West Bengal

Paschim Midnapore

CC/114/2012

Sri Bidyut Roy - Complainant(s)

Versus

Sri Aninda Bose (R.M.), Dish TV (I) Ltd - Opp.Party(s)

09 Apr 2013

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

PASCHIM MEDINIPUR.

 

 Complaint case No.114/2012                                                        Date of disposal: 09/04/2013                               

 BEFORE : THE HON’BLE PRESIDENT :  Mr. K. S. Samajder.

                                                      MEMBER :  xxxxxxxxxxxx

                                                      MEMBER :  Mr. Kapot Chattopadhyay.

    For the Complainant/Petitioner/Plaintiff : Mr. B. K. Sanyal. Advocate.

    For the Defendant/O.P.S.                           : Mr. M. K. Choudhury.  Advocate.

          

                  Sri Bidyut Roy, S/O-Sri Ajit Kumar Roy Proprietor of M/S Bidyut Electronics of

                  Kuikota, P.O.-Midnapore & P.S.-Kotwali, Dist-Paschim Medinipur ……Complainant.

                                                              Vs.

      Sri Aninda Bose (R.M.), Dish TV (I) Ltd., Harrington Manson, Flat no.11, Ground

      Floor, 8 no.Ho Chi Min Sarani, Kolkata-700071……………………………Op.

The case of the complainant, in a nutshell is that, the complainant was selected by the Op. for doing service of Dish TV for Paschim Medinipur and Kharagpur  and for the purpose the Op. supplied some articles to the complainant after receiving Rs.50,000/-(Fifty thousand). Subsequently the Op. selected another organization for service on behalf of the Op. The complainant deposited the articles received from the Op. to the Vision TV India Ltd. Which was selected as franchise of the Op. for, Paschim Medinipur and Kharagpur and such deposit was as per instruction of the Op. Thereafter some correspondence were made by the parties as regards the money deposited by the complainant with the Op. and ultimately by a letter dated 09/09/2011, the representative of the Op-Company assured the complainant of sending cheque by 26/09/2011 towards full and final settlement but the Op did not keep its promise. Even letter through lawyer sent to the Op. did not fetch any result. Hence the Op. has prayed for refund of Rs.50,000/-(Fifty thousand) cost etc.

 

The Op. contested the case by filing a written objection in which the Op. contended, interalia, that the complainant is not a consumer under the consumer protection Act. The complainant was only appointed as a service franchise of the Op. for providing installation and after sale service of the goods/products of the Op. in Midnapore. The Op. was merely a custodian

Contd…………..P/2

 

- ( 2 ) -

of the goods delivered to him as franchise. The Op. further contended that as per the agreement entered into by the complainant and the Op. Company, the refund of security deposit was to be made after return of all the articles including set top boxes by the complainant. But the complainant has not returned all the articles delivered to him. Further contention of the Op. was that the complainant on his own volition surrendered the service franchise of the Op. On these grounds the Op. prayed for dismissal of this case.

Now it is our consideration as to whether the complainant is entitled to get the relief as claimed.

Decisions with reasons

  This is an admitted position that the complainant had deposited Rs.50,000/-(Fifty thousand) with Op-Company and such deposit was in the form security money. This is also admitted that the complainant was selected as franchise for providing service on behalf of the Op-Company. It has been categorically contended and argued on behalf of the Op. that the service franchise holds the goods/products of the Op. only as a custodian till the goods are delivered to the consumer/subscriber and there is no question of consumption of goods at the end of the service franchise. It has been further contended and argued on behalf of the Op-Company that the complainant is not a consumer within the meaning of Consumer under the Consumer Protection Act, 1986. It was also argued on behalf of the Op-Company that there was an agreement between the parties by which the complainant was engaged as service franchise and if it is assumed that there was any violation of the terms and condition of the contract that can not come within the jurisdiction of District Consumer Forum for any decision.

In replay, Ld. Lawyer for the complainant maintained that there was no written agreement between the parties. According to him, there was only verbal agreement between the parties. He further contended that the complainant is very much a consumer within the meaning of “Consumer” under the consumer protection Act.

As stated above, it is admitted in this case that the complainant was engaged by the Op-Company as franchise to provide service to the Consumer/subscriber, on behalf of the Op-Company. It has also been admitted by the Ld. Lawyer for the complainant during hearing of this case that the amount of Rs.50,000/-(Fifty thousand) which was deposited by the complainant with the Op-Company, was towards security deposit.

The term Consumer has been defined in Section 2(d)(i)(ii) of the Consumer Protection Act, 1986 which runs as follows :-  

(d) consumer means any person who-

            (i)         buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for

Contd…………..P/3

 

- ( 3) -

consideration paid or promised or partly paid or partly promised, or under any system of deferred payment, when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose; or

 

(ii) hires or avails of any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who hires or avails of the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payments, when such services are availed of with the approval of the first mentioned person but does not include a person who avails of such services for any commercial purpose;

 

Explanation.- For the purposes of this clause, 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;

 

In this case it is also not the case of the complainant that he purchased any goods or articles from the Op-Company. It is not the case of the complainant that he hired or availed of any service for consideration from the Op. Admitted position is that the complainant was nominated as franchise of the Op-Company for rendering service of Dish TV connection to the subscribes. Therefore by no stretch of imagination a man of ordinary prudence would hold the complainant as consumer under the Op within the ambit and meaning of “Consumer” under the Consumer Protection Act,1986.

We would like to reiterate the admitted position that the complainant was selected as franchise by the Op-Company. The dictionary meaning of the term Franchise                                means authorization granted to an individual or group by a company to sell its goods or service in a particulars way. (The concise Oxford Dictionary, 9^th edition).

Therefore the very meaning of this term franchise can not come within the ambit and meaning of the term, Consumer under the Consumer Protection Act, 1986.

There is another aspect in this case-

It is the case of the Op-Company that by virtue of a service franchise agreement

entered into by the parties, the complainant was appointed as franchise of the Op. for rendering service on behalf of the Op. in the district of Midnapore. Contention on behalf of the Op. was that the District Consumer Forum can not assume its jurisdiction for non performance of the condition of agreement by either of the parties. It was further contended that the complainant allegedly did not deliver back the set top boxes along with accessories to the company interims of the service franchise agreement.

In reply, Ld. Lawyer for the complainant submitted specifically that there was no written agreement between the parties. Even when he was shown the original agreement he

Contd…………..P/4

 

- ( 4) -

submitted that as per instruction of this client, there was no written agreement. He, however categorically submitted that there was a verbal agreement between the parties.

It is well known that for the purpose of getting relief one must come before the Forum with clean hands. Although the complainant has denied his entering into any written agreement with the Op-Company but from the written agreement dated 3^rd November, 2010 shows that the complainant signed the agreement by affixing the seal of M/S-Bidyut Electronics of which he is said to be the proprietor. The Op. in his written objection has categorically stated of the agreement and his statements in the written objection are supplied by affidavit. There is no counter affidavit on behalf of the complainant denying the agreement. Perhaps the complainant and his Ld. Lawyer were aware that with out any agreement a company likes Dish TV India Ltd. Who is having its network throughout the country, shall not appoint a franchise, a story of verbal agreement was cooked up. Even if it is believed that there was verbal agreement between the parties and no written agreement was there, still then non performance of any term of the contract, be it verbal  or written, can not attract the provision of Consumer Protection Act, 1986.

Therefore upon consideration of the facts and circumstances of the caes as stated above, we are of the view that the present case is devoid of any merit and it is liable to be dismissed.

                   Hence it is,

                                     Ordered,

                                               that the case be dismissed on contest.    

Dic. & Corrected by me

              

       

           President                                             Member                                               President

                                                                                                                               District Forum

                                                                                                                          Paschim Medinipur.