DIST. CONSUMER DISPUTES REDRESSAL FORUM
NORTH 24 Pgs., BARASAT.
C. C. NO-82/2017
Date of Filing: Date of Admission:- Date of Disposal:
17.02.2017 10.03.2017 31.12.2018
Complainants :- PradipPaul,
32(19), H. Road, P.O.-Nonachandanpukur,
P.S.-Titagarh, Pin-700 122.
=Vs=
Opposite Parties:-1. The Branch Manager of SBI,
Barrackpore Railway Station Branch,
1, B.T. Road, Chiriamore, Pin-700 120.
2. The Senior Branch Manager of LICI,
JeevanJyoti, SahidMangal Pandey Sarani,
P.O.-Barrackpore, Pin-700 120.
PRESENT :- Sri. Bankim Chandra Chattopadhyay………..…..President.
:- Smt. SilpiMajumder ……………………………Member.
Judgment/Final Order
This complaint is filed by the complainant u/S 12 of the C.P. Act, 1986 alleging deficiency in service as well as unfair trade practice against the OPs as the OPs did not take any step to redress his grievance till filing of this complaint. Having no other alternative the Complainant has approached before this Ld. Forum by filing this complaint praying for certain reliefs.
During Argument it is detected by us that the Complainant for his business purpose had availed of cash credit loan from the OP-Bank and accordingly cash credit account was opened with the OP-1.On behalf of the Complainant it is submitted that he had hired the service of the OP-Bank as a consumer in respect of cash-credit loan account. We have carefully perused the petition of complaint and several documents filed by the complainant in support of his contention. It is seen by us that the cash-credit loan account was opened for carrying on business by the complainant. Within the four corners of the petition of complaint nowhere it is stated that for earning his livelihood by means of self-employment the said account was opened and services availed of by him from the Bank. Therefore it is clear that the service was availed of from the Bank by the complainant solely for commercial purpose, which is not for maintaining his livelihood by means of self-employment. During argument the ld. Counsel for the complainant has submitted that with a view to run the business smoothly cash-credit loan was taken by him. Not only that, from the documents filed by the complainant in support of his contention the same also reveal that to carry on business the account was opened and the loan was taken. Therefore, it can safely be said that the service hired or availed of by the complainant for commercial purpose.
For deciding this we would first refer to very wide definition of words ‘consumer’ and ‘service’ under Section 2(1)(d) and 2(1)(o) which are as under:
“Section 2(1)(d):
‘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 user of such goods other than the person who buys such goods for consideration paid pr promised or partly paid or partly promised, or under any system of deferred payment made 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 are 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.)”.
- :- for the purpose of this clause, “commercial purpose” does not include use by a person of goods bought and used by him and services availed by him exclusively for the purposes of earning his livelihood by means of self-employment.
Section 2(1)(o):
‘service’ means service of any description which is made available to potential users and includes the provision of facilities in connection with banking, financing, insurance, transport, processing, supply of electrical or other energy, board or lodging or both, housing construction, entertainment, amusement or the purveying a news or other information (but does not include the rendering of any service free of charge or under a contract of personal service)”.
3
From the aforesaid definitions it can be held that:
(a) a person is a consumer who buys any goods for consideration and also include user of such goods;
(b) who hires any services for consideration and includes beneficiary of such services.
To this wide definition there are exclusions;
- It excludes a consumer who obtains such goods for resale or for any commercial purpose;
- It also excludes a person who avails of services of any description –
- free of charge; or
- under a contract of personal service; and
- for any commercial purposes.
The Legislature has curved out further exception by providing that commercial purpose does not include use by a person of goods bought and used by him and services availed by him, exclusively for the purpose of earning his livelihood by means of self-employment.
Therefore, in sum and substance, what is excluded is buying of goods or availing of services for ‘commercial purpose’. However, with a specific exclusion that if such buying of goods or availing of services is not for earning his livelihood by self-employment, then he would be a consumer.
In the case in hand it is the first and foremost duty of the complainant to satisfy the ld. Forum at the very outset that he is a consumer and hired and availed of services from the seller or service provider for earning livelihood by means of self-employment, but the person who has hired or availed of service for any commercial purpose he cannot be termed as a consumer. As the loan was taken for commercial purpose, in the instant case, which was not to maintain his livelihood by means of self-employment, we are not inclined to term this complaint as consumer complaint as in our view the complainant cannot be treated as consumer as per the definition given in the C.P. Act, 1986.
In this respect we may mention to the judgment passed by the Hon’ble NCDRC in the case of M/s. Harsolia Motors vs. M/s. National Insurance Co. Ltd. Reported in Vol-I (2005) CPJ 27 (NC). In the said case Their Lordships have held that if the goods are purchased for resale or for commercial purpose or service availed of for commercial purpose then such consumer would be excluded from the coverage of C.P. Act, 1986. It has been held in the said judgment that “………..….it is apparent that even taking wide meaning of the words “for any commercial purpose” it would mean that goods purchased or services hired should be used in any activity directly intended to generate profit. Profit is the main aim of commercial purpose. But, in a case where goods purchased or services hired in an activity which is not directly intended to generate profit, it would not be commercial purpose.” In the case in hand it is stated by the complainant and argued during argument that the cash-credit loan was taken and an account was opened for commercial purpose. Therefore, it can safely be presumed that by taking loan from the OP-Bank the complainant used to earn profit from the said business. Having regard to the above-mentioned judgment passed by the Hon’ble NCDRC the present complainant cannot be a consumer as per the C.P. Act. Moreover, we may rely on the judgment passed by the Hon’ble NCDRC in C.C. no. 12/2007 in the case of M/s. Shree Vadera Vs. State Bank of India & Others, wherein Their Lordships have also held that in the said case cash-credit loan facility was taken by the complainant for his business of export of Indian handicrafts. In the said judgment Their Lordships have also relied upon another case being No- C.C. 39/2013 in the case of M/s. Sam Fine O Chem Ltd. Vs. Union Bank of India, decided on 12.4.2013 wherein the complainant had availed of credit facility from Union Bank of India alleging deficiency in service provided by the Bank , he preferred a complaint before the Hon’ble NCDRC, Their Lordships was pleased to reject the complaint inter alia noted that the complainant had availed of the credit facility of the Bank for expansion of manufacturing activity which was a commercial purpose, therefore the complainant does not fall within the definition of ‘Consumer’ given in Section 2(1)(d) of C.P. Act. Their Lordships have also held in another case by and between Vishwa Electronics (India) Ltd. Vs. Industrial Development Bank of India & Another, passed on 02.5.2006 wherein the Hon’ble Commission held that the alleged deficiency in service was relatable to the commercial purpose which had been excluded from the purview of C.P. Act, 1986.
Having regard to the aforementioned judgments, we, therefore, hold that the present Complainant is not a consumer within the meaning of Section 2(1)(d) of the Act. Accordingly, the complaint is hereby dismissed.
Hence it is ordered that the Consumer Complaint being no-82/2017 is hereby dismissed on contest being not maintainable. However considering the facts and circumstances of the complaint there is no order as to cost.
But the Complainant is at liberty to approach before the appropriate Forum/Court/Commission, if not barred otherwise, in view of the judgment of Laxmi Engineering Works vs. PSG Industrial Institute (1995 AIR 1428).
Be it mentioned that the Complainant is entitled to get return the petition of complaint, evidence and other related papers and documents upon prior application before the office of this Ld. Forum. The Office is directed to take appropriate step in this context in accordance with law so that the Complainant can get return of the same without any delay and hazards.
Let plain copy of this order be given to the parties free of cost as per the provision of the CPR, 2005.
Member President
Dictated & Corrected by
