Punjab

Fatehgarh Sahib

CC/98/2016

Gurpret Singh - Complainant(s)

Versus

Zee Learn - Opp.Party(s)

Sh. R.S.Grewal

18 Aug 2017

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, FATEHGARH SAHIB.

Consumer Complaint  No.98 of 2016

                                                    Date of institution : 14.10.2016                          

                                                      Date of decision    : 18.08.2017

Gurpreet Singh son of Bhupinder Singh R/o village Ramgarh Sainian, Tehsil and District Fatehgarh Sahib through his power of attorney Bhupinder Singh Son of Jagir Singh resident of village Ramgarh Sainian, Tehsil and District Fatehgarh Sahib.

……..Complainant

Versus

The Regional Manager, Zee Learn Ltd., FC-9, Ground Floor, Sector 16-A, Film City Noida.

…..Opposite Party

Complaint under Sections 12 to 14 of the Consumer Protection Act.                                               

Quorum

  Sh. Ajit Pal Singh Rajput, President                                

                 Sh. Inder Jit, Member

 

Present :        Sh. R.S.Grewal, Adv.Cl. for the complainant.    

                      Sh. Sanjeev Tiwari, Adv.Cl. for the Opposite Party.

 

ORDER

 

By Ajit Pal Singh Rajput, President

                      Complainant, Gurpreet Singh son of Bhupinder Singh R/o village Ramgarh Sainian, Tehsil and District Fatehgarh Sahib, who is presently settled in Canada, has filed this complaint through his father/power of attorney Bhupinder Singh son of Jagir Singh against the Opposite Party (hereinafter referred to as the OP) under Sections 12 to 14 of the Consumer Protection Act. The brief facts of the complaint are as under:

2.           The OP, in the month of September 2012, expressed its willingness to give Kidzee Franchises to the complainant with detail of terms and conditions as per the E-mail delivered by the OP to the complainant on 09.10.2012. The complainant consulted his father and has gone through all the terms and conditions issued by the OP. The OP had contacted the complainant on telephone through their authorized officer Mr. Mukesh and has agreed to receive the complete Kidzee Application Form along with required amount as per terms and conditions settled by the OP. The complainant had already fulfilled all the terms and conditions as mentioned in Kidzee Application Form and also obtained a building situated at Preet Nagar, Ward No.6, Sirhind, Tehsil and District Fatehgarh Sahib on rent from its owner through valid and registered lease deed. The complainant had also transferred the amount of Rs.2,10,000/- in the Bank Account of the OP i.e. ICICI Bank Ltd., having account No. 000405004775 through RTGS on 24.12.2012 from his bank account in Punjab National Bank, Branch Badali Alla Singh. In the month of January 2013, after accepting the Application Form and other concerned documents, the OP had also issued the Art Works and Colour Codes for the center at the address of complainant and in this regard an invitation for Alchemy at Noida Office was also issued. The complainant remained in regular contact with the OP through their authorized officers, by telephonic conversation and e-mail and even in the month of November 2014, the complainant visited the Noida Office and he was assured by the concerned authorized officer Mr. Ashok Pal, that the application is under process. Despite the various requests, the complainant was never told regarding the next step to start the Kidzee Play Schools at Fatehgarh Sahib. The concerned dealing hand never issued the certificate of initiative the Pre Schools, even  the specific format of agreement was not issued to the complainant.  The OP neither issued any information to the complainant regarding the refusal of application form nor even returned the above mentioned amount of Rs.2,10,000/- obtained by the OP in a fraudulent manner. In the month of January 2016, the complainant was stunned to know that the OP had already started a Kidzee School at Sirhind without giving any information to the complainant, which is purely unfair trade practice on the part of the OP. The complainant also served a legal notice on the OP but all in vain. Hence, this complaint for giving directions to the OP to pay the damages, compensation and economic loss amounting to Rs.5,00,000/-.
3. The complaint is contested by the OP, who filed its written reply. In reply to the complaint, OP raised certain preliminary objections, inter alia, that the complaint is not maintainable in the present form; no cause of action has arisen in favour of the complainant to file the present complaint; the present complaint is barred by limitation and the present dispute being commercial in nature is not entertainable under the summary jurisdiction vested with the Forum under the Consumer Protection Act. As regard the facts of the complaint, OP stated that the complainant himself approached the OP for giving him a franchisee for opening a pre-school under the guidance of the OP. The complainant was hopelessly slow in execution of the agreement, so much so, inspite of the express condition No.5.1 in the Agreement to start the Centre within 60 days of the signing of the agreement, still the complainant did not do anything for a period of more than 243 days, as such letter dated 29.08.2013 was issued to the complainant. Despite having received the letter, the complainant did not show any interest. As per agreement the complainant was to deposit Rs.3,50,000/- for Illume Kit but the same was never deposited. The sum of Rs.2,10,000/-, which was deposited by the complainant, was by way of a one time non-refundable franchisee fee towards the grant of the license in favour of the Complainant to run a franchise of Kidzee Pre-School. The complainant has failed to show that he had taken any steps to execute the agreement.  The OP lost on business opportunities and revenues in this region due to the reckless conduct of the complainant. The complainant failed to commence the Kidzee Centre despite a long lapse of time. The OP could not wait indefinitely for the complainant to respond, and as such, were within their right to offer the franchisee to any other deserving party. There is no deficiency in service on their part. After denying the other averments made in the complaint, it prayed for dismissal of the complaint.
4. In order to prove his case, the complainant tendered in evidence power of attorney Ex. C-1, rent deed Ex. C-2, copy of email Ex. C-3, copy of statement of bank account Ex. C-4, his affidavit Ex. C-5, copies of documents Ex. C-6 to Ex. C-11 and closed the evidence.  In rebuttal the OP tendered in evidence true copies of documents i.e. agreement dated 26.12.2012 Ex. OP-1, show cause notice dated 29.08.2013 Ex. OP-2, resolution dated 29.08.2016 Ex. OP-3, affidavit of Deepa Josh George Ex.OP-4 and closed the evidence.
5. Learned counsel for the OP has, at the outset, submitted that his preliminary objections be adjudicated first, before deciding the case on merits. He stated the complainant is not a consumer as per Section 2(d) of the Act. Learned counsel further submitted that complainant had opted to purchase the franchisee for commercial purpose and complainant has failed to prove that it was not for earning profit. The learned  counsel in order to support his contentions relied on the case titled as; The General Manager, Madras Telephones and others Vs. R. Kannan, in 1994(1) C.P.J.14, wherein the Hon'ble National Commission held that, " A franchise holder is only a licensee of the grantor of the franchise for operating the STD/PCO and collecting the call charges on behalf of the franchiser- It is the franchise holder who is rendering service to the grantor of the franchise who cannot be said to be Consumer under the Act- The mere fact that the franchise holder has been described as the hirer of the PCO does not make him a person who renders service to the Telecom Department for consideration- He renders the service to those who use the public call office- order of State Commission granting relief to the respondent/complainant, set aside". The Ld. counsel further relied on the case titled as; Harmanjit Singh Dhillon Vs. M/s S.K. Education Pvt. Ltd. decided on 13.02.2014 in FA No.1228 of 2013, wherein the Hon'ble State Commission held in para No.7 that " No doubt, it was a case regarding the operating of the STD/PCO but the ratio thereof is applicable so far as the inter se relationship of the franchise holder and granter of the franchise is concerned. In view of the ratio of this judgment, it is to be held that the complainant, who was the franchise holder and was to run the School, was not a consumer vis-à-vis the opposite party, who was the granter of the franchise. A correct finding to that effect was recorded by the District Forum and the same is hereby upheld".
6. On the other hand, the ld. counsel for the complainant objected to the submissions made by the ld. counsel for the OP and stated that the present case deserves to be adjudicated on merits. He further stated that the franchise was purchased for earning his livelihood and not for earning profit. Learned counsel argued that the case laws citied by the OP cannot be relied upon, as the facts of the said cases are different and the same is not applicable.
7. After hearing the Ld. Counsel for the parties and going through the pleadings, evidence produced by the parties and the oral arguments and written submissions, we find force in the submissions made by the learned counsel for the OP and the case laws citied by him. Complainant has not pleaded in his pleadings that the said franchise was purchased for the purpose of earning his livelihood nor it has been stated in the statement in shape of affidavit i.e Ex.C-5.
8. Accordingly, in view of our aforesaid discussions and the case laws cited by the OP in R.Kannan's and Harmanjit Singh Dhillon's cases(Supra), we find that the complainant is not a consumer, hence complaint alongwith with all the documents be returned to the complainant so that he may seek redressal of his grievances before the appropriate court of law.

9.         The arguments on the complaint were heard on 04.08.2017 and the order was reserved. Now the order be communicated to the parties. Copy of the order be sent to the parties free of cost and thereafter the file be consigned to the record room.

Pronounced

Dated:18.08.2017

(A.P.S.Rajput)  

              President

 

(Inder Jit)       

      Member