BEFORE THE MANDYA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MANDYA PRESENT: 1. SIDDEGOWDA, B.Sc., LLB., President, 2. M.N.MANOHARA, B.A.,LLB., Member, 3. A.P.MAHADEVAMMA, B.Sc., LLB., Member, ORDER Complaint No.MDF/C.C.No.30/2010 Order dated this the 25th day of June 2010 COMPLAINANT/S Farida Banu W/o Farhathulla Baig, R/o No.127/68, 5th Cross, Marigowda Layout, Mandya City, (By Sri.M.B.Basavaraju., Advocate) -Vs- OPPOSITE PARTY/S 1. Mohamad Nasir Hussain, Managing Director, Fine Indisales Private Limited / Fine Consultancy, No.91-A, Wajidpur, Jajmau, Kanpur 208010, Uttara Pradesh State. 2. Fine Indisales Private Limited/Fine Consultancy, No.91-A, Wajidpur, Jajmau, Kanpur 208010, Uttara Pradesh State. 3. State Bank of India, Main Branch, R.P.Road, Mandya. Rep. by its Manager. (EXPARTE) Date of complaint 23.02.2010 Date of service of notice to Ops 01.04.2010 Date of order 25.06.2010 Total Period 2 Months 24 days Result The complaint is allowed partly exparte, directing the 1st & 2nd Opposite parties to refund Rs.5,00,000/- with double bonus at 10% from October 2009 till payment with cost of Rs.2,000/- to the Complainant. Send the copy of this order to 1st & 2nd Opposite parties. Sri.Siddegowda, President 1. This complaint is filed under section 12 of the Consumer Protection Act, 1986 against the 1st & 2nd Opposite parties claiming Rs.11,00,000/- with accrued bonus along with interest. 2. The case of the Complainant is that the Complainant has purchased 1st & 2nd Opposite parties products for Rs.50,000/- on 31.05.2009 under I.D.No.10140938, Rs.1,00,000/- on 20.07.2009 and top up of Rs.1,50,000/- on 31.07.2009 under ID No.10182598 and Rs.2,50,000/- under ID No.10211226 on 31.07.2009 totally for Rs.5,50,000/-. The 1st & 2nd Opposite parties have executed the Distributorship agreement in favour of the Complainant, in which they have agreed to pay recurring bonus not less than 10%. The 1st & 2nd Opposite parties have paid recurring bonus of 10% for the month of July and August 2009 for Rs.50,000/- and for the amount of Rs.5,50,000/- the 1st & 2nd Opposite parties have paid recurring bonus for the month of September 2009 on 09.09.2009 and 16.09.2009 at 8%, though agreed to pay not less than 10%. The Complainant has not received the recurring bonus for the month of October 2009, though the 1st & 2nd Opposite parties had agreed to pay the recurring bonus between 6th to 16th of calendar month. The Complainant has no interest to continue the purchase of products and intended to receive back the money invested for the purchase of products. The Complainant on 21.10.2009 tried to open the network of the 1st & 2nd Opposite parties Company, but the Complainant received the message stating that sorry you cannot proceed now, due to some calculation problem you cannot long in now, to check after 3 days. Once again on 22.10.2009 the Complainant tried to open the network, but again the same message to check after 3 days. As per the agreement, if the customers intend to get the purchase money back, she has to apply between 20th to 24th of every calendar month. The Complainant has issued statutory legal notice to 1st & 2nd Opposite parties on 22.10.2009 stating that the Complainant has no interest in continuing the business with the 1st & 2nd Opposite parties and she wants to return back of the money along with all bonus and interest and the same was served on 1st & 2nd Opposite parties, but they have not complied with the terms of the legal notice or issued any reply. In fact, the Complainant has also sent E-mail on 25.10.2009 and she has also sent legal notice on 22.10.2009 through speed post, because the website of the 1st & 2nd Opposite parties was unable to log in since from 20.10.2009 to 24.10.2009. The Complainant has also got issued another legal notice dated 20.11.2009 to pay the double amount, since they have to comply with the agreement as per the refund policy and though the notice was served, the 1st & 2nd Opposite parties have failed to refund the product amount or have not sent any bonus or any message. Therefore, the 1st & 2nd Opposite parties have committed deficiency in service in not refunding the double amount along with recurring bonus. They are liable to pay Rs.11,00,000/- with accrued bonus and damages. Therefore, the present complaint is filed. 3. The complaint is filed making 3rd Opposite party State Bank of India as a party on the ground that the Complainant has deposited the business amount through 3rd Opposite party to the account of 1st & 2nd Opposite parties and the cause of action has arisen within the jurisdiction of Mandya District Consumer Forum. 4. After admitting the complaint, notice was sent to 1st & 2nd Opposite parties. The notice was served on 1st & 2nd Opposite parties. In spite of providing opportunity, they did not file any version and remained absent and therefore, the 1st & 2nd Opposite parties are placed exparte. Thereafter, the Complainant has filed affidavit and produced the documents marked as Ex.C.1 to C.6. 5. We have heard the counsel for the Complainant. 6. Now the points that arise for our considerations are:- 1. Whether the Complainant is a Consumer of 1st & 2nd Opposite parties? 2. Whether the Complainant has invested Rs.5,50,000/- with 1st & 2nd Opposite parties Company? 3. Whether the 1st & 2nd Opposite parties have committed deficiency in service in not refunding the purchase money of Rs.5,50,000/- as per the terms of the agreement? 4. Whether the Complainant is entitled to the double amount of Rs.11,00,000/- with accrued bonus against 1st & 2nd Opposite parties? 7. Our findings and reasons are as here under:- 8. POINTS NO.1 TO 4:- Apart from the affidavit of Complainant, the Complainant has produced distribution agreement marked as Ex.C.1 to Ex.C.3 executed in between 1st Opposite party and the Complainant. Under Ex.C.1, the 1st Opposite party has acknowledged the receipt of Rs.50,000/- and given ID No.10140938, under Ex.C.2 1st Opposite party has acknowledged payment of Rs.2,50,000/- from the Complainant under ID No.10211226, under Ex.C.3 1st Opposite party has acknowledged payment of Rs.2,50,000/- from the Complainant under ID No.10182598. Though, the said amounts are received for the purchase of their products, but if we peruse the terms of the agreements, the agreement is not for purchase of any commodities by a distributor, but it is only investment and the benefits of these investment for distributor is up to 25% recurring bonus with a bonus not less than 10% every month and according to the agreement, the bonus depends upon the performance and economic growth of the company and for the same, distributor will be informed through their website. In addition to the bonus, the distributor will get binary commission, if the purchase account is more than Rs.50,000/-. The agreements do not indicate the supply of commodity for sale by a distributor. The Complainant has issued legal notice as per Ex.C.4 & C.5 on 22.10.2009 by C.O.P. as per Ex.C.6 and also by registered post Ex.C.4(a) & C.4(b), wherein the Complainant stated that they are not interested to continue the purchase of products and intend to receive the money invested and sought for refund of the amount. Though, notices were served, the Opposite party has not replied nor refunded the amount. So, the evidence and documents clearly established that the Complainant is a consumer of the Opposite party Company by investing Rs.5,50,000/- under the agreements Ex.C.1, C.2 & C.3 and the evidence also proved that the Complainant has also received some bonus amount from the Opposite party for the month of August and September. Since, the 1st & 2nd Opposite parties have not paid the bonus for the month of October onwards, she has sought for refund of the invested amount and the Opposite party has not complied. As per the agreement, the purchase amount is refundable and distributor can take back her 100% money back if the product voucher has not been redeemed and has not violated any clause mentioned in the agreement and the distributor has to apply online only in between 20th and 24th of the month through the website from the login section to get refund on 5th of the next month. According to the Complainant, notice was issued on 22.10.2009 stating that she has no interest in continuing the transaction with the Opposite parties and wants to return back the money along with all bonus. Even, the Complainant has sent E-mail on 25.10.2009 stating that she has no interest to continue. According to the Complainant, the website of 1st & 2nd Opposite party was unable to login since from 20.10.2009 to 24.10.2009. 9. Since, the 1st & 2nd Opposite parties have not replied to the notice of Complainant for refunding the invested amount, nor replied in any manner, nor paid the bonus, it amounts to clear deficiency in service and even, the Opposite parties have not cared to refund the invested amount. As per the refund policy in the agreement Ex.C.1, C.2 & C.3, the distributor can take back 100% money back and has to apply online only in between 20th and 24th of the month through the website from login section to get refund on 5th of next month. If the amount is not refunded throughout the month then as penalty, Fine India will have to pay the double payout according to the current plan. Further, as per the refund policy, if the refund has been applied between 6 month to 1 year from the date of purchase then half of the current month payout will be deducted as an exit charge. Admittedly as per the Complainant, she has purchased the products by investing Rs.5,50,000/- on 31.07.2009 under ID No.10140938, 10182598 and 10211226. In the month of October 2009 itself i.e., within 3 months from the date of purchase, she has sought for refund. Under the terms of the agreement, the Complainant is not entitled the double amount of invest money, but she is entitled to double bonus. Therefore, the 1st & 2nd Opposite parties are liable to refund Rs.5,50,000/- with double bonus for the month of October 2009 till payment to the Complainant. 10. In the result, we proceed to pass the following order; ORDER The complaint is allowed partly exparte, directing the 1st & 2nd Opposite parties to refund Rs.5,00,000/- with double bonus at 10% from October 2009 till payment with cost of Rs.2,000/- to the Complainant. Send the copy of this order to 1st & 2nd Opposite parties. (Dictated to the Stenographer, transcribed, corrected and then pronounced in the open Forum this the 25th day of June 2010). (PRESIDENT) (MEMBER) (MEMBER)
