State Consumer Disputes Redressal Commission
Bedilal Kumhar vs Chief Manager Fine India Co.Ltd. on 30 March, 2016
CHHATTISGARH STATE
CONSUMER DISPUTES REDRESSAL COMMISSION
PANDRI, RAIPUR (C.G.)
Appeal No.FA/2015/350
Instituted on : 11.09.2015
Bedilal Kumhar, S/o Shri Damrulal Kumhar,
Age 42 years, Occupation - Business,
R/o : Dhimrapur, Jagatpur,
Raigarh, Tahsil & District Raigarh (C.G.) ... Appellant
Vs.
Chief Manager,
Fine India Company Pvt. Ltd.,
Address : 91-A, Vanjidpur, Janjmau,
Kanpur (Uttar Pradesh) .... Respondent
Appeal No.FA/2015/382
Instituted on : 11.09.2015
M/s Fine Indiasales Pvt. Ltd.,
No.91-A, Wajidpur,
Kanpur (Uttar Pradesh) - 208 010 ... Appellant
Vs.
Bedilal Kumhar, S/o Damrulal Kumhar,
R/o : Dhimrapur, Jagatpur,
Raigarh, District Raigarh (C.G.) .... Respondent
PRESENT: -
HON'BLE JUSTICE SHRI R.S. SHARMA, PRESIDENT
HON'BLE MISS HEENA THAKKAR, MEMBER
HON'BLE SHRI D.K. PODDAR, MEMBER
HON'BLE SHRI NARENDRA GUPTA, MEMBER
COUNSEL FOR THE PARTIES :-
Shri Amit Sharma, for the complainant Bedilal Kumhar.
Shri Gaurav Bhargav & Shri Dron Tamrakar, for opposite party Fine
India Company Private Limited.
// 2 //
ORDER
Dated : 30/03/2016 PER: - HON'BLE JUSTICE SHRI R.S. SHARMA, PRESIDENT This order will govern disposal of Appeal No.FA/2015/350 as well as Appeal No. FA/2015/382, which have been preferred respectively by the complainant - Bedilal Kumhar and O.P. Fine India Company Private Limited of Complaint Case No.179/2014 against the order dated 10.06.2015, passed by District Consumer Disputes Redressal Forum, Raigarh (C.G.) (henceforth "District Forum"). By the impugned order, the learned District Forum, has allowed the complaint of the respondent complainant and directed the O.P. as under :-
(a) To pay within a period of one month from the date of order a sum of Rs.2,00,000/- (Rupees Two Lakhs Only) which was invested by the complainant with the O.P. and will also pay interest thereon @ 09% p.a. from the date of filing of the complaint i.e. 26.12.2014 till realisation.
(b) To pay a sum of Rs.20,000/- (Rupees Twenty Thousand Only) towards compensation for mental agony and a sum of Rs.2,000/-
(Rupees Two Thousand Only) towards cost of the litigation to the complainant.
2. The complainant has filed appeal No.FA/2015/350 for granting interest and the O.P. has filed Appeal No. FA/2015/382 for setting aside the impugned order of the District Forum. The original of this // 3 // order be retained in the file of Appeal No.FA/2015/350 and it's copy be placed in the file of Appeal No.FA/2015/382.
3. Briefly stated the facts of the complaint of the complainant are that the employees of the O.P. came to Raigarh (C.G.) and contacted with the complainant and they shown documents to the complainant and told the complainant that Fine India Company is a registered company and its branch office is situated at Kanpur (U.P.). The said Company give interest @ 10% to 25% per month to the investor. If the complainant invest the amount, then interest @ 10% will be given to him and if the complainant is in need of the amount, then he is entitled for refund of the amount invested, from the O.P. The O.P. would require to pay a sum of Rs.103/- on the interest paid by it to the complainant on Rs.1,000/- which will be refunded in the end of the year when application is moved before the Income Tax Department. If the complainant make available new customer to the O.P., then a sum of Rs.200/- would be paid towards commission. The 50% of the amount invested by the complainant would be invested by the O.P. in the mutual fund, in which if any loss is suffered by the O.P., then the complainant would receive the amount from the mutual fund. On being inducement / influence given by the employees of the O.P., on 31.08.2009 the complainant submitted application form to the O.P. along with a sum of Rs.2,00,000/-. The O.P. gave I.D. Code // 4 // No.10230114 to the complainant and also gave receipt for the deposited amount as well as document. The employees of the O.P. also informed to the complainant that interest would be paid every month in the amount invested by him. If a saving bank account is opened in the name of the complainant and the account number is given to the O.P., then the amount of interest on the invested amount, would be deposited in the above saving account every month. The complainant opened saving bank account No.30873892210 with the State Bank of India, Branch A.D.B., Raigarh. The O.P. did not deposit any amount towards interest / bonus in the above account. When the complainant contacted the O.P. through telephone, then he was informed that the outstanding amount of interest / bonus would be given together, but the O.P. did not deposit the amount of interest / bonus in the bank account of the complainant. The complainant sent notice to the O.P. through his counsel, but the O.P. refused to receive the said notice. Hence the complainant filed consumer complaint before the District Forum and prayed for granting reliefs, as mentioned in the complaint.
4. The O.P. filed its written statement and averred that there was no deficiency in service or unfair practice on the part of the O.P. as falsely contended by the complainant, who have approached the District Forum with unclean hands without disclosing the actual facts. The complainant is not a consumer within the meaning and definition // 5 // of 'consumer' under Section 2(1)(d)(ii) of the Consumer Protection Act, 1986 and that the O.P. is not rendering any service to the complainant. The complainant was a distributor of the O.P. Company as per the Distributorship Agreement and the complainant was entitled for recurring Bonus subject to the performance, policy and economic growth of the company. The complainant has admitted that he was a Distributor as per the Distributorship Agreement. However, to bring it under the Consumer Protection Act, called the payment as investment has thus played fraud on District Forum. The complainant is not a consumer of the O.P. within the definition of consumer in view of the Distributorship Agreement and on this ground also the complaint should have been dismissed. The agreement do not indicate the supply of commodity for sale by a distributor. It has been specifically mentioned under the heading Purchase that the payment has been received against the purchase of products and under clause 4 the Distributor can redeem his/her voucher with the product from the Company within 5 years. It is pertinent to note that a person called Distributor will not purchase such a huge quantity worth Rs.2,00,000/- for own personal use but for sale and earned profits. The complainant has specifically mentioned in his complaint that "the complainant has no interest in continuing the business with opponents." The alleged payment of Rs.2,00,000/- was for purchase of products as clearly mentioned in the Distributorship Agreement viz. Fine India accept // 6 // payments against its product only and issue the PVC for collection of the material. All those documents will never establish the relationship of consumer as such bulk purchase could not be sought for the purpose of self consumption and will only amount to a regular trading transaction between the parties. Neither the whole nor part of the cause of action has arisen within the jurisdiction of the District Forum and the O.P. is also not having its office within the jurisdiction of Raigarh District Forum, neither company has any employee in Raigarh District and on this ground alone the complaint should have been dismissed. It has been clearly stated that all the transactions are carried out through the Website and not through any branch office or local agent as falsely alleged by the complainant. At no point of time the O.P. had declined to deliver the material to the complainant nor the complainant has ever presented the Payment Verification Code for taking delivery of the material. Therefore, there is no deficiency in service or unfair trade practice as falsely alleged by the complainant and thus the bonus or commission was in any case subject to the performance and economic growth of the O.P. Company. The Scheme of refund had been withdrawn as per the order of Hon'ble High Court of Allahabad and approved by the Registrar of Companies and Regional Director, therefore, the complainant is not entitled for refund of the amount but to collect the material. The order dated 26.03.2010 of the Hon'ble High Court of Allahabad and change in the scheme for refund of money // 7 // being withdrawn was published in the newspapers as well as on O.P.'s website on the internet and that the complainant was fully conversant that all our transactions was through our website and internet. However, with malafide intentions the complainant suppressed the said facts from the District Forum and called it interest/dividend to bring under the purview of Consumer Protection Act, 1986. The complaint is liable to be dismissed.
5. The complainant has filed documents. Document No.1 is postal receipt and registered notice dated 24.11.2014 sent by Shri J.S. Thakur, Advocate to the Chief Manager, Fine India Company Private Limited, Kanpur (Uttar Pradesh), document No.2 is envelope containing notice sent by Shri J.S. Thakur, Advocate to Chief Manager, Fine India Company Private Limited, Kanpur (Uttar Pradesh), which was returned back, document No.3 is terms and conditions of Distributorship Agreement of Fine Indiasales Pvt. Ltd., document No.4 is receipt.
6. The O.P. has also filed documents. Document Annexure A is order dated 26.03.3010 passed High Court of Judicature at Allahabad in Petition No.3 of 2010, order dated 03.06.2010 passed by High Court of Judicature at Allahabad in M/s Fine Indiasales Pvt. Ltd. Through its Director and another Vs. The State of U.P. Through Principal Secretary // 8 // (Home), U.P. at Lucknow and others Criminal Misc. Writ Petition No.9819 of 2010.
7. Learned District Forum, after having considered the material placed before it by the parties, has allowed the complaint and directed the O.P. to pay compensation to the complainant, as mentioned in para 1 of this order.
8. Shri Gaurav Bhargav, learned counsel appearing for the O.P. (appellant of Appeal No.FA/2015/382) has argued that the complainant is not a "consumer". He received commission from the O.P. and he deposited the amount for obtaining distributorship and he joined the O.P. Company as Member. The O.P. is not rendering any services to the complainant. The complainant was a distributor of the O.P. Company as per the Distributorship Agreement and the complainant was entitled for recurring Bonus subject to the performance, policy and economic growth of the company. The O.P. is not a service provider. The finding recorded by the District Forum, is erroneous and the impugned order is liable to be set aside. Shri Gaurav Bhargav has further argued that according to the complainant the amount was deposited by him with the O.P. on 31.08.2009 and the complainant pleaded that at the end of the year, the amount would be refunded with interest. The interest / bonus was not deposited by the O.P. in the bank account of the complainant in the end of year 2009.
// 9 // The complainant has filed the complaint on 26.12.2014. The complaint is apparently barred by time, therefore, the complaint is liable to be dismissed. He placed reliance on I.P. Katyal Vs. Pol Service (Indian Region) III (2002) CPJ 304 (NC); Mysore Sales International Ltd. Vs. M.N. Mishra, II (1996) CPJ 64 (NC); Order dated 26.03.3010 passed High Court of Judicature at Allahabad in Petition No.3 of 2010, Order dated 03.06.2010 passed by High Court of Judicature at Allahabad in M/s Fine Indiasales Pvt. Ltd. Through its Director and another Vs. The State of U.P. Through Principal Secretary (Home), U.P. at Lucknow and others - Criminal Misc. Writ Petition No.9819 of 2010; The Director, M/s Fine India Sales Pvt. Ltd. and Others Vs. Radhe Shyam - Appeal No.756/2011 Order dated 14.05.2012 decided by this Commission; Radhe Shyam Vs. Director/Manager, Fine India Pvt. Ltd. and Others - Complaint Case No.93/2011 Order dated 04.01.2013 decided by District Consumer Disputes Redressal Forum, Durg (C.G.); PDC Marketing Private Limited Vs. Axis Bank Limited, 2013 SCC OnLine NCDRC 581 : [2013] NCDRC 575; Jayantilal Trikambhai Brahambhatt and another Vs. Abhinav Gold International Marketing Pvt. Ltd. and Others 2012 SCC OnLine NCDRC 645 : [2012] NCDRC 645; M/s. NIIT Ltd. Vs. Ms. Pooja Chugh, 2012 SCC OnLine NCDRC 281 : [2012] NCDRC 281; Vishwanath Sahu and another Vs. M/s Fine India & others - Appeal No.FA/14/169 decided by this Commission on 31.07.2015; Smt. Neerabai Soni Vs. Chief Manager, Fine India Co. Pvt. Ltd. & another - Complaint Case No.CC/18/2015 decided by District // 10 // Consumer Disputes Redressal Forum, Janjgir - Champa (C.G.) on 23.12.2015; C.P. Sreekumar (Dr.) Vs. Ramanujam, (2009) 7 Supreme Court Cases 130; Smt. Bramhani Soni Vs. Chief Manager, Fine India Co. Pvt. Ltd. Complaint Case No.CC/02/2015 decided by District Consumer Disputes Redressal Forum, Bilaspur (C.G.) on 29.02.2016.
9. Shri Amit Sharma, learned counsel appearing for the complainant (appellant of Appeal No.FA/2015/350) has argued that the complainant is "consumer" and the O.P. is "service provider". The complainant deposited the amount with the O.P. under Investment Plan, therefore, the complainant is "consumer" and the complaint filed by the complainant before the District Forum, is maintainable. The amount was deposited by the complainant with the O.P., but the O.P. did not refund the amount to him, even interest / bonus was not deposited by the O.P. in the bank account of the complainant. Thus, the O.P. committed deficiency in service. The District Forum has erred in not awarding granting interest. The complainant is entitled to get interest, as mentioned in the complaint. Therefore, the impugned order be modified accordingly. He placed reliance on W.P. (C) No.7693 of 2011 - All India Networks Welfare Trust Vs. Superintendent of Police, Criminal Investigation Department, Crime Branch, Odisha, order dated 12.12.2012, passed by High Court of Orissa, Cuttack and First Appeal No.88 of 2013 - PDC Marketing Private Limited Vs. Axis Bank Limited decided by Hon'ble National // 11 // Commission Vide order dated 04.07.2013 (The above judgment is also reported in III (2013) CPJ 672 (NC) and 2013 (3) CPR 164 (NC).
10. We have heard learned counsel for both the parties and have also perused the record of the District Forum.
11. Now we shall examine whether the complainant is consumer ?
12. Definition of 'consumer' under Section 2(1)(d) of the Consumer Protection Act, 1986, is as under:-
"(d) "consumer" means any person who,-
(i) 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 than 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
(ii) [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 // 12 // the purposes of earning his livelihood by means of self- employment;"
13. The complainant pleaded that the employees of the O.P. came to Raigarh (C.G.) and contacted with the complainant and they shown documents to the complainant and told the complainant that Fine India Company is a registered company and its branch office is situated at Kanpur (U.P.). They also told that the said Company give interest @ 10% to 25% per month to the investor on the invested amount. If the complainant invest the amount, then interest @ 10% will be given to him and if the complainant is in need of the amount, then he is entitled for refund of the amount invested, from the O.P. If the complainant make available new customer to the O.P, then he is entitled for getting a sum of Rs.200/- towards commission separately. On being inducement / influence given by the employees of the O.P., on 31.08.2009 the complainant submitted application form to the O.P. along with a sum of Rs.2,00,000/-. The O.P. gave I.D. Code No.10230114 to the complainant and also gave receipt for the deposited amount as well as document.
14. The complainant has filed document No.3, which is terms and conditions of the Distributorship Agreement of Fine Indiasales Pvt. Ltd. In the said document, it is mentioned thus :-
"1. Fine India accepts payments against its product only and issue the PVC (payment verification code) immediately to // 13 // the person who sent the payment when it is verified but acknowledge the payment only when the online purchase account has been set up hence Distributors will not get any benefit until online purchase account has been set up.
2. Fine India will only be responsible for sending the PVC to the Email address of the person who made the payment and it is the sole responsibility of distributor to set up the online purchase account immediately because Fine India only recognize details according to the online purchase account hence Fine India will not be liable for any loss of income or commissions due to the late set up of online purchase account.
3. The minimum amount of purchase to become Fine India Distributor is Rs.10,000.00, but to get the binary commission you must have a minimum purchase of Rs.50,000.00.
4. Distributor can also top up their purchase account in multiple of Rs.10,000.00 which will be affected from 1st of the next month."
15 According to the complainant, the employees of the O.P. induced him to deposit the amount of Rs.2,00,000/- and due to inducement given the complainant deposited amount with the O.P. The O.P. gave assurance to the complainant that the O.P. will pay 10% interest / bonus and also commission to the complainant on the aforesaid deposited amount. It appears that the complainant is entitled for commission from the O.P. on the amount deposited by him.
16. In PDC Marketing Private Limited Vs. Axis Bank Limited, 2013 (3) CPR 164 (NC), Hon'ble National Commission, has observed that "while dismissing complaint State Commission observed that it is not a case of simple bank service but a camouflaged commercial activity was being carried // 14 // out through this system in which 10060 ATM Cards had been activated by bank. It is a case of a bank account opened by a business company in furtherance of its commercial business. Complainant cannot be treated as Consumer. Decision of State Commission is based on correct appreciation of facts and law."
17. In Jayantilal Trikambhai Brahambhatt and Anr. Vs. Abhinav Gold International Marketing Pvt. Ltd. and Ors. 2012 (4) CPR 37 (NC), Hon'ble National Commission has observed thus :-
"16. The Complainant himself argued that the complainants are the investors. It is also clear that their primary aim is to have profit out of these transactions. Every now and then, the words "huge profit"
"multi profit", "big profit" etc., find mention in the complaint. The only purpose is to earn the profits, though it appears that gullible persons have been taken for a ride. There is no evidence or no averment that the above said transaction was entered for self-employment or earning their livelihood. There is no averment that this transaction is the only source for their bread and butter. We, therefore, have no hesitation to hold that the complainants and the person who are seeking relief through them are not the consumers. Consequently the present complaint is not maintainable. The complaint is, therefore, dismissed."
18. In Appeal No.756/2011 - Director, M/s Fine India Sales Pvt. Ltd., Kanpur and two others vs. Mr. Radhe Shyam (Supra), this Commission has observed thus :-
"9. It is also worth mentioning that in the complaint, it has not been specified by the complainant/respondent that he availed some service of any of the OPs. Whatever has been stated in the complaint, is // 15 // only to the effect that on assurance of the O.P.Nos.2 & 3, who are appellant Nos.2 & 3 before us, he became a Member of the appellant No.1/Company by depositing some amount and started getting commission and became part of the Company. Nothing specific has been stated in the complaint as to why the company was paying commission to the complainant/respondent and what he was required to do for the Company and what was required to be done by the appellant No.1/Company. What has actually been agreed between the parties, has also not been brought on record. Neither any agreement nor any proforma of any such agreement, has been filed. Merely bank drafts, statement of bank account etc. have been filed by the complainant/respondent and the copy of the bank statement shows that commission was paid on many occasions by the appellant No.1/Company to the complainant/respondent, and this fact has also been admitted by the complainant/respondent. Thus, it is clear that some material facts have been concealed by the complainant/respondent also and he is also required to plead and prove the actual deal between him and the O.P.No.1/Company."
19. In The Regional Director, National Savings, Kokata vs. Dinendra Narain Ray, 2007 (3) CPR 29 (NC), Hon'ble National Commission, has observed thus :-
"6. In our view, this decision was rendered entirely in a different context and has no applicability to the facts of present case. Without fulfilling the ingredients as envisaged by said Section 2(1)(d)((ii) the respondent cannot be a 'consumer' so as to maintain a complaint under this Act. In Kusum Gupta's case (supra) it was held that the respondent (complainant) being merely a commission agent appointed by the opposite party petitioner to canvass the orders for subscription to National Saving Certificate Scheme would not fall within the scope of // 16 // definition of 'consumer' as defined in Consumer Protection Act, 1986 and the complaint filed before the District Forum, was thus, totally misconceived. In our opinion, this decision squarely covers controversy involved in the present revision. Complaint filed by the respondent was not maintainable and the orders passed by Fora below, therefore, deserve to be set aside being not legally sustainable."
20. In M. Dakshinamoorthy vs. Videocon International Ltd. & Ors., IV (2007) CPJ 178 (NC), Hon'ble National Commission, has observed thus :-
"7. Considering the facts stated above, in our view, this complaint is not maintainable under the Consumer Protection Act, 1986 (hereinafter referred to as the C.P. Act), because (i) complaints can be filed by a consumer as provided under Section 2(1)(b) of the C.P. Act and (ii) a 'consumer' inter alia, is defined to mean a person who buys any goods for a consideration or hires or avails of any services for a consideration. Hence, presuming that whatever is stated by the complainant is true, he cannot be considered to be a consumer as he has not availed of any services from M/s. Videocon. On the contrary, the complainant seeks commission for the alleged services rendered by him to M/s. Videocon. That is to say, at the most, M/s. Videocon is the hirer of the service form the complainant. Therefore, the complainant can be said to be a service-provider and, hence, is not entitled to file complaint under the C.P. Act."
21. In Mysore Sales International Ltd. vs. M.N. Misra (Supra), Hon'ble National Commission has observed thus :-
"3. We have heard the learned Counsel for the parties and have gone through the records. In our view, the complainant is not a consumer // 17 // within the ambit and scope of the Consumer Protection Act, 1986. The case of the complainant as set out in the complainant and as found by the District Forum as well as by the State Commission is that the amount of Rs.11.00 Lakhs was deposited as security by the complainant for appointing him as a selling agent of the oil manufactured by the petitioners herein. On this finding of fact, the inference is that it is a contractual obligation. There is no hiring of the service of the petitioners herein by the complainant for consideration. Failure to appoint the complainant as a selling agent is a breach of contract for which remedy lies in Civil Court and not before the Consumer Forum. The amount was deposited as a security for appointment as a selling agent and it was not a deposit like with Bank or financier. Even if it was a transaction, as is the case of the petitioner herein, of the sale of oil, it will be hit by the fact that it was a commercial contract and case relating to non-supply of the oil. The complainant will not be a consumer being purchase of goods in which no defect is alleged. The orders of the State Commission as well as District Forum suffer from serious irregularities in the exercise of jurisdiction and are hereby set aside. The complaint is dismissed leaving the parties to bear their own costs."
22. From bare perusal of the documents filed by the complainant, it appears that complainant obtained distributorship from the O.P. and according to the Distributorship Agreement, the complainant is entitled to get Promotional Income which is above than 10% up to 25% every month from the O.P. It appears that the complainant is only entitled to get commission for the product mode from the O.P. // 18 //
23. Now we shall examine whether the complaint is barred by time ?
24. The complainant pleaded that on 31.08.2009 he deposited a sum of Rs.2,00,000/- with the O.P. and the O.P. gave I.D. Code No.10230114 to the complainant. The complainant further pleaded that he contacted with the O.P. through telephone, then he was informed that the outstanding amount of interest / bonus would be given together, but the O.P. did not deposit the amount of interest / bonus. The complainant has filed document No.4 i.e. Direct Referral of Fine ID 10137307 in which purchase amount is mentioned Rs.2,00,000/- against the name of Bedi Lal and ID Code No. is mentioned 10230114 . On the basis of above document, it appears that the amount of Rs.2,00,000/- was deposited by the complainant with the O.P. on 31.08.2009. The interest/ dividend was not given by the O.P. to the complainant. The document No.3 is terms and conditions of Distributorship Agreement of Fine Indiasales Pvt. Ltd. From bare perusal of above document, it appears that the distributorship was allotted to the complainant on 31.08.2009 and the complainant filed complaint on 26.12.2014 i.e. after two years.
25. In Improvement Trust, Faridkot Through Its Executive Officer & Anr. vs. Bhupinder Kaur, II (2000) CPJ 56, Punjab State Consumer Disputes Redressal Commission, Chandigarh observed thus :-
// 19 // "3. For the cause of action accruing prior to June, 1993 a period of three years limitation was prevalent and for the cause of action accruing thereafter the period of limitation is governed by Section 24-A of the Consumer Protection Act, which provides a period of two years limitation only. It may be observed that any correspondence between the parties will not give a fresh cause of action for filing the complaint.
The auction took place in 1981 and as per allegations of the opposite party the plot was resumed on January 11, 1994. Even if there was some correspondence, sent by the complainant, that will not give fresh cause of action. On February 17, 1995 the Improvement Trust is alleged to have written a letter to the complainant to pay Rs.7,586/- and on doing so, they would issue the no dues certificate. Assuming that to be the date of cause of action, the complaint was required to be filed within a period of two years. The present complaint filed on December 2, 1997 is clearly barred by time."
26. In United Bank of India vs. Janata Paradise Hotel and Restaurant, IV (2014) CPJ 383 (NC), Honble National Commission has observed thus :-
"6.......... correspondence does not extend limitation, particularly, when first request for refund is made after claim became time-barred. In this matter, claim became time barred in the year 1995 and letter has been written on 18.11.2007. Complainant has not placed any letter from 1995 to 2007 and, thus claim being barred by limitation, learned District Form committed error in allowing complaint."
27. In Vandan Pareshkumar Manghita vs. The Divisional Manager, National Insurance Co. Ltd., 2014 (4) CLT. 254, Hon'ble National Commission has observed that "Mere correspondence does not // 20 // extend limitation and complaint was to be filed within period of 2 years from first intimation."
28. In the instant case, the complainant legal notice to the O.P. on 24.11.2014. Mere sending legal notice or correspondence between the parties does not give rise to fresh cause of action for filing complaint. The distributorship was allotted to the complainant on 31.08.2009 and interest / bonus was not given to the complainant in the year, therefore, the cause of action has accrued on 31.08.2009 or for the first time when the complainant asked the O.P. for interest / bonus. The cause of action was not accrued when the legal notice was sent to the O.P. The complainant has filed complaint on 26.12.2014 i.e. after two years, therefore, the complaint is barred by time under Section 24-A of the Consumer Protection Act, 1986.
29. In view of aforesaid discussions, we are of the view that the complainant is not 'consumer' of the O.P. and the transaction between the parties, is purely commercial transaction, therefore, the dispute between the parties is not 'consumer dispute' and the complaint is barred by time, hence the finding recorded by the District Forum is erroneous and is not sustainable and is liable to be set aside.
30. Therefore, the appeal FA/2015/350 filed by the complainant is liable to be and is hereby dismissed. The appeal No.FA/2015/382 filed // 21 // by the O.P. is allowed and the order dated 10.06.2015, passed by the District Forum is set aside. Consequently, the complaint filed by the complainant before the District Forum shall stand dismissed. No order as to the costs of these appeals.
(Justice R.S. Sharma)(Ms. Heena Thakkar) (D.K. Poddar) (Narendra Gupta)
President Member Member Member
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