BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT BANGALORE (URBAN)

19^TH DAY OF DECEMBER 2015

O R D E R

SRI.P.V.SINGRI, PRESIDENT

This complaint is filed by the complainant under Section 12 of Consumer Protection Act, 1986 against Opposite Parties (herein after referred as OPs) with a prayer to direct the OP to supply him the daily Newpaper “Praja Vani” as per the price fixed and to pay him Rs.1,02,557/- together with litigation cost. 

2.      The brief averments made in the complaint are as under:

The complainant has been subscribing newspaper daily “Prajavani” since more than 25 years for his personal use, which is edited by OP-1 and printed and published by OP-2.  OP-3 being the agent of OP1 and 2 had been supplying the newspaper at its face value.  At present the price of the said paper is Rs.4/- per issue which includes all expenses including salary of paper supplying boys  which has been  practice from the beginning. But for the month of January and February 2014 OP-3 has charged a sum of Rs.290/-.  There were 31 days in January and 28 days in February 2014 i.e., total 59 days.  Hence 59 days multiplied by Rs.4/- equals Rs.236/-.  Hence, the complainant was liable to pay only Rs.236/- for having subscribed newspaper for the month of January and February 2014.  When the complainant questioned the OP-3 for having charged Rs.54/- in excess, the OP-3 gave evasive reply and said that he has collected the said extra amount as per the instructions of OP1 and 2 to adjust towards salary of paper supplying boys. 

3.  OP-3 has no right to charge more than Rs.4/- per issue which includes all expenses including salary of paper supplying boy as in practice from a long time.  The complainant through his letter dated 17.03.2014 brought the said fact to the notice of OP-1, but in vain.  OP-3 stopped supplying the newspaper to the complainant since March-2014 without notice.  The price lawfully displayed on the newspaper is Rs.4/-.  Hence, the OPs cannot charge more than what they have displayed.  Hence Rs.54/- excess charged by the         OP-3 at the instruction of OP 1 & 2 amounts to unfair trade practice.  The complainant has been subscribing the said newspaper for his personal use.  OPs have been supplying the newspaper daily on oral contract to receive money at the end of every month.  The complainant hired services of the OPs for a price.  Hence, the complainant is a consumer. The children of the complainant have been prosecuting their studies, in order to augment their knowledge and to know about the day to day development which may support their studies the complainant decided to subscribe the said paper.  Hence, the complainant and his children who are students have been put to great hardship and mental agony, as OPs all of a sudden stopped supplying newspaper.  The said act of OPs amounts to deficiency of service.  When the OP failed to reply to the letter of the complainant he was compelled to issue a legal notice dated 06.05.2014.  Though the OPs have received the same, OP 1 & 2 failed to reply whereas OP-3 gave evasive reply.  The OPs have stopped supplying newspaper since 05.03.2014 when the complainant questioned the OPs regarding unfair trade practice.  The complainant as well as the member of his family have been put to great hardship and mental agony because of the stoppage of supplying of newspaper by the OPs.

4. For the aforesaid reasons the complainant prays for an order directing the OP to refund excess amount of Rs.54/- collected by        OP-3, Rs.2,500/- towards legal notice charges and Rs.1,00,000/- towards hardship and mental agony suffered by him and his family members.   

5. OP 1 and 2 in response to the notice issued, appeared through their Advocate and filed their version contending in brief as under:-

The complainant has not subscribed the newspaper directly from OP 1 & 2, as such there is no privity of contract between the complainant and OP 1 & 2.  Therefore, the complaint is liable to be dismissed on this ground alone.  That the allegations in the complaint are levelled against OP-3 and there are no allegations against OP 1 & 2. Therefore, OP 1 & 2 are neither necessary nor proper parties for adjudication of this complaint.  The reader of the newspaper “Deccan Herald and Prajavani” can be subscribed from the Company (OP 1 & 2) and pay subscription charges directly to the company or a reader may subscribe to the newspaper from the newspaper agents and pay subscription charges to the said newspaper agents or a reader may also purchase the newspaper from the hawkers/vendors, who sell the same on streets.   In the present complaint, the complainant has subscribed to the newspaper from the local agent of the newspaper who has been impleaded as OP-3 in this complaint.  That when reader subscribed the newspaper from the newspaper agent the responsibility of supplying newspaper will be on the agents and the reader shall be liable to pay subscription charges directly to the newspaper agents.  In the circumstances there is no privity of contract between OP 1 & 2 and the complainant. 

6.  That the price charged by the newspaper should not exceed the price mentioned on the master head of the newspaper.  In order to cover the cost of delivering the newspaper door to door the company supplies newspaper to the newspaper agent at the discounted price.  That the OP 1 & 2 have never instructed OP-3 to collect additional sum towards the salary of delivery boys.  There is no cause to OP 1 & 2 to collect additional charges over and above the price mentioned on the master head of the newspaper, since the agents are supplied the newspaper at discounted price.  The company will publish on the master head of the newspaper, if any additional charges are required to be borne by the subscriber.  The complainant has not produced any circular/letter addressed by OP 1 & 2 to its newspaper agent authorising them to collect additional amount from the subscriber to cover the salary of the newspaper delivery boys. 

7. The OP 1 & 2 have not received any complaints of overcharging by OP-3 from any other subscriber of Prajavani and Deccan Herald newspaper in the said area.  On the enquiry made by the Circulation Manager of Area revealed that the present complaint has been filed due to some personal issue between the complainant and the OP-3.  OP-1 & 2 is not at all maintainable.

8.  For the aforesaid reasons, the OP 1 & 2 prays for dismissal of the complaint.

9. OP-3 in response to the notice though appeared through his advocate, failed to file his version and contest the complaint.

10.  After the version was filed by OP 1 & 2 the complainant was called upon to file his affidavit evidence in lieu of oral evidence.  Accordingly, he filed his affidavit evidence.  OP 1 & 2 got filed his affidavit evidence of Mr.Srinivasan.S.V. Printer and Publisher of “Praja Vani” daily newspaper, who is OP-2.  Both the parties have submitted their written arguments.

11. On the rival contention of the both the parties, the points that arises for our determination are as under:

1. Whether, the complainant proves the deficiency of service on the part of the OPs 1 to 3 as alleged in the complaint?

2. If So, what relief or order the complainant is entitled to?

12. Perused the allegation made in the complaint, averments made in the version filed by OP 1 & 2, the sworn testimony of complainant as well as OP-2, written arguments filed by both the parties, various documents produced by both the parties and other material placed on record.

13. Our answer to the above points:

14. POINT No.1:  As could be seen from the allegations made in the complaint and cash receipt dated 05.03.2014 issued by OP-3 the complainant subscribed daily newspaper “Prajavani” printed and published by OP 1 & 2, for the month of January and February 2014.  Admittedly, the price of the said newspaper is Rs.4/- per issue at relevant period of the case.  As rightly pointed out by the complainant OP-3 was to collect Rs.236/- at the rate of Rs.4/- per issue for the month of January and February 2014 but collected Rs.290/-.  OP-3 has issued a receipt dated 05.03.2014 for having charged Rs.290/- for the said two months.  Certainly, OP-3 has charged Rs.54/- excess.

15. The complainant alleged that when he questioned OP-3 for charging excess sum of Rs.54/- he told him that he has collected the said extra amount to cover the salary of newspaper delivery boys as per instruction of OP 1 & 2.  OP 1 & 2 denied that they ever instructed OP-3 to collect any excess amount from the subscriber to cover the salary of delivery boys.  The complainant except his                  self-serving testimony did not produce any credible evidence or documentary evidence to substantiate his allegations that OP-3 has collected excess amount of Rs.54/- at the instruction of OP 1 & 2.  Therefore, it cannot be believed that the said excess amount collected by the OP-3 was at the instruction of OP 1 & 2.  Therefore, OP 1 & 2 are right in contending that they are not responsible for any excess amount collected by OP-3, since, they never either instructed or authorised OP-3 to collect any such excess amount from any subscriber. 

16. OP 1 & 2 contended that there is no privity of contract between them and the complainant, since the complainant was getting the said newspaper from the newspaper agent OP-3.  Admittedly, during the time when the complainant subscribed for the said newspaper from the OP-3, OP 1 & 2 never came in the picture.  They were not party to the alleged oral contract between complainant and the OP-3 regarding the supply of said newspaper to the complainant.  Absolutely, there is no material on record to believe that there was any privity of contract at any point of time between the complainant and the OP 1 & 2 regarding the supply of said daily newspaper to the complainant.  OP-3 alone was supplying newspaper to the complainant and the complainant was paying price of the newspaper in the hands of OP-3.  OP 1 & 2 have played no role what so ever in the alleged oral contract between complainant and OP-3.  Therefore, OP 1 & 2 cannot be held responsible for the excess amount charged by OP-3.  Moreover, OP-3 is not an agent of OP 1 & 2 has defined under the Indian Contract Act OP-3, as could be seen from the receipt dated 05.03.2014, was supplying daily newspapers, magazines etc., published by OP 1 & 2 and other several printers and publishers. Therefore, OP 1 & 2 cannot be held responsible for any acts of OP-3.  Therefore, we are of the opinion that the complaint filed against OP 1 & 2 is not maintainable and is liable to be dismissed. 

17. The complainant alleges that he was being supplied the daily newspaper for last 25 years by OP-3, however there is no credible evidence in this regard.  However, the fact remains that            OP-3 had supplied the said daily newspaper to the complainant for the month of January and February 2014.  As already mentioned above OP-3 has charged excess sum of Rs.54/- for the said newspaper for the month of January and February 2014.  OP-3 has absolutely no right what so ever to charge any excess amount from a subscriber, since he was being supplied the newspaper at a discounted price by the printer and publisher so as to cover the expenses of delivery boys and other incidental charges.  There is also no material on record to believe that OP-3 has collected excess amount on the instruction of OP 1 & 2.  OP-3 has no justification at all in collecting excess amount of Rs.54/- from the complainant for the month of January and February 2014.  The OP-3 is liable to refund the said sum to the complainant.

18. The complainant alleged that there is a privity of contract between himself and the OPs for supply of the said newspaper.  It is further alleged by the complainant that he is subscriber of the said newspaper for last 25 years.  Except for the month of January and February 2014 the complainant has not produced any bills or like document to show that he was getting the said daily newspaper from OP-3 even prior to January and February 2014.  Therefore, it cannot be believed that there was any oral contract between the complainant and OP-3 for supply of the said daily newspaper even subsequent to the month of January and February 2014.  Therefore, it cannot be said that there is deficiency of service on the part of the OP-3 as he stopped supplying said newspaper to complainant from the month of March 2014.  Howecr, the fact remains that OP-3 without their being any justification has charged excess amount of Rs.54/- for the month of January and February 2014 which he is liable to refund to the complainant.  Further the said act of OP-3 in charging excess amount has forced the complainant to approach this Forum causing him huge expenditure.  Therefore, OP-3 has to be directed to compensate the complainant for the expenses he has incurred towards this litigation.  As already stated above OP-3 did not contest the claim of the complainant.  Therefore we have no reason to disbelieve the allegation made against OP-3.  In the given circumstances of the case, we are of the opinion that OP-3 has to be directed to pay a sum of Rs.54/- to the complainant together with litigation cost of Rs.3,000/-.  Accordingly, point No.1 is answered. 

19. The order could not be passed within the stipulated time due to heavy pendency.  In the result we proceed to pass the following:-

  ORDER

1. The complaint filed by complainant under section 12 of the Consumer Protection Act, 1986 is allowed in part. 

2. The OP-3 is directed to pay a sum of Rs.54/- to the complainant together with litigation cost of Rs.3,000/-.

3. The OP-3 shall comply the order within six weeks from the date of this order.

4. The complaint filed against OP-1 & 2 is dismissed.

5. Furnish free copy of this order to both the parties.

           (Dictated to the Stenographer and typed in the computer and transcribed by her, verified and corrected, and then pronounced in the Open Court by us on this the 19^th day of December 2015)

MEMBER                               MEMBER                              PRESIDENT

NRS* 

C.C.No.1280/2014

Witness examined on behalf of the complainant dated 05.02.2015

1. Sri.M.K.Muniraju

Witnesses examined on behalf of the OP 1 & 2 dated 27.03.2015

1. Sri.Srinivasan,

List of documents produced by OPs-Nil

MEMBER                               MEMBER                              PRESIDENT