HYDERABAD.

FA  187/2008  against C.D. 43/2005, Dist. Forum, Nellore

Between:

J. T. Bhoopathy Raju

S/o. Mruthumjaya Sarma

Age; 67 years,

H.No. 36-124,

Plot No. 272, Sainikpuri

Defence Colony

Secunderabad-500 094.                             ***                         Appellant/

                                                                                                Complainant.

                                                                    And

Andhra Prachurana Pvt. Ltd.

Rep. by its Director & Editor

Smt. Rajeswari  ( * )

103/1, LUZ Church Road

Mylapore, Chennai.

(*) (Impleaded as per order in

I.A. 3044/2007 Dt. 7.2.2008)                    ***                         Respondent/

                                                                                                 Opposite Party

Counsel for the Appellant:                          Mr. K. Parandhamachari

Counsel for the Resp:                                 Mr. A. Ramalingeswara Rao

                HON’BLE SRI JUSTICE D. APPA RAO, PRESIDENT     

              SMT. M. SHREESHA, MEMBER

&

                                 SRI K. SATYANAND, MEMBER

WEDNESDAY, THIS THE  SEVENTEENTH DAY OF JUNE TWO THOUSAND NINE

Oral Order: (Per Hon’ble Justice D. Appa Rao, President)

                                                          *****

          Appellant is unsuccessful complainant.

2)                 The case of the complainant in brief is that  he is a writer contributing articles to the coloumn featuring it as ‘Phalkshuni page” to the respondent magazine  represented by  its Director & Editor  M. Madhava Rao.  It has been publishing his  articles.  It has agreed to pay  Rs. 1,000/- per month towards remuneration for contributing to the said feature.   Though he has been contributing his articles every week regularly his remuneration has not been paid though promised by letter Dt. 24.12.2001 and 30.5.2005 on the ground that  it was facing some  financial troubles.   As against Rs. 1,000/-  agreed upon  it had paid Rs. 600/-  and promised to pay the balance.  He had contributed  his writing from 3.5.2001 till 30.5.2004.  He was  entitled to a sum of Rs. 21,600/-.  Therefore he claimed Rs. 35,400/-  viz., Rs. 19,200/- towards remuneration, Rs. 16,200/- towards material cost together with interest @ 24% p.a., and  compensation of Rs. 10,000/- towards mental agony  and costs.  

3)                The respondent resisted the case.  It alleged that  one   Sri J. V. Seshaiah  is the  Editor  and the company is being represented by  one Sri J. S. Narayana,  Deputy Editor vide authorization letter Dt. 1.6.2005.  It admitted that complainant contributed articles in the magazine from  3.5.2001.   In fact, the correspondence in between them  ended by 24.12.2001.   Sri Madhava Rao  whom the complainant impleaded  has left the service  on  31.12.2003, and he had no authority whatsoever either to represent on behalf of the respondent company or give any reply.   The complaint  was filed  on 23.9.2004 and it is barred by limitation.   At no point his services are hired.      The claim does not come within the purview of the Consumer Protection Act.   Remedy for breach of contract  is by way of filing a suit.   There is no deficiency in service  on its part.   Therefore it prayed for dismissal of the complaint with costs.

4)                The complainant in proof of his case filed his affidavit evidence  and got Exs. A1 to A12 marked.  Both parties have filed their written arguments. 

5)                The Dist. Forum after considering the evidence placed on record  opined that  the services of the complainant was not hired nor  the complainant is entitled to claim the amount  recoursing to Consumer Protection Act.   There is no deficiency in service on the part of respondent.  At the most it would be a breach of contract where he could file a suit for recovery of the amount due to him, accordingly, the complaint was dismissed. 

6)                Aggrieved by the said decision, complainant preferred this appeal contending that the Dist. Forum did not appreciate either the facts or law in correct perspective.   Respondent  having availed his services  complaint is maintainable.   Therefore, he prayed that the appeal be allowed.

7)                The point that arises for consideration is whether the complainant  is entitled to the amount claimed by him for contributing articles, more so, against the respondent i.e., wife of the  Managing Director of the company?

8)                At the outset, we may  state that original complaint was filed against  one  M. Madhava Rao, representing as Managing Director & Editor of  M/s. Andhra Prachurana Pvt. Ltd. Chennai.   The respondent  represented by one  J. S. Narayna, Deputy Editor contested the matter alleging that  Sri  M. Madhava Rao, Editor had left  the service on 31.12.2003 long before filing of the complaint and he had no  authority to

represent the respondent company.   Competency of Sri M. Madhava Rao  to represent the company was never considered nor was seriously contested.   However, when the complaint was dismissed, appeal was preferred against the Director &  Editor  Sri M. Madhava Rao.  Subsequently, he filed  FAIA No. 3044/2007 alleging that on enquiry he learnt  Sri  M. Rammohan Rao, Editor & Publisher of Andhra Prachurana had left the company.  “The firm  is being maintained by the legal heirs of   Sri  S. Radhrakrishnan  who is the Managing Director  of the company and he also died.  “I further humbly submit that the firm is being maintained by legal heir of  Sri S. Radhakrishna’s wife  by name Smt. Rajeswari, Andhra Prachurana Pvt. Ltd., Chennai.”.  It was filed along with   FAIA No. 1698/2007  to condone delay of 37 days in filing the appeal.   As counters were not field and as there was no serious contest, petitions were ordered.   

9)                Smt. S. Rajeswarai, the respondent  herein while filing written arguments took objection stating that  M/s.  Andhra Prachurana Pvt. Ltd., is a company registered  under Companies Act, and she has no concern.    In fact her husband  late S. Radhakrishnan  was the Managing Director of the erstwhile  M/s. Amruthanjan Ltd. and  he has nothing to do with. M/s.  Andhra Prachurana Pvt. Ltd, Chennai.   Even otherwise a director  cannot  be  held  personally  liable for the activities of the company,   unless he is authorised to represent  the company.    She denied that Telugu weekly by name ‘Priyadatta’  is being run by the legal heirs of  late S. Radhakrishnan.   Her impleadment itself is contrary to law, as  she has nothing to do with the said company.   The complainant did not bother to verify  as to how  Smt. S. Rajeswari, wife of S. Radhakrishnan the so called Director & Editor was responsible for payment of amount due to him by M/s.  Andhra Prachurana

Pvt. Ltd.  all through  the complainant has been mentioning one person or  other  representing M/s.  Andhra Prachurana Pvt. Ltd,   without showing the authority  of the person to  represent the said company.  Obviously,  as the proceedings under the Consumer Protection Act are summary in nature and the strict legal formalities need not be  observed, all this malady has been crept  in.    It is contended that the principles of natural justice  have to be applied while determining the issue in question.   In other words no substantive law need be  applied to determine these matters,  except a sort of commonsense,  which the complainant alleges for resolving the dispute.   This we do not agree.   We may state that the complaint itself is bad under law as the opposite party  against  which the complainant intends to sue is not represented properly.   The appellant could not show as to how  Smt. S. Rajeswari, wife of  S. Radhakrishnan  is liable for the amount claimed by him.    Assuming M/s.  Andhra Prachurana Pvt. Ltd is running the magazine wherein he contributed some articles for which he is entitled to the amount, we failed to understand as to how   M/s.  Andhra Prachurana Pvt. Ltd, could be represented by  Smt.  S. Rajeswari and that she was liable to pay the amount.   She emphatically denied that  she had anything to do with the said company.   The complainant did not  obtain  any document or proceedings  from the   Registrar of Companies  in order to show  the names of the directors who could represent the company.   Since the respondent is a company, undoubtedly, the complainant has to file the  case against the persons who could  properly  represent the company.  When  S. Radhakrishnan himself was not liable nor could represent the company, it is not known  how the complainant could pursue the remedy against his wife  the respondent. 

9)                We are unable to appreciate  the claim of the complainant for realization of amount which was agreed to be paid for contributing the articles to a magazine known as  ‘Priyadatta’.  We do not see how the amount due for contributing the articles would be termed as hiring of service and the complainant was entitled  to  the amount.

10)              M/s.  Andhra Prachurana Pvt. Ltd is  a private limited company. One Sri M. Madhava Rao  on behalf of the company requested the complainant by his letter  Ex. A1 to contribute the articles for the  magazine run in the name of  ‘Priyadutta’.  There was no mention that  S. Radhakrishna   has anything to do with M/s.  Andhra Prachurana Pvt. Ltd., What all it was stated was  that with his blessings M/s.  Andhra Prachurana Pvt. Ltd., started a magazine.   We regret  that  there was no mention  that  S. Radha Krishna  has anything to do with the publications made by the respondent.   After contributing some articles,  the  complainant  has been addressing letters Exs. A2 to  A12  to  Sri M. Madhava Rao  to pay the amount.   By letter Ex. A4 Dt.   24. 12. 2001  and  Ex. A6  Dt. 30.5.2002  Sri M. Madhava Rao, Editor promised to pay the remuneration for the articles contributed by him regretting the delay  on its part  on the ground that the publisher had sustained huge loss and as soon as it recovered from the difficulties  it would pay the amount.   There was no mention that a particular amount would be paid to the complainant.

11)               There is no proof that he had contributed the articles subsequent to the letter Ex. A6 Dt. 30.5.2002.   The respondent earlier represented by  J. S. Narayana  had categorically asserted that  Sri M. Madhava Rao left the service on 31.12.2003.  He has no concern with the publication.    There is no evidence to show that  the   respondent has  agreed to pay the amount at any time after Sri M. Madhava Rao left the job.   His resignation letter was accepted on 31.12.2003. 

12)               Even assuming without admitting that the complainant was entitled to the amount for which he contributed the articles, we failed to understand how it could be termed as ‘service’  and the complainant was entitled to the amount by way of claim before the Dist. Forum.   It is settled law  in  Kishorilal Vs. Chairman, ESI Corporation reported in  2007(4) ALD 36 (SC)   the Supreme Court held that   “A ‘contract of  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 for  service’ implies relationship of master and servant and involves an obligation to obey orders in the work to be performed and as to its mode and manner of performance.”

13)               Learned counsel for the complainant relying a decision in  Raghavendra Rao Vs. Director General, Department of Post reported in III (2006) CPJ 269 (NC)  contended that the case on hand would undoubtedly  attract the term ‘contract for service’.   We failed to appreciate the contention in the sense that contributing articles to a magazine for some remuneration could be termed as ‘contract for   service’.   A ‘contract of service’ is excluded from the ambit of  Consumer Protection Act whereas  a ‘contract for service’  is included.   As pointed out earlier, at the most  it could be termed as breach of contract wherein the complainant could claim the amount by resorting to a civil suit.    At any rate, in view of the fact that respondent was not represented at all properly, the complaint itself is not maintainable.  At no stretch of imagination, wife of a director could be termed as legal heir  and she could represent  the company and consequently she was liable to pay the amount on behalf of the company.   This is perversive  way of looking at  things.     We do not see any merits in the appeal.

14)               In the result, the appeal is dismissed.  However, in the circumstances of the case no costs.

1)       _______________________________

PRESIDENT                 

2)      ________________________________

 MEMBER          

3)                _________________________________

 MEMBER

                                                         Dt.     17. 06.  2009.