BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM VAZHUTHACAUD, THIRUVANANTHAPURAM. PRESENT SRI. G. SIVAPRASAD : PRESIDENT SMT. BEENAKUMARI. A : MEMBER SMT. S.K.SREELA : MEMBER C.C. No. 124/2006 Filed on 20.04.2006 Dated : 30.06.2010 Complainant: W.T. Thomas, Thattarayil House, E-21, Bhagat Singh Nagar, Plavarthala, Mukkolakkal, Thiruvananthapuram.
Opposite party:
Pen Books Pvt. Ltd., 143 Palace Road, Aluva represented by Sri. Managala Balakrishnan, Publication Manager.
This O.P having been heard on 18.06.2010, the Forum on 30.06.2010 delivered the following: ORDER SRI. G. SIVAPRASAD: PRESIDENT The facts leading to the filing of the complaint are that complainant entrusted the work of publishing the book “Glimpses of American Small Enterprises” to opposite party, that opposite party received the manuscript of the said book and claimed Rs. 17,500/- for printing the same, that opposite party received the said amount on the pretext that the said book would involve 80 pages, that the complainant sent the said amount to the opposite party and the same was acknowledged by them on 20.12.2003 and that after printing, it was found that the book contained only 44 pages as such opposite party is entitled only to Rs. 9,625/-. Opposite party has collected an excess amount of Rs. 7,875/-. It is further submitted by the complainant that opposite party made a well calculated premeditated fraudulent attempt to extract double the amount, that while sending the corrected first proof of the said book complainant demanded big size of the letter to be used citing its necessity for promoting sales. Complainant also demanded an agreement form without over writing and correction, but opposite party did not do so. It is further submitted by the complainant that due to poor printing he could not get the expected royalty from the said publication. Hence this complaint to direct opposite party to refund an amount of Rs. 7,875/- towards excess amount collected and pay royalty for the remaining stock of books.
Opposite party sent reply by post contending interalia that complainant entrusted the work of publishing the book “Glimpses of American Small Enterprises”, that the cost of printing was Rs. 17,500/- and the same was received by the opposite party, that after entrusting the work of publishing the said book complainant went to America and proof of the said book was sent to the complainant in his American address, that complainant never raised any allegation that opposite party has reduced the pages of the book while checking the first proof sent by the opposite party. It is further averred in the reply by opposite party that cost of publishing is to be determined considering the printing charge and paper cost and not on the basis of paper pages, that opposite party sent 55% royalty of the sold books along with the statement to the complainant and the allegation raised by the complainant is baseless and hence opposite party prayed for dismissal of the complaint.
Opposite party did not turn up inspite of notice having received from this Forum. Hence opposite party set ex-parte.
The points that arise for consideration are:- Whether the opposite party has collected excess amount from the complainant? Whether the complainant is entitled for refund of excess amount if any? Whether the complainant is entitled for royalty under the Consumer Protection Act? Whether there is deficiency in service on the part of the opposite parties? Whether the complainant is entitled to compensation and costs?
In support of the complaint, complainant's daughter has filed affidavit and has marked Exts. P1 to P11. Opposite party did not file affidavit. Points (i) to (v):- Admittedly, opposite party accepted the work of publishing the book “Glimpses of American Small Enterprises”. It is the very case of the complainant that opposite party received Rs. 17,500/- from the complainant towards printing cost on the pretext that the printed book would involve 80 pages. After printing it was found that the book involved only 44 pages. Ext. P4 is the said book. On perusal of Ext. P4 it is seen that the said book contains only 44 pages. Ext. P1 is the copy of the receipt dated 20.12.2003 for Rs. 17,500/- towards publication charges issued by opposite party to the complainant. Thus there is no point in dispute that opposite party received the said amount towards cost of printing of the aforesaid book. Ext. P2 is the agreement for publication of books. On perusal of Ext. P2 it is seen that there is over writing in the column of pages of the book. It is not clear whether it is 50 or 80, the total amount mentioned is Rs. 17,500/-, royalty is 55%, date of agreement stated is 20.12.2003, signature of publication manager is seen, whereas the author has not put his signature. Ext. P3 is the letter dated Nil issued by opposite party to the complainant stating that the book will contain 80 pages in printing and printing cost for 1000 copies will come to Rs. 17,500/-, and the size of the book will be 1/8 dummy. Ext. P5 is the copy of the letter dated 19.02.2004 sent by complainant to opposite party. In the said letter it is seen referred that letter dated 01.01.2004 along with the first proof and agreement form received on 14.01.2004. As per Ext. P5 complainant has raised doubt about the pages mentioned in the agreement form and complainant has not approved the size of the letter printed in the first proof. Ext. P6 is the letter dated March 20,2004 sent by opposite party to the complainant. In the said Ext. P6 letter it is informed by opposite party that all the instructions given by the complainant are complied. Ext. P7 is the letter dated July 30, 2004. Ext. P11 is the copy of the cheque for Rs. 561/- issued by opposite party to complainant. Evidently, opposite party has received Rs. 17,500/- towards printing cost of the aforesaid book on the pretext that it will contain 80 pages. As per Ext. P4 the printed book had contained only 44 pages, thereby we find opposite party has collected excess amount as alleged in the complaint. According to complainant as per quotation opposite party is entitled to Rs. 9,625/- towards printing cost while opposite party has collected excess amount of Rs. 7,875/-. Complainant has filed affidavit to that effect. Complainant has not been cross examined by opposite party, thereby the affidavit of the complainant remains uncontroverted. In view of the above we find complainant is entitled for refund of Rs. 7,875/-. As regards royalty, it must be mentioned that royalty forms part of a profit. Moreover whatever be the quantum of royalty, it is associated with the business and sale thereby there involves commercial element. As per Consumer Protection Act any transaction in connection with commercial purpose will not come under the purview of Consumer Protection Act. As such we have no jurisdiction to decide on royalty as alleged in the complaint. Collection of excess amount will definitely amount to deficiency in service. Deficiency in service is proved. In the result, complaint is partly allowed. Opposite party is directed to refund Rs. 7,875/- to the complainant along with Rs. 1,000/- as compensation. Parties shall bear and suffer their respective costs. A copy of this order as per the statutory requirements be forwarded to the parties free of charge and thereafter the file be consigned to the record room.
Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the Open Forum, this the 30th day of June 2010.
G. SIVAPRASAD, President.
BEENAKUMARI. A : MEMBER
S.K. SREELA : MEMBER
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C.C. No. 124/2006 APPENDIX I COMPLAINANT'S WITNESS : PW1 - Rosamma John II COMPLAINANT'S DOCUMENTS : P1 - Copy of receipt dated 20.12.2003 P2 - Copy of agreement for the publication of books. P3 - Letter issued by opposite party to the complainant. P4 - The book written by W.T. Thomas P5 - Copy of the letter dated 19.02.2004 P6 - Copy of letter it is informed by opposite party P7 - Copy of letter dated 30.07.2004. P8 - Copy of envelop from opposite party dated 14.01.2004 P9 - Copy of envelop from opposite party dated 20.03.2004 P10 - Copy of envelop from opposite party dated 25.10.2003 P11 - Copy of the cheque for Rs. 561/- issued by opposite party. III OPPOSITE PARTY'S WITNESS : NIL IV OPPOSITE PARTY'S DOCUMENTS : NIL
PRESIDENT
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| | [ Smt. S.K.Sreela] Member[HONORABLE MR. Sri G. Sivaprasad] PRESIDENT[ Smt. Beena Kumari. A] Member | | 
