Judgment:
M. THANIKACHALAM J.
1. The opposite parties in OP.No.65/2003, on the file of District Forum, Tirunelveli, having suffered an adverse order, have come to this Commission, to erase the same, as appellant.
2. The complainant/ respondent has filed a case before the District Forum, seeking certain reliefs, interalia contending that he had applied to the 2nd respondent, expressing his willingness to establish Maruthi Authorised Service Station (MASS), by depositing a sum of Rs.1500/-, that as instructed in LOI, he had remitted the sum of Rs.10000/-, that he having fulfilled all the necessary requirements for MASS, the opposite parties have failed to issue necessary orders, thereby they have committed breach of agreement, which should be construed as deficiency in service, that by the negligent act of the opposite parties, he had incurred loss, suffered mental agony, etc., and that therefore they should be directed to refund the application fee of Rs.1500/-, that they should be further directed to return the security deposit of Rs.10000/-, and a further sum of Rs.40000/-, spent for the improvement made, and that a sum of Rs.1 lakh being compensation.
3. The appellant/ opposite parties, by filing their written version, opposed the complaint, as if the same is not maintainable, because the complainant is not a consumer, and that the Forum has no jurisdiction, that the complainant has failed to perform his duties as agreed under the agreement, despite reminders, which should follow, there is no breach of agreement or any negligent act on their part, thereby prayed for the dismissal of the complaint.
4. The District Forum, though the opposite parties have not appeared before the District Forum to contest the case, took the complaint of the complainant to decide on merit. In this effort, the District Forum has exhibited Ex.A1 to A16, as well as Ex.B1 to B7. The evaluation of the above materials, including the pleadings, brought to surface that the complainant has made out a case, that the opposite parties have committed deficiency in service by their negligent act, and having done so, they are not entitled to retain the application fee and security deposit. Thus concluding, a direction came to be passed on 20.12.2005, which is under challenge before this Commission.
5. Heard the learned counsel appearing for the appellant, perused the documents, written submissions as well as the order of the District Forum.
6. The learned counsel for appellant contended, at the first instance that since no sufficient opportunities were given to the opposite parties to put forth their case, they should be given an opportunity by remanding the matter after setting aside the order of the District Forum. It is the further submission that since there are materials even to decide the case on merit, this Commission, even without remitting back the case, it can even be decided on merit.
7. In order to support the second contention of the arguments, our attentions were drawn to various documents. In order to make out a case, how the complainant has committed breach of contract, how the complainant is not a consumer, and how the consumer forum has no jurisdiction to decide the case, which are not challenged by the respondent, either by filing written arguments or by arguing the case on merit, despite number of opportunities were given. Having heard the submissions of the learned counsel for appellant, by going through the documents available on record, as well as the nature or the dispute between the parties, we were of the view that the case can be very well decided by this Commission itself on merit, without remanding the same, and therefore elaborate submissions were made by the learned counsel for appellant to set aside the order of the District Forum.
8. It is the submission of the learned counsel for appellant that the respondent is not a consumer as defined under the Act, even as per the pleadings, which were raised in the written version, not properly considered by the District Forum. By going through the definition, as well as the nature of business, for which an agreement has been entered into between the parties, we are inclined to accept the submissions of the learned counsel for appellant. In order to maintain a consumer dispute before the consumer Forum, the complainant must be a consumer, and he should come either within the meaning of consumer as defined under Sec.2(1)(d), further making out a case of deficiency in service, or establishing unfair trade practice etc.
9. Admittedly, the complainant has not purchased any goods for consideration, and therefore there is no possibility of himself coming under Sec.2(1)(d)(i). Sec.2(1)(d)(ii) relates to hire of service. As disclosed by the documents, which we are going to discuss infra, the complainant has not hired the services of the opposite parties, either for consideration paid, or promised to pay. Therefore, he also will not come within Sec.2(1)(d)(ii) of the Act. Even assuming that there was some service element involved between the parties, in this case, the complainant should be excluded under later portion Sec.2(1)(d)(ii) of the Act, which says âbut does not include a person who avails of such service for any commercial purposeâ. For commercial purpose, explanation is also appended under Sec.2(1)(d) of the Act, which says, if the service hired is used exclusively for the purpose of earning livelihood, by means of self-employment be will be a consumer. By going through the complaint, we are unable to find any such pleadings, such as he attempted to establish MASS, by entering into an agreement with the opposite parties, only for the purpose earning his livelihood, by means of self-employment. In the absence of such pleadings, considering the commercial nature, it should be held that the establishment of MASS was intended only for the commercial purpose, and in this view, even assuming that there was some element of service for consideration, the complainant will not come within the meaning of consumer. Unfortunately, the District Forum, though these points were elaborately raised in the written version, has failed to discuss the same, and give finding, whereas reiterating the documents once again, as if averments available therein are fully acceptable, established the case of the complainant erred in coming to the conclusion that the complaint is maintainable, or the complainant is a consumer. So far as the territorial jurisdiction is concerned, we feel because of the part of cause of action had arisen, where the complainant has residence, and the for a has jurisdiction and in this view, we are unable to find any fault, in deciding the case by the District Forum, and in fact on this point no acceptable argument was also advanced. Assuming the complaint could be entertained, let us see whether any case has been made out to say that there was deficiency in service.
9. The complainant being a motor mechanic having auto Garrage, and on seeing an advertisement in Dhinamalar Daily, on 19.3.2001, under the original of Ex.A1, applied to the opposite parties, to consider his claim to chose his Garrage for authorization, giving biodata also under Ex.A2. At that time, he had also deposited a sum of Rs.1500/-, not in dispute. Upon consideration, the opposite parties have issued letter of intent for Maruthi Authorised Service Station on 18.6.2001 (Ex.A3), imposing certain conditions, and one of the conditions, as pointed out by the learned counsel for appellant, which is said to have been breached by the complainant reads âYour workship should be ready in all respects for activation within three months from the date of issuance of this letter of intent , otherwise this letter will be treated as cancelled without any reference to you. You will provide us a report fortnightly giving details of the progress made till activation in the prescribed format. General guidelines alongwith relevant information is given in the booklet enclosedâ. It is the submission of the learned counsel for appellant that the above said conditions were not at all complied with, inspite of repeated reminders, and to buttress the above submissions, our attention was drawn to Ex.A7. Under Ex.A7, a requisition was made to make ready the workshop, failing to comply the conditions, the amount deposited also shall not be refunded, which reads âFurther please note that in case you are not in a position to make your workshop ready for activation within 15 days from the date of this letter, we will take necessary action to cancel LOI and he amount of Rs.10000/- submitted to us also will not be refunded as per clause No.19 of our Letter of Intent duly signed by you. This is for your information pleaseâ . As submitted by the learned counsel for the appellant, though orientation programme was conducted for MASS applicants, for three days, the complainant has not fulfilled the above quoted conditions, and therefore they were unable to comply the demands of the complainant. As seen from Ex.A10 on 26.3.2002, a communication was sent by the opposite parties, directing him to send fortnight format, sent to him, alongwith LOI, in order to assess he status of the work in progress, for the proposed service station. When it was reported, the service station is ready, as seen from Ex.A11, they have informed the complainant, that after necessary inspection by one Mr.Venkataramani, further action will be taken. It seems, the complainant has not kept the service station ready, which can be seen from Ex.B7 - letter addressed by the Regional Office of the Maruthi Udyog Ltd., based upon the inspection report of Mr.R. Venkataramani. They have given five reasons for canceling the Letter of Intent, and according to them the complainant has not modified the existing workshop, and the present workshop looks like roadside Garrage, and therefore recommended for cancellation, and accordingly cancelled as seen from Ex.A12. Therefore, the contention of the complainant in the complaint, that without assigning any reason LOI was cancelled is baseless, and it is specifically stated in the letter dt.18.09.2002, that the complainant has failed to comply with the terms and conditions of LOI and no progress towards activation of MASS, within the stipulated period has been made. As per clause 19 of the LOI, the amount stands forfeited, if the applicant fails to complete all the activities towards activation within the stipulated period, as prescribed thereunder. Thus it is seen from the documents available on record, which were received by the complainant himself, that he had not acted as per letter of intent for Maruthi Authorised Service Station and in fact he had committed breach of contract. A person, having committed breach of contract, is not entitled to accuse the other party, viz. opposite parties, as if they have committed deficiency in service, and therefore they should be directed to refund the amount, as well they should pay compensation also.
10. The District Forum, without considering the clauses available in the LOI, as well as the correspondence, which informed about the non-compliance, in our considered opinion, has committed a grave error, as if the opposite parties have no authority to forfeit the amount or, they have committed deficiency in service. Further conclusion of the District Forum, that the opposite parties have not explained under what authority they have cancelled the LOI or forfeited the amount, would go to show that the District Forum has not properly studied or analysed Ex.A3. A person, who had committed breach of contract, is not entitled to approach the Consumer forum, as if the complainant did everything, whereas alleging that the opposite parties have committed deficiency in service, seeking compensation. The District Forum probably taking into account the opposite parties have not come to the Forum in person and contested the case, having failed in its duty to appreciate the documents available on record, landed in an error, thereby illegally issued a direction also, which are liable to be set aside.
11. In the result, the appeal is allowed, setting aside the order of the District Forum in OP.No.65/2003 dt.20.12.2005, and the complaint is dismissed. Considering the facts and circumstances of the case, there will be no order as to cost throughout.
Registry is directed to handover the Fixed Deposit Receipt, made by way of mandatory deposit, to the appellant, duly discharged.