State Consumer Disputes Redressal Commission
Director, M/S Fine India Sales Pvt ... vs Mr. Radhe Shyam on 14 May, 2012
CHHATTISGARH STATE
CONSUMER DISPUTES REDRESSAL COMMISSION,
PANDRI, RAIPUR (C.G.)
(A/11/3037)
Appeal No.756/2011
Instituted on : 11.11.2011
1. Director, M/s Fine India Sales Pvt. Ltd.,
No.91-A, Wajidpur,
Kanpur, Uttar Pradesh 208 010
2. Dr. M.L. Deshmukh,
R/o : Khapri, P.O. Maligohi,
Tehsil : Doundi Lohara, District : Durg (C.G.)
3. Mr. Pawan Kumar Pogra,
R/o : Village : Andi,
P.O. & Tehsil - Doundi Lohara, Dist. Durg (C.G.) .... Appellants.
Vs.
Mr. Radhe Shyam, S/o Shri Alore Singh,
R/o : Village : Bhainshbod,
Tehsil : Balod, District : Durg (C.G.) .... Respondent.
PRESENT :
HON'BLE SHRI JUSTICE S.C. VYAS, PRESIDENT
HON'BLE SHRI V.K. PATIL, MEMBER
COUNSEL FOR THE PARTIES :
Shri Uday B. Wavikar, for appellant No.1.
Shri Dron Kumar Tamrakar, for appellant Nos.2 & 3.
Shri K.K.S. Rathore, for respondent.
ORDER (ORAL)
DATED : 14/05/2012 PER :- HON'BLE SHRI JUSTICE S.C. VYAS, PRESIDENT This appeal is directed against, order dated 11.11.2011 of District Consumer Disputes Redressal Forum, Durg (C.G.) (hereinafter called "District Forum" for short), passed in Complaint Case No.93/2011, whereby all the three appellants of the present appeal, have been // 2 // directed to pay jointly or severally Rs.1,00,000/- to the complainant/respondent within a period of one month from the date of order, along with interest @ 7% p.a. with effect from the date of deposit of the amount i.e. 22.06.2009 till date of payment and also to pay Rs.1,000/- as compensation for mental agony and Rs.1,000/- as cost of litigation.
2. In nutshell, the case of the complainant before District Forum was that, the appellants herein, particularly appellant Nos.2 & 3, assured him that if an amount of Rs.50,000/-, is deposited with appellant No.1/Company, then the complainant/respondent will get in return attractive commission and at the end of the Scheme, the amount deposited by the complainant/respondent, would be paid with double benefit. Being convinced by this assurance, the complainant/respondent deposited Rs.50,000/- with appellant No.1, M/s Fine India Sales Pvt. Ltd. by Bank draft. For the initial month, commission was paid by the appellant No.1 and the amount was deposited in the bank account of the complainant. Then he again deposited Rs.50,000/- more by bank draft, but for the second deposit, no acknowledgement and joining letter was issued by the appellant No.1/Company, though the commission was paid for some subsequent months. In all by way of commission, on six occasions in total Rs.25,071/- were paid to the complainant, but thereafter neither the principal amount nor any commission or interest was paid and, thus, the appellant No.1 /Company committed deficiency // 3 // in service and unfair trade practice, so the consumer complaint was filed before District Forum for seeking direction for payment of Rs.3,06,929/-, along with interest and cost of litigation from the OPs.
3. The appellant No.1/Company remained absent and was proceeded ex-parte. However, appellant Nos.2 & 3 in their written version have refuted the allegations leveled by the complainant/respondent against them in the complaint and averred that no cause of action has arisen to the complainant/respondent against them, as no assurance was ever given by them. Some objections were also raised regarding jurisdiction of the District Forum and regarding mis-joinder of the parties. It has also been specifically averred that they were neither Agents nor representatives of the appellant No.1.
4. Learned District Forum, by the impugned order, has held that it was having jurisdiction to entertain the complaint and found that appellants herein, were deficient in providing financial services and so by the impugned order, passed the directions for payment of amount as aforesaid in paragraph No.1 of this order.
5. Before us, the appellants along with the application has filed some documents including a Product Voucher, in the name of complainant/respondent, Shri Radheshyam Sahu, amounting to Rs.57,536/- and the date of issue was 29th April, 2009. Apart from it, standard proforma of Distributorship Agreement of Fine Indisales Pvt.
// 4 // Ltd. has also been filed. Then copy of the Company Application No.16 of 2009 filed by M/s Fine Indisales Pvt. Ltd. before Hon'ble High Court of Allahabad and the order dated 26.03.2010, passed in that Company Application, has also been filed.
6. After having heard arguments advanced by both parties and having gone through the documents filed by the appellant No.1/Company before us, we are of the view that the order of the District Forum, is not sustainable and in the facts of the case, it would be appropriate to provide one opportunity to appellant No.1/Company to put its case before District Forum, along with all documents and also to provide opportunity to the complainant/respondent of meeting such documents and case of the appellant No.1.
7. Learned counsel for the appellant No.1/Company submitted before us that this was not a case of investment of money in some Bank or in any financial institution, but was a case of becoming a Commission Agent of appellant No.1/Company after making some initial deposit by way of security. It has been submitted by him that complainant/Shri Radhe Shyam Sahu, made a proposal for appointing him as a sales Agent of the suit-length on behalf of appellant No.1/Company and in pursuance of such proposal dealership was provided to him and commission was paid regularly. When complainant/respondent become the Commission Agent of the appellant No.1/Company, then he cannot // 5 // be said to be a "consumer" as defined under Section 2(1)(d) of the Consumer Protection Act, 1986, of the appellant No.1/Company, as the suit-length or product, which was to be sold, was obtained by him for the purpose of further resale to some other persons and, so, he goes out of purview of definition of "consumer" as defined in Section 2(1)(d) of the Consumer Protection Act, 1986.
8. From the record of the District Forum, it appears that the notice of the complaint case, which was sent to the appellant No.1/Company by the District Forum had returned with the endorsement of the Post Office to the effect that it was refused, but nothing specific has been stated as to who had refused to accept that notice and to whom it was tendered. In view of this, when appellant No.1/Company is saying that no opportunity was provided to appellant No.1/Company to put its case before District Forum, then it appears reasonable, particularly in consideration of the aforesaid specific case of the appellant No.1/Company to provide an opportunity of hearing to appellant No.1/Company before District Forum.
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 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 // 6 // 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.
10. So far as jurisdiction of the District Forum, Durg is concerned, it appears that the O.P.No.1/appellant No.1 functions at Kanpur (U.P.). It is true that O.P.Nos.2 & 3 are residents of the area within jurisdiction of District Forum, Durg, but then again it is to be shown positively that O.P.No.1/Company was functioning through them and they were Agents of the O.P.No.1/Company or were running branch office of O.P.No.1/Company.
// 7 //
11. In view of the aforesaid, the appeal succeeds and is allowed. The impugned order passed by the District Forum, is set aside and the case is remanded back to District Forum, with a direction to provide an opportunity of hearing to the O.P.No.1/appellant No.1/Company, which will include opportunity of filing written version along with documents & affidavit also. Reasonable opportunity be also granted to the complainant/respondent for amendment in the complaint and also to file documents and affidavits to controvert the case of O.P.No.1/appellant No.1/Company and thereafter to decide the matter afresh on merits. Parties are directed to appear before District Forum on 18.06.2012. No order as to the cost of this appeal.
(Justice S.C. Vyas) (V.K. Patil)
President Member
/05/2012 /05/2012