Smt. D. Adhilakshmi,

Aged about 52 years,

W/o Nayudamma,

Residing at Karamchedu (V&M),

Prakasam District. ... Complainant.



Vs.


1. Radiant Infosystem (P) Ltd.,

Hyderabad, Rep. by its Director

C. Narayanacharyulu, 2227/1,

Divi No.52A, 9th Main B.S.K. II Stage,

Bangalore – 560 070, India.


2. The Senior Manager,

Franchise Operations,

Radiant Infosystem (P) Ltd.,

S.V.S.Classic Residence,

III Floor, Room No.301,

Near V.I.P Show Room,

Ameerpet, Hyderabad.


3. The Co-ordinator,

Radiant Infosystem (P) Ltd.,

Opposite I.T.C., Throvagunta Village & Post,

Ongole Mandal, Prakasam District. …Opposite parties.
ORDER:

2. The averments in the complaint are as fallows: The complainant is an unemployee and educated person. The opposite parties 1 and 2 made publicity on behalf of Radiant Infosystem (P) Ltd., calling upon the intending persons may apply to operate Rajiv Internet Centre at various places. The complainant approached the opposite parties to start Rajiv Internet Centre at Karamchedu village, Prakasam District under self employment for her livelihood. The opposite parties agreed to provide Internet Village Centre at Karamchedu and furnished project information document to the complainant for the proposed services 1 to 64.

The opposite parties have directed the complainant to secure a building for establishment of the Internet Centre and directed the complainant to deposit a sum of Rs.2,25,000/- with the opposite parties to provide the above said proposed services 1 to 64 to operate the Internet Centre at Karamchedu. Accordingly, the complainant deposited Rs.2,25,000/- with the 2nd opposite party. The complainant secured building on a monthly rent of Rs.1,500/- and purchased furniture worth Rs.45,000/- and spent Rs.50,150/- for Internal decorations of the building. The opposite parties inspected the building and the arrangements made by the complainant for running the internet centre. The opposite parties having satisfied with the arrangements made by the complainant allotted Rajiv Internet Centre in favour of the complainant at Karamchedu village. The opposite parties have provided one UPS, one Computer, one Scanner, one Web Camera and one Printer to operate the Internet Centre at Karamchedu. Subsequently, the complainant has obtained a telephone connection to the premises, along with Internet connection for running the said centre. But the opposite parties have provided only single service i.e., collection of electricity bills from the electricity consumers.

For the remaining 63 services, the opposite parties have promised to provide the same within one month or 2 months. The complainant also engaged one computer operator to run the centre. Since, March 2007 the complainant is running the centre with single service only. The complainant approached the opposite parties to provide the remaining 63 services as prescribed in their project information document. But, so far the opposite parties have not evinced any interest to accord permission to the complainant. The opposite parties assured that the complainant would get grass income of Rs.20,000/- per month and after deducting expenditure would get net income of Rs.10,000/-. Since, the opposite parties have deliberately and intentionally fail to provide the remaining 63 services the complainant sustained heavy loss. There is clear deficiency of service on the part of the opposite parties in providing the remaining agreed 63 services as per the project information document to the Village Internet Centre at Karamchedu. The complainant issued legal notice on 13.02.2008 to the opposite parties and the opposite parties issued reply notice with false allegations. Under these circumstances the complainant has no other option except to file present complaint for refund of the deposit amount and for recovery of expenditure incurred by him for running the internet centre. Hence, the complaint.



3. Opposite parties 1 and 2 filed their counter contending as fallows: It is true that the complainant approached the opposite parties to start Franchise to operate Rajiv Internet Center at Karamchedu Village, but not under self employment. It is true that the opposite parties agreed to provide Internet Village Centre at Karamchedu and have furnished project information document to the complainant for the proposed services 1 to 64. It is not true that the opposite parties directed the complainant to arrange the building for establishment of the centre. It is true that that the complainant paid a deposit of Rs.2,25,000/- to the opposite party and the parties entered into an agreement on 24.08.2006 to establish Rajiv Internet Centre at Karamchedu. The opposite parties are not aware whether the complainant spent huge amounts for securing building, for purchasing furniture and for internal decoration of the building. It is also false to state that the opposite parties have assured the complainant that she would get grass income of Rs.20,000/- per month. Complainant is well aware that whatever the services rendered by the Government of A.P. the same will be rendered to the complainant by the opposite parties. Hence, it will not come under the deficiency of service on the part of the opposite parties. The agreement between the complainant and the opposite parties is commercial transaction i.e., collecting the bills from the citizens, receiving the commission on the basis of bills received from the citizens. Hence, the complainant will not come under the definition of consumer. Further, the agreement between the complainant and the opposite parties was entered into at Hyderabad and as per clause 15 of the agreement jurisdiction for all purposes shall be at Hyderabad Courts only. For the foregoing reasons the opposite parties prays the forum to dismiss the complaint.



4. 3rd opposite party filed his counter contending as fallows: The complainant directly approached the opposite parties 1 and 2 and made her own arrangements to start Rajiv Internet Centre at Karamchedu. The 3rd opposite party was the coordinator for the period from April, 2006 to March, 2007 on contract basis with opposite parties 1 and 2. There is no privity of contract between the complainant and the 3rd opposite party. Therefore the 3rd opposite party prays the forum to dismiss the complaint against the 3rd opposite party with costs.



5. On behalf of the complainant Exs.A1 to Ex.A10 were marked. The Ex.A1 is the Xerox copies of the receipts dated 05.09.2007 (5 in nos.). Ex.A2 is the Centre allotment dated 26.03.2007. Ex.A3 is the Shop rental agreement. Ex.A4 is the Agreement in between the complainant and opposite parties dated 24.08.2006. Ex.A5 is the Bunch of shop rent receipts. Ex.A6 is the Xerox copy of bank loan application. Ex.A7 is the Cash Voucher dated 03.04.2006. Ex.A8 is the Office copy of the legal notice dated 13.02.2008. Ex.A9 is the Reply notice dated 26.02.2008. Ex.A10 is the Project Information Document. No documents are marked on behalf of the opposite parties.



6. The point for consideration is whether the complainant is entitled for the reliefs in the complaint.



7 The learned counsel for the complainant argued that after seeing the publicity and after going through the project information document the complainant approached opposite parties 1 and 2 to start Rajiv Internet Centre at Karamchedu Village and deposited fee of Rs.2,25,000/- on the promise made by the opposite parties that they would provide 1 to 64 services. Believing the words of the opposite parties the complainant secured a premises and renovated it as per the norms and purchased furniture spending huge amount and started Internet Centre. But opposite parties 1 and 2 provide one service only i.e., collection of electricity bills and fail to provide the other 63 services. On account of it the complainant suffered heavy losses. He further argued that opposite parties 1 and 2 have not evinced any interest after receiving fee of Rs.2,25,000/- and fail to provide other services as promised by it and it amounts to deficiency in service on the part of the opposite parties and they are liable to refund the fee and pay compensation to the complainant as claimed in the complaint.



8. The learned counsel for the opposite parties argued that the parties entered into an agreement dated 24.08.2006 marked as Ex.A4 at Hyderabad and as per clause 15 of the agreement the jurisdiction for all purposes shall be at Hyderabad only and the District Forum at Ongole has no jurisdiction to entertain the case and the complaint is liable tobe dismissed for want of territorial jurisdiction.



9. The learned counsel for the complainant argued that opposite parties 1 and 2 supplied one U.P.S., one Computer, one Scanner, one Web Camera and one Printer for the Rajiv Internet Centre of the complainant and visited the Centre for installation and to provide password and it clearly shows that part of cause of action arose within the jurisdiction of the District Forum at Ongole and the Forum at Ongole has got jurisdiction to entertain the complaint.



10. In their counter opposite parties 1 and 2 specifically admitted that the opposite parties provided U.P.S, Computer, Scanner, Web Camera and Printer to the complainant to operate the Rajiv Internet Centre at Karamchedu.



11. In a case reported in AIR 2003 Supreme Court at Page No.1177 it was held that “It is well settled principle that by agreement the parties cannot confer jurisdiction”.



12. In another case reported in 2007 (2) ALT 1 (CPA) (NC) it was held that “The fact that the appellant visited the premises of the complainant in Kerala for the purpose of inspection of erection of machinery further confirms that the appellants have undertaken to erect and install the machinery at the premises at Kerala. In terms of clause (C)of sub-section (2) of Section 11 of the Consumer Protection Act, the cause of action thus arose at least in part in Kerala and consequently the Consumer For a in Kerala, would have territorial jurisdiction to entertain the matter”.



13. In the present case also opposite parties visited the Internet Centre of the complainant and installed equipment necessary for running the Centre at the premises of the complainant. Thus part of cause of action arose within the jurisdiction of the District Forum at Ongole. Therefore, we are of the opinion that the forum at Ongole has territorial jurisdiction to entertain the case.



14. The learned counsel for the opposite parties further argued that the agreement dated 24.08.2006 marked as Ex.A4 entered into between the parties is a commercial transaction and hence the complainant cannot be considered as a consumer and the present complaint is not maintainable. He relied upon a decision reported in CPR 1991 (NC) at page No.615 in which it was held that “The word ‘commercial’ is an adjective defining the nature of a transaction or activity irrespective of the fact whether that transaction or activity is on a large scale or on a small scale. If any activity or transaction is for the purpose of profit making it becomes commercial”.



15. Section 2 (1) (d) of C.P. Act defines who is a consumer. The explanation to section 2 (1) (d) of the C.P. Act reads as fallows: “For the purpose 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 purpose of earning his livelihood by means of self employee”.



16. In the present case opposite parties 1 and 2 collected fee for providing services to the complainant and the complainant utilized the services by paying fee. The complainant and other unemployed youth approached the opposite parties for starting Internet Centers for their livelihood and paid required fee and availed the services provided by opposite parties 1 and 2. A person who availed services for his livelihood cannot be considered as commercial purpose. The complainant started Rajiv Internet Centre not to generate profits but for their livelihood. Therefore, it is not a commercial purpose and the complainant is a consumer within the meaning of Section 2 (1) (d) of the Act and the present complaint filed by the complainant is maintainable.



17. The learned counsel for the opposite parties further argued that opposite parties agreed to provide services whatever services are provided by the commissioner of E.D.S. Government of Andhra Pradesh to the opposite parties 1 and 2 and the complainant is also aware of it. The opposite parties never promised to provide 1 to 64 services and there is no deficiency in service on the part of the opposite parties. He further argued that the fee paid by the complainant is non-refundable and therefore the complainant is not entitled to claim refund of the fee. He further argued that the securing premises and arranging furniture for starting the centre and if the complainant sustained losses it is not the responsibility of the opposite parties and the opposite parties are not liable to pay the amounts claimed by the complainant under various heads in the complaint.



18. In the project information document marked as Ex.A10 opposite parties 1 and 2 mentioned what are the services they are going to provide at the Kiosk. There are more than 25 services. As per the agreement Ex.A4 there are certain obligations on the licensor i.e., opposite parties 1 and 2 and some on the licensee i.e., the complainant to perform. As per clause 1.4 of the agreement, the licensor shall provide all the possible Government services as and when made available by the E.D.S. New private services will also be made available to the Franchise on regular basis as and when signed with service channel partners. But the opposite parties have not taken any steps in that direction to help the Franchisee.

Through the project information document opposite parties 1 and 2 promised to provide number of services and attracted by the same unemployed youth invested huge amounts to start Internet centers. Opposite parties 1 and 2 ought not have made promises when they are unable to provide services to the consumers. It amounts to deficiency in service on the part of the opposite parties. The opposite parties opposed the claim of the complainant on the ground that as per the agreement entered into between the parties the deposit/fee is non-refundable. We are of the opinion that the agreement Ex.A4 is unilateral agreement. The clause that fee is non refundable is against public policy. If the complainant fail to perform his obligations in terms of agreement fee paid by him is not refundable. If opposite parties fail to perform their obligations they are liable to refund the fee. In the present case opposite parties fail to provide services as per the project information document and the agreement. Documents filed by the complainant shows that opposite parties invited the complainant on an attractive proposal of advertisement for which it was not capable of implementing it in accordance with proposal. Therefore, opposite parties are liable to refund the deposit/fee to the complainant.



19. So far as, the other amounts claimed by the complainant towards the expenditure incurred by the complainant for securing a building, for renovating it, and for purchase of furniture the complainant is not entitled since the complainant spent the above amounts for running his Internet centre. The complainant cannot claim the losses sustained by her while running the centers. Therefore, the other amounts claimed by the complainant are disallowed.



20. So far as OP.3 is concerned there is no privity of contract between the complainant and OP.3 and the agreement is only between the complainant and opposite parties 1 and 2. Therefore, case against the OP.3 is liable to be dismissed.



21. In the result, petition is allowed in part directing the opposite parties 1 and 2 to refund the deposit amount of Rs.2,25,000/- to the complainant and also to pay Rs.2,000/- towards costs of litigation to the complainant within One month from the date of order failing which, the amount carries interest @ 9% p.a., till the date of payment. Petition against OP.3 is dismissed without costs.