By Smt. C.S. Sulekha Beevi, President,<br /> 1. According to the Complainant he is running STD Public Telephone for his livelihood. Opposite parties granted five numbers of STD PT for teleconferencing and another five numbers for STD PT general use. Complainant opted for One India Plan. For the STD PT general bimonthly bills were issued and for the other five numbers bills were issued twice in a month. Complainant paid 11½ lakhs rupees towards phone bill for the months February to June, 2006. He checked the entire bills and found that the pulse rate charged is not correct. He was thus forced to pay Rs.3,31,377 as excess. On noticing the defects in bill he submitted a complaint to opposite party to the check the bills and also demanded refund of the excess paid. The tariff applied is not One India Plan and the entire calculation is as per general tariff. The bills are issued with three rupees per minute instead of one rupee per minute as in One India Plan. Complainant contacted 3rd opposite party and after enquiry into the matter he was informed that Rs.81,755/- has been collected excess. Complainant alleges gross deficiency in service on the part of staff of opposite party. Further contends that he is eligible to get extra 3% commission. The print out of the calls are not furnished to him. Opposite party No.3 directed the complainant to remit Rs.3,68,051/- immediately. He is also directed to pay Rs.2,16,471. Opposite parties have initiated revenue recovery proceedings. Due to vacancy of the post of President there was no sitting and complainant then moved the Honourable High Court (Kerala) for interim stay. As per the direction of the Honourable High Court complainant has remitted totally Rs.80,000/- and the Revenue Recovery proceedings was stayed for two months. Complainant then filed I.A.91/07 before this Forum seeking stay of revenue recovery proceedings. Complainant is aggrieved by the act of opposite parties.<br /> <br /> 2. Opposite parties filed a joint memo contending that this Forum has no jurisdiction to try the dispute. That Sec.7B of Indian Telegraph Act ousts the jurisdiction of Consumer for a to adjudicate the matter. The decision reported in KLT 2003 (1) 817 is stayed by Hon'ble Supreme Court on 29-11-2004 vide SL P No.18409/03. The complaint is to be dismissed for lack of jurisdiction.<br /> <br /> 3. Due to the vacancy in the Post of President in October, 2003, there was no sitting for a long time. The case came up first before us on 11-7-2007 and was posted to 12-11-2007. On 12-11-2007 Counsel for opposite party filed memo of version. Complainant filed I.A.91/07 seeking interim stay. This petition was posted for counter and hearing to 20-11-2007. Opposite parties filed counter raising the issue of maintainability alleging that complainant is not a consumer. Heard both sides on the issue of maintainability as well as on the grounds for interim relief. After hearing both sides we thought it necessary to discuss the question of maintainability before considering the petition for interim stay. No documents marked on either side.<br /> <br /> 4. Admittedly complainant is running STD public Telephone. Opposite party has not filed version and availed the opportunity to file version to file a memo to the effect that the Forum has not jurisdiction to adjudicate the matter. Opposite parties for the first time raised the issue of maintainability in the counter filed in I.A.91/07. Opposite parties resist the complaint on the ground that complainant is not a consumer. Complainant is a franchise-holder of opposite parties. Counsel for opposite parties submitted that it is the complainant who renders service to opposite parties by conducting STD/PT and thus relieving BSNL of the responsibility for providing and maintaining Public Call Office. Complainant collects call charges on behalf of department. For rendering these services complainant/franchise holder gets a commission. So complainant is only an agent to conduct PCO and collect charges from public on behalf of opposite parties. Complainant receives commission for the services rendered opposite parties. Counsel for complainant relief upon the exclusion in Sec.2(i)d(ii) of the Consumer Protection Act and contended that he was runni9ng the STD/PT for his livelihood. Complainant has leased out his primeland and invested rupees three lakhs to start the STD/PT. Further he has paid telephone bills above eleven lakhs. Complainant undoubtedly earned profits by conducting STD/PT. Even at the stretch of imagination the services rendered if any was used by complainant for activity directly intended to generate profit. The intent and object of Consumer Protection Act is to help a common person. This intention has been more asserted by excluding commercial activities by the amendment which is effective from 15-3-2003. Unless the activity is taken up for earning livelihood by means of self employment it will fall within the meaning of commercial activities. Complainant has remitted security deposits of Rs.95,000/- and Rs.25,000/-. Thus STD/PT is used to earn huge profits. It cannot be equated with earning livelihood by self employment. It is been held in 1994(1) CPR 718 NCDRC. That a franchise holder, who is maintaining and running a STD/PCO is not a consumer).<br /> <br /> 5. From the above said discussions we are of the considered view that complainant is not a consumer. We hold that the complaint is therefore not maintainable and hence dismissed. In the said circumstances there is no order as to costs.<br /> <br /> Dated this 27th day of November, 2007.<br /> <br /> C.S. SULEKHA BEEVI, PRESIDENT<br /> <br /> <br /> <br /> K.T.SIDHIQ, MEMBER<br /> <br /> <br /> <br /> <br /> APPENDIX<br /> <br /> <br /> Witness examined on the side of the complainant : Nil <br /> Documents marked on the side of the complainant : Nil<br /> Witness examined on the side of the opposite parties : Nil<br /> Documents marked on the side of the opposite parties : Nil<br /> <br /> <br /> <br /> C.S. SULEKHA BEEVI, PRESIDENT<br /> <br /> <br /> <br /> K.T.SIDHIQ, MEMBER<br />