KAYNE CONSTRUCTIONS PVT. LTD. vs PRINTERS INDIA

THE Complainant has filed this complaint for the refund of Rs. 450/- alleged to have been paid by him to the Opposite Party No. 1 M/s. Printers India for getting his advertisement published in the yellow pages of the 1990 Patna Telephone Directory to be published by Opposite Party No. 2-THE Union of India. THE Complainant has claimed 16% per annum interest thereon and Rs. 1,00,000/- as compensation for the suffering and loss of business due to non-publication of the Directory.

THE Complainant''s case may be noticed with utmost brevity. THE Opposite Party No. 1 was the duly appointed agent of the Opposite Party No. 2 for printing and publishing the 1990 Patna Telephone Directory in English authorising the Opposite Party No. 1 to collect advertisement for being included and published in the Directory at the rates and specification fixed. A copy of the Telephone Directory is supplied free of cost to every telephone subscriber. THE Opposite Party No. 1 took out a brochure of rates and specifications for advertising on the yellow pages in that telephone directory soliciting orders through its agents. On 17.1.91 one Sri Ashok Singh carrying a letter of authority from Opposite Party No. 1 approached the Complainant soliciting advertisements for that directory. That Ashok Kumar Singh informed the Complainant that the Opposite Party No. 1 was duly appointed as agent of Opposite Party No. 2 for the purpose and assured the Complainant that the said directory will be published and distributed to the subscribers by March, 1991. THE Complainant placed his order for one half space advertisement-specification Mark IEHS for Rs. 450/- on the yellow pages of the 1990 directory for which he issued an Account Payee Cheque No. 004952 drawn on the Syndicate Bank, Patna for which Order Form No. 285 was issued to the Complainant by Opposite Party No. 1. THE cheque was encashed and the amount was credited to the account of Opposite Party No. 1. THE Complainant is running hotel business in the name and style of Hotel Sheohar Sadan, Fraser Road, Patna and the advertisement was needed for the convenience of his patrons and customers. THE 1990 English Telephone Directory was not published and therefore, the directory could not be supplied to the subscribers by March, 1991 as assured by the Opposite Party. THE Complainant after March, 1991 through its officer and staff made inquiries from and reminded the Opposite Parties to publish the said directory, but in vain. On 20th August, 1992 the Complainant was shocked to learn that one M/s. Business India Company, Directory Division, 17/19, Dalal Street, Fort Bombay has been appointed as the agent for publishing the 1992 Telephone Directory for and on behalf of the Opposite Party No. 2 which was to be published by the end of December, 1992. Thus the Complainant has not only deprived of Rs. 450/- by Opposite Party Nos. 1 and 2 but has also suffered loss by being deprived of the benefit of the advertisement and thus suffered loss in business. THE Complainant on that ground has filed this case before this Commission for the reliefs mentioned above. On being noticed both the Opposite Parties appeared and controverted the claim of the Complainant.

The Opposite Party No. 2 in its counter version has stated that the Opposite Party No. 2 appointed Opposite Party No. 1 their agent for publication of English Telephone Director for term of three years commencing from 1989 to 1991 under a registered agreement dated 27.1.89. It has been further averred that the Opposite Party No. 1 failed to comply and to act in terms of agreement and hence the Opposite Party No. 2 sent registered letter dated 24.9.90 giving one month''s notice terminating the contract/agreement and the said was confirmed by another registered letter dated 3.11.90. It has been stated by the Opposite Party No. 2 that if the Opposite Party No. 1 after termination of the agreement collected money by taking orders for the advertisements in the Directory it is fraud and criminal offence and that the Opposite Party No. 1 never submitted/furnished any account of the collection made by him for the publication of advertisements in 1990 Directory nor deposited the amount with the Opposite Party No. 2 and hence the Opposite Party No. 2 cannot be held responsible for the same. The Opposite Party No. 2 had denied any knowledge about the deposit of Rs. 450/- by the Complainant with the Opposite Party No. 1. It has been further averred that Clause 8 of the agreement dated 27.1.89 between Opposite Party Nos. 1 and 2 specifically mentions that "The Printer undertakes to clarify to all advertisers that the department is not a party to any agreement between the advertiser and the printer". On these grounds it has been averred by the Opposite Party No. 2 that the department is not responsible for any loss caused to the Complainant by the Opposite Party No. 1 and has annexed with their written version the photo copies of the letters dated 24.9.90 and 23.11.90 terminating the contract with Opposite Party No. 1.

ON behalf of the Opposite Party No. 1, Counter Affidavit of one Loka Prasad Singh, the Managing Partner of Opposite Party No. 1 has been filed controverting the claim of the Complainant mainly on the ground that since cheating and fraud has been alleged by the Complainant against the Opposite Party, the case is not fit to proceed under the provisions of the Consumer Protection Act (hereinafter called the Act) as these allegations require elaborate evidence which cannot be done in a summary proceeding under the Act. It has been further averred by the Opposite Party that the 1990 Directory could not be published in time because whenever manuscript was handed over to the Opposite Party No. 2 for the approval of the proof, the Opposite Party No. 2 returned the same with so many new entries, changes and corrections to the Opposite Party No. 1. The Complainant has filed affidavit of Sri Sachindra Deo Singh its Chief Executive in support of his case. The Opposite Party No. 2 has filed the affidavit of Sri Azhar Jalil Khan, A.E. Legal in the department to support the counter version.

IT appears from the letter produced on behalf of the Opposite Party No. 2 and the afidavit filed on behalf of the Opposite Party No. 2 that the contract between Opposite Party Nos. 1 & 2 for the publication of that 1990 Directory has been terminated by registered letter dated 24.9.90. and 23.11.90. The allegation of the Complainant is that he paid Rs. 450/- to Opposite Party No. 1 on 22.1.91. Under these circumstances on the date the payment was made by the Complainant to Opposite Party No. 1 the contract between Opposite Party Nos. 1 and 2 for the publication of the 1990 Directory stood terminated and hence Opposite Party No. 1 was in no way entitled to collect the same on behalf of the Opposite Party No. 2. Moreover, it appears from the Clause 8 of the contract which has been quoted by Opposite Party No. 2 in their counter version that Opposite Party No. 2 was not concerned with the agreement between the advertisement and that Opposite Party No. 2. Moreover, the Complainant had not hired the services of Opposite Party No. 2. Hence the Opposite Party No. 2 cannot be held responsible for any loss caused to the Complainant by Opposite Party No. 1 But so far the Opposite Party No. 1 is concerned admittedly he had accepted Rs. 450/- from the Complainant giving assurance to him for publication of the advertisement on the yellow papers though Opposite Party No. 1 was not having that authority on that date i.e., on 22.1.91-the date on which the Complainant had placed the order to Opposite Party No. 1, because the contract between the Opposite Party Nos. 1 & 2 had already been terminated by letter dated 21.9.90 and 23.11.90. The Opposite Party No. 1 has thus adopted unfair trade practice in securing the order from the Complainant. Section 2(1)(c) of the Act defines a complaint under the Act and it lays down that complaint means any allegations in writing made by a Complainant that as a result of any unfair trade practice adopted by any trader the Complainant had suffered loss or damage. In the present case the Complainant hired the services of the Opposite Party No. 1 by paying Rs. 450/- for publication of the advertisement on the basis of unfair trade practice adopted by the Opposite Party No. 1 and thus he has been deprived of Rs. 450/- and also put to loss in business. The Complainant is running a hotel for which the advertisement has much value. The Complainant has claimed Rs. 1,00,000/- as compensation for his financial loss. But there is no material to justify this favulous claim of the Complainant. The Complainant is of course entitled to compensation. We are of the opinion that a compensation of Rs. 5,000/- will adequately compensate the Complainant for the loss sustained by him.

UNDER the circumstances the Opposite Party No. 1 is directed to pay back Rs. 450/- to the Complainant with 16% interest per annum thereon from the date of its receipt from the Complainant till the date of its payment to the Complainant. The Opposite Party No. 1 is also being directed to pay Rs. 5000/- only as compensation for the financial loss in business and Rs. 1,000/- one thousand only as compensation for mental anguish to which the Complainant has been put due to this unfair trade practice adopted by the Opposite Party No. 1. The Opposite Party No. 1 is further directed to pay Rs. 500/- as cost to the Complainant.

THE claim of the Complainant against the Opposite Party No. 2, however, is dismissed. Complaint allowed.