Order no. 6 dated 29/01/2009
Sri Loknath Ghosh, complainant filed a petition dt.30.6.08 on 4.7.08 u/s 12 of C.p. Act, 1986 against Just Dial Pvt. Ltd., Central Plaza, Rom No.406, 4th floor, 2/6, Sarat Bose Road, Kolkata-20 in the District Consumer Disputes Redressal Forum, Kolkata, Unit-I, alleging their deficiency of service in contravention of the promises made by the o.p. to the complainant at the time of inducing the complainant to make a contract with them in order to enable them to provide people who are serious and willing to work to the complainant after complete scanning for the betterment of the business of the complainant in respect of herbal life product within 72 (seventy two) hours from that date of contract. Being induced by the official of Just Dial Pvt. Ltd., the complainant made a contract with the o.ps. by paying a sum of Rs.5618/- (Rupees five thousand six hundred eighteen) only for 100 (one hundred) leads (persons) through HDFC Credit Card on 29.5.08, (exhibit-3). But thereafter the complainant has neither got the person nor any phone call from the o.p. in spite of a number of phone calls from the complainant to the o.p. being disgusted with such deficiency of service on the part of o.p., the complainant expressed his displeasure before this forum by way of his intention to discontinue th4eir alleged service and get his paid money amounting to Rs.5618/- (Rupees five thousand six hundred eighteen) only back plus other incidental charges totaling to Rs.6468/- (Rupees six thousand four hundred sixty eight) only.
On perusal of the records and documents on record including the petition of the complaint, it is evident that on 8.7.08 the complainant was heard by us. Though notices were served upon the o.p. which came back after service, no one appeared on behalf of the o.p. before the forum vide order no.3 dt.13.8.08 and on subsequent date, i.e. 16.10.08 to file w/v. Owing to the non-appearance of o.p. and non-submission of w/vs, ex parte hearing was ordered and the complainant was directed to file affidavit of examination-in-chief on 29.12.08 vide order no.4 dt.16.10.08. Accordingly, the complainant filed affidavit of examination-in-chief on 29.12.08 vide order no.5 dt.29.12.08.
After hearing the complainant and documents on record including the petition of the complainant, it is evident that there was a contract no.03570 made between the complainant and the o.p. in respect of supply of 100 (one hundred) leads (persons) by the o.p. to the complainant fofr consideration of Rs.5618/- (Rupees five thousand six hundred eighteen) only vide client/customer copy of “Just Dial Pvt. Ltd.” (exhibits-1/1 & ½ & 3). From the “terms of service” as printed on the over leaf of exhibit 1/1, ½ it is evident that Just Dial does not guarantee that leads will be generated by it for the Advertiser or that any of such leads will translate into business for the Advertiser. Advertiser understands that Just Dial’s only obligation is to provide leads” (Terms no.9). Again, in Terms no.6 (i) it is laid down by the o.p. that “The contract would be valid for no. of leads mentioned on page no.1 or for a period of 1 year which ever is earlier”, (exhibit 1/1 & ½). Again, in the leaflet being captioned as “Do You Want More Business ?” published by o.p. (exhibit 1/3) for the advertiser the o.p. declare in Benefit no.3 that “Just Dial Services is a unique two way system. Unlike other systems it not only provides your name to the prospective customers but also provides you with the feedback on the name and number of customers interested in buying your product or service”.
But in reality what is evident that in spite of their commitments (ex-1/1, ½ & 1/3), the o.p. neither provided any lead nor feedback to the complainant even after the expiry of one month. The complainant became all the more suspicious when he found that o.p. were not responding to his phone calls.
If the o.p. was sincere in its commitments, they would have appeared before the forum after receiving the notices to repudiate allegations of the complainant, which they did not.
Now the most question in the instant case is whether the nature of service promised by the o.p. to the complainant is contract of service or contract for service. In the appealate order (Civil Appeal No.4965 of 2000 – Kishori Lal v. Chairman, ESI Corporation), AIR 2007 Supreme Court 1819, the apex court observed that the expression contract of personal service in the exclusionary past of section 2(1) (O) excluded the services rendered by an employee to his employer under the contract of personal service from the ambit of the expression ‘service’. There is a distinction between a contract of service and a contract for service. A ‘contract for service’ implies a contract whereby one party undertakes to render service e.g. professional or technical service, to or for another in the performance of which he is not subject to detailed direction and control and exercises professional or technical skill and uses his own knowledge and discretion, whereas a ‘contract of service’ implies relationship of master and servant and involves an obligation to obey in the work to be performed and as to its mode and manner of performance. A ‘contract of service’ is excluded for consideration from the ambit of definition of service in C.P. Act whereas a ‘contract for service’ is included.
In this instant case, the contract made between the complainant and the o.p. for which the complainant paid money to the o.p. for providing leads as well as feed backs to him is ‘contract for service’.
Nest question which crops up is whether the engagement of the complainant in the selling of herbal life product is for making profit commercially or earning livelihood. From this averment made by the complainant in his affidavit of declaration duly sworn in, it appears that the complainant is a retired person and hard pressed by pecuniary problems in running his family and for which he is trying to earn his livelihood by way of self-employment through selling of herbal life product by not in a commercial way (ex-2).
Thus, after hearing the complainant and document on record and observing non-appearance of the o.ps., it is reasonably believed that the allegation of deficiency in providing service to the complainant by the o.ps. is true. This apart, the complainant by oral submission as well as by producing documentary evidences has been successfully able to substantiate his contentions. Again, since no service was provided by the o.p. in spite of assurance given to the complainant by S.K. Sajjad and Ms. Mousumi of ‘Just Dial Pvt. Ltd.’ (o.p.), it may be safely presumed that no service tax was paid to the State Govt. by the o.p. and thus the complainant is entitled to have the refund of the service tax paid by him to the o.p. (exhibit-1/1).
It may be worthwhile to mention that S.K. Sajjad on behalf of ‘Just Dial Pvt. Ltd.’ and one Ms. Moushumi on behalf of the same concern made the contract with the complainant by inducing him through fraudulent assurances of providing 100 (one hundred) leads (persons) and feed backs bearing the sole responsibility of their concern (exhibit-1/1 & ½).
Hence, ordered,
That S.K. Sajjad, Ms. Moushumi, both of ‘Just Dial Pvt. Ltd.’ (o.p) is directed to pay Rs.5000/- (Rupees five thousand) only plus service tax amounting to Rs.618/- (Rupees six hundred eighteen) only within 30 days from the date of issue of this order and in default, they shall have to pay interest @ 10% p.a. till the full recovery of the said amount. this apart, the o.p. shall have to pay the interest at savings interest rate for one month on the amount paid by complainant within 30 days from the date of issue of this order and in default the o.ps. shall have to pay interest @ 10% p.a. on the said amount till its full recovery. This apart, the o.ps. shall have to pay the litigation cost of Rs.810/- (Rupees eight hundred ten) only within 30 days from the issue of this order and in default the o.ps. shall have to pay interest @ 10% p.a. till the full recovery of amount due to the complainant.
This disposes of the case finally from this forum.
Let copy of this order be supplied to the parties free of cost.
Member Member President
- Saha T. K. Bhattacharya S. K. Majumdar
