DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION ERNAKULAM

       Dated this the 19^th day of December, 2023.                                                                                         

                           Filed on: - 09/03/2020

PRESENT

Shri.D.B.Binu                                                                          President

Shri.V.Ramachandran                                                              Member Smt.Sreevidhia.T.N.                                                             Member     

CC NO: 109/2020

COMPLAINANT

Vinoj M K, S/o Krishnankutty, Moleth House, Vadakodu P.O.,Kangarappady, Pin-682021.

(Rep.  by Adv. Sreejith C.)

VS

OPPOSITE PARTIES

1. Just Dial Ltd no.25, AGT Business Park, 3^rd Floor, Avinashi Road, Coimbatore, Pin-641014 Tamil Nadu. (Registered office)
2. Just Dial Ltd, Karthi arcade Near Udyaan Convention Centre, Vennala, Kochi Pin-682028, Represented by its Manager Mr.Shiju Joseph.

F I N A L   O R D E R

D.B. Binu, President.

1.       A brief statement of facts of this complaint is as stated below:

The complaint was filed under Section 35 of the Consumer Protection Act, 2019. The brief facts, as stated in the complaint, are from a self-employed person who runs a battery shop, 'Sreelakshmi Auto Electricals.' The complaint is against two parties: the first, a provider of vendor information services through the Internet and telephone, and the second, their local agent in Kochi. The complainant subscribed to Just Dial's services in May 2019, hoping to boost his business. He authorized monthly payments of Rs 2201 from his bank account, but despite the promise of increased business, saw no significant improvement.        

By November 2019, dissatisfied with the service, he decided to cancel and submitted an ECS stop request, which was acknowledged by Just Dial. However, the debits continued, including additional bouncing charges. Repeated communications with the parties and the bank were fruitless and often met with vague or unhelpful responses, causing the complainant mental anguish.

The complaint highlights the perceived deceptive practices of the parties in continuing to debit funds despite the cancellation request and seeks intervention from the commission. The complainant requests the commission to order a stop to the debits from his account and seeks compensation of Rs 100,000 for mental agony and harassment, along with sufficient costs.

2).  Notice

          The Commission issued notices to the opposite parties, which were duly received by them. The opposite parties submitted their versions.

3).  THE VERSION OF THE OPPOSITE PARTIES NO.1&2

The complainant is a battery shop owner. Just Dial, a public limited company with a 20-year history, provides local search-related services across India. The opposite parties stated that the complaint is frivolous, false, baseless, and an abuse of the legal process, aimed at defaming and damaging Just Dial's reputation.

Just Dial asserts that the complainant voluntarily chose their services, fully understanding the terms and conditions. The complainant entered into a contract with Just Dial for paid advertising services, agreeing to the terms, including the automatic renewal clause and the process for terminating the Electronic Clearing Service (ECS).

The opposite parties claim that the complainant did not adhere to the contractual obligation of providing a three-month written notice for ECS termination after a minimum tenure of nine months. Just Dial contends that they provided adequate services as per the agreement, citing the provision of 1211 enquiries to the complainant.

Regarding the complainant's attempts to stop ECS, Just Dial states that they waived the three-month notice to one month upon request. However, the opposite parties emphasize that the complainant failed to confirm the ECS stop at the end of the notice period, which led to the continuation of the service and associated charges.

Just Dial argues that the complainant is not a consumer within the meaning of the Consumer Protection Act since the services were availed for commercial purposes. The opposite parties submitted that the complaint lacks merit and is not maintainable in the commission. The opposite parties suggest that any disputes should be settled through arbitration as per the arbitration clause in their terms of service.

Finally, Just Dial denies all allegations of deficiency in service and maintains that all actions were in line with the agreed contractual terms. The opposite parties request the dismissal of the complaint with costs, asserting that the complainant has received all due services against the payments made and that the allegations are baseless and driven by malafide intentions.

4). Evidence

          The complainant had filed a proof affidavit and 5 documents that were marked as Exhibits-A-1 to A 5.

Exhibit-A-1: A copy of reply mail dated 23-11-2019.

Exhibit A2: A copy of the Email dated 23-11-2019.

Exhibit A3: A copy of the Email dated 23-01-2020.

Exhibit A4: A copy of the Email dated 19-02-2020.

Exhibit A5: A copy of the Bank Statement of the complainant.

The opposite parties had filed a proof affidavit and 7 documents that were marked as Exhibits-B-1 to B 7.

Exhibit-B-1: A copy of the authorization letter.

Exhibit B2: A copy of the customer receipt.

Exhibit B3: A copy of the feedback report.

Exhibit B4: A copy of the Invoice.

Exhibit B5: A copy of the Terms of Service.

Exhibit B6: A copy of the Terms of Service.

Exhibit B7: A copy of the feedback report.

5) The main points to be analysed in this case are as follows:

i)       Whether the complaint is maintainable or not?

ii)      Whether there is any deficiency in service or unfair trade practice from the side of the opposite party to the complainant?

iii)     If so, whether the complainant is entitled to get any relief from the side of the opposite party?

iv)     Costs of the proceedings if any?

6)      The issues mentioned above are considered together and are        answered as follows:

                           In the present case in hand, as per Section 2(7) of the Consumer Protection Act, 2019. The counsel for the complainant in this case presents several arguments, summarized as follows:

1. Background and Issue: The complainant, a self-employed individual running a battery shop, availed services from the first opposite party (OP), a vendor information provider, with the second OP acting as their agent in Kochi. Despite the complainant's request to stop the Electronic Clearing Service (ECS) payments as early as November 23, 2019, the OPs continued to debit his account until March 2020, causing significant mental distress.
2. Proof and Exhibits: The complainant provided a proof affidavit and exhibits A1 to A5 to support his case. Despite acknowledging the ECS stop request, the OPs continued debiting the account, indicating a lack of transparency and fairness in their service.
3. Admission by OPs: The OPs admitted to the transaction with the complainant. They initially agreed to stop the ECS within one month from November 23, 2019, but failed to do so until March 2020, which the complainant's counsel argues is a wilful disregard of their agreement.
4. Ambiguity and Negligence: The responses from the OPs (Exhibits A1, A2, and A3) were ambiguous and inconsistent, causing confusion, particularly given the complainant's educational background (up to SSLC). The counsel argues that this ambiguity is intentional and deceptive.
5. Failure to Act on ECS Stop Request: The OPs, despite acknowledging the ECS stop request, continued to debit the complainant's account, which the counsel argues is arbitrary and illegal. They also failed to instruct their executives to assist the complainant in resolving the issue.
6. Continued Financial Burden: Despite repeated requests and acknowledgments, the ECS was not stopped, adding to the complainant's distress, as shown in the bank statements (Exhibit A5).
7. Jurisdictional Argument: The counsel refutes the OPs' claim that the consumer authority lacks jurisdiction due to an arbitration clause in the service terms. Citing a Supreme Court ruling, they argue that a consumer earning a livelihood from a business can seek remedy from this authority for service deficiencies, regardless of any arbitration clause.

            In conclusion, the counsel for the complainant requests that the authority consider the mental harassment and service deficiencies faced by the complainant and award suitable compensation under the provisions of the Consumer Protection Act.

                  The counsel representing the opposite parties argued that the complainant used the services of the Opposite Party Company for business purposes, without providing any proof to suggest otherwise. They pointed out that under Section 2(7) of the Consumer Protection Act 2019, the complainant does not qualify as a consumer since the services were used for profit-making. Consequently, they asserted that the Opposite Party Company should not be a party to this complaint, as it involves a commercial transaction. Therefore, they concluded that this honorable Commission lacks jurisdiction over this matter and the complaint against the Opposite Party Company is not valid.

          In the present case, in accordance with Section 2(7) of the Consumer Protection Act, 2019, a consumer is defined as a person who purchases goods or acquires services in exchange for a payment made, promised, partially paid, partially promised, or through a deferred payment system. Additionally, it encompasses any beneficiary of such services, excluding the original purchaser, when these services are obtained with the approval of the initial purchaser. However, this definition excludes individuals who obtain such services for purely commercial purposes.

Furthermore, for the purposes of this definition:

1. The term "commercial purpose" explicitly excludes the use of goods acquired by a person, which are utilized exclusively for the purpose of sustaining their livelihood through self-employment. (2(7) (ii) (a).

As a self-employed individual operating 'Sreelakshmi Auto Electricals,' a battery shop, the issue at hand concerns a service used by the complainant for business purposes. The Consumer Protection Act, 2019, makes an exception in defining a consumer: those engaged in commercial activities or using services for such purposes do not fall under this definition. Therefore, since the complainant's activities are business-related, they do not qualify as a consumer under Section 2(7) of the Act, 2019. The aforementioned issues are unfavourable to the complainant. Consequently, this complaint is not maintainable and is dismissed. No costs.

Pronounced in the Open Commission on this the 19^th day of December, 2023.

Sd/-                      

D.B.Binu, President

Sd/-  

V. Ramachandran, Member

Sd/-

Sreevidhia.T.N, Member

Forwarded/By Order

 Assistant Registrar

APPENDIX

Complainant’s evidence

Exhibit-A-1: A copy of reply mail dated 23-11-2019.

Exhibit A2: A copy of the Email dated 23-11-2019.

Exhibit A3: A copy of the Email dated 23-01-2020.

Exhibit A4: A copy of the Email dated 19-02-2020.

Exhibit A5: A copy of the Bank Statement of the complainant.

Opposite party’s evidence

Exhibit-B-1: A copy of the authorisation letter.

Exhibit B2: A copy of the costumer receipt.

Exhibit B3: A copy of the feedback report.

Exhibit B4: A copy of the Invoice.

Exhibit B5: A copy of the Terms of Service.

Exhibit B6: A copy of the Terms of Service.

Exhibit B7: A copy of the feedback report.

kp/

Despatch date:

By hand:                                                                        

by post:           

                                                                             C.C. No. 109/2020

                                                                        Order date: 19/12/2023