SAMIKSHA BHATTACHARYA, MEMBER
The instant appeal u/s 41 of C.P. Act, 2019, filed by the complainant/appellant, is in challenge to the order dated 27.02.2023 in complaint case No. CC/33/2023 passed by the Ld. DCDRC, Howrah.
The facts of the case , in a nutshell , are that complainant/appellant is a small trader and used to earn his livelihood by doing business. The complainant had deposited groundnut kernel in the cold storage of OPs for trading purpose for specified duration. The complainant deposited 166 packets of groundnut kernel on 17.06.2020, 23.06.2020 and 06.07.2020 under bond bearing No. SR-33/35, 34/24, 46/57, 82/25 and 83/25. On 23.11.2020 at the time of releasing the packets of groundnut kernel it was found that all the packets have got damaged and went beyond human consumption. Then the complainant/appellant requested to the manager of the OPs to retain those groundnut kernels and to pay proper compensation for the same. The manager of the OPs told the complainant/appellant that he would talk with the owner of the cold storage for compensation. On 24.11.2020 the complainant/appellant sent application to the Respondents/OPs but the dispute has not been resolved till date since the Respondents/OPs kept themselves silent over the matter. Hence, the appellant/complainant filed the consumer complaint against the OPs/Respondent alleging the deficiency in service praying for compensation valued for the damaged goods presently valued at Rs. 8,00,000/- along with compensation.
The complaint case was filed before the Ld. DCDRC, Howrah being no. CC/33/2023.
On the date of admission hearing, the Ld. DCDRC concerned has observed that “entire facts as a whole do not support that complainant is a consumer .” The Ld. District Commission has not found any material prima facie to proceed further case. Accordingly, the complaint case was rejected vide order no. 2 dated 27.02.2023.
Being aggrieved by and dissatisfied with the order of the Ld. District Commission, Howrah, the complainant/appellant has filed the instant Appeal.
Ld. Counsel for the complainant has submitted before this Commission that the Ld. District Commission dismissed the consumer complaint without appreciating the fact that the appellant/complainant is a consumer. The Ld. DCDRC dismissed in complaint upon forming an assumption that the complainant in a consumer. The Complainant is a small trader but he is doing his business for his livelihood purpose which is specifically mentioned in the second para of the petition of complainant that “complainant is a small trader and used to earn his livelihood by doing business.” Hence, the Ld. Advocate for the appellant/complainant has prayed for setting aside the impugned order dated 27.02.2023 passed in CC/33/2023 and to admit the complainant petition for adjudication.
It is pertinent to mention the following sections of CP Act, 2019 first:
Section 2(7), 2(8) and 2(42) of C.P. Act, 2019 are as follows :
(7)“consumer “ means any person who-
- Buys and 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 that 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 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 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 service for any commercial purpose.
(8) “consumer dispute” means a dispute where the person against whom a complaint has been made, denies or disputes the allegations contained in the complaint;
(42) “service” means service of any description which is made available to potential users and includes, but not limited to, the provision of facilities in connection with banking, financing, insurance, transport, processing, supply of electrical or other energy, telecom, boarding or lodging or both, housing construction, entertainment, amusement or the purveying of news or other information, but does not include the rendering of any service free of charge or under a contract of personal service;
Upon perusal of the record and as per C.P. Act, 2019 , it appears to me that the complainant is a ‘consumer’ within the meaning of section 2(7) of CP Act. The complainant has availed the service from the OP upon payment of consideration and in support of this contention, the complainant has filed the documents to that effect which contains seal and signature of the OPs/Respondents. The complainant has alleged deficiency in service against the OPs since the groundnut kernels stored in OP’s cold storage got damaged. Therefore, the OP is a service provider u/s 2(42) of C.P. Act, 2019.
It is astonishing that on the very first day i.e., on the date of admission hearing, the Ld. District Commission has dismissed the complaint case on the ground that the complainant is not a consumer. The matter should be decided on merit, it should not be dismissed on the assumption that the complainant is not a consumer. Whether there is any deficiency in service on the part of the OPs and whether the complainant would be entitled with relief that can be considered only after closing of the evidence of the both parties. The Ld. District Commission should not dismiss the complaint at the threshold without any valid reasons. How the Ld. District Commission has dismissed the complaint on the observation that “the complainant is not a consumer”, that is not clear. In the instant case, whether the complainant is running his business for commercial purpose or for livelihood, these questions of fact would have to be decided on the basis of the pleading and evidence of both the parties. In the second paragraph of the petition of complaint, it is stated that the ‘complainant is a small trader and used to earn his lifelihood by doing business’.
The District Commission should adjudicate it on merit after giving opportunity all the parties substantiate their respective contentions. Whether the transaction is for large scale commercial activity, or for earning livelihood, is a question of fact which has to be decided on a case to case basis, as observed by the Hon’ble Supreme Court in Laxmi Engineering Works vs. P.S.G. Industrial Institute in Civil Appeal No. 4193 of 1995. If a consumer has averred that the transaction, though commercial in nature, is for earning livelihood, the question should be left open to be determined when the complaint is finally decided.
In view of above, the Ld. District Commission has passed the impugned order without proper and judicious application of mind and the Ld. District Commission has committed gross error of law in rejecting the petition of complaint. The impugned order passed by the District Commission amounts to absolute denial of justice to the complainant . The impugned order is based on surmises and conjecture and is bad in the eye of law and the order is suffering from infirmities under the law. The impugned order deserves no merit and hence the same is required to be set aside.
As per above discussion, the impugned order dated 27.02.2023 in CC case No. CC/33/2023 passed by Ld. DCDRC, Howrah, is hereby set aside.
Let the Complaint case be admitted and registered.
Ld. District Commission is requested to restore the case in its original file and number and to proceed with the complaint case in accordance with law. The Ld. DCDRC, Howrah is further requested to dispose of the case preferably within 3 (three) months from the date of receiving this order.
Since the case was dismissed at the initial stage of admission hearing and the case is restored to its original file and number, I refrain myself from passing any opinion on the other issues involved in the complaint case.
Fix 11.09.2023 for appearance complainant before the Ld. DCDRC, Howrah for receiving further direction.
Consequently, the instant Appeal be and the same is allowed.
There is no order as to costs.
Office is directed to send this order to the Ld. District Commission, Howrah, at once.
