KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION VAZHUTHACAUD, THIRUVANANTHAPURAM.
CC.NO.15/07
JUDGMENT DATED 4/10/2011
PRESENT:
JUSTICE SHRI. K.R. UDAYABHANU : PRESIDENT
SHRI.S. CHANDRA MOHAN NAIR : MEMBER
Mr.Jerard Joseph Palackal
Palackal Pulipura,
Udayanapuram, Vaikom,
Reptd. by his Power of Attorney, -- COMPLAINANT
Smt.Annie Joseph, Sreekrishna Kripa,
CRRA 46, Cherupillil Lane,
Kalloor P.O, Ernakulam.
( By Adv.C.P.Saji & Ors.)
Vs.
1. Tata Teleservices Ltd.,
Jeevan Bharati, Power-1,
10th Floor, 124, Connaught Circus.
New Delhi – 110 001, -- OPP.PARTIES
Rptd. By its General Manager.
2. The Manager, Tata Teleservices,
SL Plaza, Palarivattom,
Kochi - 25.
3. The Manager,
True Value Shoppe
Near V.M.Tower,
Palarivattom, Kochi – 25.
(By Adv.R.Rajeev)
JUDGMENT
SHRI.S.CHANDRAMOHAN NAIR,MEMBER
This complaint is filed by the power of attorney holder of the complainant alleging deficiency in service on the part of the opposite parties by which the complainant had suffered loss to the tune of 94 lakhs. The complainant has claimed that amount as well as compensation of Rs.5 lakhs with interest at 12% per annum from the date of demand notice till realization with costs of the proceedings.
2. The facts bereft of un-necessary details leading to the complaint are summarized as follows –
The complainant who is a non resident Indian national working and temporarily residing in Hong kong is doing the business of currency margin trading in Foreign Exchange and that while he was in Kerala he had approached the opposite parties for obtaining internet connection to his computer and that though the opposite parties promised to install a LG LSP 350 T telephone instrument the same was not given to him and instead some defective machines were installed by which the complainant could not carry on his business. The complainant states that he has paid an amount of Rs.1,122/- on 20.7.07 for the said instrument and it was only on 16.8.07 that the instrument was made available to him. Alleging that the complainant had sustained a loss to the tune of Rs.1,22,48,994 (the amount is limited to 94 lakhs in the complaint) a notice was issued to the opposite parties on 4.9.07 and not satisfied by the reply that was received on 18.11.07, the complaint was filed bring for directions to the opposite parties to pay an amount of Rs.94 lakhs towards the actual loss sustained by the complainant with compensation of Rs.5,00,000/- for the mental agony and sufferings along with 12% interest per annum for the amounts from the date of demand notice till realization and cost of the proceedings.
3. The first and second opposite parties contested the matter by filing version. It is submitted that when the complainant had approached them for a Tata walky connection by paying an amount of Rs.1,122/- the instrument requested by the complainant was not available and hence another instrument was supplied which the complainant had accepted. It is also disputed that the complainant had suffered loss to the tune of the amount claimed by him. It is the further case of the opposite parties that the complainant was given the requested and desired instrument on 16.8.07 on which date they received the same. Contending for the position that the complainant had availed the services of the opposite parties for commercial purpose, the opposite parties prayed for the dismissal of the complaint on the ground that the complainant is not a consumer as defined under the Consumer Protection Act.
4. The issues that arise for consideration are:-
1. Whether the complainant is a consumer?
2. Whether there is any deficiency in service on the part of the opposite parties?
3. Reliefs and costs?
5. The evidence consists of the oral testimony of the complainant as PW1 and Exts.P1 to P8 on his side. The Manager (Legal) of the first opposite party is examined as DW1 and Ext.R1 is marked on the side of the opposite parties.
6. ISSUE NO.1
The case of the complainant is that he has been in the business of currency Margin Trading and on coming to India he wanted to continue the business for which internet facility was essential. It is stated by him that his account in Currency Margin Trading was with “EXCM” an international reputed company based in USA having its permit in Hong kong etc. For availing internet facility, he has approached the opposite parties on 20/7/07 and paid Rs.1,122/- as is evident from Ext.P1/R1. It is also his case that the opposite parties, rather than installing the desired equipment, has installed another instrument (LGLSP 400 T) and the complainant has a grievance that the same was not giving the desired result as the same was defective. The complainant has further stated that he received the correct instrument only after a lapse of 4 weeks ie; on 16.8.07 and during the period from 20.7.07 to 16.8.07 he had suffered a loss to the tune of 306,223.67 US dollars equivalent to Indian Rupees 1,22,48,994/-. However, the complainant has limited his claim to Rs.94 lakhs, may be to bring the complaint within the pecuniary jurisdiction of this Commission.
7. The opposite parties have resisted the matter by contending that the complainant cannot be treated as a consumer since the complaint is pertaining to commercial activity by the complainant in which large amounts are involved and also that the complainant was not earning a livelihood with the said business. The learned counsel for the opposite parties has submitted before us that the complainant has not pleaded and proved his case that the business involved was to earn a livelihood. The learned counsel has also invited our attention to the submission of the complainant in the complaint itself that he is a business man by profession and he was running the business to make profit and due to the lapse on the side of the opposite parties he has suffered huge loss. On a perusal of the complaint, we find force in the argument of the learned counsel for the opposite parties that the complainant has not pleaded and proved his case that it was to earn a livelihood that the business was conducted by him. It is the settled position that the complainant must allege and prove that he is involved in the business to earn a livelihood. On going through the complaint we find that the complainant has stated that he is doing the business of currency Trading in Foreign exchange and that his business is buying foreign currency for low price and selling it for high price for profit or after selling for a high price later buy it back for low price for profit. It is also found that the amount involved in the business is very much on the higher side. It is stated by the complainant while giving evidence as PW1 that he has invested amount worth 3,09,102.95 US dollars. He has also stated that in the complaint that he was doing business for profit. In the said circumstances the complainant cannot be heard to say that he was doing the business to earn a livelihood. Nowhere in the complaint it is stated that he was earning a livelihood with the business on hand. Though the learned counsel for the complainant has argued that the plea of earning a livelihood is there in the affidavit, it is held in “Mohammed Hazeeb Ahammed Vs. Deputy Executive Engineer & Ors.” {2010 (II) CCC 197 (NS)} that the plea of earning a livelihood has to be proved by the complainant. It is found that apart from a bare statement in the affidavit the complainant has not pleaded or proved his case that he was doing the business of Currency Margin Trading in foreign exchange to earn a livelihood. He himself has stated that the business was done for making profit. It is seen that the complainant has availed the services of the opposite parties in connection with his commercial activity. Section 2 (d) (ii) of the Consumer Protection Act clearly states that a person who avails services for commercial purpose cannot be termed as a consumer. In the said circumstances, we find that the complainant cannot be treated as a consumer and his complaint cannot be tried under the Consumer Protection Act. Issue No.1 is answered against the complainant.
8. ISSUE NO.2 & 3
Since issue No.1 is found against the complainant we are not delving into the issues of deficiency in service or reliefs and costs. However, the complainant is at liberty to approach the appropriate Forum for the redressal of his grievances if any. It is also made clear that the period taken by the complainant before this Commission for the adjudication of this matter can be exempted from the period of limitation in the said proceedings by the complainant if he so desires.
In the result, the complaint is dismissed. There is no order as to costs.
S. CHANDRA MOHAN NAIR : MEMBER
JUSTICE K.R. UDAYABHANU : PRESIDENT
SL
APPENDIX
COMPLAINANTS EXHIBITS:-
EXHIBIT P1:- Carbon copy of the customer application form
No.KL00054547 dated 26.7.07.
EXHIBIT P2:- LG LSP 350 T & 400 T Fixed Wireless USB cable
instruction manuals.
EXHIBIT P3:- FXLM ASIA (US) combined account statement from 1.7.07
to 19.7.07
EXHIBIT P4:- FXLM Asia (US) combined account statement from 22.7.07
to 17.8.07
EXHIBIT P5:- Copy of the FXLM account application dated 25.7.06
EXHIBIT P6:- Office copy of the lawyer notice dated 4.9.07 issued to the
opposite parties.
EXHIBIT P7:- Reply notice dated 18.11.07 of the 1st and 2nd opposite
parties.
EXHIBIT P8:- Postal acknowledgment card showing the receipt of the
notice by the 3rd opposite party.
COMPLAINANTS WITNESS
PW1 :- Jerard Joseph
OPPOSITE PARTIES EXHIBITS:-
EXHIBIT R1:- Customer Application Form No.00054547 dated
20.7.07.by Jerard J. Palakkal
OPPOSITE PARTIES WITNESS:-
DW1:- Bobby Joseph
S. CHANDRA MOHAN NAIR : MEMBER
JUSTICE K.R. UDAYABHANU : PRESIDENT
