No. 3/10.02.2009.

HON’BLE JUSTICE SRI A. CHAKRABARTI, PRESIDENT.

Revision Applicant through Mr. Uday Chandra Jha, the Ld. Advocate and O.P. through Ms. Parinush Banu, the Ld. Advocate are present.

This is a revision challenging the order dated 25.11.2008 passed by D.C.D.R.F., Calcutta Unit – II in Case No. Unit-II/C.C. No. 928/08 whereby the complaint was dismissed at the admission stage.  The Ld. Advocate for the Respondent raised a question as regards the maintainability of the revision as the order impugned is final disposal of the complaint case.  Though we agree to the said contention of the Respondent but on the prayer made by Mr. Jha, in the interest of justice we treat this revision as an appeal and the Office is directed to make necessary correction on the records accordingly.

We have considered respective contentions on merits.  Mr. Jha, the Ld. Advocate for the Appellant challenging the order impugned contending that the Forum below in the impugned order came to a conclusion that the Complainant is not a consumer as the service of the O.P. was taken for a commercial purpose and the Complainant has failed to prove that such commercial purpose was for her livelihood.  On behalf of the Respondent Mrs. P. Banu, the Ld. Advocate states that the complaint, if perused thoroughly, show conclusively that the Forum below was correct in its approach and from the complaint itself conclusively shows that the Complainant is not a consumer and as such the complaint is not maintainable.

Upon considering the above contention we are of the opinion that such question as to whether the Complainant is a consumer or not and whether the transaction being the subject matter of the proceeding was a commercial transaction and not for the livelihood of the Complainant, can be found out only after the parties are granted opportunity to lead evidence.  In such view of the matter at the stage of admission the proceeding could not be dismissed on the ground recorded in the impugned order.  The opening sentence of the impugned order shows that it was at the admission hearing stage and in such hearing this consideration without even allowing the Complainant opportunity to adduce evidence, is not justified.  Therefore, the appeal is allowed.  The impugned order is set aside and the Forum below is directed to dispose of the complaint case in accordance with law at the earliest.