BEFORE THE CONSUMER DISPUTES REDRESSAL FORUM, ERNAKULAM.

Date of filing : 10/06/2011

Date of Order : 31/05/2012

Present :-

Shri. A. Rajesh, President.

Shri. Paul Gomez, Member.

Smt. C.K. Lekhamma, Member.

C.C. No. 298/2011

Between

And

O R D E R

C.K. Lekhamma, Member.

1. The brief facts of the complainant's case are as follows :

The complainant is a consumer of the Malayala Manorama Newspaper daily published and circulated by the 1^st opposite party. The 2^nd opposite party who is the distribution agent of the said newspaper. He is supplying the said paper to the complainant daily along with 'Vanitha' twice in a month. The monthly subscription for the newspaper is Rs. 122/- and for Vanitha it is Rs. 30/-. So, the total monthly subscription will be Rs. 152/-. In the first week of January 2011, when the complainant paid the monthly subscription to the 2^nd opposite party for the month of December, he demanded an amount of Rs. 15/- more to the service charge and also said that if the complainant is not ready to pay the amount, he would not supply the newspaper. So, the complainant paid Rs. 15/- as service charges to the 2^nd opposite party unwillingly. Thereafter, in the months of January and February, the 2^nd opposite party demanded service charge and he had given a receipt to the complainant. The receipt issued by the 2^nd opposite party in which the total monthly subscription is written as Rs. 137/- instead of Rs. 122/-. Then, the complainant sent a registered notice on 14-03-2011 to the 1^st opposite party. The 1^st opposite party responded through the reply notice, stating false allegations and baseless contentions against the complainant. On 17-04-2011, the 2^nd opposite party again approached the complainant to get the monthly subscription of the month of March and he took the service charge. The complainant stopped the subscription of the said paper from the 2^nd opposite party on 17-04-2011. The 2^nd opposite party is not having any legal right to take service charges from the complainant as against the MRP is written on the newspaper as well as on Vanitha. If the 2^nd opposite party is taking any service charges from his customers, it is the duty of the 1^st opposite party to stop the same. The 1^st opposite party is vicariously liable for the acts and deeds of the 2^nd opposite party. There is deficiency of service happened from the part of the opposite parties. Hence this complaint. The complainant sought the following reliefs against the opposite parties :

1. To direct the opposite parties to supply the Malayala Manorama newspaper daily to the house of the complainant without any service charges.

2. Compensation and costs of the proceedings.

2. The brief facts of the 1^st opposite party is as follows :

The 1^st opposite party admitted that the complainant had sent a letter to them alleging that in the month of January 2001, the 2^nd opposite party issued a bill charging Rs. 15/- as additional service charge. To the above letter, the 1^st opposite party had replied that the 1^st opposite party had not authorised any agents to levy service charge over and above the subscription amount. The monthly subscription amount of the Daily is Rs. 122/-. Since, the 1^st opposite party is receiving enquiries and complaints relating to the same issue and had issued a public notice. The same was published in the newspaper dated 19-03-2011 intimating the subscribers that they need not pay any additional service charge/surcharge, if any demanded by the agent. There is no deficiency in service on the part of the 1^st opposite party. Moreover, the 1^st opposite party is not liable for any wrong committed by the 2^nd opposite party. Since, there is no averment in the complaint to the effect that there is deficiency in service by the 1^st opposite party or any prayer against the 1^st opposite party.

3. The version of the 2^nd opposite party is as follows :

The 2^nd opposite party used to supply newspaper to the complainant on the basis of a bilateral oral agreement between him and the 2^nd opposite party. The monthly subscription to be paid as agreed upon by the complainant and the 2^nd opposite party for delivering the same at his residence was Rs. 137/-. This was inclusive of the distribution charges for delivering the news paper at the residence of the subscriber. If the complainant can come and collect the newspaper at a sales point, he will get it at the price printed on it. The distribution charges varies from place to place. The complainant demanded a reduction of Rs. 15/- and the 2^nd opposite party rejected it. Home delivery is different that involves home delivery charges also. Then, the complainant stopped subscription after clearing dues. Thus, the mutual agreement between the petitioner and the 2^nd opposite party came to an end on 17-04-2011 and as a result, the complainant lost the status of subscriber of the Newspaper/Vanitha. There is no deficiency of service on the part of the 2^nd opposite party. Hence the complaint is liable to be dismissed.

4. The complainant appeared in person and the opposite parties represented through the counsel. The 1^st opposite party appeared and filed version. Thereafter, they abstained from the proceedings. The complainant was examined as PW1 and Exts. A1 to A6 were marked. The 2^nd opposite arty was examined as DW1. Both sides filed argument notes. Heard the counsel for both sides.

5. The points that arose for consideration are as follows :

1. Whether the complainant is a consumer or not?

2. Whether the complainant is liable to pay service charges to the opposite parties?

3. Whether the complainant is entitled to get restored the issuance of Malayala Manorama daily?

4. Compensation and costs, if any?

6. Point Nos. i. to iv. :- The case of the complainant is that the 2^nd opposite party was reluctant in delivering the 'Malayala Manorama daily to the complainant's residence, since the complainant was not ready to pay additional amount of Rs. 15/- for service charges to him. According to the complainant, the 1^st opposite party fixed the price of the daily at Rs. 122/- per month including the commission of the 2^nd opposite party.

7. The 1^st opposite party contended that they had not authorised any agent to levy service charge amount over and above the subscription amount. The averment of the 2^nd opposite party in the said aspect is that on a bilateral oral agreement between the 2^nd opposite party and the complainant, to deliver the daily at the residence of the complainant at a price of Rs. 137/-.

8. Admittedly, the complainant is a subscriber of the Malayala Manorama daily, the same is printed and published by the 1^st opposite party. It is not in dispute that the 2^nd opposite party is an agent of the 1^st opposite party. The complainant is purchasing the newspaper by spending his money and the 2^nd opposite party is collecting the same for and on behalf of the 1^st opposite party. The 2^nd opposite party has been receiving his commission from the 1^st opposite party. Hence we have no hesitation to hold that the complainant is a consumer under the purview of Section 2 (i) (d) of the Consumer Protection Act 1988.

9. Along with the complaint, I.A. No. 335/2011 had filed. In which the Forum has directed the 2^nd opposite party to deliver the Malayala Manorama daily to the complainant's house at the price fixed by the 1^st opposite party till disposal of the complaint. Against which the 2^nd opposite party approached the Hon'ble State Commission in filing Appeal No. 622/2011 and passed the following the order :

“In view of the fact that the matter involved does not call for any detailed evidence the Forum is directed to dispose of the CC itself within two months from the date of receipt of this order. Till ten the appellant will deliver the newspaper as ordered by the Forum.”

10. No dispute that the monthly subscription fixed by the 1^st opposite party for the Malayala Manorama daily is at Rs. 122/-, which includes the commission for the agent. The 1^st opposite party clearly stated in their version that they had not authorised any agents to levy service charge over and above the subscription amount. The same is stated in Ext. A5 reply notice of the 1^st opposite party. The 1^st opposite party further stated that they have issued a public notice in the daily on 19-03-2011. Exts. A1 and A6 receipts go to show that instead of Rs. 122/-, the 2^nd opposite party received Rs. 137/- from the complainant. The contention of the 2^nd opposite party that he used to supply the newspaper to the complainant is on the basis of bilateral oral agreement between the complainant and the 2^nd opposite party is untenable especially, since the complainant has been paying the subscription on a monthly basis. The 2^nd opposite party is contractually liable to deliver the newspaper hereafter for the price fixed by the 1^st opposite party wherein the 1^st opposite party cannot be held responsible. In view of the above, the order in I.A. No. 335/2011 of this Forum dated 06-08-2011 is made absolute.

11. In the above circumstances, we are not ordering to refund the service charges received by the 2^nd opposite party, since the relief already granted would meet the ends of justice. However, the 1^st opposite party being the principle of the 2^nd opposite party, the 1^st opposite party is liable to look after the prompt delivery of their publications to their subscribers. Nevertheless, the 2^nd opposite party shall pay litigation costs of Rs. 1,000/- to the complainant.

12. Accordingly, we allow the complaint in part and direct as follows :

1. The 2^nd opposite party shall promptly deliver the Malayala Manorama daily to the complainant's house at the price fixed by the 1^st opposite party.

2. The 1^st opposite party shall take appropriate action against the 2^nd opposite party, if he violates the above direction.

3. The 2^nd opposite party shall pay Rs. 1,000/- to the complainant by way of litigation costs.

The order shall be complied with, within a period of one month from the date of receipt of a copy of this order, failing which the said amounts shall carry interest @ 12% p.a. from the day fixed for compliance of this order till realisation.

Pronounced in open Forum on this the 31^st day of May 2012

Forwarded/By Order, Sd/- C.K. Lekhamma, Member. Sd/- A. Rajesh, President.

Sd/- Paul Gomez, Member.

Senior Superintendent.

A P P E N D I X

Complainant's Exhibits :-

Opposite party's Exhibits :: Nil

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