BEFORE THE DAKSHINA KANNADA DISTRICT  CONSUMER DISPUTES REDRESSAL FORUM,  ADDITIONAL BENCH, MANGALORE    

Dated this the 7^th March 2017

PRESENT

SRI. VISHWESHWARA BHAT D         : HON’BLE PRESIDENT

SRI. T.C. RAJASHEKAR                       : HON’BLE MEMBER

ORDER IN

C.C.No.226/2013

(Admitted on 31.08.2013)

M/s. Air Voice(Gadgets),

A Proprietorship Firm,

Represented by its Proprietor Mr. Aslam,

S/o Abdul Khader,

Aged about 26 years,

R/at Air Voice (Gadget),

5^th floor, City centre,

Mangalore 1.

                                                                               ….. COMPLAINANT

(Advocate for the Complainant: Sri UA)

VERSUS

M/s Seablue Infomedia,

Represented by its Proprietor,

Srinath Bangera,

5^th Floor, Essel Chamber,

Karagalpady,

Mangalore 575005.

                                                          …..........OPPOSITE PARTY

 (Advocate for the Opposite Party: Sri DJK)

ORDER DELIVERED BY HON’BLE MEMBER

T.C. RAJASHEKAR:

I.   1. The above complaint filed under Section 12 of the Consumer Protection Act 1986 alleging deficiency in service against the Opposite Party claiming, to refund a sum of Rs.15,000/, to pay interest at the rate of 21% p.a from 31.7.2012 and 31.8.2013 amounting to Rs.3,150/, to pay a sum of Rs.25,000/ towards compensation  and such other reliefs.

2.       In support of the above complaint the complainant Mr. Aslam, filed affidavit evidence as CW1 reiterating what has been said in the complaint and documents produced but not marked.  Opposite Party served interrogatories but the complainant not answered.  On behalf of the opposite party not lead any evidence hence treated nil.

       The brief facts of the case are as under:

On perusal of the complaint and the version of the parties we understood the dispute as, the complainant has paid Opposite Party for advertising of the complainants mobile shop in his advertising agency named Seablue Infomedia.  The Opposite Party not advertised the complainant mobile shop by taking money and not refunded when demanded, hence alleges deficiency in service.  The Opposite Party denies that they have not published the advertisement of the complainant mobile shop and states that, the Opposite Party has finalized the design of advertisement and published in websites SMS, videos, emails ets.  Hence there is no deficiency in service from their party.  The Opposite Party also contended that the complainant is not a consumer as per Consumer Protection Act 1986 and the transaction is commercial in nature and this Forum a has no jurisdiction to entertain this complaint.  These are being the facts of dispute in resolving it we consider the following.     

POINTS FOR ADJUDICATION

We have considered the documents produced and pleadings of the parties.  The admitted facts are, the payment of Rs.15,000/ to Opposite Party an advertising agency for publishing the advertisement of the complainants mobile shop which is running the business in mobile accessories and electronic items.  But it is denied that the Opposite Party has not published advertisements of the complainants mobile shop, and the Opposite Party is liable to refund the amount paid.  It is also denied that the complainant I a Consumer and the transaction is consumer transaction.  Admissions and the denials reconciled and considered the following.     

POINTS FOR ADJUDICATION

1. Whether the complainant is a consumer under the consumer protection Act 1986?  And this Forum has jurisdiction to entertain the complaint?
2. Whether deficiency in service on the part of the Opposite Party is proved by the complainant?
3. Whether the complainant is entitled for the relief prayed for?
4. What order?  

     We have perused the complaint and the version averments and the documents produced and examined the evidence of the complainant.  However the complainant not answered the interrogatories served by the Opposite Party and the Opposite Party not led his evidence.  Heard counsel submissions and answered the above points as under.

1. In the negative.
2. Does not arise.
3. Does not arise.
4. As per delivered order

REASON

POINT NO 1:  The complainant had produced the Invoice No.310 dated 31.07.2012 which established the complainant availed the service of the Opposite Party and he is the customer for the Opposite Party.  The question is whether the complainant being the customer of the Opposite Party is a consumer or not.  All customers are not consumers.  The Opposite Party contended that the complaint is not maintainable under the Consumer Protection Act 1986 as the complainant is not the consumer.

2. As per section 2 (d) (i) of the Consumer Protection Act 1986 in purchase of goods, excludes a person who obtains such goods for resale or for any commercial purpose and as per section 2 (d) (ii) exclude a person who avails of such services for any commercial purposes from the ambit of consumer definition terming it as the commercial purpose.  As per Act the commercial purpose does not include use by a person of goods bought and used by him and services availed by him exclusively for the purposes of earning his livelihood by means of self-employment.  As per the explanation for the provision, exempts the commercial purpose if it is for earning lively hood by self employment.  On careful scrutiny of the complaint and the version of the parties it is admitted that the complainant contracted with the Opposite Party for advertising his mobile shop for enhancing the business of the complainant as stated in Para II (1) last line in the complaint.  It is not for earning livelihood by self employment basis.  The complainant nowhere pleaded that the running of the mobile shop business for earning livelihood.  Obviously the complainants transaction does not encompassed in the Consumer Protection Act 1986.  We are not hesitant to hold the complainant is not a ‘consumer’ and this forum has no jurisdiction to entertain this complaint.  We answered the point no 1 in the negative. 

POINT NO 2 and 3: As we answered the point no 1 in the negative the Forum is not authorized to proceed further and hence answer for point no 2 and 3 as does not arise.

POINT NO 4: In the light of above discussion and adjudication of the above points we deliver the following

ORDER

       The complaint is dismissed.  No order as to cost.

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

(Page No.1 to 6 directly typed by Member, revised and pronounced in the open court on this the 7^th   March 2017)

            MEMBER                                              PRESIDENT

        (T.C. RAJASHEKAR)                        (VISHWESHWARA BHAT D)

  D.K. District Consumer Forum                D.K. District Consumer Forum

Additional Bench, Mangalore                   Additional Bench, Mangalore

ANNEXURE

Witnesses examined on behalf of the Complainant:

CW1  Mr. Aslam,

Documents marked on behalf of the Complainant:

Nil 

Witnesses examined on behalf of the Opposite Party:

Nil

Documents marked on behalf of the Opposite Party:

Nil

Dated:  07.03.2017                             MEMBER