absence of specific averment in the complaint that the business concern is operated for earning livelihood by means of self-employment the case canvassed for styling the business concern or its proprietor a consumer is not permissible.  On the facts and circumstances presented and nature of business carried by the complainant a distributor of cement and steel it is evident the case canvassed that the representative is conducting the proprietary concern for earning his livelihood by means of self-employment is meritless.

Appeal has no merit, and it is dismissed directing both sides to suffer their costs.

 

JUSTICE S.S. SATHEESACHANDRAN: PRESIDENT

 

 

V.V.JOSE  : MEMBER

 

 

VL.

 

 

 

 

V.V.JOSE  : MEMBER

 

 

VL.