ORDER P.S. Rana (R), President. - Present appeal is filed under section 15 of Consumer Protection Act 1986 against order dated 10.06.2016 passed by Learned District Forum in consumer complaint No. 50 of 2011 title Sant Ram v. Kundan Kalanta . Brief facts of Case: 2. Complainant Sant Ram filed consumer complaint under section 12 of Consumer Protection Act 1986 against opposite party pleaded therein that on dated 15.06.2010 opposite party contacted complainant and offered to provide services of plucking, packing, transportation and sale of entire apple produce of complainant in the market on monetary commission basis. It is pleaded that opposite party in the presence of Shri Roop Lal and Shri Baldev offered to pay a fixed sum of Rs. 1100000/- (Eleven lac) for the entire apple produce to complainant and claimed entire monetary commission above Rs. 1100000/- (Eleven lac) after sale of entire apple produce. It is further pleaded that complainant hired services of opposite party for plucking, packing, transportation and sale of entire apple produce of complainant in the market. It is further pleaded that opposite party also agreed to pay additional amount for cartons which were 2000 in number and trays which were 3500 in number. It is further pleaded that opposite party paid Rs. 500000/- (Five lac) in advance to complainant which opposite party transferred into the bank account of son of complainant. It is further pleaded that opposite party also agreed that remaining balance amount of Rs. 600000/- (Six lac) would be paid on or before transportation of 1000 apple boxes. It is further pleaded that complainant handed over his orchard at Balai Tehsil Jubbal District Shimla to opposite party along-with 2000 cartons and 3500 trays. It is further pleaded that complainant permitted opposite party to pluck, pack and transport apple crop without any hindrance. It is further pleaded that opposite party transported more than 1000 apple boxes. It is further pleaded that opposite party did not pay remaining Rs. 600000/- (Six lac) as agreed. It is further pleaded that when complainant inquired from opposite party about remaining payment then opposite party told that payment from whole-seller was awaited. It is further pleaded that opposite party also told that opposite party would pay amount to the complainant immediately on receipt of payment from whole-seller at Parwanoo. 600000/- (Six lac) as agreed. It is further pleaded that when complainant inquired from opposite party about remaining payment then opposite party told that payment from whole-seller was awaited. It is further pleaded that opposite party also told that opposite party would pay amount to the complainant immediately on receipt of payment from whole-seller at Parwanoo. It is further pleaded that on dated 02.09.2010 opposite party was in the process of sending last consignment of apple crop of complainant to the market and when complainant asked opposite party for his balance payment of Rs. 600000/- (Six lac) then opposite party refused to pay the amount. It is further pleaded that police complaint was filed against opposite party. It is further pleaded that thereafter opposite party left the work in midway and complainant had to pluck, pack and transport the remaining crop after 15.09.2010. It is further pleaded that crop was sold grossly at depreciated value. It is further pleaded that complainant also approached Pradhan of Gram Panchayat but opposite party threatened complainant with dire consequences. It is further pleaded that opposite party committed unfair trade practice and also committed deficiency in service. Complainant sought relief of payment of Rs. 675000/- (Six lac seventy five thousand) along-with interest @18% per annum w.e.f.01.09.2010 till the date of payment. Complainant also sought relief of Rs. 100000/- (One lac) as damages for the mental torture and harassment. Complainant also sought litigation costs to the tune of Rs. 11000/- (Eleven thousand). 3. None appeared on behalf of opposite party despite service of notice. Learned District Forum on dated 20.6.2011 proceeded ex-parte against opposite party. 4. Learned District Forum vide order dated 07.09.2011 allowed complaint ex-parte and ordered opposite party to pay a sum of Rs. 675000/- (Six lac seventy five thousand) along-with interest @ 9% per annum with effect from the date of institution of complaint till realization. Learned District Forum further ordered that opposite party would also pay amount of Rs. 10000/- (Ten thousand) to complainant on account of harassment and learned District Forum further ordered that opposite party would pay sum of Rs. 3000/- (Three thousand) to complainant as litigation costs. 5. Thereafter opposite party filed appeal No.10 of 2012 before H.P. State Consumer Commission which was decided on dated 07.11.2012. 10000/- (Ten thousand) to complainant on account of harassment and learned District Forum further ordered that opposite party would pay sum of Rs. 3000/- (Three thousand) to complainant as litigation costs. 5. Thereafter opposite party filed appeal No.10 of 2012 before H.P. State Consumer Commission which was decided on dated 07.11.2012. State Commission set aside the order of learned District Forum on dated 07.09.2011 and remanded the complainant to the learned District Forum with direction to decide the same afresh. 6. Thereafter version filed on behalf of opposite party pleaded therein that present complaint is not maintainable. It is pleaded that complainant did not fall within the definition of Consumer as defined under Consumer Protection Act 1986. It is further pleaded that complainant is estopped from filing present complaint due to his own acts, deeds, acquiescence etc. It is further pleaded that complainant has no cause of action against opposite party. It is further pleaded that in fact opposite party purchased the crop of complainant in the year 2010 for total consideration amount of Rs. 500000/- (Five lac). It is further pleaded that entire payment of sale consideration was paid to complainant. It is denied that opposite party approached complainant on dated 15.06.2010 and offered to provide services of plucking, packaging, transportation and sale of apple produce on monetary commission basis. It is also denied that opposite party in the presence of Shri Roop Lal and Shri Baldev offered to pay amount of Rs. 1100000/- (Eleven lac). It is also denied that opposite party agreed to pay extra amount qua cartons and trays. It is also denied that complainant handed over his orchard along-with cartons and trays to the opposite party. It is denied that opposite party transported 1000 apple boxes and did not pay balance amount of Rs. 600000/- (Six lac). It is also denied that complainant approached the Gram Pradhan for settlement of dispute. It is pleaded that complainant has tried to shift burden of his own wrongs, deeds and acts upon opposite party. Prayer for dismissal of complaint sought. 7. Complainant filed rejoinder and reasserted the allegations mentioned in complaint. 8. Learned District Forum decided complaint afresh on dated 10.06.2016 and dismissed the complaint filed by complainant Sant Ram. 9. Feeling aggrieved against order passed by Learned District Forum complainant Sant Ram filed present appeal before State Commission. 10. Prayer for dismissal of complaint sought. 7. Complainant filed rejoinder and reasserted the allegations mentioned in complaint. 8. Learned District Forum decided complaint afresh on dated 10.06.2016 and dismissed the complaint filed by complainant Sant Ram. 9. Feeling aggrieved against order passed by Learned District Forum complainant Sant Ram filed present appeal before State Commission. 10. We have heard learned advocates appearing on behalf of parties and we have also perused entire record carefully. 11. Following points arise for determination in present appeal. 1. Whether appeal filed by the appellant is liable to be accepted as mentioned in memorandum of grounds of appeal. 2. Final order. Findings upon point No.1 with reasons: 12. Complainant filed in evidence affidavit of Shri Roop Lal eye witness. There is recital in the affidavit that on dated 15.06.2010 opposite party contacted complainant and offered to provide services of plucking, packing, transportation and sale of entire apple produce of complainant in the presence of deponent and Baldev in consideration amount of Rs. 1100000/- (Eleven lac). There is further recital in affidavit that opposite party agreed to keep monetary profit of sale above Rs. 1100000/- (Eleven lac) as his monetary commission for service rendered. There is further recital in the affidavit that complainant hired services of opposite party for plucking, packing, transportation and sale of entire apple produce of complainant in the market. There is further recital in the affidavit that opposite party also agreed to make additional payment for cartons 2000 in number and trays 3500 in number @ Rs. 45 and Rs. 10 respectively. There is further recital in the affidavit that opposite party offered to pay Rs. 500000/- (Five lac) in advance to complainant and also agreed that balance amount of Rs. 600000/- (Six lac) would be paid on or before transportation of 1000 apple boxes from the orchard of complainant. There is further recital in the affidavit that complainant handed over his orchard at Balai Tehsil Jubbal District Shimla to opposite party along-with 2000 cartons and 3500 trays. There is further recital in the affidavit that complainant permitted opposite party to pluck, pack and transport apple crop without any hindrance. There is further recital in the affidavit that opposite party transported 1000 apple boxes but did not pay balance amount of Rs. 600000/- (Six lac) as agreed. There is further recital in the affidavit that complainant permitted opposite party to pluck, pack and transport apple crop without any hindrance. There is further recital in the affidavit that opposite party transported 1000 apple boxes but did not pay balance amount of Rs. 600000/- (Six lac) as agreed. There is further recital in the affidavit that thereafter complainant filed police complaint against opposite party on dated 06.09.2010. There is further recital in the affidavit that on investigation police officer concluded that opposite party had already transported about 1550 apple boxes and had abandoned the job in the midway when about 300 apple boxes were plucked and were ready for transportation. There is further recital in the affidavit that investigation authority also observed that about 2500 boxes worth apple were still on the trees which were not plucked. 13. Complainant filed in evidence affidavit of Shri Bal Dev eye witness. There is recital in the affidavit that on dated 15.06.2010 opposite party contacted complainant and offered to provide services of plucking, packing, transportation and sale of entire apple produce of complainant in the market on charging monetary commission. There is further recital in the affidavit that opposite party in the presence of deponent and Shri Roop Lal offered to make payment of Rs. 1100000/- (Eleven lac) for entire apple produce and also offered to keep monetary profit of sale above Rs. 1100000/- (Eleven lac) as his monetary commission for service rendered. There is further recital in the affidavit that complainant hired services of opposite party for plucking, packing, transportation and sale of entire apple produce of complainant in the market. There is further recital in the affidavit that opposite party also agreed to make additional payment for cartons 2000 in number and trays 3500 in number @ Rs. 45 and Rs. 10 respectively which were purchased by complainant for his personal use. There is further recital in the affidavit that opposite party paid Rs. 500000/- (Five lac) in advance to complainant and also agreed that balance amount of Rs. 600000/- (Six lac) would be paid on or before transportation of 1000 apple boxes. There is further recital in the affidavit that complainant handed over his orchard at Balai Tehsil Jubbal District Shimla to opposite party along-with 2000 cartons and 3500 trays in the second half of July 2010. 600000/- (Six lac) would be paid on or before transportation of 1000 apple boxes. There is further recital in the affidavit that complainant handed over his orchard at Balai Tehsil Jubbal District Shimla to opposite party along-with 2000 cartons and 3500 trays in the second half of July 2010. There is further recital in the affidavit that complainant permitted opposite party to pluck, pack and transport apple crop without any hindrance. There is further recital in the affidavit that opposite party transported 1000 apple boxes but did not pay balance amount of Rs. 600000/- (Six lac) as agreed. There is further recital in the affidavit that opposite party failed to pay remaining amount despite repeated request of complainant. There is further recital in the affidavit that thereafter complainant filed police complaint against opposite party on dated 06.09.2010. There is further recital in the affidavit that on investigation police officer concluded that opposite party had already transported about 1550 apple boxes and had abandoned the job in the midway when about 300 apple boxes were plucked and were ready for transportation. There is further recital in the affidavit that investigation authority also observed that about 2500 boxes worth apple were still on the trees which were not plucked. 14. Complainant also filed in evidence affidavit of Shri Udham Singh. There is recital in the affidavit that complainant told deponent that opposite party contacted him on dated 15.06.2010 and offered to provide services of plucking, packing, transportation and sale of entire apple produce of complainant in the market in consideration amount of Rs. 1100000/- (Eleven lac). There is further recital in affidavit that opposite party agreed to keep monetary profit of sale above Rs. 1100000/- (Eleven lac) as his monetary commission for service rendered. There is further recital in the affidavit that opposite party also agreed to make additional payment for cartons 2000 in number and trays 3500 in number @ Rs. 45 and Rs. 10 respectively. There is further recital in the affidavit that opposite party paid Rs. 500000/- (Five lac) in advance to complainant and also agreed that balance amount of Rs. 600000/- (Six lac) would be paid on or before transportation of 1000 apple boxes from the orchard of complainant. 45 and Rs. 10 respectively. There is further recital in the affidavit that opposite party paid Rs. 500000/- (Five lac) in advance to complainant and also agreed that balance amount of Rs. 600000/- (Six lac) would be paid on or before transportation of 1000 apple boxes from the orchard of complainant. There is further recital in the affidavit that complainant handed over his orchard at Balai Tehsil Jubbal District Shimla to opposite party along-with 2000 cartons and 3500 trays in the second half of July 2010. There is further recital in the affidavit that complainant permitted opposite party to pluck, pack and transport apple crop without any hindrance. There is further recital in the affidavit that opposite party transported 1000 apple boxes but did not pay balance amount of Rs. 600000/- (Six lac) as agreed. There is further recital in the affidavit that thereafter complainant filed police complaint against opposite party on dated 06.09.2010 and police investigated the matter and concluded that opposite party had already transported about 1550 apple boxes and had abandoned the job in the midway when about 300 apple boxes were plucked and were ready for transportation. There is further recital in the affidavit that investigating authority also observed that about 2500 boxes worth apple were still on the trees which were not plucked. 15. Opposite party filed his affidavit in evidence. There is recital in the affidavit that deponent did not provide services of plucking, packaging, transportation and sale of apple produce on monetary commission basis as alleged by complainant. There is further recital in the affidavit that deponent did not approach complainant on dated 15.06.2010 as alleged and also did not offer to pay amount of Rs. 1100000/- (Eleven lac) in the presence of Shri Roop Lal and Shri Baldev. There is further recital in the affidavit that deponent did not agree to pay extra amount for 2000 cartons and 3500 trays as alleged by the complainant. There is further recital in the affidavit that complainant did not hand over his orchard along-with cartons and trays to the deponent any point of time. There is further recital in the affidavit that deponent is not liable to pay any amount to the complainant. There is further recital in the affidavit that complainant did not approach Gram Pradhan for settlement of dispute. There is further recital in the affidavit that deponent is not liable to pay any amount to the complainant. There is further recital in the affidavit that complainant did not approach Gram Pradhan for settlement of dispute. There is further recital in the affidavit that complainant is not entitled to amount of Rs. 675000/- (Six lac seventy five thousand) along-with interest. There is further recital in the affidavit that opposite party had purchased the entire crop of complainant for Rs. 500000/- (Five lac) and paid entire amount to complainant. There is further recital in the affidavit that rates of apples were on higher side in the year 2010 and complainant claimed that opposite party had sold his apple crop for lesser price and complainant demanded Rs. 600000/- (Six lac) more from opposite party. There is further recital in the affidavit that since the complainant agreed to sell his entire apple in consideration amount of Rs. 500000/- (Five lac) therefore opposite party refused to pay the amount above Rs. 500000/- (Five lac). 16. Opposite party also filed affidavit of Ramesh Kumar in evidence. There is recital in the affidavit that deponent is horticulturist by profession and use to produce apples from his own orchard. There is further recital in the affidavit that in the year 2010 opposite party had purchased apple crop of complainant on contract basis. There is further recital in the affidavit that services like plucking, packaging and transportation and sale on monetary commission basis are not provided by any person in the area. There is further recital in the affidavit that apples were purchased on contract basis and not purchased on monetary commission basis. 17. Submission of learned advocate appearing on behalf of complainant that complainant is legally entitled for sum of Rs. 675000/- (Six lac seventy five thousand) along-with interest @18% per annum w.e.f. 01.09.2010 till the date of payment is decided accordingly. State Commission is of the opinion that complainant has himself sold remaining 2800 apple boxes and opposite party had sold about 1550 apple boxes. It is proved on record that complainant has received Rs. 500000/- (Five lac) from opposite party in the presence of two independent eye-witnesses namely Roop Lal and Baldev as advance payment. State Commission is of the opinion that complainant has himself sold remaining 2800 apple boxes and opposite party had sold about 1550 apple boxes. It is proved on record that complainant has received Rs. 500000/- (Five lac) from opposite party in the presence of two independent eye-witnesses namely Roop Lal and Baldev as advance payment. In view of the fact that complainant has himself sold 2800 apple boxes and in view of the fact that complainant did not place on record sale amount receipt of 2800 apple boxes it is not expedient in the ends of justice and on the concept of principle of natural justice to award Rs. 675000/-(Six lac seventy five thousand) to the complainant. Plea of complainant that complainant had sold 2800 apple boxes in consideration of one lac after opposite party left work in midway is defeated on the concept of ipse-dixit (An assertion made without proof). Roop Lal and Baldev are not eye-witnesses of subsequent sale of apple boxes by complainant. Complainant also did not file affidavit of person to whom he sold 2800 apple boxes subsequently. Complainant also did not file any receipt of sale qua 2800 apple boxes. 18. Submission of learned advocate appearing on behalf of complainant that complainant is legally entitled for damages for harassment to the tune of Rs. 100000/- (One lac) is decided accordingly. It is proved on record that opposite party has executed oral agreement with complainant for sale of apple crops on the basis of monetary commission above Rs. 1100000/- (Eleven lac) of sale. It is also proved on record that opposite party has left the work in midway of season. State Commission is of the opinion that fact that opposite party has left the work in the midway of season proved that opposite party had committed deficiency in service. It is proved on record that complainant had sustained mental torture and harassment due to leaving of work in midway by opposite party. It is well settled law that consumer is legally entitled for compensation for mental torture and harassment. State Commission is of the opinion that it is equitable in the ends of justice and on the concept of principle of natural justice to award compensation to the tune of Rs. 25000/- (Twenty five thousand) to the complainant for mental torture and harassment. 19. State Commission is of the opinion that it is equitable in the ends of justice and on the concept of principle of natural justice to award compensation to the tune of Rs. 25000/- (Twenty five thousand) to the complainant for mental torture and harassment. 19. Submission of learned advocate appearing on behalf of complainant that complainant is legal entitled for litigation costs is decided accordingly. It is proved on record that complainant had to approach learned District Forum for redressal of his grievance. It is also proved on record that despite several requests opposite party did not accept the request of complainant and thereafter complainant had to approach the learned District Forum and had to engage advocate. On the concept of principle of natural justice it is held that complainant is legally entitled for litigation costs to the tune of Rs. 5000/- (Five thousand). 20. Submission of learned advocate appearing on behalf of opposite party that opposite party is not legally liable to pay any amount to complainant is decided accordingly. Plea of opposite party that opposite party has paid entire consideration amount of Rs. 500000/- (Five lac) to the complainant is defeated on the concept of ipse dixit (An assertion made without proof). Opposite party did not adduce affidavit of any independent witness on record in order to prove that opposite party was liable to pay Rs. 500000/- (Five lac) only to the complainant. Affidavit filed by opposite party is not sufficient to rebut the affidavits filed by Roop Lal and Baldev who have specifically stated in the affidavits that opposite party agreed to pay Rs. 1100000/- (Eleven lac) to the complainant. Affidavit filed by opposite party namely Kundan is not sufficient to rebut affidavits of Roop Lal and Baldev because Kundan is interested person and is impleaded as party in complaint. Affidavit filed by Ramesh Kumar is not helpful to the opposite party because Ramesh Kumar was not eye-witness of oral agreement and Ramesh Kumar was not present when oral agreement was executed between the complainant and opposite party. 21. Submission of learned advocate appearing on behalf of opposite party that complainant had executed oral agreement for commercial purpose and on this ground appeal filed by appellant be dismissed is decided accordingly. Complainant has specifically mentioned in the affidavit that complainant was engaged in horticulture and agriculture work and was earning his livelihood therefrom. 21. Submission of learned advocate appearing on behalf of opposite party that complainant had executed oral agreement for commercial purpose and on this ground appeal filed by appellant be dismissed is decided accordingly. Complainant has specifically mentioned in the affidavit that complainant was engaged in horticulture and agriculture work and was earning his livelihood therefrom. We are of the opinion that Consumer Protection Act 1986 was amended w.e.f. 15.03.2003 and explanation was added in section 2(d)(i)(ii) to the effect that commercial purchase would not include goods and services availed by complainant exclusively for the purpose of earning his livelihood. In view of above stated facts it is held that complainant falls within the definition of consumer as defined under section 2(d) of explanation added in Consumer Protection Act 1986 w.e.f. 15.03.2003. There is not rebuttal evidence in order to prove that complainant is not engaged in horticulture and agriculture work for earning his livelihood. In view of explanation stated supra it is held that w.e.f. 15.03.2003 complainant falls within the definition of consumer as defined under section 2(d) of Consumer Protection Act 1986. It is held that complainant availed service of opposite party for his livelihood only. 22. Submission of learned advocate appearing on behalf of opposite party that dispute inter se parties is relating to settlement of account and matter relating to settlement of account could not be decided by Consumer Forum is decided accordingly. We have carefully perused contents of complaint and version and we have also carefully perused entire evidence adduced by parties on record. After perusal of entire record State Commission is of the opinion that oral agreement was executed between the parties wherein opposite party agreed that he would pluck, pack and transport and sell the apples of complainant in the market and thereafter opposite party would receive monetary commission of sale above Rs. 1100000/- (Eleven lac) for rendering services of plucking, packing, transportation and sale. It is held that present case falls within the definition of system of deferred payment of monetary commission for service rendered after services are availed by complainant and falls within the definition of section 2(d)(ii) of Consumer Protection Act 1986 because opposite party agreed to receive entire monetary commission above Rs. 1100000/- (Eleven lac) of sale of apples from complainant for services of plucking, packing, transportation and sale of apple crop. 1100000/- (Eleven lac) of sale of apples from complainant for services of plucking, packing, transportation and sale of apple crop. Findings of learned District Forum that dispute inter se parties relates to settlement of account is not in accordance with proved facts and in accordance with law. It is held that monetary amount received as monetary commission under the system of deferred payment falls within the definition of consumer as defined under section 2(d)(ii) of Consumer Protection Act 1986. In view of above stated facts point No.1 is partly decided in yes and partly decided in no. Point No.2: Final Order 23. In view of findings upon point No.1 above appeal is partly allowed and it is ordered that opposite party will pay sum of Rs. 25000/- (Twenty five thousand) to complainant on account of mental agony and harassment. It is further ordered that in addition opposite party will pay a sum of Rs. 5000/- (Five thousand) to complainant as litigation costs. Order of learned District Forum is modified to this extent only. Other relief sought by complainant is declined in the ends of justice and on the principle of natural justice. File of learned District Forum along-with certified copy of order be sent back forthwith and file of State Commission be consigned to record room after due completion forthwith. Certified copy of order be transmitted to parties forthwith free of costs strictly as per rules. Appeal is disposed of. Pending application(s) if any also disposed of.