BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MANGALORE

Dated this the 31^st January 2014

PRESENT

        SMT. ASHA SHETTY           :   PRESIDENT

                            SMT.LAVANYA M. RAI       :   MEMBER

                            SRI. ARUN KUMAR K.        :   MEMBER

COMMON ORDER IN

COMPLAINT NO.8 & 9/2013

(Admitted on 11.1.2013)

C.C: NO.8/2013

Ganesh T.,

S/o Manjayya,

C/o. Chandra,

Aged about 25 years,

R/at Shivakrupa Compound,

Nellikatte,

Puttur Tq., D.K.

C.C: NO.9/2013

Ashok Poonja,

S/o Late Somappa Poonja,

Age about 40 years,

R/at Poonja House,

Kombettur,

Puttur Tq., D.K.                                            ….. COMPLAINANTS

(Advocate for Complainants: Sri Sanjay.D)

          VERSUS

1) Senior Divisional Control,

     Karnataka State Road Transport Corp.

    Bejai, Mangalore.

2) Divisional Controller,

     Puttur Division,

     Karnataka State Road Transport Corp.

     Puttur Taluk, D.K.                                   ……. OPPOSITE PARTIES

(Opposite party No.1: Exparte)

 (Advocate for Opposite Party No.2: Sri. Manoraj R)

ORDER DELIVERED BY HON’BLE PRESIDENT

SMT. ASHA SHETTY:

I.          1. The above complaints filed by the complainants are against the very same Opposite parties under Section 12 of the Consumer Protection Act alleging deficiency in service and sought common reliefs.  In order to save time we have decided the pass common order. 

The brief facts of the case are as under:

Both the complainants in C.C.No.8 and 9/2013 stated as follows:-

The complainant in C.C.No.8/2013 stated that, the complainant was running fruit juice stall measuring 35 sq. ft. and a milk booth measuring 64 sq. ft. at Puttur K.S.R.T.C. Bus Stand as per agreement dated 24.1.2008 for a period of three years i.e. from 22.2.2008 to 21.2.2011 and 1.2.2008 to 31.1.2011 respectively.  The complainant has paid Rs.1,03,512/- each as security deposits to the above said two shops.  After the three years of license period the above said agreements have renewed for every three months and the complainant had to pay monthly license fee of Rs.17,252/-  for the first year and Rs.18,978/- for the 2^nd year and Rs.20,876/- for the 3^rd year. The complainant has paid license fee to the 2^nd Opposite Party in respect of the above shops in time and there is no due whatsoever.  It is stated that, the above said stalls used for eakout his livelihood by way self employment.

When the matter stood thus, the complainant has stopped the fruit juice stall in the month of June 2011 and the milk booth was stopped in the month of January 2012 and it was duly informed to the 1^st Opposite Party and the two stalls were stopped since a new bus stand is coming up in the place of old bus stand at Puttur.  Thereafter the complainant has requested the 1^st Opposite party to refund the security deposit amount to him.  And further stated that, 1^st Opposite parties has promised to refund the security deposit within 2 months of the closure of above two stalls but failed to refund the amount without any valid reasons.  Thereafter complainant approached several time but the opposite parties failed to refund the same and complainant issued legal notice dated 26.5.2012 and called upon to refund the amount but the opposite party refunded only Rs.56,655/- in one stall and Rs.49,280/- in another stall as the complainant kept security deposit of Rs.1,16,040/- hence the above complaint.

In C.C.No.9/2013 the complainant was running catering Business in refreshment room at Puttur bus stand measuring 1186 Sq. ft. at Puttur K.S.R.T.C. Bus Stand as per agreement dated 13.7.2005 for a period of five years i.e. from 15.7.2005 to 14.7.2010 and 3.9.2010 to 3.3.2011 and from 3.3.2011 to 3.9.2011 and from 3.9.2011 to 3.9.2012 respectively and deposit Rs.1,08,798/- as security deposits.  After the 5 years of license period the above agreements were renewed for every 6 months and 1 year respectively.  The complainant had to pay monthly license fee of Rs.10,000/- for the 1^st year and Rs.11,000/- for the 2^nd year and Rs.12,100/- for the 3^rd year and Rs.13,310/- for the 4^th year and Rs.14,641/- for the 5^th year to the above catering service.  Thereafter the complainant had paid Rs.18,133/- for 1^st and 2^nd renewal and Rs.19,945/- for the last renewal.  It is stated that the above complainant has paid the license fee to the 1^st and 2^nd Opposite Parties to the above catering service in time and there is no due whatsoever.  The complainant was running the above catering service for his self employment.

When the matter stood thus, the complainant has stopped the catering service  in 2^nd Opposite Party refreshment room from 6.5.2012 and it was duly informed to the opposite parties.  Thereafter the complainant has requested the 1^st Opposite Party to refund the security deposit amount but both the opposite parties have failed to refund the amount till today without any valid reason.  Thereafter the complainant has received cheque for Rs.44,129/- in the month of July 2012 towards the refund of security deposit. Hence the above complaint filed.

Both the complainants in the above complaints filed the complaint under Section 12 of the Consumer Protection Act 1986 (herein after referred to as ‘the Act’) seeking direction from this Forum to the opposite parties to refund the amount paid by them in each complaint along with compensation and cost of the proceedings.

II.        1. Version notice served to the Opposite Party No.1 and 2 by R.P.A.D in both the complaints.

Opposite Party No.1 inspite of receiving version notice not filed nor contested the case till this date hence we have proceeded exparte as against Opposite PartyNo.1. The acknowledgement marked as Court document No.1.

Opposite Party No.2 in both the cases filed versions it is contended that this FORA has no jurisdiction to entertain and adjudicate upon the dispute involved in the complaint in as much as they are  not a consumer dispute and does not fall within the ambit of the provisions of the Consumer Protection Act, 1986 and secondly it is contended that the dispute is exclusively triable by the Civil Court as the subject matter involves the interpretation of agreement of license entered into between the parties and recording of elaborate evidence to be led by the both the parties So that complaints are liable to be dismissed. 

Further it is contended that the complainants are not consumers and service rendered by the opposite parties are not covered as service as defined under Section 2(1) of the Consumer Protection Act. It is also stated that, the complainants are entered into an agreements of license with the opposite parties for running their respective shops and as per the terms of the agreement the licensees were bound to pay the monthly license fee in time and pay the cost of the light power and water and statutory payment like taxes.  Since they have not paid the amount as a security deposit and remaining to the complainant and there is no deficiency on the part of this Opposite party and prayed for dismissal of the complaint.

III.       1. In support of the above complaints, all the respective Complainants are examined as CW-1 and answered the interrogatories served on them and produced documents. Opposite Parties also examined and filed their counter affidavits and answered the interrogatories served on them and produced documents.

            In view of the above said facts, the points now that arise for our consideration in this case are as under:

1. Whether the complainants are consumers and dispute involved in the complaints are  consumer disputes and service rendered by the opposite parties falls within the purview of the Consumer Protection Act?

2. Whether the Complainants proved that the Opposite Parties have committed deficiency in service?

3. If so, whether the Complainants are entitled for the reliefs claimed?

4. 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): Negative.

                           Point No.(ii)  to (iv): As per the final order.       

               REASONS

IV.       1.  POINT NO. (i):

In the present case, the facts which are to be determined is that, in both the complaints the first point is whether the complainants are consumers and dispute involved in the present complaints are the consumer disputes? The answer is negative. Because the nature of the business involved in the both the complaints cannot be considered as eakout of their  livelihood by way of self employment  as the complainant in CC.No.8/2013 running two shops i.e. Juice center and Milk booth which is purely a commercial in nature and Complainant in CC.No.9/2013 also running a catering service/hotel/refreshment business in the above mentioned shops i.e. also commercial in nature.  So we are of the opinion that in both the complaints the  disputes involved are purely commercial in nature and it cannot be termed as ‘Service’ and ‘Consumer’ as defined under Section 2(1)(d)II and 2(1)(d)I of the Consumer Protection Act 1986.  The Shop which has been leased out to the complainants also a commercial shop to run the commercial business so which cannot be termed as self employment until and unless some material evidence to corroborate the same.  Therefore, we are not convinced that the complainants in both the complaints are consumers and therefore the complaints are closed with a liberty to approach the appropriate authority to redress their grievances. No order as to cost.  Since Issue No.1 answered negative discussing the rest of the issues does not arise.

In the result, we pass the following:                                  

ORDER

The complaints are closed. No order as to cost.                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        

Copy of this order as per statutory requirements, be forward to the parties and file shall be consigned to record room.

(Page No.1 to 9 dictated to the Stenographer typed by him, revised and pronounced in the open court on this the 31^st day of January 2014)

                   PRESIDENT                           MEMBER                               MEMBER

ANNEXURE

In C.C.No.8/2013:

Witnesses examined on behalf of the Complainant:

CW1 – Sri Ganesh T – Complainant.

Documents produced on behalf of the Complainant:

Doc.No.1 – 24.1.2008: Copy of the agreement for fruit juice stall.

Doc.No.2 – 24.1.2008: Copy of the Agreement for fruit juice stall.

Doc.No.3 – 4.6.2012: Letter addressed by the 1^st O.P.

Doc.No.4 – 3.5.2012: Copies of the cheques.

Doc.No.5 – 26.5.2012: O/c of regd. Lawyer’s Notice.

Doc.No.6 – 8.6.2012:Reply of the 1^st O.P.

Witnesses examined on behalf of the Opposite Parties:

RW1 –Sri.Narayana Kamath, Assistant Traffic Manager, of O.P No.2.

Documents produced on behalf of the Opposite Parties:   

Doc.No.1 & 2 – 18.9.2011 & 18.8.2011: True copy of the agreement for grant of license.

Doc.No.3 – 21.1.2011: True copy of the agreement for grant of license.

Doc.No.4 – 21.1.2011: True copy of the agreement for grant of license.

Doc.No.5 – 22.11.2007: True copy of the Tender notification.

Doc.No.6 – True copy of the detailed statement of account of Milk Booth.

Doc.No.7 – True copy of the detailed statement of account of Fruit Juice stall.

In C.C.No.9/2013:

Witnesses examined on behalf of the Complainant:

CW1 – Sri Ashok Poonja – Complainant.

Documents produced on behalf of the Complainant:

Doc.No.1 – 13.7.2005: Copy of the agreement.

Doc.No.2 – 28.10.2010: Copy of the Agreement.

Doc.No.3 – 25.3.2011: Copy of the agreement.

Doc.No.4 – 15.07.2011: Copy of the Agreement.

Doc.No.5 – 5.7.2012: Letter received by the complainant for refund with cheque.

Doc.No.6 – 1.8.2012: O/c of regd. Lawyer’s Notice.

Doc.No.7 – 9.8.2012:Reply of the 1^st O.P.

Witnesses examined on behalf of the Opposite Parties:

RW1 –Sri.Narayana Kamath, Assistant Traffic Manager, of O.P No.2.

Documents produced on behalf of the Opposite Parties:   

Doc.No.1  – 15.11.2011: True copy of the agreement for grant of license.

Doc.No.2 – 25.3.2011: True copy of the agreement for grant of license.

Doc.No.3 – 28.10.2010: True copy of the agreement for grant of license.

Doc.No.4 – 13.7.2005: True copy of the agreement for grant of license.

Doc.No.5 – 3.3.2010: True copy of the Tender notification.

Doc.No.6 – True copy of the detailed statement of account of Catering business/refreshment centre

Dated:31.1.2014                                                  PRESIDENT