Sri Partha Kumar Basu, Member
The complaint is filed by the Complainant against the OPs under various sections of the Consumer Protection Act and Direct Selling Guidelines for the deficiency in service by not taking back supplied products and giving refunds thereof. The complainant prays before this commission to direct the OP1 company and the OP2 and OP3 Directors of the OP1 company and the OP4 and OP5 Agents of the OP1 company to refund Rs.2,28,362 /- including Rs. 27,000/- as loss of interest and Rs.2,00,000/-.as.compensation.
Brief facts of the complaint as averred by the Complainant is that, she being a housewife, the OP 4 offered her some propositions to which the complainant got convinced and paid Rs 1,81,062/- by Demand Draft (P-2) dated 12.12.2018 after taking loan of Rs.2,50,000/- and made a total payment of Rs 2,46,362/- from time to time to the OP company. On the same day on 12.12.2018 one representative of the OP1 company alongwith OP4 got her registered with the OP1 company. After 10 days few product items were delivered at her residence against invoice (P-3) which included two wrist watches pricing Rs.1,43,221/- that were supplied without placement of any order from her side on the OP1 company and without her knowledge about those products and prices thereof. The complainant decided to return back those materials and hence the complainant informed many a times to the OP Company regarding the same who never accepted those products nor refunded the amount paid by the complainant. Upon enquiry the complainant came to know about the conduct of the OP company which had been running multi-level marketing of product based pyramid scheme under the garb of Direct Selling business by which an online e-Commerce direct selling company is being run by the OP company under another global company with an intentional and deliberate effort resulting into injury to public at large. In support of her claim the complainant cited various exhibits by which the authorities initiated various actions against the said OP-1 Company for their involvement in various malpractices, fraud and gross irregularities along with circular from CA & FPD Dept, New Delhi dated 14.08.2019 (P-1) and memo dated 09.08.2019 (P-4). As per allegations of the complainant, the OPs have got the goods consigned to the complainant without any instruction / order and declined to take back those products which amounts to unfair trade practices. It is also contended by the complainant that the OPs established a pyramid system in selling their spurious products with few times of higher price than the original price which is gross violation of the Consumer Protection Act.
Hence the complainant files this complaint.
In response to the notice issued, OP1, 2 and 3 appeared through their advocate and filed their written version in brief. The OP submitted that the complainant had willingly joined their company on 09.01.2019 as an Independent Representative (IR) after going through the nature of business consciously, for her gain. In their W/V the OP-1, 2 & 3 also contested that the OP-1 Company is a direct selling company being a franchise of the mother company situated abroad, by virtue of a franchise agreement who are offering their wide range of products of life style and wellness and their services are based on customers in India and abroad. The main point of the OP to contest is that the complainant herself applied for the position of an independent representative (IR) but not as a consumer of OP-1 Company for business purpose for her own gain on 09.02.2019 consciously after ensuring the nature of business. The OP-1, 2 3 contended that as per Apex Court observation, the model adopted by the OP-1 Company is not a money circulation scheme and does not fall under the purview of the price chats and money circulation (Banning Act, 1978) as they are guided by Direct Selling Guidelines 2016. As the complainant by investing her money with the OP-1 Company falls under the prospects under the DSG Guidelines, 2016 and not as a consumer hence the allegations of deficiency of service has no legal validity. The OPs claim that there is no violation of any satisfactory right or breech of any contractual application which creates an enforceable right at Consumer Commission as there is no violation to attract any provision of the Consumer Protection Act.
The OP-4 and 5 also in their W/V stated inter-alia that he is an employee of local govt. being OP-5 his wife as the IR of the OP-1 Company. The OP4 and 5 contended that the complainant willfully invested her money in the OP1 Company for commercial gains and business purpose and the OP4 or OP5 have no action with her invested money which were paid by the complainant to the OP1 Company directly by Demand Draft and as such the question of negligence or deficiency in service of the OP4 & 5 does not arise at all. The OP4 and 5 also in their W/V contested the claim being the matter of commercial business purpose by the complainant.
We have heard the arguments of both sides alongwith Brief Note of Arguments (BNAs). Based on the above materials, the moot point for consideration is that whether the complainant has proved that there is deficiency in service on the part of the OP and if so, whether she is entitled for the relief sought for?
The complainant claims that a sum of Rs. 1,81,062/- was paid to the OP1 company which appears to be a multi level marketing company operating under their principals. But the complainant in support of her claim has exhibited only one Tax invoice of Rs. 1,70,250.78/- dated 20.12.2018 (P-3) issued by the OP company which includes shipping charges of Rs. 1,059.32/- and Goods & Services Tax @ 18% (IGST) Rs. 25,970.46/- along with an e- waybill valued for Rs. 1,70,250.78/- dated 20.12.2018. In the Cl no (5) of the IR application dated 09.01.2019 signed by the complainant and exhibited thereof and in the copy of email dated 12.12.2018 from the principal of OP1 company addressed to complainant, it is mentioned that “we also have a 30-day buy back policy for all purchased products”. This is in conformity to the Direct Selling Guidelines 2016 of the Act. But the complainant has not come up with any cogent evidence that she followed the timeline of return of goods by invoking her rights to return the goods in terms of the Cl 2(5) of the DSG 2016 guidelines, which certainly can not remain open ended for any business organization.
The claim of the complainant that she was not aware of being any part of the OP1 company by becoming the IR is unfounded since the IR Application Form signed the complainant is not only in contrary but speaks a volume about it. It appears that the complainant has perused and accepted the terms and conditions thereof and no cogent evidence of any coercion or threat is available on record. The IR application form dated 09.01.2019 has also been annexed in running page no 7, 8 and 9 in the W/V filed by OP4 and 5.
The exhibits P1 and P4 cited by the complainant regarding public notice about this OP company vide circular dated 14.08.2019 (P-1) and lodging of complaint to police by the Min. of Corporate Affairs dated 09.08.2019 (P-4) which states inter-alia that the allegations are being tried for alleged violation of the Consumer Protection Act 1986 and Direct Selling Guidelines 2016. These disputes are already sub-judice at higher forum at the level of Apex Court.
As the Complainants have failed to prove any negligence or deficiency in service from the end of the OP1, OP2 and OP3 through any cogent evidence, the Complainant is not entitled for any relief as sought for. Consequently the alleged deficiency in services on the part of their agents i.e. OP4 and OP5 also could not be established.
ORDERED
Going by the foregoing discussions, hence it is ordered that the Consumer Complaint being no. CC/85/2020 could not be established and hereby dismissed on contest.
There is no order as to cost.
Let plain copy of this Final order be given to the parties free of cost as per the CPR
