BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MANGALORE
Dated this the 9th of February 2012
PRESENT
SMT. ASHA SHETTY : HON’BLE PRESIDENT
SMT.LAVANYA M. RAI : MEMBER
SRI. ARUN KUMAR K. : MEMBER
COMPLAINT NO.168/2010
(Admitted on 05.06.2010)
Mr.Naveen Chandra K.,
So. Late Jayanth K,
Aged about 38 years,
RA. Thanish,
Near Siddi Vinayaka Temple,
Naigara Lane,
Bikarnakatta, Mangalore,
Dakshina Kannada District. …….. COMPLAINANT
(Advocate for the Complainant: Mrs.Suma R. Nayak).
VERSUS
EDSERV SOFTSYSTEMS LIMITED,
Registered Office, No.139, 1st Floor,
Panna Plaza, Arcot Road,
Kodambakkam,
Chennai 600 024,
Rep. by its Authorized Signatory. …. OPPOSITE PARTY
(Advocate for the Opposite Party: Sri.K.P. Vasudeva Rao)
* * * *
ORDER DELIVERED BY HON’BLE PRESIDENT SMT. ASHA SHETTY:
I. 1. This complaint is filed under Section 12 of the Consumer Protection Act alleging deficiency in service against the Opposite Party claiming certain reliefs.
The brief facts of the case are as under:
The Complainant stated that, the Opposite Party is an organization in the educational field and was soliciting franchisers in different parts of the country to serve its products to needy people and has given wide publication soliciting franchisees.
It is stated that, the Complainant highly attracted by the above publication, contacted the Opposite Party and shown interest for obtaining the franchisee. It is stated that, the Opposite Party was informed that on 12.12.2009 there will be a training session at Chennai and the persons who would like to take up the franchisee could attend the training programme and the condition precedent was to deposit a sum of Rs.1,50,000/- with the Opposite Party. The Opposite Party it was informed that in case the Complainant did not find the concept to his liking after the training programme he would be refunded the amount so deposited by him. By believing the above the Complainant deposited the above said amount.
It is stated that, after attending the training programme the Complainant found that the Franchisee would be only a name sake and the Opposite Party was not assuring any service, the training was supposed to be given to the students the only in theory classes, it was told that there was no need to give any practical classes. It is further stated that the Opposite Party was not providing any material support for coaching the students. It is stated that, the same was not sufficient to impart quality education to the students. This was expressed to the Opposite Party by the Complainant but in vein. Since it was not acceptable to the Complainant after attending the training session and also after having several discussions via E-mail, personal visit, telephonic conversation, expressed displeasure to take up franchisee at Mangalore and it was not possible to impart quality education. Therefore, the Complainant expressed his unwillingness to take the franchisee and did not agree to sign the proposal letter/agreement issued by the Opposite Party. But the Opposite Party failed to refund the amount inspite of demand made by her. Feeling aggrieved by the above, the Complainant filed above complaint filed under Section 12 of the Consumer Protection Act 1986 (herein after referred to as ‘the Act’) seeking direction from this Forum to the Opposite Party to refund the amount of Rs.1,50,000/- paid by the Complainant to the Opposite Party with interest at the rate of 18% per annum from the date of payment till the refund of the money and along with compensation and costs of the proceedings.
2. Version notice served to the Opposite Party by RPAD. Opposite Party appeared through their counsel filed version stated that the Opposite Party was looking for power partner franchisees in the Mangalore region to promote E-learning products published and advertised in the Deccan Herald. In response to the said advertisement, on 19.11.2009, the Complainant expressed her interest and requested the Opposite Party to consider his offer. The Opposite Party after negotiating agreed to give franchisee to the Complainant. It is submitted that in token of acceptance to become a Power Partner the Complainant paid initial sign up fee of Rs.1,50,000/- towards “Technical know how” underwent training at Opposite Party organization shared business knowledge learn e-learning center at South Canara District as exclusive franchisee of Opposite Party. It is stated that, the “Technical know –how” is the most valuable information and asset of business and will be shared only to the prospective franchisee given his full commitment towards conducting center on behalf of the Opposite Party. The Complainant after getting the above knowledge from the Opposite Party vide his mail dated 8.2.2010 sought for changes in the franchisee training fees and sought refund of the signing fee of Rs.1,50,000/-. The Opposite Party states that, the Complainant opted become a Power Partner of the Opposite Party for Category- B service offered by Opposite Party. The proposed business relationship with the Opposite Party as exclusive franchisee for ‘Undivided South Canara District’ and which does not come within the scope of self employment. It is also stated that, the Opposite Party never agreed that the sign-up fee is refundable if the Complainant does not like concept. Power partner franchisee arrangement is purely a commercial transaction, the Complainant chose become a Power Partner franchisee paid the signup fee and attended the training course. The amount paid by her cannot be refunded and apart from the above, it is stated that the Opposite Party neither misrepresented nor agreed to provided any service. The Opposite Party has not offered to cell use or supply of any goods or provisions of any service to the Complainant. And further stated that the present dispute is purely is civil dispute arising out of commercial transaction and the Complaint is not maintainable and prayed for dismissal of the complaint.
III. 1. In support of the complaint, Mr.Naveen Chandra K (CW1) filed affidavit reiterating what has been stated in the complaint and answered the interrogatories served on him. One Smt.Seema Satheesh (CW2) – summoned witness of the Complainant was examined and cross-examined by the learned counsel for the parties. Ex C1 to C7 were marked for the Complainant as listed in the annexure in detail. One Sri.G.Sivakumar (RW1) – Vice President and Authorized Signatory of the Opposite Party filed counter affidavit and answered the interrogatories served on him. The Opposite Party produced 22 (twenty two) documents as listed in the annexure in detail. The Complainant produced notes of arguments.
In view of the above said facts, the points now that arise for our consideration in this case are as under:
- Whether the Complainant proves that the Opposite Party has committed deficiency in service?
- If so, whether the Complainant is entitled for the reliefs claimed?
- What order?
We have considered the notes/oral arguments submitted by the learned counsels and also considered the materials that was placed before this Forum and answer the points are as follows:
Point No.(i):Affirmative.
Point No.(ii) & (iii):As per the final order.
REASONS
5. Points No. (i) to (iii):
In the instant case, the facts which are admitted is that the Opposite Party is engaged in the business of education in the field of E-learning training and also offering Franchisees in different parts of the country to serve its products to the needy people. It is also admitted that, on 12.12.2009 the complainant attended the training session held by the Opposite Party at Chennai and paid deposit of Rs.1,50,000/- to the Opposite Party.
Now the point in dispute between the parties before this FORA is that, the Complainant by filing the above complaint contended that, the Opposite Party informed the complainant on 12.12.2009 that there will be a training session at Chennai and persons who would like to take up the franchisee could attend the training programme and the condition precedent was to deposit a sum of Rs.1,50,000/- with the Opposite Party. In case the complainant did not find the concept to his liking after training programme, he would be refunded the amount so deposited by him. After attending the training programme the Complainant found that the franchisee would be only a name sake and she has not satisfied and asked the Opposite Party to refund the above said deposit amount.
The Opposite Party on the other hand interalia contended that, the complainant requested the Opposite Party to issue a Franchisee for Mangalore location. The arrangement is that the prospective franchisee pays initial non-refundable signup fee and the pay remaining fee in installments once the franchisee commence its business. It is stated that, in token of acceptance to become a power partner complainant paid the initial signup fee of Rs.1,50,000/- towards the technical ‘Know How’ underwent training at Opposite Party Office shared business knowledge to run E-learning center. The ‘Technical Know How’ is the most valuable information and asset of the business possessed by the Opposite Party is in the nature of business knowledge and therefore any amount paid towards acquire a company’s ‘Technical Know-How’ is non-refundable and stated that the complainant is not a consumer and prayed for dismissal of the complaint.
In order to substantiate the averments raised in the complaint, the Complainant filed oral evidence by way of affidavit and produced Ex C1 to C7. And Opposite Party also filed oral evidence by way of affidavit and produced Doc.No.1 to 22.
On perusing the admitted, oral, as well as documentary evidence available on record, we find that, the Exs.C1 to C7 i.e. the offer letter and several other E-mail communications and the correspondences between the Complainant and the Opposite Party revealed that, the complainant in order to obtain a Franchisee paid Rs.1,50,000/- to the Opposite Party on 14.12.2009 as upfront payment. The Opposite Party in receipt of the above payment issued a offer letter as per Ex.C1 to the Complainant. On perusal of the offer letter i.e., Ex.C1, which includes the terms of signup, wherein, the Opposite Party signed the offer letter but the complainant’s signature not found in the above said offer letter. It clearly shows that the Complainant expressed his unwillingness to take franchisee and not agreed to sign the offer letter issued by the Opposite Party.
It is a settled position of law that the offer and acceptance by both the parties. But in the instant case, the offer letter produced by the parties clearly shows that though the complainant paid Rs.1,50,000/- to the Opposite Party as a condition precedent but not accepted the offer issued by the Opposite Party. When such being the case, the Opposite Party should have refunded the amount and should not have compelled the complainant to become a Franchisee for the Opposite Parties product. No doubt, the complainant paid Rs.1,50,000/- as a condition precedent but not otherwise.
However, it is seen that, the Opposite Party raised the contention that, the ‘Technical know-How’ is the valuable information and asset of business and will be shared only to the prospectus franchisee given his full commitment towards conducting center on behalf of the Opposite Party. The above contentions is not justifiable. Because the Opposite Party cannot compel the parties to accept their franchisee even though they are not satisfied and forced them to accept it unconditionally. The complainant no doubt attended the training programme of the Opposite Party held in Chennai but it does not mean that it should give satisfactory result to the complainant.
In the instant case, the Complainant filed affidavit and categorically stated after attending the training programme she was not satisfied and thereby expressed her unwillingness and sought for refund of the amount. Even to attend the training programme she had to spend an additional amount apart from Rs.1,50,000/- paid to the Opposite Party.
In the given case, we noticed that, the Opposite Party received Rs.1,50,000/- from the complainant but the complainant initially attended the training programme to ‘Technical Know-how’ and thereafter she is not satisfied with the training programme as well as the terms and conditions of the business offer made by the Opposite Party, immediately sought for refund of the amount paid by her expressing that she is not willing to accept their Franchisee as per several E-mail communications dated: 25.11.2009, 03.12.2009, 17.12.2009, 05.12.2009, 09.12.2009, 29.12.2009, 08.01.2010, 20.11.2010, 07.02.2010, 08.02.2010, 09.02.2010, 10.02.2010, 04.03.2010, 04.04.2010 and 05.04.2010 (15 in numbers). Finally, the complainant issued a legal notice and called upon the Opposite party to refund the amount. We further noticed that, the Complainant not availed any service except attending the initial training programme. Under that circumstances, as we discussed herein above, the Opposite Party should have refunded the amount. On failure to refund the amount till this date amounts to deficiency in service as well as unfair trade practice.
Further, the Opposite Party raised a another contention that the ‘complainant is not a consumer’. Except the oral assertion nothing has been placed on record to show that relationship between them is based on commercial transaction, the same is one devoid of oral as well as documentary evidence. On the other hand the evidence of CW-1 and CW-2 who is a house wife deposed before the FORA shown us that it is a self employment scheme, franchisee was being floated not based on commercial transaction. When that being the case, the complainant is a consumer and the complaint filed by the complainant is maintainable.
As far as relief is concerned, the complainant admittedly paid Rs.1,50,000/- to the Opposite party, the same has been admitted by the Opposite Party before this FORA. Hence, the amount received by the Opposite Party from the complainant i.e. Rs.1,50,000/- shall be refunded with interest. Therefore, we hereby directed the Opposite Party i.e. Authorized Signatory to refund a sum of Rs.1,50,000/- along with interest at 12% per annum from the date of receipt of the amount till the date of payment to the Complainant. Further Rs.1,000/- awarded as cost of the litigation expenses. Payment shall be made within 30 days from the date of this order.
In the present case, interest considered by this Forum itself is compensation and therefore, no separate amount for compensation is awarded.
In the result, we pass the following:
ORDER
The complaint is allowed. The Opposite Party i.e. Authorized Signatory is hereby directed to refund a sum of Rs.1,50,000/- (Rupees One lakh Fifty thousand only)along with interest at 12% per annum from the date of receipt of the amount till the date of payment to the complainant. Further pay Rs.1,000/- as cost of the litigation expenses. Payment shall be made within 30 days from the date of this order.
The copy of this order as per the statutory requirements be forwarded to the parties free of charge or sent to the parties under postal certificate and thereafter the file shall be consigned to the record room.
(Page No.1 to 12 dictated to the Stenographer typed by him, revised and pronounced in the open court on this the 9th day of February 2012.)
PRESIDENT MEMBER MEMBER
ANNEXURE
Witnesses examined on behalf of the Complainant:
CW1 – Mr.Naveen Chandra K – Complainant.
CW2 – Smt.Seema Satheesh – summoned witness of the Complainant.
Documents produced on behalf of the Complainant:
Ex C1 – 14.12.2009: Offer letter sent by the Opposite Party to
the Complainant (including all the terms and conditions).
Ex C2 – 29.04.2010: Lawyer’s notice issued to the Opposite
Party on behalf of the Complainant.
Ex C3 – Acknowledgement card.
Ex C4 – Under certificate of posting.
Ex C5 – E-mail communications between the Opposite Party
and the Complainant.
Ex C6 - Reply sent by the Opposite Party.
Ex C7 - Newspaper advertisement of the Opposite Party.
Witnesses examined on behalf of the Opposite Party:
RW1 – Sri.G.Sivakumar – Vice President and Authorized Signatory of the Opposite Party.
Documents produced on behalf of the Opposite Party:
Doc. No.1 – 19.11.2009: E-mail communication by the Complainant to the Opposite Party.
Doc. No.2 - : Curriculum vitae of the Complainant.
Doc. No.3 to 20 – 25.11.2009, 03.12.2009, 17.12.2009, 05.12.2009, 09.12.2009, 29.12.2009, 08.01.2010, 20.11.2010, 07.02.2010, 08.02.2010, 09.02.2010, 10.02.2010, 04.03.2010, 04.04.2010 and 05.04.2010 : E-mail communication by the Complainant to the Opposite Party (15 in numbers).
Doc. No.21 – 21.06.2010: Reply of the Opposite Party to the Complainant’s Lawyer’s notice.
Doc. No.22 – 24.06.2010: Postal department certificate.
Dated:9.2.2012 PRESIDENT
