JUDGEMENT

DATE: The 27^th day of June, 2023 

BY -    SRI ASISH DEB, PRESIDENT

   Brief facts of the complainant’s case is that the Complainant namely Shakti Dhar Maharana S/o Baikunthanath Maharana is a citizens of India, serving in Indian Army and his father has a carpenter shop at the above address. In the month of January 7,8,9and subsequent days of 2022 SK Hamidul owner of Rihan Furniture ( op ) called on his uncle mobile No. for trading about furniture product. So, he talked with him for dealing about this, on these days he called more that 3 to 4 times per day on him and his uncle’s mobile. Owing to his continuous calling he agreed with his proposal and senthis father and cousin brother to his shop at the above address (Panskura by train) on the date of 30 Jan 2022 for confirmation of the address of the shop and quality check.He committed him for sending Rs.2.5 lakhs items for their shop and he would pay Rs.1.5 lakhs after delivery of product on his shop and rest Rs.1 lakh after one month of the delivery he also demandedRs.1 lakh (from 1.5 lakh) before the delivery vehicle moves from his shop at Panskura, he also committed him for the delivery on 19 February 2022.On 01 Feb 2022 he calledhim again and again for advance money, then hetransferred Rs. 20,000 in his current account of Axis Bank account No. 921020039138770(Attg the check book front page) with Ref ID 359823543, after taking money he did not call by the same frequency and when he called him he refused and also avoidedhis call but he  blindly believed this person because he is a soldier of Indian army. As he called him for more advance money again he sent him Rs. 20,000/- in the same account on 8 Feb 2022 with Ref ID 359823543. After taking the advance money he committed same fraud activity. As such he had had doubt in his mind and before the day of delivery on 17 Feb 2022, he called him and asked for more Rs. 80,000/- , he said him after reaching of the product he would pay but he was totally angry with him and abused. Then he requested request him to return advance money because he did notwish   trading with him but he totally refused to return the money and again committed to give product of  around Rs. 40,000/- which he paid as  advance, and would send it by the Train to Rourkela station, He  also agreed with him but  again he cheated and abused him his organization . After some days he said he was not going to deliver the product by train because he has lack of time so complainant sent a friend to collect the items in subsequent days of May 2022. He filed a complaint in consumer Portal with docket No. 3344293, again it was reviewed with new docket No. 3368165. Again S K Hamidul called him on 28 Apr 2022 and said to collect product by sending his man to his shop. He sent his colleague to his shop on 27 Jun 2022 but he was not present in his shop and his brother told his colleague to collect the items on 12 Jul 2022, Ultimately, the op did not deliver the product. Hence, the complainant lodged this complaint by e- filing mode and he sent complaint and documents along with a CD by post with a prayer for  return of   Rs. 40,000/-and other appropriate reliefs as the Commission may deem it proper.

The notice was duly served upon the op, the op has not turned up to contest the case; resultantly the case proceeded ex-parte against the op.

Points for determination are:

 1. Is the case maintainable in its present form and in law?                                            

 2.  Is the Complainant entitled to the relief(s) as sought for?

Decision with reasons

Both the points, being inter related to each other, are taken up together for discussion  for sake of brevity and  convenience.

We have carefully perused the affidavit of the complainant, evidence and the documents produced by the complainant.

Having regards had to the facts and circumstances of the case, the key question of maintainability has come to the fore as to whether complainant can be treated as consumer or not.

Let us read the provision of section 7 of the Consumer Protection Act 2019.

(7) “Consumer means any person who-

(i) buys any goods for a consideration which has been paid or promised or partly paid any 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 avails 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 than the person who hires of 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,-

1. 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;
2. The expressions “buys and 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;

Now, on evaluation of the facts and circumstances as reflected in the complaint and evidence on oath it appears that the complainant is a government servant. In view of the above provision of law he can not use goods bought  exclusively for the purpose of earning his livelihood, by means of self-employment as he is already employed. He cannot run  the dealings on behalf of Baikunthanath Maharana proprietor of Rama Furniture having GST No. 21BPBPM7289A1Z5. It is not the case of the complainant that he placed the order for purchase of goods from the op for his personal use.

The word “Consumer” is fulcrum of the Act-. Since Act hinges on twin concepts of defect in goods or any deficiency in service, consumer is one who buys any goods or hires any service- Word ‘Consumer’ does not include person, who, in case of goods obtains such goods for resale or for any commercial purpose, or who, in case of service, avails of such services, for any commercial purpose-Explanation appended to definition states that expression “Commercial purpose” does not include use by buyer of such goods or person availing such service or services, exclusively for purpose of earning his livelihood by means of self-employment- A person whether or not consumer or other activities meant for commercial purpose will always depend upon facts and circumstances of each case.

A person who is engaged in commercial activities has purchased goods or availed of service for his personal use or consumption or for personal use of beneficiary and such purchase is not linked to his ordinary profits generating activities or for creation of self-employment, such person may still claim to be consumer. There is no such exclusion from definition of term ”Consumer” either to commercial enterprise or to person who is covered under expression “person” defined in Section 7 of Act, 2019 merely because it is commercial enterprise – Firm whether registered or not is a person who can always invoke jurisdiction of Act, 2019 provided it falls within scope and ambit of expression “Consumer” as defined under Section 7 of Act, 2019 Each case has to be examined on its own facts and circumstances and what is to be examined is whether any activity or transaction is for commercial purpose to generate profits.

Now taking a cue from the above provision of the law and the factual aspects of the complaint it appears that the complainant cannot be termed as ‘Consumer’. Therefore the case is not maintainable in its present form and in law. As the complainant is not a consumer, he is not entitled to get any relief in this case.

Both the points are decided accordingly.

Hence, it is

O R D E R E D

That CC/102 of 2022 be and the same is dismissed ex parte against the OP. No order of costs is passed.

 Let a copy of the judgment be supplied to the complainant free of cost.