Mr. SHYAMAL KUMAR GHOSH, MEMBER
The instant Consumer Case has been filed against the opposite parties praying for the certain reliefs clearly enumerated in the prayer portion of the petition of complaint.
The instant Consumer Case has been taken up for admission hearing.
The ld. advocate appearing for the complainants has argued on the point of gross negligence and deficiency in service on the part of opposite parties. After receiving full and complete agreed amount of Rs.68,26,260/- (sixty eight lakh twenty six thousand two hundred and sixty) only from the complainants, the opposite parties have failed to execute the perpetual lease deed in favour of the complainants. Accordingly, the complainants have prayed for refund of consideration amount along with interest.
At the time of hearing ld. advocate has taken the plea of livelihood by means of self employment which has also been averred in the petition of complaint and on the basis of aforesaid plea, ld. advocate has urged that the matter clearly comes well within the purview of the definition of consumer in pursuant to the Consumer Protection Act 2019 and accordingly the ld. advocate has prayed for refund of consideration amount along with interest, cost and compensation.
We have heard the ld. advocate appearing for the complainants at length and in full.
We have meticulously perused all relevant documents and papers lying in the case record.
We have considered the submissions of the ld. Advocate.
The admission hearing of the aforesaid Consumer Case is hereby concluded.
Whether the matter comes well within the purview of the Consumer Protection Act 2019 or not that should be decided by this Commission and to that effect the bare reading of section 2(7)(ii) of the Consumer Protection Act, 2019 confers the definition of consumer which means any person who hires or avails of any service for a consideration which has been paid or promised or partly promised or under any system of deferred payment and includes any beneficiary of such service other than the person who hires or avails of the services for consideration 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. The 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.
We have carefully perused the Agreement to Lease dated 08th day of May 2014 executed between the complainants and the opposite parties wherefrom it appears to us that the aforesaid agreement has been executed between the parties for the period of 999 years which confers lease in perpetuity, commencing from the date of execution of the Perpetual Lease Deed in respect of taking lease of a shop room/retail unit measuring covered area 687 sft. At this juncture, the burden of proof lies upon the complainants to prove prima facie that the aforesaid shop room/retail unit has been taken in perpetual lease for the purpose of livelihood by means of self employment. Mere averments in the petition of complaint in respect of livelihood by means of self employment are not sufficient to prove their case. Prima facie to prove their case some cogent and reliable evidence/documents should be filed before this Commission. But there are no such documents or scrap of papers in support of their plea. Moreover the investment of Rs. 68,26,260/- is not a so meagre amount. There is no hesitation to hold that the aforesaid amount is a very bulk in nature. No bank loan or any type of financial help has been received by the complainants for taking the lease of aforesaid shop room/retail unit. From the above discussions in details there is no hesitation to realize that the aforesaid huge amount of investment comes from their own fund and as such their aforesaid plea cannot cover the clause of self employment.
The actual scenario of the self employment confers that a person being a family member runs a very small business without keeping or hiring any employees/workers in order to earn some meagre amount for the purpose of livelihood by means of self employment. Suppose Mr. A buys a Car by taking a bank loan or any financial assistance and his son Mr. B has been plying the said car as a taxi driver for earning his livelihood. A complaint at the instance of A’s son is maintainable and to that effect the clause of self employment is applicable in pursuant to the above clause.
But in the instant case we find that without any bank loan or financial assistance, a huge amount of Rs.68,26,260/- (Rs. Sixty eight lakh twenty six lakh two hundred sixty) only has been invested in order to earn profit in large scale but taking the benefit of self employment clause they have tried to take the plea of livelihood by means of self employment which is not desirable to us in pursuant to the definition of the consumer discussed earlier. Be it mentioned here that this Act 2019 has been exclusively enacted for the benefit of the consumers and to that effect no indulgence should be given to any business personnel. If we provide the aforesaid indulgence, the main object of this Act would be frustrated.
Considering all aspects from all angles and keeping in mind the present position of law and regard being had to the submissions of the ld advocate appearing for the complainants we are constrained to hold that the investment of huge amount for the purpose of taking perpetual lease of shop room or retail unit cannot be and should not be the plea of livelihood by means of self employment and it does not come well within the purview of the Consumer Protection Act, 2019. Accordingly the case fails at the admission stage.
The instant Consumer Case stands dismissed against the opposite parties at the admission stage without any order as to costs.
The instant Consumer Case stands disposed of as per above observations.
Note accordingly.
