C.F. CASE No. : CC/11/15
COMPLAINANT : Sri Swarup Das,
S/o Gita Ranjan Das,
Vill. Kanthalberia
P.O. Bethuadahari,
P.S. Nakashipara, Dist. Nadia
OPPOSITE PARTIES/OPs: 1) General Manager,
Sherij Sahaj E-Village Ltd.
Mirania Garden, Plot No. 43,
10/B, Topsia Road,
Kolkata - 46
2) The District Manager,
Sherij Sahaj E-Village Ltd.
House of Gurupada Majumder,
Near Bowbazar Petrol Pump,
P.O. Krishnagar, P.S. Kotwali,
Dist. Nadia
3) Govt. of West Bengal,
Represented by District Magistrate, Nadia
Administrative Building,
P.O. Krishnagar, P.S. Kotwali,
Dist. Nadia
4) The West Bengal State Rural Development Agency,
Office at 1st Floor,
Jessop Building,
63, N.S. Road,
Kolkata - 700001
PRESENT : SHRI KANAILAL CHAKRABORTY PRESIDENT
: SHRI SHYAMLAL SUKUL MEMBER
DATE OF DELIVERY
OF JUDGMENT : 31st January, 2012
: J U D G M E N T :
In brief, the case of the complainant is that in 2007 the Government of India took up a policy to provide each and every citizen within one floor, i.e., e-governance, the project being national e-governance plan for giving three tire services to the rural Indian citizens. The West Bengal Rural Development Agency has been identified as the state designated agency for the implementation of this scheme. Accordingly, the Government of West Bengal made an open bid on 07.03.2007 by specifying all criteria of the CSC and SDA. The OP No. 1 made open advertisement for communication the service centre namely Sahaj Tathya Mitra Kendra in all over West Bengal for giving facilities to unemployed youth. As per that advertisement, the petitioner applied to have that facility. In the advertisement it was stated that the service would be provided by the OP for e-payment of BSNL bills, electric bills, reservation of air ticket, digital photo, NREGS project, job related to voter list, multinational service etc. It was also added that an amount of Rs. 1,60,000/- would be required for that service out of which 75% would be available from bank loan. The petitioner took a loan of Rs. 1,60,000/- from bank and paid for Rs. 40,000/- to the OP No. 1 by a draft. The loan was directly paid to the OP against which the OP supplied him one laptop, two cameras and printer against which no money receipt was handed over to him except delivery challan. It is his submission that the price of supplied goods would be not more than Rs. 80,000/-. In spite of repeated request the OP did not handover any money receipt to him. Besides this, the service to the OP No. 1 is very poor and the train reservation process is very slow as a result of which he cannot book any ticket for first 2 or 3 hours. The computer service is not good. The digital photograph printer and the camera are very low quality and the picture is very poor also. The OPs did not help the complainant to have the work of air ticket, BSNL bill, land record, soil testing, involving in N.R.E.G., voter list preparation bill etc. So practically, he is out of job though he has invested the money for income through e-governance service. The loan was an agricultural one. The OP No. 5 promised that the complainant would be able to earn Rs. 10,000/- to 20,000/- per month but his actual income stood up Rs. 500/-, as a result of which he cannot repay the bank loan in time. He time and again requested the OPs to check and repair the machines supplied to him like camera, printer, computer, but to no effect. Nor the OPs helped him to have work of preparation of electric bills, BSNL bills and other bills to earn money, though it was a condition precedent in the advertisement. This act of the OPs is a gross deficiency in service as well as negligence on their part. So having no other alternative he has filed this case praying for the reliefs as stated in the petition of complaint.
Written version is filed by the OP No. 1 & 2, inter alia, stating that the case is not maintainable in its present form and nature, as the complainant is not a consumer in the eye of law. The case is barred by limitation also. He has also submitted that as per Government of India, West Bengal State Rural Development Agency was identified as the designated agency for implementation of the e-governance facilities in rural area. The OPs provided e-governance facilities in collaboration of Government of West Bengal under the name as Sahaj Tathya Mitra Kendra. As per advertisement, the petitioner applied for setting up a Sahaj Tathya Mitra Kendra in his locality and an agreement was executed between him and the OP No. 1 in which the rights and duties of parties are categorically specified. The OPs all along tried to give all facilities to this complainant, but the complainant demanded beyond the ambit and scope of the agreement which was not within their control. Besides this there is an arbitration clause in the agreement between the parties which speaks for redressal of disputes between parties who approached the arbitrator for its decision. It is not their duty to supply the loan sanctioned to this complainant as the loan was sanctioned to supply the goods such as camera, computer which they duly delivered to the complainant and challan was also handed over to him. This complainant never demanded any money receipt for those goods. This complainant never made any complaint to them regarding low quality of photography or computer services. It is not within his jurisdiction to supply more and more bills to this complainant for his work and earning money. Rather he tried all along to supply different kinds of bills available to him to this complainant. So no question of deficiency in service or negligence on their part does arise. Hence, this case is not maintainable in its present form and nature.
OP No. 3 & 4 have not filed any written version in this case and not even appeared to contest this case on receipt of notices also.
POINTS FOR DECISION
Point No.1: Has the complainant any cause of action to file this case?
Point No.2: Is the case maintainable in its present form and nature?
Point No.3: Is the complainant entitled to get the reliefs as prayed for?
DECISION WITH REASONS
All the points are taken up together for discussion as they are interrelated and for the sake of convenience.
On a careful perusal of the petition of complaint and the written version filed by the OPs along with the annexed documents filed by the parties and also after hearing the arguments advanced by the ld. lawyers for the parties it is available on record that as per advertisement made by the OPs this complainant applied for having e-governance service of Sahaj Tathya Mitra Kendra at his locality under the OPs. Accordingly, his petition was accepted and a bank loan of Rs. 1,60,000/- was sanctioned in his name. After receipt of the bank loan the OPs supplied him laptop with bag of accessories, key board, three mouse, MFD (HP), Kodak camera, head-phone, speaker web camera, Samsung leaser printer, solar panel inverter, charger, battery, D-board, 8 port with pouch card and other different articles vide delivery challan. There is no denial by the complainant regarding receipt of those articles. From these documents the price of the goods are not available. No price of the goods or articles is mentioned against each of the articles. But every challan is a document of articles or goods delivered to this complainant which he received and signed on challan. The complainant’s case is that the articles were not up to the mark, specially the photograph of the camera was not clear. He has also alleged that the computer machine took much time to issue one e-mail ticket which hampered his business, but to that extent he has not filed any document or any expert report to establish that the articles were defective or the price of those articles would be not more than Rs.80,000/- as claimed by him.
He has also alleged that the OPs did not help him to have any work. It is his duty to collect works. In the agreement no where it is stated that works would be supplied to him by the OPs. Besides this he has agitated that the OPs told him that he would be able to earn Rs.10,000/- to Rs.20,000/- per month by the service of e-governance under Sahaj Tathya Mitra Kendra, but actually he earned Rs.300/- to Rs.500/- per month. He has not filed any document or paper to establish his claim that the OPs told him at any point of time that they would help him to earn Rs. 10,000/- to Rs. 20,000/- per month and the different kinds of bills would be supplied by them to him. Rather in course of argument, it is submitted by the ld. lawyer for the complainant that at present he prepares bills of electricity authority, but he has failed to state his present exact income. He has tried to shift the burden upon the OPs. In the advertisement of the OP filed by the complainant, no where it is stated that the jobs would be supplied by them to the complainant for giving service to the customers on different heads such as preparation of BSNL bill, electricity bill, internet mail, railway reservation etc. So considering the facts of this case and after hearing the arguments of all the sides along with the annexed documents, we hold that we are inclined to hold that the complainant has not become able to prove the deficiency in service or negligence on the part of the OPs.
OPs have categorically stated in this case that the case is not maintainable in its present form and nature as the complainant is not a consumer as per Consumer Protection Act. They have filed separate petitions to that extent in this case. Now the question is whether the complainant is a consumer or not? It is admitted case of both parties that as per the guidelines of the CESC scheme the complainant participated in the open bid and he was subsequently, selected to run Sahaj Tathya Mitra Centre. Thereafter, he entered into an agreement with the OPs. The copy of the agreement is filed by the complainant in the present case. It is his allegation that the OPs have made a breach of contract due to which the case is filed. We have already discussed that the complainant has not become able to prove his allegation against the OPs. So no question of breach of condition does arise in this case. Section 2 (1)(d) of the C.P. Act, 1986 has defined a consumer in the following manner:
"consumer" means any person who—
(i) buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose; or
(ii) hires or avails of any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who 'hires or avails of the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person but does not include a person who avails of such services for any commercial purposes;”
It is evident from the documents filed by the complainant that Tathya Mitra scheme is out and out a commercial as well as social developmental scheme which will form an effective network to access the rural markets offering tremendous business and developmental opportunities and the corollary of that it can be said that the complainant is running the Tathya Mitra Centre for commercial purpose destined for profits. The complainant has categorically stated in his petition of complaint that the OPs assured him that he would be able to earn Rs. 10,000/- to Rs.20,000/- per month by implementing this scheme as his job, but actually he was able to earn Rs.300/- to Rs. 500/- per month. Besides this nowhere in the petition of complaint it is stated that this job is done by him exclusively for his livelihood. In fact a person who hires or avails of business for a commercial purpose is excluded from the scope of the expression in section 2(1)(d)(ii) of the Consumer Protection Act, 1986. In the present case there is no case of hire of service from the OPs as contemplated by the C.P. Act by the complainant for his livelihood. So the complainant cannot be regarded as a ‘consumer’ under the provision of the C.P Act as per decision laid down in cases, mentioned from namely (1991) CPJ 169, 1992 CPC III (NC) and other cases. Besides this the complainant acted as a franchise under the OP. So a franchise cannot be treated as a consumer as per provision of CP Act. Furthermore, the complainant has alleged that the opposite parties made a breach of contract by not providing the proper services to him. But it is the settled principle of law that any matter related to breach of contract cannot be entertained by the Consumer Forum. So considering the facts of this case and the provision of law, we have no hesitation to hold that the complainant is not at all a consumer as per provision of C.P Act. We do also hold that in such a situation the case is not at all maintainable in its present form and nature.
In view of the above discussions our considered view is that the complainant has miserably failed to prove and establish his case against the OPs. So he is not entitled to get the reliefs as prayed for. In result the case fails.
Hence,
Ordered,
That the case, CC/11/15 be and the same is dismissed on contest against the OP No. 1 & 2 and exparte against the rest of the OPs without any cost.
Let a copy of this judgment be delivered to the parties free of cost.
