BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM VAZHUTHACAUD, THIRUVANANTHAPURAM. PRESENT SRI. G. SIVAPRASAD : PRESIDENT SMT. BEENAKUMARI. A : MEMBER SMT. S.K.SREELA : MEMBER
C.C. No. 442/2005 Filed on 30.12.2005 Dated : 30.04.2010 Complainants:
Consumer Vigilance Centre, Sreekovil, Kodunganoor P.O, Vattiyoorkavu-695 013. R.V. Sasikumar, Sruthi Nivas, Melankode, Nemom P.O, Thiruvananthapuram-695 020.
Opposite parties:
The Project Administrator, Nammude Kaumudi, M/s Kerala Kaumudi Daily, Pettah, P.B. No. 77, Thiruvananthapuram-24. The Printer & Publisher, Kerala Kaumudi Daily, P.B. No. 77, Pettah, Thiruvananthapuram-24.
(By adv. S. Ajith)
This O.P having been heard on 03.04.2010, the Forum on 30.04.2010 delivered the following:
ORDER SMT. S.K.SREELA : MEMBER Put shortly the facts as set out in the complaint are that on 02.01.2004, the 2nd complainant joined the “Nammude Kaumudi” scheme by paying an amount of Rs. 1,600/- and though he was assured huge profit only Kerala Kaumudi newspaper and weekly are made available to him. As per the conditions of this net work a person who joins the scheme would get Rs. 12,500/- if he enrolls 3 persons and Rs. 3,200/- if he enrolls no one. The 2nd complainant had enrolled 6 persons on his own and 20 others through these 6 persons, but the 2nd complainant and these 26 persons never received any amount as promised by the opposite parties. Those who have joined the scheme were all very poor and were under the impression that they would get some income from the scheme. But they did not get a single rupee as promised by the opposite parties and hence this complaint. Opposite parties have filed their version contending as follows: The complaint is not maintainable either in law or on facts. The complaint is not a complaint as defined in Sec. 2 (1) (c) of the Consumer Protection Act, 1986. The complaint does not disclose any defects in the goods purchased or any deficiency in the service availed by them. Therefore the complaint deserves to be dismissed in limine on this sole ground. The 2nd complainant has become a member of the Scheme “Nammude Kaumudi” instituted by the opposite party which is a business scheme provided to the Citizens by the opposite party. A member of the scheme cannot be termed as a consumer as defined in the Act, 1986. Therefore the complainants have no locus standi to file a complaint before this Hon'ble Forum as against this opposite party. The 2nd complainant has become the member after knowing the terms and conditions and accepting the same. He has filed the present complaint as against the terms and conditions of the scheme. The opposite party has paid the actual amounts due to the 2nd complainant as per the terms and conditions of the scheme. His allegations that he has only received the daily and periodicals alone are contrary to the facts and the same is denied. The 2nd complainant has not enrolled the members as stated in the scheme. The opposite party has paid the actual dues as per the scheme to the members of the scheme. The claim made by the 2nd complainant is without any basis. He has not made 26 members as stated complaint. He is not entitled to any amount from the opposite party. Hence they pray for dismissal of the complaint. From the contentions raised, the issues that would arise for consideration are:- Whether the complainant is a consumer as stipulated in the Consumer Protection Act and whether the complaint is maintainable before the Forum? Whether there is any deficiency in service on the part of the opposite parties? What relief the parties are entitled to?
The 2nd complainant has been examined as PW1, one witness has been examined as PW2 and marked Exts. P1 to P9 on the part of the complainant. DW1 has been examined on behalf of opposite parties and marked Ext. D1.
Point (i):- The main contention of the opposite parties is that the complaint is not maintainable since the complainant does not come under the definition of consumer as per Sec. 2 (1) (c) of the Consumer Protection Act since the scheme is a commercial activity/net work marketing scheme and a person who joins the scheme is only a distributor not a consumer and he is also a part and parcel of the marketing process. The complainants have argued that the 2nd complainant had joined the “Nammude Kaumudi” scheme for benefit and for making profit from the scheme. Furthermore it was argued on behalf of the complainants that Kerala Kaumudi daily had introduced the scheme for increasing the circulation and thereby to make profit and any act done for making profit comes under the provisions of the Consumer Protection Act.
The complainants have pleaded in their complaint that huge profits were promised by the Kerala Kaumudi in the event of joining the scheme by paying Rs. 1,600/-. Furthermore it has been pleaded that they have joined the scheme under the impression that they can make some income. At this juncture, since the opposite parties have strongly raised a contention regarding the maintainability of the complaint on the ground that the complainant is not a consumer as per Consumer Protection Act, the aspect to be considered is whether such person can be considered as a consumer. Here the 2nd complainant is an auto driver. There is no pleading that he has joined the scheme for making profit for earning his livelihood. PW1 has admitted that “Nammude Kaumudi” scheme is a business net work scheme. The complainants in their argument note have stated that “Cª dj¡Y¢i¢¨k jÙ¡« dj¡Y¢´¡ju ±dY¢ek·¢ന് ©lÙ¢, AY¢k¥¨T lyh¡ch¤Ù¡´¡c¤« ©lÙ¢i¡ണ് FY¢tJÈ¢i¤¨T ‘c½¤¨T Jªh¤a¢’i¢v ©Ot¼Y®”. Admittedly, the 2nd complainant had joined the opposite parties as a member to make profit out of it. Further there has been no pleadings by the complainants that the 2nd complainant has joined the scheme of the opposite parties under self employment or for eking his livelihood. The complainants have pleaded that the 2nd complainant is an auto driver. Hence this business is not for earning his livelihood. Under this circumstances as the 2nd complainant has joined as the member for making profit and as there is no pleading regarding making profit for earning his livelihood, we cannot hold that the complainant is a consumer as per the Consumer Protection Act. The Forum could entertain the complaint only if the 2nd complainant was a consumer. Hence the complaint is dismissed as found not maintainable before the Forum with liberty to the 2nd complainant to seek remedy if any before the appropriate authority.
A copy of this order as per the statutory requirements be forwarded to the parties free of charge and thereafter the file be consigned to the record room.
Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the Open Forum, this the 30th day of April 2010.
S.K. SREELA : MEMBER
G. SIVAPRASAD : PRESIDENT
BEENAKUMARI. A : MEMBER
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C.C. No. 442/2005 APPENDIX I COMPLAINANT'S WITNESS : PW1 - Sasikumar PW2 - Surendran II COMPLAINANT'S DOCUMENTS : P1 - Photocopy of details of registration P2 - Photocopy of letter addressed to complainant P3 - Photocopy of advertising P4 - Photocopy of advertising P5 - Photocopy of letter addressed to opposite party dated 21.10.2005 P6 - Photocopy of letter dated 01.04.2005 P7 - Photocopy of letter addressed to opposite party dated 06.04.2005 P8 - Photocopy of letter P9 - Photocopy of cash receipt dated 23.07.2003
III OPPOSITE PARTY'S WITNESS : DW1 - Sreedharan IV OPPOSITE PARTY'S DOCUMENTS : D1 - Photocopy of terms and conditions.
PRESIDENT
| | HONORABLE President, President | HONORABLE Sri G. Sivaprasad, PRESIDENT | HONORABLE Smt. Beena Kumari. A, Member | | 
