Date of Filing:16.05.2007 Date of Order: 08.01.2008 BEFORE THE II ADDITIONAL DISTRICT CONSUMER DISPUTES REDRESSAL FORUM SESHADRIPURAM BANGALORE-20 Dated: 8TH DAY OF JANUARY 2008 PRESENT Sri. S.S. NAGARALE, B.A, LL.B. (SPL.), President. Smt. D. LEELAVATHI, M.A.LL.B, Member. Sri. BALAKRISHNA. V. MASALI, B.A, LL.B. (SPL.), Member. COMPLAINT NO: 1000 OF 2007 P.V. Swaminathan(A) Swami Iyer, P.V. Sreenivasan, No. 383, I Floor, 65th Cross, 5th Block, Rajajinagar, Bangalore-560 010. Complainant V/S Mr. Ramani Iyer, Director, Mr. Murulidhar Nayak, VP, M/s A & M Communications Pvt. Ltd., No.504, 5th Cross, BDA Complex, II Block, RT Nagar, Bangalore-560 032. Opposite Party ORDER This is a complaint filed by the complainant in person against opposite party for refund of Rs.5,612/-. The facts of the case are that, the complainant was manufacturer of Home Made Chocolates. For marketing the products he made use the services of opposite party. Initially, he has registered with opposite party for six months and utilized their services. Subsequently, on the insistence for renewal well in advance, the complainant has made further renewal for one year from 21/7/2007. In this connection 50% of the renewal fee was paid by cheque dated 16/11/2006 for Rs.5,612/-. The Contract was signed. Receipt was obtained on 16/11/2006. It is the case of the complainant that, he underwent heavy loss and could not compete with the market and could not achieve the target in business and decided to close the business. Under these unusual circumstances, complainant had no option except to approach the opposite party and requested them not to send further enquiries after the expiry of current period up to 29/1/2007 and the complainant pleaded opposite party to refund a sum of Rs.5,612/- which he had remitted well in advance for renewal of contract from 29/1/2007. Despite many letters complainant failed to receive the response. Hence, the complaint. 2. Notice was issued to opposite party and the opposite party has put in appearance and filed defense version through advocate stating that, the complainant does not fall under the definition of consumer. This Forum has no jurisdiction to entertain the complaint. Complainant initially registered for the Just Dial Services offered by the opposite party for a period of six months and utilized the services provided by them. The complainant approached for renewal and 50% advance amount was received by the opposite party and a receipt to that effect was issued. Under clause 3(i) of the contract it is stipulated that under no circumstances will the opposite party refund the amount received by it. In view of this clause the complainant is not entitled to seek refund the money. Hence, the opposite party requested to dismiss the complaint. 3. Affidavit evidence of both the parties filed. Arguments are heard. 4. The point for consideration is:- Whether the opposite party can be ordered to refund sum of Rs.5,612/- to the complainant? REASONS 5. Almost all the facts are admitted in this case. The admitted case of both the parties are that, the complainant has registered with opposite party for initial period of six months and utilized service. It is also admitted fact that the Just Dial Service was renewed well in advance and the complainant has paid 50% of the renewal fee on 16/11/2006. To that effect the opposite party had issued receipt. There is no dispute whatsoever that the complainant has paid the amount of Rs.5,612/- to the opposite party for taking the Just Dial Services. The earlier time expired on 29/1/2007. The renewal of service could have been come to effect from 29/1/2007, but unfortunately the complainant underwent heavy loss and he could not compete with the market. Therefore, he closed down his business and had no option except to approach the opposite party and he requested them to refund the amount and he was not in a position to take the services of opposite party. The complainant had requested to refund the amount well before the expiry of the earlier period of six months. Therefore, it becomes duty of the opposite party to refund the amount received from the complainant for the purpose of renewal when the complainant does not want the renewal of contract. The opposite party had relied upon the terms and conditions of the contract. As per the clause 3(i) the advertiser shall not, under any circumstances be entitled to terminate this contract during the term or to refund of the consideration. As per clause 3(ii) A & M shall be entitled to terminate this contract and withdrew services during the Term by a written notice of 7 days to the advertiser. The advertiser shall receive the refund of the consideration on pro-data basis. The opposite party is relying on these terms and conditions in support of their defense. We are of the opinion that these terms and conditions is unilateral terms and conditions. Such terms and conditions cannot be held as valid and acceptable by law. Moreover, this clause is not applicable to the present case because, the advertiser herein has terminated the contract well before commencement of the contract period. Admittedly, the earlier contract came to be an end on 29/1/2007. The complainant has paid the amount on 16/11/2007 well in advance. The contract was not terminated during the period of term. Therefore, the clause 3 relied on by the opposite party is not helpful to them. As per clause 3(ii) the opposite party can terminate the contract by a written notice of 7 days to the advertiser and the advertiser shall receive the refund. When a power is given to opposite party to terminate the contract, why not the same power or option to the advertiser. So, under these circumstances, there is absolutely no force or merit in the objections taken by the advocate for refunding the advance amount received from the complainant. The complainant had intimated the opposite party by letters and also e-mail well before the commencement of the renewal period. Therefore, there is absolutely no bar to refund the amount. The opposite party cannot take defense which is not acceptable or admissible in law. Therefore, we are of the opinion that, there is no merit or any substance in the defense taken by the opposite party. As per the explanation added to the definition of consumer under the Consumer Protection Act, commercial purpose does not include use by person of goods bought and used by him and services availed by him exclusively for the purpose of earning his livelihood, by means of self employment. Therefore, in this case the complainants unit of Home Made Chocolates was only a means of self employment for earning his livelihood. Therefore, he comes definitely under the definition of consumer and therefore, this Forum has got jurisdiction to entertain the complaint and grant the relief. In the result, we proceed to pass the following:- ORDER 6. The complaint is allowed. The opposite party is directed to refund Rs.5,612/- to the complainant immediately. The complainant is entitled to Rs. 1,000/- towards costs from the opposite party. 7. Send the copy of this Order to both the parties free of costs immediately. 8. Pronounced in the Open Forum on this 8TH DAY OF JANUARY 2008. Order accordingly, MEMBER MEMBER PRESIDENT
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