Per Hon’ble Shri. V. P. Utpat, President
:- JUDGMENT :-
Date – 5th December 2013
This complaint is filed by consumer against the Opponent for deficiency in service u/s 12 of the Consumer Protection Act, 1986. Brief facts are as follows-
[1]
Complainant is resident of Sadashiv Peth, Pune 411 030. He is running business of publication fortnightly in the name of VivaWest, published by Absolute Alliance at Rudved, Off F.C.Road, Near Dnyaneshwar Paduka Chowk, Pune 411 005. Complainant is a professional, doing his business as Partner in the firm Absolute Alliance. The publication gives information of the world with leisure, lifestyle, important news around the world across the nation. The complainant is gathering information related to his publication from the countries through out the world. For the purpose of gathering information and speedy communication and interaction with the agencies from whom the complainant seeks information, complainant has registered his Domain Name in his personal capacity as www.absolutealliance.com with the domain name registry company www.register.com having its office at USA. Opponent No.1 is the registered company dealing with registering, transferring the Domain Names and providing allied services and web related services. It’s corporate office is situated at Delhi and its network throughout the country. One of such office is situated at Pune. Opponent No.2 is a USA based company engaged in web related services, in whose name Opponent No.1 has fraudulently transferred complainant’s domain name and thereby caused wrongful loss to the complainant and earned unlawful gain to itself. It is the case of the complainant that the Opponent No.1 agreed to use their services and promised the complainant to transfer the domain name as required by the complainant and for that the fee of Rs.495/- was claimed by the Opponent No.1. On 20/2/2006 complainant was advised by the Opponent No.1 to follow the instructions made in the e-mail. Accordingly, complainant had followed instruction, and paid Rs.495/- through his credit card. But no action was intimated by the Opponent No.1 and Opponent No.1 failed to transfer the domain name immediately in the name of complainant. Subsequently complainant found that the said domain was illegally transferred in the name of another person on 16/9/2006 and thereby caused wrongful loss and damages to the complainant of Rs.10,00,000/-. He had issued notice to the Opponents and claimed said damages. As the notice is not complied by the Opponents, he has filed present complaint and asked damages of Rs.10,00,000/- alongwith interest @ 12% p.a. and compensation for mental and physical agony to the tune of Rs.10,000/-.
[2] Opponent No.1 has filed written version to the complaint and raised objection for the same. According to the Opponent No.1 the complaint is false and frivolous. Complainant is not a consumer and the Consumer Forum has no jurisdiction to entertain the present complaint as it is a commercial transaction. Rest of the contents are denied by the Opponent No.1. It is also contended that there is arbitration agreement between the parties in which the complainant had agreed for the arbitration if any dispute arise. It is further contended that, the complainant has not explained as to how he has sustained damages of Rs.10,00,000/-. Opponent No.1 has prayed for dismissal of the complaint and asked for compensatory costs.
[3] After considering the pleadings of both parties and scrutinizing the documents, affidavits and written argument, following points arise for my determination. The points, findings and reasons thereon are as follows-
Sr.No. | POINTS | FINDINGS |
1 | Whether complainant has proved that he is consumer as defined in Consumer Protection Act, 1986 ? | In the negative |
2 | What order ? | Complaint is dismsised |
Reasons
As to the Point Nos. 1 and 2-
[4] It reveals from the pleadings itself that, complainant is dealing in the profession of publication fortnightly. He has claimed that, due to illegal transfer of domain name, he has sustained loss of Rs.10,00,000/-. He has not explained as to how he has sustained such huge loss. If a person is sustaining such huge loss due to transfer of domain name, it cannot be said that it is an activity of consumer. It reveals from the complaint itself that the complainant is publishing fortnightly which has large circulation and agencies all over the world and he has obtained his domain name for fast communication with agencies and collecting information. By any stretch of imagination, it cannot be said that it is a personal transaction and complainant is doing his business for earning his livelihood only. If any activity is done for making profit, it cannot be said that it is consumer activity. In the circumstances, I held that he cannot invoke remedy under the Consumer Protection Act, 1986 which is restricted with the personal livelihood of consumer. In my opinion, this Forum has no jurisdiction and the complaint is liable to be dismissed. I answer the points accordingly, and pass the following order-
:- ORDER :-
1. Complaint is dismissed.
2. As per peculiar circumstances, there is no order as to costs.
3. Both parties are directed to collect the sets which are provided for the Members within one month from the date of order. Else those will be destroyed.
Copy of order be supplied to both the parties free of cost.
Place – Pune
Date – 05/12/2013
