Complainant through Lrd. Adv. Thorat
Opponent through Lrd. Adv. Gandhi
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Per : Mr. V. P. Utpat, President Place : PUNE
// J U D G M E N T //
(04/12/2013)
This complaint is filed by the consumer against the opponent for deficiency in service under section 12 of The Consumer Protection Act, 1986. The brief facts of the complaint are as follows,
1] The complainant is running a food shop at Kothrud, Pune – 38. The opponent represented the complainant for Master Franchise for Asia-Pacific region from M/S Sugato Mauritius (Ltd.) the actual owner of brand “dCorn Meadow”. The opponent also represented the complainant that in order to promote the business and increase the same, it is necessary for the opponent to set up centers, ground station for selling its products. The agreement was executed between the parties on 11/12/2011. The complainant has paid an amount of Rs. 1,00,000/- to the opponent and cash Rs. 2,50,000/-. As per the terms and conditions of the agreement, the opponent has restricted the complainant to purchase any related materials from market from any other person. The opponent has also restricted to follow the standardized designs and décor and uniformity. The opponent was responsible for marketing their products and advertising the same in the city. On relying on the words of the opponent, the complainant had acquired premises on Leave and License by paying an amount of Rs. 30,000/- per month by depositing Rs. 2 lacs as security deposit. The complainant has also made huge investment of Rs. 12 lacs for making interior of the said shop, furniture and other incidental alterations. Thus, the complainant had invested round about Rs. 17,80,000/-. The business of the complainant was solely depending upon the raw material and there was shortage of raw material. That amounts to deficiency in service. The complainant had informed this fact from time to time to the opponent, but did not receive any positive
response from the opponent. The complainant was unable to purchase raw material from other shops, due to terms and conditions mentioned in the said agreement. Hence, the complainant has claimed compensation of Rs. 19,25,000/- along with interest @ 14%.
2] The opponent appeared in the court and filed application for framing preliminary issue. According to the opponent, the transaction between the parties is commercial transaction and there was no relationship of ‘consumer’ and ‘service provider’ between them. Hence, the opponent has prayed for framing preliminary issues and dismissing the complaint on that ground only.
3] The complainant has resisted the application by filing reply to the application. According to the complainant, this application is not filed under the provisions of the Consumer Protection Act, 1986 and said application is not maintainable. The complainant is self employed person, running the said business for earning his livelihood. Hence, it is not a commercial activity. The complainant has no source of income and to earn her bread and butter. Hence, the present application is liable to be dismissed.
4] After scrutinizing the documentary evidence, which is produced before this Forum, hearing the arguments of both the counsels and
considering pleadings, the following points arise for my determination. The points, findings and the reasons thereon are as follows-
Sr.No. | POINTS | FINDINGS |
1. | Whether the transaction between the complainant and the opponent is a ‘consumer’ transaction? | In the negative |
2. | What order? | Complaint is dismissed |
REASONS :-
5] The learned Advocate for the complainant has strongly objected the application on the ground that there is no provision under the Consumer Protection Act, 1986 for deciding the complaint on the basis of preliminary objection. According to him, there is no any such provision and all the provisions of Code of Civil Procedure are not applicable. In that context, the learned Advocate for the opponent argued before me that, even though all the provisions Code of Civil Procedure are not applicable to the Consumer Forum, the principle underlying the same can be made applicable. In that context, the learned Advocate of the opponent placed reliance upon the Ruling of “Brijesh Kumar Shetty V/S M. Balakrishan Rai” reported in II(2007) CPJ 189 (NC). It reveals from the observations made in the said Ruling that, principle underlying the Code of Civil Procedure can be made applicable. In the said ruling, Hon’ble National Commission has observed in para 3 of the judgment that, though the provisions of CPC do not apply to Consumer Fora, but the principle underlying the said proviso would still be applicable.
6] It reveals from the terms and conditions of the agreement as well as averments made in the complaint that the opponent has appointed the complainant as Master Franchise and the complainant is entitled to appoint other Franchise for the promotion of the business. It is significant to note that, the transaction between the complainant and the opponent i.e. processing raw material and selling the same to the consumers can not be said as ‘consumer’ activity and it is definitely a ‘commercial activity’. In such circumstances, the complainant can not be said ‘consumer’ of the opponent and the relationship between the parties is not as ‘consumer’ and ‘service provider’.
7] The complainant has filed one interim application for seeking permission to purchase raw material from the market. It appears from the pleadings and the content of the documents that, the complainant is not a consumer. Hence, the order can not be passed on interim application, which is filed by the complainant. In the light of the above discussion, I held that Consumer Forum can frame preliminary issues and it reveals from the record that the complainant is not a ‘consumer’ and the transaction between the parties appears to be the ‘commercial transaction’ and this Forum has no jurisdiction to adjudicate the dispute between the parties. We answer the points accordingly and pass the following order.
** ORDER **
1. Complaint stands dismissed with
no order as to the costs.
2. Copies of this order be furnished to
the parties free of cost.
3. Parties are directed to collect the sets,
which were provided for Members within
one month from the date of order, otherwise
those will be destroyed.
Place – Pune
Date- 04/12/2013
