DISTRICT CONSUMER DISPUTES REDRESSAL FORUM
SOUTH 24 – PARGANAS , AMANTRAN BAZAR, BARUIPUR,
KOLKATA-700 0144
C.C. CASE NO. __157_ _ OF ___2017
DATE OF FILING : 7.12.2017 DATE OF PASSING JUDGEMENT:13 .2.2019
Present : President : Ananta Kumar Kapri
Member(s) : Subrata Sarker
COMPLAINANT : Sukhendu Mondal, Prop. Of Mondal Wire Brush, Village- Baneswarpur, P.O Hasimnagar, P.S Falta, Dist. South 24-Parganas, Pin-743513.
O.P/O.Ps : The Proprietor of Quick Engineering, 9A, Baishnav Set Street, (Near Jorabagan park), Kolkata- 6.
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J U D G M E N T
Sri Ananta kapri, Preident
The complainant’s case as it transpires in the amended petition of complaint is that he being a self employed person paid Rs.4,93,000/- to the O.P for purchase of two machines for production of brush wire. One machine namely Semi Auto Plastic Injection Molding machine worth Rs.2,63,500/-was delivered to him by the O.P and another machine was not delivered. The O.P returned Rs.2,30,000/- to him as the second machine was not delivered to him. The first machine i.e Semi auto Plastic Injection Molding Machine was installed in the factory of the complainant. But, within three months of the installation of the said machine, the motor burned. The said motor was also repaired by the O.P on payment made by the complainant. Now, the said machine has become completely inactive. The O.P does not pay any heed to the repair of the machine despite several requests made by him to the O.P. Therefore, the complainant has filed the instant case, praying for return of the price of the first machine and also for compensation etc. Hence, this case.
The O.P has been contesting the case by filing written statement ,wherein it is contended inter alia that the case is not maintainable in law as the machine was purchased by the complainant for commercial purpose. The complainant has various business including plastic business. It is further averred by the O.P that he is not a manufacturer of the parts of the said machine; he merely assembles the parts manufactured by different companies and sells the machine to the customer. The manufacturer of the motor has not been made a party to this case. There is no deficiency in service on his part and, therefore, the case should be dismissed in limini with cost.
Upon the averments of the parties, the following points are formulated for consideration.
POINT FOR DETERMINATION
- Is the case maintainable in law?
- Is the O.P guilty of deficiency in service as alleged by the complainant ?
- Is the complainant entitled to get relief or reliefs as prayed for ?
EVIDENCE OF THE PARTIES
Evidence on affidavit is led by both the parties. BNA filed by the parties are kept in the record after consideration.
DECISION WITH REASONS
Point no.1 , 2 & 3 :
Now to see whether the complainant is a consumer under the provisions of Consumer Protection Act, 1986. If a person ceases to become a consumer under the provisions o the aforesaid Act, he cannot maintain any case before the Consumer Forum.
In the instant case, it is found that the complainant purchased the machine for brush wire business. From this very averment of the complainant, as it transpires in the petition of complaint, it stands established that the complainant is a business man and he purchased the machine for commercial purpose. It is stated by the complainant in the amended petition of complaint that he is a self employed person, although there was nothing sort of such averment in his first petition of complaint. In order to be a consumer, a person doing the business is required to prove that the business is his exclusive means of livelihood and that it is done by way of self employment. A mere averment that he is a self employed person does in no way prove that the instant business is the only source of his livelihood. There is a good deal of difference between the phrase “A self employed person” and the phrase “An exclusive source of earning livelihood by way of self employment”. The requirement of law is exclusive source of earning livelihood by way of self employment , not merely “a self employed person”. That apart, the complainant will have to plead and prove that the business is the exclusive source of his earning livelihood by way of self employment. Mere pleading dehors all proof does never satisfy the requirement of law.
Coming to the facts of the instant case, it is found that there has no where been stated by the complainant in his petition of complaint that the business is the exclusive source of earning livelihood by way of self employment. He has merely stated that he is a self employed person. This very averment of the complainant that he is a self employed person does not satisfy the requirement of the statute. That apart, there is nothing stated in the evidence adduced by the complainant to the effect that he is a self employed person earning his livelihood from the business by way of self employment.
In the circumstances, we feel constrained to hold that the complainant is not a consumer and as he is not a consumer, the instant case is not maintainable in law. The two other points as formulated above do not require any further discussion.
In the result, the case fails. .
Hence,
ORDERED
That the complaint case be and the same is dismissed on contest against the O.Ps , but without any cost.
Let a free plain copy of this order be given to the parties concerned at once.
President
I / We agree
Member
Dictated and corrected by me
President
