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Shree Shakti Foams v/s Canara Bank

    First Appeal No. 756 of 2018

    Decided On, 30 October 2019

    At, National Consumer Disputes Redressal Commission NCDRC

    By, MEMBER

    For the Appearing Parties: Nikhil Jain, Satya Prakash, Advocates.

Judgment Text

1. Heard the learned counsel for the appellant at the admission stage.

2. This appeal has been filed against the judgment dated 12.03.2018 of the Uttar Pradesh State Consumer Disputes Redressal Commission, Lucknow ('the State Commission') in CC no. 4 of 2018, wherein the consumer complaint has been dismissed on the ground that the loan from the bank was taken for commercial purpose and therefore, the complainant is not a consumer.

3. Learned counsel argues that the complainant is a proprietor of proprietor ship concern and it was averred in the complaint itself that the loan was taken for earning her livelihood. Learned counsel argued that the State Commission has at one place mentioned this fact whereas at other place it has been mentioned that the complainant has nowhere mentioned in the complaint that she has taken loan for earning livelihood. Thus there is a contradiction in the order of the State Commission itself. No notice was issued to the opposite party and the complaint has been dismissed in limine.

4. I have carefully considered the arguments advanced by the learned counsel for the appellant and perused the material on record. The brief facts of the case are that the complainant had taken a loan of Rs.25 lakh from the respondent Bank. There was a fire in the godown of the complainant and the amount of premium was deducted from the loan account of the complainant but no policy was taken by the Bank, therefore, the complaint was filed. The State Commission has dismissed the complaint on the sole ground that the loan taken was for commercial purpose, therefore, the complainant was not a consumer. First of all, it is seen that the State Commission has nowhere mentioned in the order that the complainant is engaged in some other business or activity for earning her livelihood or earning profit. As the complainant is the proprietor of the proprietorship concern, she can take the plea that she obtained the loan for earning her livelihood. This Commission in the case of Chairman, Cochin Port Trust and Ors. Vs M B Satpute and Ors in FA no. 752 of 2007 decided on 28 September 2016 has taken the view that in case of a th partnership firm, a partner can take a plea of earning his livelihood in the complaint. When a partner in a partnership firm can take the plea of earning livelihood, then, in my view, proprietor of a proprietorship concern may be in a stronger position to take the plea of earning livelihood by means of self-employment.

5. The Hon'ble Supreme Court in the case of Paramount Digital Color Lab & Ors. etc., Vs. Afga India Pvt. Ltd. & Ors. etc., (2018) 3 CPJ 12 (SC) has held the following:-

"13. Thus, in our considered opinion, each case ought to be judged based on the peculiar facts and circumstance of that case. Whether the assistance of someone is required to handle the machine, is a question of fact and necessity? Ultimately, if it is purely for a "commercial purpose" and not for "self-employment", the complainant may not get the benefit of the Explanation to Section 2 (1)(d) of the Act. The buyers of the goods or commodities for "self-consumption" in economic activities in which they are engaged would be "consumers" as defined in the Act. Furthermore, there is nothing on record to show that the appellants wanted to use the machine in question for purposes other than "self-employment".

Therefore, the point to be considered is whether the appellants have purchased the machine in question for "commercial purpose" or exclusively for the purposes of earning their livelihood by means of "self-employment". There cannot be any dispute that the initial burden is on the appellants to prove that they fall within the definition of "consumer". It is pertinent to mention that respondent No. 4, who is a contesting party, did not choose to file a counter affidavit before the State Commission. In other words, he did not deny any of the claims made by the appellants. None of the parties have led their evidence. Based on the material on record before the State Commission, it proceeded to decide on merits. As the litigation is being fought since 2006 in different Forums, we do not wish to remand the matter, particularly, when there is sufficient material available on record for arriving at the conclusion."

6. On the basis of the above judgment of the Hon'ble Supreme Court it can be seen that even if the complainant has not mentioned the fact of earning livelihood by means of self-employment in the complaint but the complainant has also not expressly mentioned any other purpose for purchasing the goods or availing the services in the complaint, then the inference cannot be drawn that the goods were purchased or services were availed for any commercial purpose. In the present case, the deficiency has been alleged on the respondent bank for not taking the insurance, therefore, the loan amount and the purpose of taking loan are immaterial, therefore, the complaint of the complainant deserves to be decided on merit.

7. Based on the above

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discussion, the order dated 12.03.2018 of the State Commission passed in CC no. 4 of 2018 is set aside and the matter is remanded to the State Commission for deciding the complaint on merit, after giving notice to the opposite party. In the present case, no notice has been issued to the respondent because the State Commission has passed the impugned order without issuing any notice to the opposite party. 8. Parties to appear before the State Commission on 10 December 2019. 9. The First Appeal no. 756 of 2018 stands disposed of accordingly.