BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

VAZHUTHACAUD : THIRUVANANTHAPURAM

PRESENT

C.C.No:190/2013     Filed on 16.05.2013

ORDER DATED: 29.06.2018

Complainant:

(by Adv. Nikunjam Harikumar)

Opposite party:

(by Adv. P. Anoop)

This C.C having been heard on 08.05.2018, the Forum on 29.06.2018 delivered the following:

ORDER

SMT. LIJU B. NAIR, MEMBER:

Case of the complainant is as follows.  Complainant is a proprietor of a firm in the name and style of M/s. Control & Schematics.  Complainant’s business is mainly automation system and installation in connection with remote controlled gate, shutters, sensor door, automatic gate, roller shutters etc.  Its Head Office is at Vellayambalam, Trivandrum.  Complainant is doing the same business and earn his family income from the same business.  The opposite party is a internet based advertising service provider and their claim is India’s No.1 search engine and its head office at Mumbai.  The opposite party approached the complainant for product category in internet based advertisement for promotion and expansion of complainant’s own business in connection with remote controlled gate, shutters, sensor doors, etc.  On 02.05.2012 the opposite party met at complainant’s office and offered the terms and conditions of product category advertisement contract.  The said proposal and contract discussed by both parties and agreed the same and was signed on 02.05.2012.  The complainant has fully believed the opposite party and on the assurance by the opposite party the complainant paid Rs.13,483/- in favour of the opposite party’s account on 03.05.2012 vide a cheque No.081931  of SBI.  The opposite party had accepted the said amount.  After the acceptance of the amount the opposite party never fulfilled the above said contract.  The opposite party agreed and listed in the proposal a 21 product category advertisement offered in the contract namely remote controlled gates, rolling shutters, sensor doors, boom barriers, home security systems, CCTV systems, gates, engineering contractors, access control systems, automatic gates, motorized gates, automatic rolling shutters, rolling shutter manufacturers, rolling shutter dealer, CCTV dealers, CCTV camera dealers, automations system dealers, automatic doors, parking systems, electric gates, gate fabricators.  But the opposite party has listed and given advertisement in internet only for 3 items, named as CCTV systems, CCTV dealer and CCTV camera dealers.  The said listed three items not dealing within the business by the complainant.  it is a clear violation of said contract.  The complainant has lost trust in the opposite party.  And also, opposite party has purposely made the complainant spent time and money for the above said illegal contract.  This type of behaviour from the opposite party amounts to deficiency in service as defined in section (2) of the Consumer Protection Act.  The irresponsible and indifferent attitude by the opposite party is evident in this type of behaviour which is nothing but an unfair trade practice.  And also the claim by the opposite party in the contract turned out to be a sheer cheating to the consumer.  The complainant spent Rs.13,483/- and lost his time and business from the negligence by the opposite party.  The petitioner is entitled to get a damage of Rs.25,000/-. 

Opposite party filed version as follows.  The complainant is trying to extort money from the answering opposite party which is evident from the following fact.  It is stated that under the terms and conditions as set out in clause 18 of the said contract “all the disputes, differences and or claims arising out of the terms of service shall be settled by arbitration in accordance with provision of Arbitration and Conciliation Act, 1996 or any statutory amendment thereof.  The dispute shall be referred to the sole arbitrator who shall be appointed by the authorised person/director of just dial”.  Further the complainant has chosen to directly approach this forum and has chosen to file a frivolous and vexatious complaint alleging deficiency in service against the opposite parties.  It is humbly submitted before this Honourable Forum that the complaint may be dismissed solely on this ground alone.  It is further submitted that this Forum does not have the jurisdiction to entertain this complaint.  The complainant herein has sought to invoke the jurisdiction of the forum on the ground that the opposite parties have allegedly failed to provide the services as per the contract dated May 2, 2012 that complainant had executed with Just Dial.  The complainant had signed the contract dated May 2, 2012 by making a payment of Rs.13,483/- through cheque dated May 3, 2012 having cheque no.081931 which was drawn on SBI.  As per the terms of the contract and as per the revised categories agreed between the parties, opposite party had provided services in the contract dated May 2, 2012.  Hence, providing the services as per revised category doesn’t fall under the deficiency in services.  Therefore, complainant’s allegation in his complaint is completely false, frivolous and baseless.  It is further submitted that the complaint filed by the complainant is totally false, frivolous and bad in law.  It does not come under the purview of section 2(1)(d) of the Consumer Protection Act, 1986.  It is submitted that the contract entered by Mr. Anil Sugathan, Proprietor of M/s. Control & Schematics with the opposite party is purely on principal to principal basis.  Hence the complainant cannot be a consumer within the meaning of section 2(1)(d) of the Consumer Protection Act, 1986.  That the complaint is barred by the principles of estoppels and waiver.  Hence the above complaint is not maintainable under the provision of Consumer Protection Act, 1986.  Therefore, the complaint filed by the complainant is liable to be dismissed.  It is submitted that the opposite party is engaged in the business of offering local search services to users across multiple platforms such as internet, mobile internet over the phone (voice) and text (SMS).  The local search services offered by the opposite parties bridges the gap between the users and the business by helping users find relevant providers of products and services quickly while helping business listed in their database to market their offerings.  It is clear and evident from the business of the opposite party that complainant is a businessman and not a consumer within the purview of section 2(1) of the Consumer Protection Act, 1986.  Hence the above complaint filed by the complainant herein is not maintainable under Consumer Protection Act, 1986.  It is submitted that the complainant is not a consumer the purview of section 2(1) (d) of the Consumer Protection Act, 1986 and disputes arising from the contract is a matter of civil dispute therefore, the Forum doesn’t have the jurisdiction to entertain this frivolous, false and baseless complaint.  Hence, complainant cannot seek to enforce a contractual right in the pretext of filing a frivolous complaint for deficiency in service before this Forum.

Issues

1. Whether the allegation of deficiency in service of the opposite party is proved?
2. If so, reliefs and costs?

Issues (i) and (ii)

          Complainant filed affidavit along with 4 documents which were marked as Ext. P1 to P4.  He was examined as PW1.  No chief affidavit is seen filed by the opposite party which in turn leads to no evidence.  Perused the documents produced by the complainant.

This is a case wherein complainant entered into a contract with the opposite party for product category in internet based advertisement for promotion and expansion of complainant’s own business.  Complainant alleges though the agreement was for a 21 product category advertisement, opposite party advertised only 3 items, which were not dealt by the complainant.  He paid Rs.13,485/- for the service.  Opposite party alleges that a revised contract was signed by the parties and based on that they showed only the 3 items listed in the same.  Though the opposite party has raised such a contention, nothing is there to prove this contention before this forum.  Moreover, while deposing complainant denies this statement and affirms that no such revised agreement was there between the parties.   Apart from answering the main contention of the complainant, in the version opposite party paid attention to concentrate on the question of maintainability on different angles.  This complaint will stand before this forum since the service deficiency and unfair trade practice of the opposite party is challenged before us.  Evading from answering the main allegation will itself proves that opposite party has to hide something.  So the case of the complainant stands proved.  He is eligible to get back the amount paid to the opposite party, i.e. Rs.13,485/-.  Complainant failed to prove the loss sustained due to the act of this opposite party.  So no compensation is ordered.  Complainant was unnecessarily dragged to a litigation for which he is eligible for cost of the litigation which we fix as Rs.5,000/-. 

          In the result, complaint is allowed.  Opposite party is ordered to pay the complainant Rs.13,485/- with 6% interest from the date of filing the complaint (16.05.2013) along with Rs.5,000/- as cost within 2 months of receipt of this order failing which the interest rate will be 9% from the date of default till the date of realisation.

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 29^th day of June, 2018.

SL

C.C.No. 190/2013

APPENDIX

1. COMPLAINANT’S WITNESS

2. COMPLAINANT’S DOCUMENTS

3. OPPOSITE PARTY’S WITNESS

4. OPPOSITE PARTY’S DOCUMENTS

                                                                       Sd/-

PRESIDENT