Date of Filing : 31.01.2022
Date of Disposal: 18.05.2023
DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION
THIRUVALLUR
BEFORE TMT. Dr.S.M. LATHA MAHESWARI, M.A.,M.L, Ph.D (Law) .…. PRESIDENT
THIRU.P.VINODH KUMAR, B.Sc., B.L., .....MEMBER -I
THIRU.P.MURUGAN,.MCom., ICWA(Inter)., B.L., ....MEMBER-II
CC. No.163/2022
THIS THURSDAY, THE 18th DAY OF MAY 2023
Mr.J.Sheik Mansoor,
S/o.Jamal Mydeen,
No.265-B, MAK Nagar,
Karika Thoppu, Tirunelveli Town.
Also presently residing at No.52, First Floor,
Gandhi Nagar, South,
Palayapettai, Tirunelveli – 627 008.
Office address at presently vacated
Parveen Express,
Rep. by Franchiser J.Sheik Mansoor,
No.46, Corporation Road Seevaram,
Perungudi, Chennai 600 096. ........Complainant.
//Vs//
1.Mr.A.Akram, Rep by Director,
Parveen Express,
Administrative Office,
No.118-B, Grand Northern Trunk Road,
Kanaka Chatram Bus Stop,
Opp. Shell Petrol Bunk,
Ponniammanmedu, Madhavaram 600 110.
2.Parveen Express,
Rep. by its Director Mr.A.Akram,
No.118-B, Grand Northern Trunk Road,
Kanaka Chatram Bus Stop,
Opp. Shell Petrol Bunk,
Ponniammanmedu, Madhavaram 600 110. ...Opposite parties.
Counsel for the complainant : M/s.K.Hari Krishnan, Advocate.
Counsel for the opposite party : Mr.S.V.Udayakumar. Advocate.
This complaint is coming before us on various dates and finally on 27.04.2023 in the present of M/s.K.Hari Krishnan counsel for the complainant and Mr.S.V.Udayakumar counsel for the opposite parties and upon perusing the documents and evidences of both sides, this Commission delivered the following:
ORDER
PRONOUNCED BY TMT. Dr.S.M. LATHA MAHESWARI, PRESIDENT.
This complaint has been filed by the complainant u/s 35 of the Consumer Protection Act, 2019 alleging deficiency in service in pickingup th parcel from the complainant’s premises along with a direction to pay a sum of Rs.9,20,000/- towards compensation for the mental agony and hardship caused to the complainant due to the deficiency in service on the part of the opposite parties.
Summary of facts culminating into complaint:-
It was the case of the complainant that he had approached the 1st opposite party for the purpose of having a franchisee of opposite parties concern to deal with parcel service. After ascertain by complainant’s eligibility the 1st opposite party called for personnel discussion on behalf of the 2nd opposite party and Perungudi Branch was allotted to complainant on the stipulated condition for the purpose of franchisee and booking the parcel service. As per the instruction the complainant has found an office at Perungudi. The owner of the said office premises has demanded a sum of Rs.1,00,000/- as advance and insisted to execute the rental agreement immediately. The complainant has conveyed all the above said things to opposite parties and in turn the opposite parties informed that the rental agreement has to be made in the name of opposite parties. Totally Rs.1,50,000/- was collected by the opposite parties from complainant as refundable deposit and a receipt was issued by the opposite parties. But the opposite parties did not give proper cooperation to the complainant from the very beginning of the business and all the original agreement documents was withheld by opposite parties and no documents had been served so for. The parcel booked with complainant has to be dispatched to the addressee within a time but in view of opposite party’s failure to take the parcels from complainant’s premises and to dispatch it properly to the addressee, the same could not be received by the addressee in time. The opposite parties had sent the parcel pick up vehicle in late evening or next day or the very next day. Due to the negligence of service in delaying the parcel pickup and delivery the complainant met severe mental agony and pecuniary loss. It was submitted that the franchise agreement also was not handed over to the complainant till date and also the complainant left the franchise for the reason that the complainant had suffered a loss of Rs.40,000/- per month. The complainant has conveyed his intention of closing the business and requested to give his franchise commission amount as well as advance amount of Rs.1,00,000/- and franchise deposit amount of Rs.50,000/-. But even after several request the opposite parties did not pay any amount to the complainant. Thus aggrieved by the act of the opposite parties the present complaint was filed to direct the opposite parties to pay a sum of Rs.9,20,000/- for damages and negligence service rendered by the opposite parties.
Crux of the defence put forth by the opposite parties:-
The opposite parties filed version admitting the franchise by the complainant but denied all other allegations contending interalia that they had allotted the Perungudi Branch for the complainant with stringent conditions to enter franchisee agreement with caution deposit of Rs.1,00,000/- and that all the business shall be done in the name and style of M/s. Parveen Express. The complainant had started his franchise concern in November 2019. The opposite parties further state that the Perungudi office space was rented out in the name of M/s Parveen Express by way of a rental agreement and the rental advance of Rs. 1,00,000/- had been remitted by the complainant to opposite parties and further the opposite parties have remitted the same to the land lord. The franchise concern was entered into by the complainant in November 2019 itself. By virtue of the contract between the complainant and opposite parties, the complainant does not fall under the purview of ’Consumer‘ as contemplated under section 2(1)(d) of the Consumer Protection Act, 1986. As the issues pertains between the parties was purely in the nature of contractual terms it shall be resolved only in the Civil Courts. The complainant himself admitted that he was an Entrepreneur and hence he does not fall within the ambit of the expression ’Consumer‘ as contemplated under the Act. It is to be reiterated that the complainant has no Locus Standi to prefer this complaint before this Hon'ble Commission. The opposite parties further state that the complainant neither made any representation nor complained anything with regard to the adequate delay in booking of parcels and dispatch as averred by him which itself shows the malafide intention of the complainant to damage the reputation of the opposite parties and to extract money from them. The franchise between the complainant and opposite parties are contractual agreement and there is no consumer and service provider relationship with the opposite parties. The averment of deficiency of service will not arise at all as no service were rendered to the complainant. The complainant had approached them and put forth his willingness to withdraw his consent in continuing the franchise through mails dated 25.01.2020 and 29.01.2020 as he had been in financial crunch and expressed his inability to run the business as agent and further requested the opposite parties for cancellation of franchise contract. Moreover, the complainant himself had agreed in the above mail that he was solely liable for the break up and had neither made any request through mail nor in person about his pending dues. The complainant himself construes that the said issues pertains with the opposite party is contractual in nature. The complainant with unclean hands had approached this Hon'ble Commission and having levelled erroneous averments, preferred this frivolous complaint by willfully suppressing true facts and materials which has to be dismissed with exemplary costs.
On the side of complainants proof affidavit was filed and submitted documents marked as Ex.A1 to Ex.A16 on their side. on the side of opposite parties proof affidavit was filed and submitted documents marked as Ex.B1 to Ex.B3 on their side.
Points for consideration:-
Whether the defence raised by the opposite parties that the complaint as filed before this commission is not maintainable as the complainant does not come under the purview of “consumer” in accordance with the provisions of the Consumer Protection Act has to be accepted.
Whether the alleged deficiency in service on the part of opposite parties as alleged by the complainant has been successfully proved by him?
If so to what relief the complainant is entitled?
Point No.1:-
On the side of the complainant the following documents were filed in support of the complaint allegations;
Vouchers issued by the opposite parties for payment made by the complainant was marked as Ex.A1 to Ex.A3;
Email conversations in between the complainant and the opposite parties was marked as Ex.A4 to Ex.A8;
Way bills by booking parcel by complainant was marked as Ex.A9 & Ex.A10;
Statement of booking parcel by complainant for the month of December 2019 was marked as Ex.A11;
Cash memos for purchase of office equipments was marked as Ex.A12 &Ex.A13;
Legal notice issued by the complainant to the opposite parties dated 23.11.2021and track consignment for proof of delivery was marked as Ex.A14 & Ex.A15;
Lease Agreement by complainant’s wife dated 14.01.2022 was marked as Ex.A16;
On the side of opposite parties following documents were filed for proof of their defence;
Mail communications between the complainant and the opposite parties were marked as Ex.B1 to Ex.B3;
Heard both learned counsels appearing for the complainant and opposite parties. As the opposite parties had raised an issue as to maintainability of the complaint this commission decided to discuss the said issue at the preliminary point of time before going into the merits of the complaint.
The crux of the arguments advanced by the complainant is that he entered into a franchise agreement with the opposite parties for establishing an office at peruingdi. Totally a sum of Rs.1,50,000/- was remitted by him towards rental and caution deposit. It is the case of the complainant that as the opposite parties committed delay in delivering the parcel his business was not profitable. Further no franchise agreement was handed over to him. Thus alleging various other deficiencies on the part of opposite parties he prayed for a compensation of Rs.9,20,000/- comprehensively. Whereas the main defence raised by the opposite parties is that the complainant is not a consumer. The alleged deficiencies were also denied by the opposite parties.
On perusal of the pleadings and material evidences it is apparently seen that the relationship between the complainant and the opposite parties is purely contractual in nature. Further the complainant did not submit any pleadings and produce evidences to show that he was carrying on business only in a small scale manner to meet out his livelihood even after the opposite parties raised a defence as to commercial transaction. In a recent decision rendered by the Supreme Court it has been clearly mentioned that the consumer commission has no authority to decide disputes relating to “business to business” transactions. The Apex Court in its decision in Shrikant G.Mantri Vs Punjab National Bank in its wordings had clearly stated as follows;
""The relations between the appellant and the respondent is purely “business to business” relationship. As such, the transactions would clearly come within the ambit of ‘commercial purpose’. It cannot be said that the services were availed “exclusively for the purposes of earning his livelihood” “by means of self-employment”. If the interpretation as sought to be placed by the appellant is to be accepted, then the ‘business to business’ disputes would also have to be construed as consumer disputes, thereby defeating the very purpose of providing speedy and simple redressal to consumer disputes.""
In such facts and circumstances the decision quoted above by the Apex Court squarely applies to the present case and we hold that the present complaint could not be adjudicated before this commission and the only remedy for the complainant is to approach the appropriate civil court to redress his remedies. Thus we answer accordingly holding that the present complainant is not maintainable as the complainant does not come under the purview of “consumer” as per the provision of the Consumer Protection Act.
Point No.2:-
As we have held above that the complaint is not maintainable we refrain ourselves from discussing the complaint on merits leaving the same open to be decided by the appropriate forum.
Point No.3:-
In the result the complaint is dismissed. No order as to cost.
Dictated by the President to the steno-typist, transcribed and computerized by him, corrected by the President and pronounced by us in the open Commission on this the 18th day of May 2023.
Sd/- Sd/- Sd/-
MEMBER-II MEMBER-I PRESIDENT
List of document filed by the complainant:-
Ex.A1 28.11.2019 Voucher issued by the opposite parties for a sum of Rs.50,000/- Xerox
Ex.A2 21.11.2019 Voucher issued by the opposite parties for a sum of Rs.50,000/ Xerox
Ex.A3 18.11.2019 Voucher issued by the opposite parties for a sum of Rs.50,000/ Xerox
Ex.A4 12.03.2021 Email conversation in between the complainant and opposite parties. Xerox
Ex.A5 12.03.2021 Email conversation in between the complainant and opposite parties. Xerox
Ex.A6 25.03.2021 Email conversation in between the complainant and opposite parties. Xerox
Ex.A7 22.09.2021 Email conversation in between the complainant and opposite parties. Xerox
Ex.A8 22.09.2021 Email conversation in between the complainant and opposite parties. Xerox
Ex.A9 14.12.2019 Way bill by booking parcel by complainant. Xerox
Ex.A10 14.12.2019 Way bill by booking parcel by complainant. Xerox
Ex.A11 ............. Statement of booking parcel by complainant for the month of December 2019. Xerox
Ex.A12 28.11.2019 Cash memo for purchase office equipments by the complainant. Xerox
Ex.A13 04.12.2019 Cash memo for purchase office equipments by the complainant. Xerox
Ex.A14 23.11.2021 Legal notice issued by the complainant to the opposite parties. Xerox
Ex.A15 ............ Track consignment for proof of delivery. Xerox
Ex.A16 14.01.2022 Lease agreement by complainant’s wife Xerox
List of documents filed by the opposite parties:-
Ex.B1 28.11.2019, 16.12.2019 &17.12.2019 Mail communication between the complainant and the opposite parties. Xerox
Ex.B2 25.01.2020 Mail communication between the complainant and the opposite parties. Xerox
Ex.B3 29.01.2020 Mail communication between the complainant and the opposite parties. Xerox
Sd/- Sd/- Sd/-
MEMBER-II MEMBER-I PRESIDENT
