BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MANGALORE

                                                                Dated this the 8^th of February 2011

PRESENT

                                                   SMT. ASHA SHETTY           :   PRESIDENT

                                                                       SMT.LAVANYA M. RAI       :   MEMBER

                                                                      SRI. ARUN KUMAR K.        :   MEMBER

COMPLAINT NO.211/2010

(Admitted on 31.07.2010)

A. Shivaprasad Bhat,

So. S. Rama Bhat,

Aged about 33 years,

RA. Rajathasri, Atlar,

P.O. Beliyoor Katte,

Puttur Taluk,

Dakshina Kannada.                          …….. COMPLAINANT

(Advocate for the Complainant: Sri.Sanjay D).

          VERSUS

Managing Partner,

Rovian Tourist Promotions,

Belvue, Velencia,

Mangalore  02.                                    ……. OPPOSITE PARTY

(Advocate for the Opposite Party: Sri.Chandrashekhara Holla).

                                      ***************

ORDER DELIVERED BY PRESIDENT SMT. ASHA SHETTY:

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 submits that, with an intention to eke out his livelihood, he was running a Scorpio Vehicle bearing registration No.KA-21-3720 for hire. The Complainant and the Opposite Party has entered into an agreement dated 05.02.2009 to provide the vehicle to the MRPL Security Duty through the Opposite Party.  It is stated that, Complainant has provided the vehicle with driver.   The Complainant has provided the vehicle from 01.02.2009 to the M.R.P.L through the Opposite Party.  Opposite Party has to pay Rs.19,800/- per month to the Complainant.

When the matter stood thus, the Opposite Party has paid the rent of the vehicle to the Complainant for the month of February, March, April and June 2009 but the Opposite Party has failed to pay the rent for the month of May, August and September 2009 i.e., a sum of Rs.92,825/-.  Hence the Complainant has decided to withdraw the vehicle from the Opposite Party and addressed a letter dated 15.09.2009 and also sent a fax. It is submitted that, the Opposite Party used to deduct 10% of the monthly rent since 04.02.2009 to 01.10.2009 which comes to Rs.17,400/-.   Subsequently, the Complainant requested the Opposite Party to pay the amount due but the Opposite Party did not respond to the request which amounts to deficiency and hence the 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 pay Rs.92,825/- with interest at 12% p.a. from 31.09.2009 till payment and also directing the Opposite Party to pay Rs.17,400/- with interest at 12% p.a. from 31.09.2009 till payment and also claimed compensation and cost of Rs.30,000/-.

2.       Version notice served to the Opposite Party by RPAD. Opposite Party appeared through their counsel filed version stating that, the activities of the Complainant are purely commercial in nature and he is not a consumer within the meaning of Section 2(d) of the Consumer Protection Act and prayed for dismissal of the complaint.

          Further it is stated that, the relationship between the Complainant and the Opposite Party is the principal employer and contractor and not that of the buyer and seller.  Therefore, the dispute between them is not a consumer dispute and there is no deficiency, this FORA lacks jurisdiction.

It is further stated that, the Opposite Party is a travel agent and it is supplying vehicles to different concerns on hire.  Only after getting the work order from different concerns, the vehicles are supplied.  For the purpose of supplying vehicles to different concerns, the Opposite Party enters into an agreement with other sub-agents and hires their vehicles.

 On 05.02.2009, the Opposite Party had entered into an agreement with the Complainant to hire his vehicle for the purpose of supplying the vehicles to MRPL Security duty.  Initially, the Complainant has supplied Scorpio vehicle No.KA-23-3720 and thereafter he provided Qualis Vehicle No.KA-05-AB-6970 to the Opposite Party.  As per the agreement, the drivers of every vehicle are required to give log sheet to the Opposite Party obtaining details of opening time, closing time, opening kilometers, closing kilometers etc.  On the basis of the said information, the Opposite Party will claim the amount from the MRPL and after receiving the said amount, it will be disbursed to the Complainant.  As per the agreement between the Complainant and the Opposite Party that from the total amount claimed in respect of his vehicles, 10% of the amount will be retained by the Opposite Party towards its commission.  In case, the Complainant is unable to supply the vehicle, he is required to inform the same to the Opposite Party one month in advance, so alternative arrangement can be made by it.  The Opposite Party is required to maintain details about the vehicle supplied to MRPL and furnish the same to them for collecting the charges.  The Complainant stopped the supply of the vehicle from October 2009 onwards without any prior intimation.  The Complainant was required to give one month advance notice before stopping the vehicle.  The withdrawal of the vehicle has caused financial hardship and MRPL has imposed penalty on the Opposite Party and the said amount was debited to his account. 

The rent was paid to the Complainant for the months May 2009 and June 2009, from July 2009 onwards, he did not submit the log book in time.  There is inordinate delay in submitting bills to MRPL for payment, meanwhile the Complainant did not provide the vehicle regularly it resulted in imposing penalty.  The Complainant did not supply the vehicle for the month of October 2009 and did not inform this either to the Opposite Party or to the MRPL authority, they have imposed penalty of Rs.71,504/-.  The penalty amount collected from the Opposite Party exceeding the amount payable to the Complainant for having supplied the vehicle for the months July 2009, August 2009 and September 2009 and all other allegations are alleged in the complaint is denied and stated that there is no deficiency and prayed for dismissal of the complaint.

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

1. Whether the complaint filed by the Complainant is  maintainable and this FORA has jurisdiction to entertain the complaint?

2. Whether the Complainant proves that the Opposite Party has committed deficiency in service?

3. If so, whether the Complainant is entitled for the reliefs claimed?

4. What order?

4.         In support of the complaint, Sri.A.Shivaprasad Bhat (CW1) filed affidavit reiterating what has been stated in the complaint and answered the interrogatories served on him.   Complainant produced 7 (seven) documents as listed in the annexure.   One Sri.Sathish Shetty (RW1), Supervisor in the Opposite Party Company filed counter affidavit and answered the interrogatories served on him.  Ex R1 to R7 were marked for the Opposite Party as listed in the annexure.   Both parties produced notes of arguments along with citations.

          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

5.  Point No. (i) to (iv):

In the instant case, it is admitted that, the Opposite Party i.e., Rovian Tourist Promotions, Belvue, Velencia, Mangalore is a travel agent, supplying vehicles to different concerns on hire.  It is also admitted that, on 05.02.2009 the Complainant and the Opposite Party entered into an agreement, the Complainant agreed to provide his vehicle on monthly contract basis to MRPL Security Duty through Opposite Party for a period of three months.  It is also admitted that, Complainant agreed to run his vehicle as per the rules and satisfaction of MRPL Mangalore.  If the said vehicle breaks down due to any reasons, the Complainant is liable to provide alternative vehicle without any delay.  And further agreed that, in case the Complainant do not provide his vehicle as per the above said conditions, Opposite Party is at liberty to deduct appropriate amount from the monthly contract rate payable to the Complainant for providing alternative vehicle.  Complainant also agreed to give one month notice in advance in case he is unable to provide the vehicle (as per Ex R1).  The above document i.e., the agreement is not disputed by the parties before this FORA.   On seeing the subject matter involved in this case is purely civil in nature and not a consumer dispute, because the dispute raised by the parties in this case is in respect of the terms and conditions stipulated under the agreement dated 5.2.2009.  According to the Complainant, the Opposite Party failed to adhere to the terms and conditions entered between them, when that being the case, the Complainant has to approach before the Civil Court for proper remedy not before the Consumer FORA.  Hence, we are of the considered opinion that, this type of dispute is not a consumer dispute, to adjudicate the subject matter involved in this case shall be presented before the appropriate Court of Law not before the Consumer FORA.  Hence, the complaint is closed.  No order as to costs. 

6.       In the result, we pass the following:                                  

ORDER

            The complaint is closed with the observation that, the Complainant has to approach the Civil Court for proper remedy. No order as to costs.

The copy of this order as per the statutory requirements be forwarded to the parties free of charge and therefore the file be consigned to record.

(Page No.1 to 8 dictated to the Stenographer typed by her, revised and pronounced in the open court on this the 8^th day of February 2011.)

PRESIDENT                    MEMBER                              MEMBER

ANNEXURE

Witnesses examined on behalf of the Complainant:

CW1 – Sri.A.Shivaprasad Bhat – Complainant.

Documents produced on behalf of the Complainant:

Doc. No.1: 01.05.2009: Copy of the chart provided by the Opposite Party.

Doc No.2: 01.08.2009: Copy of the chart provided by the Opposite Party.

Doc. No.3: 01.09.2009: Copy of the chart provided by the Opposite Party.

Doc. No.4: 30.09.2009: Copy of the letter given to the Opposite Party by the Complainant.

Doc. No.5: 15.09.2009: Fax message sent by the Complainant to the Opposite Party.

Doc No.6: 20.05.2010: Copy of the Lawyer’s notice sent to the Opposite Party.

Doc. No.7: 26.05.2010: Reply sent by the Opposite Party.

Witnesses examined on behalf of the Opposite Party:

RW1 – Sri.Sathish Shetty, Supervisor in the Opposite Party Company.

Documents produced on behalf of the Opposite Party:   

Ex R1 – 05.02.2009: Copy of the agreement.

Ex R2 – 25.11.2009: Copy of the letter from MRPL.

Ex R3 – 23.11.2009: Copy of the letter from MRPL.

Ex R4 – 26.10.2009: Copy of the letter from MRPL.

Ex R5 – 24.11.2009: Copy of the letter from MRPL.

Ex R6 – 19.11.2009: Copy of the letter from MRPL.

Ex R7 –                : Log sheets (containing 8 pages).

Dated:08.02.2011                            PRESIDENT