Date of Hearing 1st Day of October, 2015
Date of Judgment Tuesday, the 13th Day of October, 2015
JUDGMENT
The instant Revisional Application u/s. 17(1)(b) of the Consumer Protection Act, 1986 (hereinafter referred to as the ‘Act’) is at the instance of the Opposite Party to impeach the Order No.11 dated 24.04.2015 passed by the Ld. District Consumer Disputes Redressal Commission, North 24 Parganas at Barasat (In short, Ld. DCDRF) in Consumer Complaint No.412 of 2014.
On perusal of the materials on record and having heard the Ld. Advocates appearing for the respective parties it emerges that the Opposite Party herein being Complainant initiated the Consumer Complaint u/s. 12 of the Act against the Opposite Party alleging deficiency of service in respect of installation of an Elevator in the premises No.1, S.K. Dev Road, P.S. Lake Town, Kolkata – 700048. In fact, the petitioner purchased the Elevator from the Opposite Party on payment of Rs.2,12,5000/- by two cheques dated 20.02.2010 and 16.05.2013 respectively. The Complainant is a partnership firm and in the petition of complaint it has not been disclosed whether the said partnership firm is registered or unregistered. However, the main contention is whether the Complainant is a ‘Consumer’ within the meaning of Section 2(1)(d) of the Act or whether the said Elevator was purchased for commercial purpose.
Needless to say, if the Elevator in question is purchased for commercial purpose then the Complainant would be excluded from coverage of Section 2(1(d) of the Act. It remains undisputed that the Opposite Party entered into an agreement with the Complainant for installation of a passenger lift in the said premises not for their personal use but for business purpose for generating profit. Unfortunately, in spite of citation of decision of Hon’ble National Consumer Disputes Redressal Commission, New Delhi in this regard reported in 2015 (I) CPR 488 (NC) (M/s. R. K. Handicrafts through its proprietor, Sri Omprakash Gupta and another – Vs. – M/s. Paramanand Ganda Singh & Co.) the Ld. DCDRF rejected the application challenging maintainability which prompted the Opposite Party to prefer this Revision Application.
In the referred case, in respect of the purchase of Generator Set the same question arose before the Hon’ble National Commission. The facts and circumstances indicate that the Complainant did not purchase the Elevator exclusively for earning livelihood by way of self-employment. On the contrary, the Complainant being partnership firm were engaged in development of premises No.1, S.K. Dev Road, P.S. Lake Town, Kolkata-700048. The principle of law laid down in the reported case that the commercial user cannot maintain Consumer Complaint will squarely apply in the facts and circumstances of the present case.
In that view of the matter, I have no hesitation to hold that the Ld. DCDRF has committed/acted illegally and with material irregularity for which I am constrained to interfere with the Order impugned.
For the reasons aforesaid, the instant Revisional Application is allowed on contest. However, I do not make any order as to costs.
The Order No.11 dated 23.04.2015 passed by the Ld. District Consumer Disputes Redressal Forum, North 24 Parganas at Barasat in Consumer Complaint No.412 of 2014 is hereby set aside.
In consequence thereof, the Consumer Complaint No.412 of 2014 stands dismissed being not maintainable. However, this does not preclude the Complainant to take appropriate action in accordance with law.
