DISTRICT CONSUMER DISPUTES REDRESSAL FORUM PALAKKAD Dated this the 31st day of March 2010 .
Present : Smt. H. Seena, President : Smt. Preetha G. Nair, Member : Smt. Bhanumathi.A.K, Member
C.C.No.16/2009
Raghunandan.C S/o. Gangadhara Menon 11/237, Radharatna Tailor Street Palakkad-678 001 Proprietor of Karuna Agencies Palakkad - Complainant. (Adv.U Suresh & Adv.K. Dhananjayan) V/s
1. M/s. Reliance India Ltd Regd Office at EOI Reliance Green Village Motikhavadi Post Digvijayagram District Jamnagar Gujarat - 361140 (Adv.Ullas Sudhakaran )
2. Authorised Signatory Officer in charge Business Head PAB PCO Kerala Head Reliance Communication Ltd A & P Arcade Sahodaran Ayyappan Road Kadavanthra Cochin – 682 016 - Opposite parties (Adv. Ullas Sudhakaran) O R D E R By Smt. H. Seena, President.
Case of the complainant The complainant has started a proprietorship concern for his self employment in the name of Karuna Agencies in Palakkad. Two agreements are to be signed for that purpose known as Direct Sales Agreement and FWT Local Business Associate E Agreement. - 2 - Opposite parties authorised representatives/authorised signatory has signed in the said agreement along with the complaint.
In pursuance of that agreement complainant had taken and handed over three demand drafts for Rs,1,00,000/- each drawn on the Canara Bank, Sulthanpet Branch, Palakkad, payable to opposite parties towards the coin booth security deposit. Opposite parties has accepted these Demand Drafs by way of security deposit. The complainant sells the recharge coupon of the opposite parties. By selling those recharge coupons the opposite parties provide commission to the complainant and that commission would be his monthly income for his livelihood.
The business relationship between the complainant and opposite parties was normal and healthy. But as the complainant desired to switch his business over to another field he intimated the opposite party that the agreement executed between them has been terminated. He has also informed 2nd opposite party by way of a registered letter dated 15th March 2008 requesting to return the security deposit of Rs.2 lakhs within 30 days of the receipt of the said letter. In the reply letter complainant was asked to handover the 1381 number of MDN to a new local business Associate. Complainant sent another letter to the 1st opposite party asking him to furnish the name and details of new Local Business Associate. Opposite party send a reply furnishing the details. After that on 19/08/2008 opposite party has sent an E-mail requesting the complainant to help M/s.Sivanous Distributor to identify the MDNS. Complainant has sent another E-mail to the opposite parties issuing an ultimatum to settle the issue amicably on 23rd August 2008.
But the opposite parties has not responded so far and has not returned the security deposit to the complainant. Opposite parties has committed a breach of contract. Hence the complainant is entitled to get back the amount of Rs.2,10,000/- along with 12% interest from 15 March 2008 till its realization and the cost of the litigation. Opposite parties filed version with the following contentions.
- 3 - Opposite party contented that this complaint is not maintainable before this Forum, The complainant was a Local Business Associate (Franchisee) of Reliance Communications Ltd vide an agreement by accepting the terms and conditions therein and hence not a 'Consumer'. The relationship between the complainant and opposite party is that of principal and agent and not as a customer and service provider. The alleged grievance of the complaint is not one either relating to any goods obtained by him from the opposite party or relating to any services availed from the opposite party. Hence it will not come under the definition of complaint under Section 2 (c) of the Consumer Protection Act. Further as per the agreement executed between the complainant and the opposite party, any dispute between the parties shall be attempted to be resolved by the parties through negotiation and if the dispute could not be resolved within 15 days, then either of the parties may be written notice refer such dispute to an Arbitrator. Hence on that ground also complaint is not maintainable before the forum.
Regarding the merits of the case the submission of the complainant that he has handed over 3 demand drafts of Rs.1,00,000/- each to the opposite party is not correct. The amount paid by the complainant by way of demand draft is Rs.2,10,000/-. The complainant had purchased the recharge coupons by paying the amount payable after deducting the commission amount to which complainant is entitled by selling those recharge coupons. The complainant had unilaterally signed from the agreement for the purpose of starting a new business as admitted by him. Complainant has no grievance regarding the product supplied or service rendered by the opposite party. As per clause 10.3 of the agreement entered into by the complainant it is his duty and liability to return all proprietary information, data/data base and other materials supplied, back to the opposite party and to complete the formalities for exiting from the agreement. The complainant failed to exit from the agreement and hence the opposite party could not return the security deposit.
As per clause 10.3 of the agreement the complainant is bound either to return the telephone instruments of inactive customers or settle the the dues of the same. The complainant failed to comply with the said clause inspite of repeated requests and communications made by the opposite party. As per clause 10.4 of the agreement, in the - 4 - event of Local Business Associate not complying with the provisions of section 10.3, the opposite party is entitled to appropriate the Secutiy Deposit in full or in part. The opposite party did not receive the e-mail claimed to have been sent by the complainant. The claim of complainant regarding refund of money could not be settled as he had failed to provide details of the customers and failed to physically identify the customers either to the company or to their new Local Business Associate. The opposite party is justified in retaining the Security Deposit as the complainant failed to perform his part of the agreement entered into with the opposite party. Hence complaint is liable to be dismissed.
The evidence adduced consists of affidavit of both parties. Exhibit A1 to A8 marked on the side of the complainant and Exhibit B1 marked on the side of Opposite parties. Issues for consideration are: Whether the complaint is maintainable before the forum ? Whether there is deficiency in service and what is the reliefs and costs?
Issue No.1 Opposite party raised a contention that the complaint is not maintainable before the forum setting forth two contentions. Firstly as per the agreement entered into between the complainant and opposite party, there is a stipulation to refer the matter to a n Arbitrator when ever dispute arise. Secondly the relationship between the complainant and opposite party is not of a customer and service provider. Complainant is a franchisee of the opposite party.
Sec 3 - of the Consumer Protection Act provides that" Act not in derogation of any other law - The provisions of this Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force". Hence the stipulation in the agreement to refer the dispute to arbritration will oust the right of the complainant to appraoch consumer forum.
Admittedly complainant is a franchisee of the opposite party. It is true that as per law franchisee is not entitled to file a complaint before the consumer forum. But in S.Kumars - 5 - Company Ltd Vs. Amarendra Raiguru II (2008) CPJ 177(NC), Honourable National Commission held that complaiant is a consumer if the franchisee agreement is entered into for earning livelihood. It is also held that jurisdiciton of the consumer forum is not barred in view of arbitration clause in franchisee agreement. So complainant is definitely a consumer. Issue No.2 The definite case of the complainant is that opposite party has not returned the security deposit of the complainant even after termination of the agreement. Opposite party on the other hand contended that as per Clause 10.3 of the agreement it is the duty of the complainant on termination of the agreement, to return forthwith all proprietory information, Data/databses and reliance materials supplied to the Local Business Associate. The complainant failed to fullfill the obligation and hence opposite party could not return the security deposit.
Analysing the evidence placed before us, it is seen that complainant has intimated his desire to terminatie the agreement between the complainant and opposite party on 15/03/2008. The said letter is marked as Exhibit A1. Opposite party has in turn replied by way of Exhibit A5 asking the complainant to hand over the details of 138 MDN to the new LBA. No details of new Local Business Associate is provided in the said letter. Again complainant sent another letter dated 14/05/2008, marked as Exhibit A6 stating the fact that the letter dated 23/04/2008 does not contain the details of new Local Business Associate. Opposite party sent reply letter dated 10/06/2008, marked as Exhibit A7 giving the details of Local Business Associate entrusted to serve the existing operators which are currently served by the complainant and handover the data to them.
It is seen that the opposite party has also lagged in giving information of the new Local Business Associate to the complainant. Opposite parties are bound to return the security deposit within a period of 45 days. Considering the fact that the return of the deposit is without any interest, opposite party ought to have provided the details earlier. E-mail letter marked as Exhibt A8 evidences the fact that matter was not settled even in the month of August 2008. - 6 - Opposite party cannot illegaly retain the security deposit when there is fault on their part also. In view of the above circumstances of the case, we are of the view that complaint be allowed. In the result complaint allowed. Opposite party is directed to return Rs.2 lakh being the security deposit to the complainant. We do not order any cost. Order to be complied within one month from the date of order failing which the ordered amount shall carry interest at the rate of 9% per annum from the date of order till realization.
Pronounced in the open court on this the 31st day of March, 2010. PRESIDENT (SD) MEMBER (SD) MEMBER (SD) APPENDIX Witness examined on the side of Complainant Nil Witness examined on the side of Opposite party Nil Exhibits marked on the side of the complainant Ext. A1 – Copy of Direct Sales Agent Agreement in stamp paper
2. Ext. A2 – Copy of FWT Local Business Associate Agreement in stamp paper 3. Ext. A3 - Copy of Demand Draft of Canara Bank, Palakkad dated 12/01/2005 4. Ext. A4 – Copy of letter of Karuna Agencies 5. Ext. A5- Copy of letter of Reliance Communications dated 23rd April 2008 6. Ext. A6 – Copy of letter from C. Raghunandanan dated 14/05/2008 7. Ext. A7 – Copy of letter of Reliance Communications dated 10th June 2008 8. Ext. A8 – Copy of E-mail from Vijaya agencies Exhibits marked on the side of the Opposite Party 1. Ext. B1 – Copy of agreement in Stamp paper Forums Exhibits Nil
| | HONORABLE Smt.Bhanumathi.A.K, Member | HONORABLE Smt.Seena.H, PRESIDENT | HONORABLE Smt.Preetha.G.Nair, Member | | 
