State Consumer Disputes Redressal Commission
Srimatya Sabita Rani De vs M/S. Contai Oil Distributors Retail ... on 29 July, 2019
Cause Title/Judgement-Entry STATE CONSUMER DISPUTES REDRESSAL COMMISSION WEST BENGAL 11A, Mirza Ghalib Street, Kolkata - 700087 First Appeal No. A/1/2018 ( Date of Filing : 02 Jan 2018 ) (Arisen out of Order Dated 06/12/2017 in Case No. Complaint Case No. CC/287/2017 of District Purba Midnapur) 1. Srimatya Sabita Rani De W/o Lt. Sadananda De, Vill. & P.O. - Baghadanri, P.S. Bhupatinagar, Dist. Purba Medinipur. 2. Smt. Samita De(Sarkar) W/o Sri Prasanta Sarkar, Vill. Bagmari, P.O. & P.S. - nandankumar, Dist. Purba Medinipur. 3. Smt. Sumita De(Roy) W/o Anabil Roy, Vill. Terapekhia, P.O. & P.S.- Mahisadal, Dist. Purba Medinipur. 4. Sanchita De D/o Lt. Sadananda De, Vill. & P.O. - Baghadanri, P.S. Bhupatinagar, Dist. Purba Medinipur. 5. Sri Sachhidananda De S/o Lt. Sadananda De, Vill. & P.O. - Baghadanri, P.S. Bhupatinagar, Dist. Purba Medinipur. ...........Appellant(s) Versus 1. M/s. Contai Oil Distributors Retail Outlet Dealer partner Sri Goutam das, S/o Lt. Bhusan Das, Vill. Kumarpur, P.O. & P.S. - Contai, Dist. Purba Medinipur. 2. M/s. Hindustan Petrolium Corporation Ltd. Durgachak, Haldia, Dist. Purba Medinipur. ...........Respondent(s) BEFORE: HON'BLE MR. SAMARESH PRASAD CHOWDHURY PRESIDING MEMBER HON'BLE MRS. Dipa Sen ( Maity ) MEMBER For the Appellant: Mr. Barun Prasad,Subrata Mondal Mr. Sovanlal Bera, , Advocate For the Respondent: Mr. Subrata Manna, Mr. Indrajit Mandal, Advocate Dated : 29 Jul 2019 Final Order / Judgement PER:HON'BLE MR. SAMARESH PRASAD CHOWDHURY, PRESIDING MEMBER
The instant appeal under Section 15 of the Consumer Protection Act, 1986 (hereinafter referred to as 'the Act') is at the behest of the Complainants to impeach the Judgement/Final Order dated 06.12.2017 passed by the District Consumer Disputes Redressal Forum, Purba Medinipur at Tamluk (in short, 'Ld. District Forum') in Consumer Complaint No. 287/2017 whereby the complaint lodged by the Appellants before the Ld. District Forum under Section 12 of the Act was dismissed on contest without any order as to costs.
The Appellants herein being Complainants lodged the complaint asserting that they were running a retail business for distributing high speed diesel under the name and style 'Maa Janaki Oil Supplies Agency' and holding a licence for running the said business. The complainants used to collect the high speed diesel from the Authorised Dealer of M/s. Hindustan Petroleum (OP No.2). The OP No.1 being Authorised Dealer of OP No.2 by a consent letter dated 23.04.2004 used to supply high speed diesel to the complainants at Bhupatnanagar, Dist-Purba Medinipur. The complainants have stated that they deposited a bank draft of Rs. 2,60,843/- only on 10.05.2016 drawn on UBI, Bhupatinagar Branch and another bank draft dated 10.05.2006 amounting to Rs.1,82,000/- drawn on the same bank and same branch in favour of Hindustan Petroleum Corporation Ltd. for the future supply of high speed diesel. The complainants have alleged that the OP No.1 suddenly refused to supply the high speed diesel to them on the plea that the money for supplying the said high speed diesel was not deposited to OP No.2. The complainants have stated that as he had been suffering from different ailments, they could not take appropriate steps in time. However, subsequently, they collected information through RTI about the fact of receipt of money by OP No.2. Inspite of the same, OP No.1 neglected to supply the high speed diesel. Hence, the appellants approached the Ld. District Forum with prayer for following reliefs, viz. - (a) a direction upon the OPs to pay a sum of Rs.4,42,843/- only towards the principal amount; (b) to pay compensation of Rs.1,00,000/- for harassment and mental agony; (c) to pay a sum of Rs.10,000/- as litigation cost.
The Respondent No.1 being Opposite Party No.1 by filing a written version has taken a plea that the complainants cannot be termed as 'consumer'. They have also took a plea that the question transaction took place in the year 2006 and the complaint has been lodged after 11 years and as such in view of the provisions of Section 24A of the Act, it is barred by limitation.
The Respondent No.2/OP No.2 by filing a separate written version has stated that the complainants did not seek any relief against them and as such the complaint is liable to be dismissed against OP No.2 with costs.
On evaluation of materials on record, the Ld. District Forum by the impugned order dismissed the consumer complaint on contest against the OPs with the observation that the complainants are not 'consumer' under the definition of Section 2(1)(d) of the Act and the case is also barred by limitation under Section 24A of the Act. Challenging the said order, the complainants have come up in this Commission with the present appeal.
Mr. Barun Prasad, Ld. Advocate for the Appellants has submitted that the Ld. District Forum has ignored the fact that the appellants are the legal heirs of Late Sadananada De, who had one retail business of distributing High Speed Diesel (HSD) for the purpose to maintain his livelihood. Referring a decision of the Hon'ble National Commission reported in 2004 NCJ 68 [Frontier Trading & Anr. - Vs. - M/s. Gayathri N Nimbalkar & Ors.] he has submitted that the Hon'ble National Commission has taken a view consistently that self-employed persons carrying on business by themselves and with support of one or two helpers have to be treated as 'consumer'. He has also submitted that the transaction took place in the year 2006 but the father of the appellants though persuaded the matter with the respondents for several years but for the first time, the appellants came to know about the fate of both the cheques/drafts through RTI application on 16.03.2016 and therefore, the complaint should not be held as barred by limitation.
The Ld. Advocates for Respondent No.1 and Respondent No.2 supporting the judgement/final order have submitted that the appeal being devoid of merit should be dismissed.
We have considered the submission advanced by the Ld. Advocates appearing for the parties and scrutinised the materials on record.
Having heard the Ld. Advocates appearing for the parties and on perusal of the record, we find that the Ld. District Forum has decided the issue- whether or not the complainants are 'consumer' as defined in Section 2(1)(d)(ii) of the Act.
From the averment of the petition of complaint and other materials, it would reveal that the appellants being owner of one oil supply agency intended to purchase HSD from respondent no.1 being agent of respondent no.2. It has been mentioned in the petition of complaint that the complainants are doing retail business for distributing HSD for his livelihood. The Ld. District Forum in this regard has made an observation that the words 'for the purpose of own livelihood' has been inserted by the complainants subsequently through pen. In any case, the question comes for consideration as to whether the appellants/complainants are 'consumer' as defined in Section 2(1)(d) of the Act. For appreciation of the situation, it would be worthwhile to reproduce the definition of Section 2(1)(d) of the Act which provides -
"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 then 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 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".
Explanation:- for the purposes 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".
The foregoing provision provides that the 'consumer' is a person who buys any goods for a consideration which has been paid or promised or partly paid and partly promised or avails of any services for a consideration which has been paid or promised or partly paid and partly promised but it does not include a person who avails of services for commercial purposes. Explanation to the Section creates and exception and states that clause 'commercial purpose' does not include used by a person of goods brought and used by him and services available by him exclusively for the purposes of earning his livelihood by means of self-employment.
In the case of Laxmi Engineering Works -Vs.- P.S.G. Industrial Institute reported in (1995) 3 SCC 583 the Hon'ble Supreme Court has observed that what is a 'commercial purpose' is a question of fact to be decided in the facts of each case. It is not the value of the goods that matter but the purpose to which the goods bought are put to. The Hon'ble Apex Court further proceeded to observe - 'the explanation, however, clarifies that in certain situations, purchase of goods for 'commercial purpose' would not yet take the purchaser out of the definition of expression 'consumer'. If the commercial use is by the purchaser himself for the purpose of earning his livelihood by means of self-employment, such purchaser of goods is yet a 'consumer'.
In a decision reported in I (2005) CPJ 27 (NC) (M/s. Harsolia Motors - Vs. - National Insurance Co. Ltd.) the Hon'ble National Consumer Commission has observed that if the goods are purchased for resale or for commercial purpose, then such consumer would be excluded from the coverage of the Act.
In another decision reported in (1997) 1 SCC 131 (Cheema Engineering Services -Vs.- Rajan Singh) the Hon'ble Apex Court has explained the term self-employment by observing thus:
"Self-employment connotes altogether a different concept, namely, he alone uses the machinery purchase for the purpose of manufacture ..... by employing himself in working out or producing the goods for earning his livelihood. He includes the members of his family".
The Hon'ble National Consumer Commission in a decision reported in 2000 (3) CPJ 13 (Shakti Engineering Works -Vs.- Sree Krishna Coir Rope Industries) has held that in order to have protection of explanation to Section 2(1)(d)(ii) of the Act, one must establish that he himself was engaged in the activity which generates livelihood. Acting in supervising capacity would not satisfy the requirement of explanation.
In the case beforehand, the appellants/complainants did not mention whether they were doing the business of selling High Speed Diesel for earning their livelihood by means of self-employment. The selling of High Speed Diesel as a dealer after collection from a distributor certainly is meant for commercial purpose. There is no averment in the petition of complaint that the complainants intended to purchase those oils for their own consumption. Therefore, it is quite evident that the object of purchase of HSD by the appellants as a supply agency is meant for earning profit and as such the appellants will be excluded from the purview of the Act as the complainants/appellants cannot be termed as 'consumer' within the meaning of Section 2(1)(d) of the Act. Therefore, the referred decision in the case of Frontier Trading & Anr. (supra) has no manner of application in our case as it is quite distinguishable in the facts and circumstances of the present case.
So far as limitation is concerned, the law is now well settled. For appreciation of the dispute, it would be worthwhile to reproduce the provisions of Section 24A of the Act which runs as follows -
"24A. Limitation period:- (1) The District Forum, the State Commission or the National Commission shall not admit a complaint unless it is filed within two years from the date on which the cause of action has arisen.
(2) Notwithstanding anything contend in sub-section(1) a complaint may be entertained after the period specified in sub-section (1), if the complainant satisfies the District Forum, the State Commission or the National Commission, as the case may be, that he had sufficient cause for not filing the complaint within such period.
Provided that no such complaint shall be entertained unless the National Commission, the State Commission or the District Forum, as the case may be records its reasons for condoning such delay".
The above provisions is clearly peremptory and mandatory in nature requiring the Consumer Fora to see at the time of entertaining the complaint, whether it has been within the stipulated period of two years from the date of cause of action. In a decision reported in 2009 (4) CPR 17 (Kandimalla Raghavaiah & Co. - vs. - National Insurance Co. Ltd. & Anr.) the Hon'ble Supreme Court after adopting the view of the observations of the Hon'ble Apex Court reported in 2009 (3) CPR 107 (State Bank of India -vs- B.S. Agricultural Industries) has observed -
"As a matter of law, the Consumer Forum must deal with the complaint on merits only if the complaint has been filed within two years from the date of accrual of cause of action and if beyond the said period, the sufficient cause has been shown and delay condoned for the reasons recorded in writing. In other words, it is the duty of the Consumer Forum to take notice of Section 24A and give effect to it. If the complaint is barred by time and yet, the Consumer Forum decides the complaint on merits, the Forum would be committing an illegality and, therefore, the aggrieved party would be entitled to have such order set aside".
In the case beforehand, it is quite apparent that the transaction took place in the year 2006 and the complaint was lodged in the year 2017 after a long delay of 11 years and in this regard, the appellants did not file any application under Section 24A(2) of the Act for condonation of such delay. Therefore, keeping in view the authority referred above, we are of the view that the Ld. District Forum has rightly held that the complaint is barred by limitation.
In view of the above, we find that the appeal is totally devoid of any merit. As a result, the appeal is liable to be dismissed.
Resultantly, the appeal is dismissed on contest. However, there will be no order as to costs.
The impugned Order is hereby affirmed.
The Registrar of the Commission is directed to send a copy of this order to the Ld. District Consumer Disputes Redressal Forum, Purba Medinipur at Tamluk for information.
[HON'BLE MR. SAMARESH PRASAD CHOWDHURY] PRESIDING MEMBER [HON'BLE MRS. Dipa Sen ( Maity )] MEMBER