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Judgment
Dr. Inder Jit Singh, Presiding Member
The present Revision Petition (RP) has been filed by the Petitioner(s) against Respondent as detailed above, under section 21(b) of Consumer Protection Act 1986, against the order dated 14.11.2017 of the State Consumer Disputes Redressal Commission, West Bengal (hereinafter referred to as the ‘State Commission’), in First Appeal (FA) No.1467/2014 in which order dated 24.11.2014 of District Consumer Disputes Redressal Forum, Kolkata Unit II (hereinafter referred to as District Forum) in Consumer Complaint (CC) no 101/2014 was challenged, inter alia praying to set aside the order of the State Commission and restore the order of District Forum.
While the Revision Petitioner(s) (hereinafter also referred to as OPs) were Respondents and the Respondent (hereinafter also referred to as Complainant) was Appellant in the said FA/1467/2014 before the State Commission, the Revision Petitioner(s) were OPs and Respondent was Complainant before the District Commission in the CC no 101/2014
Notice was issued to the Respondent. Parties filed Written Arguments/Synopsis on 05.03.2022 (Respondent/Complainant) and 04.08.2023 (Petitioners/OPs) respectively.
Brief facts of the case, as emerged from the RP, Order of the State Commission, Order of the District Commission and other case records are that:
The complainant subscribed to "The Times of India" (TOI), Kolkata edition, for one year starting from 29-03-2013. The subscription was paid in cash for Rs. 470/- for the period from April 2013 to March 2014. The complainant received the TOI by Sunday through a local vendor named Mr. Manotosh Dutta at his residence, and this service continued from 01-04-2013 to 10-01-2014. However, on 11-01-2014, Mr. Dutta ceased delivering TOI and STOI copies to the complainant's residence without providing any valid reason or notice. When the complainant inquired, Mr. Dutta indicated that he was acting on the instructions of the opposite parties (OPs). The complainant attempted to address this issue by writing a letter to the OPs, requesting them to take necessary action. The complainant's attempts to resolve the issue by communicating with the OPs through written correspondence proved unsuccessful. This lack of resolution prompted the complainant to initiate the formal complaint.
Vide Order dated 24.11.2014, in the CC no. 101/2014 of the District Forum has dismissed the complaint.
Aggrieved by the said Order dated 24.11.2014 of District Forum, Petitioner(s) appealed in State Commission and the State Commission vide order dated 14.11.2017 in FA No.1467/2014 has allowed the complaint and directed OPs to pay a sum of Rs. 25,000/- @ 9% p.a. as compensation to the complainant.
Petitioner(s) have challenged the said Order dated 14.11.2017 of the State Commission mainly on following grounds:
(i) The Commission incorrectly concluded that the Complainant is a 'Consumer' of the OPs’. This designation is not appropriate since the cheque for Rs. 470/- and cash of Rs. 20/- were returned, which means the Complainant cannot be considered a consumer under the Consumer Protection Act, 1986. The Complainant did not provide any evidence, such as a bank statement or bank certificate, to prove that the Rs. 470/- cheque was encashed by the OP. As no consideration was received by the OP, and no coupons were issued to the Complainant, as the cheque was returned, the transaction for hiring and purchasing services was never completed. In case of Morgan Stanley Mutual Fund v. Kartick Das (1994) 4 SCC 225, where it was held that :
· 26. The consumer as the term implies is one who consumes. As per the definition, consumer is the one who purchases goods for private use or Consumption. The meaning of the word 'consumer' is broadly stated in the above definition so as to include anyone who consumes goods or services at the end of the chain of production……
Therefore, it is after allotment, rights may arise as per the contract (Article of Association of Company). But certainly not before allotment. At that stage, he is only a prospective investor (sic in) future goods.……. If regard is had to the definition of complaint under the Act, it will be clear that no prospective investor could fall under the Act”
(ii) The State Commission made a legal error by claiming that the OPs failed to prove that the cheque and cash were returned to the Complainant without considering the full evidence on record. Both Mr. Sankar Kayal (RRE/ Reader Relationship Executive) (Distributor) and Mr. Manotosh Dutta, the local vendor, submitted their affidavits before the District Forum. Mr. Sankar Kayal explicitly stated that the cheque and cash were returned to the Complainant. Furthermore, Mr. Manotosh Dutta affirmed that he supplied newspapers to the Complainant without any interruption from 01.04.2013, to 31.03.2014, and the Complainant neither paid in cash nor used coupons. The Complainant was informed that the period for availing the annual subscription of the newspaper at a subsidized rate had expired. Regardless, the Complainant was not entitled to the scheme after the subscription period ended. Furthermore, the State Commission's conclusion that the OP didn't provide a reason for the cheque's return by the bank is based on an erroneous premise. There is no claim that the cheque was defective in nature, and it is apparent that the cheque was never presented to the bank.
(iii) The Complainant never raised any complaint before the supply of the newspaper was allegedly stopped, and he never mentioned that coupons were not issued to him. The Complainant himself received copies of the newspaper STOI from 01.04.2013 to 10.01.2014, so its finding that 52 copies of STOI were not supplied is clearly flawed. The Complainant concealed the fact that the cheque for Rs. 470/- was never encashed by the OP but was duly returned. Moreover, the Complainant did not produce any document to substantiate the terms and conditions of the offer he claims to have subscribed to, which might have clarified that the Complainant would receive the newspaper upon presenting the coupon to the local vendor. The conclusion reached by the State Commission is solely based on the allegations made by the Complainant, and there is no supporting evidence on record. This disentitles the person approaching a consumer forum from receiving relief. The Complainant filed the present complaint to take advantage of his own wrongdoing and extract unlawful gains at the expense of the OP. The Complainant never once raised any complaint with the OP regarding the non-issuance of coupons. He even concealed the material terms of the scheme in his complaint, which required subscribers to pay for the scheme, in return for which they would be issued coupons. The Complainant's deliberate silence on the coupon system might have revealed a dishonest intention to benefit from the newspaper supplies without paying for them. Reliance is placed on the judgement of Neelam Gupta vs. Reliance Life Insurance & Anr. I (2011) CPJ 241 wherein it was held that material suppression of facts of case would disentitle the person approaching consumer Forum from claiming any relief.
(iv) The State Commission erroneously granted the Complainant a benefit based on the premise that one cannot be expected to keep records of each and every cheque. This finding is contrary to the evidence presented. The Complainant mentioned in a questionnaire to the OPs’ that he had details of four different cheques, including their active cheque numbers and the bank details. The State Commission, without substantiating its finding with the facts, relied solely on conjecture. It erroneously concluded that the complainant subscribed to the newspaper for the first time in 2013, suggesting he might be ignorant of the coupon system. However, the Complainant stated in his response to a question in the OPs' questionnaire that he had been reading "The Times of India" and "The Sunday Times of India" at subsidized prices for six years or more until March 2014, indicating his awareness of the coupon system. The Complainant enjoyed the newspaper's publication for 239 days without making any payment. The District Forum rightly acknowledged this and held that the complaint was vexatious. The Complainant is not a consumer in view of the fact that he did not pay the entire subscription amount but enjoyed 239 copies of "The Times of India" practically free of cost.
(v) The aspects of supply and distribution of the newspaper are strictly between the consumer and the concerned local vendor or distributor. The OPs’ do not have a principal-to-agent relationship with the distributor/local vendor, and therefore, they cannot be held liable for the actions or omissions of the distributor/local vendor. This principle was upheld by the National Commission in the case of Maruti Udyog Ltd vs. Nagender Prasad Sinha & Anr. and by the Hon’ble Supreme Court in the case of Indian Oil Corporation vs. Consumer Protection Council, Kerala, and others. The State Commission should have noted that the complaint deserved to be dismissed at the outset due to the non-joinder of necessary parties and misjoinder of parties. The Complainant should have included Mr. Sankar Kayal, the RRE (Distributor), and Mr. Manatosh Dutta, the local vendor, as necessary parties for a proper adjudication of the case since the prayers in the Complaint could not be accepted against the OPs’, who lack a principal-to-agent relationship with the local vendor and RRE (Distributor). The State Commission erred in not appreciating that the Complainant's complaint was concocted with the motive to gain unlawful profits from the OPs’, resulting in unjust enrichment.
Heard counsel for Petitioner. Delay of 1 day in filing the RP, as calculated by the Registry is condoned. Keeping in view the continuous absence of Respondent, he was proceeded ex parte. Contentions/pleas of the parties, on various issues raised in the RP, Written Arguments, and Oral Arguments advanced during the hearing, are summed up below.
(i) The counsel for Petitioner/OP argues that the Respondent/complainant alleged that he paid for an annual subscription of "Times of India" (TOI) and "Sunday Times of India" (STOI) from March 2013 to April 2014. The payment was made through a Rs. 470/- cheque for TOI and a Rs. 20/- cash payment for STOI. Despite being informed that the subscription period had expired, the complainant insisted on placing an order with a condition that the payment would be returned if not accepted. The complainant paid Rs. 490/- (Rs. 470/- by cheque for TOI and Rs. 20/- in cash for STOI) to the Direct Sales Associate/Reader Relationship Executive (RRE), who conveyed the payment to the OPs’ Result and Market Development department. The order was rejected due to the subscription period's expiry, and the cheque and cash were returned to the complainant by the RRE. The subscription scheme involved receiving 12 coupons for 12 months. However, the complainant did not receive any coupons for the subscription, and he did not report the non-delivery of coupons to the OP. The complainant continued to receive newspapers from the Local Vendor, Mr. Manatosh Dutta, who filed an affidavit confirming uninterrupted supplies from 01.04.2013, to 30.03.2014, with no payment made by the complainant.
(ii) On 29.01.2014, the complainant filed a complaint with the OPs, claiming that newspaper supplies ceased from 11.01.2014. The OPs acted on the complaint, contacting the Local Vendor, who revealed that he had been supplying newspapers to the complainant, and the complainant failed to provide the monthly coupon for payment. The OPs' responsibility is limited to printing and publishing the newspaper, and they cannot be held liable for the actions of the RRE or the Local Vendor, as they lack a principal-to-agent relationship. Throughout the proceedings, the complainant failed to provide evidence of payment for the newspapers. The District Forum, in its order dated 24.11.2014, dismissed the complaint filed by the Complainant. It held that the Complainant did not qualify as a consumer under Section 2(1)(d) of the Consumer Protection Act, 1986, as no payment was made by the Complainant for 239 days of newspaper supplies. Additionally, a penal cost of Rs. 5,000 was imposed on the complainant for submitting a vexatious and fabricated complaint. An appeal was filed against this order, and the State Commission, in its order dated 14.11.2017, allowed the appeal and directed the OPs to pay the Complainant Rs. 20,000 as compensation. The OPs were given 45 days to comply, and in case of default, they would be liable to pay 9% p.a. simple interest on the amount of Rs. 25,000 for the entire default period.
(iii) The counsel for OPs argues that the Petitioners/OPs are primarily involved in newspaper publication and printing, subscribers purchase newspapers from vendors, who, in turn, obtain them from distributors. The vendors then distribute the newspapers to readers in various localities. The OPs have no direct involvement in distribution or stopping newspaper deliveries, and they lack a principal-to-agent relationship with the vendors. The State Commission mistakenly concluded that the Complainant was a consumer under the Consumer Protection Act, 1986, based on the issuance of a cheque. However, since the payment was never made, the intention to pay was not realized, and no consideration passed to the OPs. Hence, the Complainant should not be considered a consumer in this context. The State Commission's conclusion that the OPs failed to prove that the cheque was returned was based on incorrect information. Affidavits of the RRE and Local Vendor were filed before the District Forum, which clearly stated that the cheque and cash were returned. The Complainant did not produce any evidence to prove that the cheque was encashed. Furthermore, no complaint was made regarding the non-receipt of coupons, which would have revealed the expiration of the subscription period and the Complainant's knowledge of the coupon system.
(iv) The counsel for Petitioner/OP relied on several judgements:-
(a) Morgan Stanley Mutual Fund v. Kartick Das (1994) 4 SCC 225;
(b) Neelam Gupta vs. Reliance Life Insurance & Anr. I (2011) CPJ 241;
(c) Maruti Udyog Ltd vs. Nagender Prasad Sinha & Anr. MANU/CF/0292/2009;
(d) Indian Oil Corporation vs. Consumer Protection Council, Kerala, and others. MANU/SC/0578/1994.
(v) The Respondent/complainant in its written arguments/synopsis stated that the District Forum's reliance on hearsay evidence from Sri Sankar Kayal and Sri Manotosh Dutta, who were not parties in the proceeding, was erroneous. Furthermore, the District Forum erred by not allowing the Complainant to cross-examine Sheikh Mohammed Ali, the authorized representative of the Petitioners/OPs, who was present as a witness. It is established that on 29.03.2013, the RRE of the OPs, Sri Sankar Kayal, received a cheque and cash totaling Rs. 490 from the Complainant for newspaper subscriptions. The OPs supplied the newspapers until 10.01.2014, after which deliveries ceased. The Complainant's letter to the OPs on 20.01.2014 received no response, leading to the filing of the complaint. After receiving summons from the District Forum, the OPs resumed deliveries on 21.03.2014, and conversations between both parties indicated an intention to resolve the matter agreeably. On 02.05.2014, the OPs claimed that the cheque had been returned to the Complainant, but no evidence was presented to support this. They failed to explain the continued delivery of newspapers or account for the Rs. 20 subscription for STOI. The OPs did not object to the initial payments made by the Complainant, effectively admitting to their receipt. However, they did not respond to the questions posed by the Complainant to Sri Sankar Kayal and Sri Manotosh Dutta, making their later affidavits questionable. The OPs' belated assertion that the cheque was returned to the Complainant is implausible and lacks credibility. It is unlikely that a reasonable person would accept this claim made after an unreasonably long period and well beyond the usual time of cheque clearance.
(vi) Respondent/complainant further states that the State Commission's decision in F.A. No. 1467/2014, dated 14.11.2017, is well-founded and based on sound findings of fact. The State Commission, as a competent fact-finding authority, arrived at a correct conclusion. No apparent errors of jurisdiction, fact, or law are evident. The provisions of the Negotiable Instruments Act, 1881, particularly Section 118, establish several presumptions related to negotiable instruments. One of these presumptions is that every negotiable instrument is presumed to have been made for consideration. This presumption stands unless proven otherwise. It is vital to note that the burden of proof lies with the party asserting the absence of consideration. If this initial burden isn't met, the benefit of the presumption under Section 118(a) works in favor of the other party. The District Forum failed to appropriately consider these provisions of law when rendering the impugned order. In contrast, the State Commission correctly applied the law and made its decision on 14.11.2017, in F.A. No. 1467/2014 by allowing the appeal. This decision aligns with established legal principles and the provisions of the Negotiable Instruments Act, resulting in a well-reasoned and just outcome.
(vii) The Respondent/complainant relied on following judgements:-
(a) Mallavarapu Kasivis Weswara Rao vs. Thadikonda Rarula Firm & Ors. (2008) 7 SCC 655, the Hon’ble Supreme Court held that:
"17.………. It is also discernible from the above decision that if the defendant fails to discharge the initial onus of proof by showing the non-existence of the consideration, the plaintiff would invariably be held entitled to the benefit of presumption arising under Section 118(a) in his favour.
………The mere denial, if there be any, by the respondents that no consideration had passed would not have been sufficient and something probable had to be brought on record to prove the non-existence of consideration. In this view of the matter, we are, therefore, of the view that once the execution of the pronote has been proved, the appellant would be entitled to the benefit of the presumption under Section 118(a) of the Negotiable Instruments Act because the respondents had failed to discharge the initial burden and therefore, the High Court was in error in appreciating the evidence of the 14 appellant to come to the conclusion that since such evidence was inconsistent with the pro-note being Ex.A-21, the appellant could not be given the benefit of the presumption.”
(b) In Bharat Barrel and Drum Manufacturing Company vs. Amin Chand Payrelal AIR 1999 SC 1008, it was held by the Hon’ble Supreme Court that
"12………In case, where the defendant fails to discharge the initial onus of proof by showing the non-existence of the consideration, the plaintiff would invariably be held entitled to the benefit of presumption arising under Section 118(a) in his favour. The court may not insist upon the defendant to disprove the existence of consideration by leading direct evidence as existence of negative evidence is neither possible nor contemplated and even if led is to be seen with a doubt. The bare denial of the passing of the consideration apparently does not appear to be any defence. Something which is probable has to be brought on record for getting the benefit of shifting the onus of proving to the plaintiff. To disprove the presumption the defendant has to bring on record such facts and circumstances, upon consideration of which the court may either believe that the consideration did not exist or its non-existence was so probable that a prudent man would, under the circumstances of the case, shall act upon the plea that it did not exist."
(c) Commissioner of Income Tax Bombay South vs. Messrs. Ogale Glass works Ltd. AIR 1954 SC 429,
· "Cheque unless dishonored, is payment. The payment takes effect from the delivery of the cheque but is defeated by the happening of the condition i.e. non payment at maturity"
(d) In Dr. J.J. Merchant & Ors vs Shrinath Chaturvedi (2002) 6 SCC 635, it was held that
“37. …….Similar action is also expected from the National Commission as well as State Commissions. Hence, for avoiding delay in disposal of complaints within prescribed period, National Commission is required to take appropriate steps including:
· (a)...
· (b)...
· (c)...
(d) In cases where cross-examination of the persons who have filed affidavits is necessary, suggested questions of cross-examination be given to the persons who have tendered their affidavits and reply may be also on affidavits………..”
We have carefully gone through the orders of State Commission, District Forum, other relevant records and case laws relied by the parties. OPs in their written reply before the District Forum admitted that complainant had given a cheque of Rs. 470/- in favour of OP-1 against the annual subscription of Times of India (TOI), but stated that OPs returned the said cheque at complainant’s residential address on the very next day through the person, who had booked the subscription. OPs have not given any specific reasons for return of cheque on the very next day. Assuming the cheque was returned by OPs on the very next day, as claimed by OPs, no convincing reasons for continuing with the delivery of newspaper from 01.04.2013 to 10.01.2014 i.e. for about 8 ½ months without receiving any payment from the complainant, have been given State Commission in its order has also noted that there is no specific denial by OPs of having received Rs. 20/- in cash from the complainant towards subscription of Sunday Times of India (STOI), then why complainant was not supplied 52 copies of STOI. State Commission has also observed ‘it is unbelievable that despite non-receipt of requisite subscription, the supply line has not been chocked.’ State Commission has given a well-reasoned order, duly considering various contentions of the OPs, including that of complainant not being a consumer and we find no reason to interfere with it. State Commission has also observed ‘What is more intriguing is that no affidavit was filed before the District Forum either on behalf on 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.’
As was held by the Hon’ble Supreme Court in Rubi Chandra Dutta Vs. United India Insurance Co. Ltd. [(2011) 11 SCC 269] that the scope in a Revision Petition is limited. Such powers can be exercised only if there is some prima facie jurisdictional error appearing in the impugned order. In Sunil Kumar Maity Vs. State Bank of India & Ors. [AIR (2022) SC 577] held that “the revisional jurisdiction of the National Commission under Section 21(b) of the said Act is extremely limited. It should be exercised only in case as contemplated within the parameters specified in the said provision, namely when it appears to the National Commission that the State Commission had exercised a jurisdiction not vested in it by law, or had failed to exercise jurisdiction so vested, or had acted in the exercise of its jurisdiction illegally or with material irregularity.” We find no illegality or material irregularity or jurisdiction error in the order of State Commission and the same is upheld. Accordingly RP is dismissed.
The pending IAs in the case, if any, also stand disposed off.