Sri Shyamal Gupta, Member
Present Appeal is directed against the Order dated 24-11-2014 passed by the Ld. District Forum, Kolkata – II (Central) in C.C. No. 101/2014.
Brief facts of the complaint case are that the Complainant on 29-03-2013 subscribed for ‘The Times of India (TOI), Kolkata edition’ for one year for the period from April, 2013 to March, 2014 and paid Rs. 470/- by a cheque and also paid Rs. 20/- in cash being the annual subscription for Sunday Times of India (STOI). The subscription was paid through one RRE, namely, Mr. Sankar Kayal (Code No. 21590290). The Complainant received TOI and STOI at his residence from 01-04-2013 to 10-01-2014 and the same was delivered by one Mr. Manotosh Dutta, local vendor, Garia depot. Surprisingly, from 11-01-2014 onwards said Mr. Dutta stopped delivering TOI and STOI copies at the residence of the Complainant without any cogent reason and without any notice. On being informed by said Mr. Dutta that he was compelled to do so as per the direction of the OPs, the Complainant wrote a letter to the OPs for taking necessary action, but to no avail. Hence, the complaint.
OPs, on notice, appeared and contested the case by filing WV. These OPs disowned the Complainant as their customer. Admitting receipt of a cheque for an amount of Rs. 470/- from the Complainant it is claimed by these OPs that they returned the concerned cheque on the very next day to the Complainant through the concerned person through which the Complainant booked the subscription. As the cheque was returned, the Complainant was issued no coupon. It is further claimed that on receipt of Complainant’s complaint, the OPs got in touch with the local vendor, who confirmed that the Complainant was still receiving newspaper regularly. Claiming that the OPs are not engaged in distribution business and denying any laches on their part, these OPs prayed for dismissal of the complaint.
Decision with reasons
Heard the Ld. Advocates of both sides and perused the material on record carefully, including the citations referred to in this regard.
In view of the fact that the Respondents have disowned the Appellant being their customer, let us first consider as to whether the Appellant can be treated as a ‘consumer’ within the meaning of Sec. 2(1)(d) of the Consumer Protection Act, 1986.
Consumer u/s 2(1)(d) of the Consumer Protection Act, 1986 Act has been defined in the following words:
"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 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 payment, 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 purposes;
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;
A plain reading of the aforesaid Section goes to show that one, who pays or promises to pay for any goods or services, is a bona fide ‘consumer’. In this case, admittedly, the Appellant issued a cheque in favour of the OPs and the same had been received by the Respondents. Therefore, the bona fide of Appellant’s intention to pay due sum towards annual subscription of the English daily is beyond any manner of doubt. Issuance of a cheque, undoubtedly, denotes the intention of the issuer of such negotiable instrument to pay for something. Therefore, the status of such a person as a ‘consumer’, to my mind, is beyond any iota of doubt.
It is the case of the Respondents that they returned the subject cheque to the Appellant through the concerned RRE. It is inexplicable that the Respondents have not uttered a single word as regards specific nature of defect of the subject cheque. What is more intriguing is that no affidavit was filed before the Ld. District Forum either on behalf of the concerned RRE or from the local vendor in order to establish that the concerned cheque was indeed returned to the Appellant. Surely, the onus of proof regarding returning of the subject cheque to the Appellant, in terms of Sec. 101 of the Evidence Act, was upon the Respondents which they miserably failed to discharge.
Another peculiar fact of this case, as it emerges from the record, is that the Appellant was given uninterrupted supply of concerned newspaper from 01-04-2013 to 10-01-2014. It is unbelievable that a local vendor would be so generous that he would continue supplying newspaper for nearly 8½ months without any payment merely on the assurance of the subscriber to handover the coupons on receipt of the same from the authorities concerned.
It is further claimed by the Respondents that on receipt of written complaint they got in touch with the local vendor, who confirmed that the Appellant was getting newspaper regularly. Strange indeed, the Respondents have not offered any explanation as to why they did not buttress the complaint of the Appellant per return letter. At the same time, it also raises eyebrows that the Respondents did not mind supplying newspapers to the Appellant despite non-payment of due cost for months together.
Practically speaking, it is next to impossible for one to keep track of each and every cheque being issued by one. It appears that the Appellant, for the first time subscribed for the said newspaper in the year 2013. Therefore, as a layman, the possibility of his being ignorant of the ‘coupon’ system cannot be ruled out either. In such circumstances, while the Appellant was getting continuous supply of his preferred newspaper, there was hardly any reason for him to ascertain whether or not the concerned cheque got encashed.
It may not be out of the place to mention here that it is claimed by the Appellant in paragraph 3 of his petition of complaint that he paid Rs. 20/- in cash towards annual subscription of STOI. There is no such specific denial from the side of the Respondents regarding receipt of this payment from the Appellant. In view of this, one really fails to understand, why the Appellant was not supplied 52 copies of STOI that he was entitled to get.
Although it is claimed by the Respondents that the Appellant is still receiving regular supply of TOI without any break, no tangible proof is put forth by them. Besides, it is also unbelievable that despite non-receipt of requisite subscription, the supply line has not been chocked.
In view of this, I find no reason to believe as gospel truth the contention of the Respondents about the grievance of the Appellant. In case there was at all any defect with the cheque so issued by the Appellant, it ought to be duly accounted for/recorded in the relevant register/record of the Respondents. For some obscure reasons, it was not done. Also, no such cheque-return-slip was filed to show that the cheque got returned by the bank concerned. As a responsible/professional organization, the Respondent would not disagree that, it was incumbent on their part to ensure safe return of the cheeque concerned to the intending subscriber for taking corrective steps in case there was indeed any defect with the said instrument. The least a customer/prospective customer expects of an pro-customer organization that his/her grievance missive would not find its place in the waste-paper bin. No doubt, had the Respondents made a sincere effort to address the grievance of the Appellant on being informed of the matter, the Appellant could be save from the ignominy of taking legal recourse that entails substantial expenditure to hire a legal counsel, not to speak of other incidental expenditure, harassment, mental stress, agony etc. involved in this regard.
Apparently, the Ld. District Forum was more or less convinced that the Appellant approached it with a mala fide intention and therefore, it dismissed the complaint with cost. Such double whammy was a real body blow of sorts for the Appellant. Seemingly, the Ld. District Forum completely overlooked the fact that the Respondents miserably failed to either pinpoint any defect with the cheque issued by the Appellant or establish safe return of the disputed cheque to its issuer for taking necessary course correction.
Accordingly, I am inclined to allow this Appeal.
Hence,
O R D E R E D
That the Appeal be and the same is allowed on contest against the Respondents with cost for a sum of Rs. 10,000/-. The Respondents shall jointly and severally pay a sum of Rs. 25,000/- to the Appellant as compensation. In case of non-compliance of this order in toto within 45 days hence, the Appellant shall be at liberty to initiate appropriate legal proceedings against the Respondents in which case, the Respondents shall be liable to pay simple interest @ 9% p.a. on the amount of Rs. 25,000/- for the entire period of default.
