DOF.31.7.2009 DOO.4/ 8/2010 IN THE CONSUMER DISPUTES REDRESSAL FORUM, KANNUR Present: Sri.K.Gopalan: President Smt.K.P.Preethakumari: Member Smt.M.D.Jessy: Member Dated this, the 4th day of August 2010 CC.199/2009 C.V.Madhusoodanan, College of Commerce, Stand View complex, Nr.Municipal Bus stand, Kannur. Complainant 1. Managing Director, Vodafone Essar Cellular Ltd., XI 5115 Ashis Building, Shanmugam Road, Kochi 2. Manager, Vodafone Store, Caltex Towers, Opp.Collectorate, Civil Station, P.O., Kannur 2. (Rep. by Adv.B.P.Saseendran) Opposite Parties O R D E R Smt.K.P.Preethakumari, Member This is a complaint filed under sectin12 of consumer protection act for an order directing the opposite party to refund the excess amount received from the complainant along with Rs.10, 000/- as compensation. The case of the complainant is that. He is a post paid subscriber of Vodafone Cellular connection and the date of payment is on 29th of every month. He used to pay a minimum amount of Rs.348/- per month but of which of Rs.299/- as rent and Rs.49/- for messages. But on 26 to 29 of June 2009 the complainant had received a message that “Hello, Pay your bill o9 or before due date (29/6/09) and enjoy 500 local/National SMS free up to 10 July 09. SMS offer will be activated within 48 hours of payment and the complainant had paid the bill on 29.6.09 and became entitled for 500messages. So the complainant is entitled to receive a total message of 1000. But the bill amount of June was Rs.901/- and they have not given 500 message as promised. So they had charged Rs.413.50 for message. So the complainant had contacted the customer care and from there it was informed that since he is in receipt of 500 messages, he is not entitled to get any more messages. Even though the complainant approached the opposite party for several times to correct the bill they are not ready to do so. Even though the complainant had complained before the appellate authority and nodal officer, there was no response. On 30.7.09, the complainant has received a message t the effect that, the payment was due on 29.7.09 for Rs.895.4. So he had paid the bill in order to avoid disconnection. The act of the opposite party that compelling the complainant to issue SMS by saying that it will be an offer and after issuing the message, withdrawing from the offer amounts to deficiency of service and unfair trade practice. Hence the complaint. In pursuance to the notice issued by the Forum, the opposite parties appeared and filed their version. The opposite parties filed version contending that the above complaint is not maintainable since the Hon’ble Supreme court in General Manger, Telecom vs. M .Krishnan and another held that the jurisdiction of the Forum is barred. So the complaint is liable to be dismissed. The complainant is not entitled for the relief as of right since the claimed privilege is gratuitous in nature. Admittedly complainant has not made any consideration for the same. The complainant cannot be sustained in the eyes of law since complainant has no vested rights for the same. Even though complainant has no rights for the relief as per the admitted case of the complainant himself, he could avail the privilege until 10th day of succeeding month. Complainant’s claim for 500 messages without any specification of time cannot be sustained apparently. The complainant was not entitled for any privilege of 500 SMS and further complainant admittedly has not opted for the privilege as per the specified terms and conditions. Complainant does not plead nor proves anything as to the entitlement for 500 free SMS. The bills issued to the complainant were absolutely correct. Complaints of the customers shall be duly resolved by the opposite parties. The connection of the complainant has been barred due to non-payment before due date that too repeated intimation to the subscriber. Complainant was bound to make the bills by payment due date. No wrong message has been given to the complainant. Complainant does not confine his claims to the 10th day of succeeding month. There has been no deception by the company and causing financial loss by the company under any pretext what so ever. The complainant is not entitled for any compensation and hence the complaint is liable to be dismissed. Later on the opposite party was absent and hence he was set exparte. Even though the Forum had set-aside the exparty order passed by the Forum with a condition to pay Rs.200/- towards the legal Aid account, the opposite party has not turned up. Since he has not turned up and has not abides conditions the exparte order against him prevails. Upon the above pleadings the following issues have been raised for consideration:- 1. Whether the complaint is maintainable before the Forum? 2. Whether there is any deficiency of service on the part of opposite parties? 3. Whether the complainant is entitled to any relief? 4. Relief and cost. The evidence consists of the chief affidavit filed by complainant in lieu of chief examination and Exts.A1 to A4. Issue No.1 The complaint is filed for compensation for deficiency of service of Vodafone Cellular Ltd., but according to opposite parties, the above complaint is not maintainable on the basis of the verdict of Apex court in “General Manger, Telecom vs. M. Krishnan and Another. As per this the Apex court is very much clear that since there are special remedy under section 7 B of Indian Telegraph act with respect to the disputes raised in the complaint, the complainant is not entitled to approach the consumer Forum since there is specific bar to invoke the provisions of consumer protection act for relief. The question to be decided in this case is whether the above mentioned ruling of Apex court is applicable to private mobile operators? The Supreme Court judgment was with respect to the Land line telephone provided and managed by BSNL. Section 7 B of Indian telegraph act 1885 is applicable if a dispute arises between the telegraph authority and the person for whose benefit the line or appliance or apparatus was or was being provided. As per section 3(b_) of Indian Telegraph Act, 1885, the telegraph authority means the Director General of Posts and Telegraph and includes any officer empowered by him to perform all or any of the functions of telegraph authority under this Act. So the question is that whether the private service providers centre equated with the Director General of Posts and Telegraph, so it is clear that the telegraph authority as used in section 7 B of Indian Telegraph act, 1885 rule out the inclusion of private service provides under section 7 B of IT Act, 1885. In Spice communication Pvt. Ltd., Vs. Gerinder Kour and Another, the Punjab State Commission made clear that the Private Service providers are neither governed by the provisions of section 7(B) of Indian Telegraph act, 1885, nor the jurisdiction of the District Forum over the private service providers is ousted rather it protected and this was reported in 2010 CTJ 688(CP)(SDCR). Thus we hold the view that private service providers do not fall under the category of telegraph authority within the meaning of section 7 B of Indian Telegraph act, 1885 and hence the above complaint is maintainable before the Forum and hence the Forum has ample jurisdiction to try the case and hence issue No.1 is found in favour of the complainant. Issue Nos. 2 to 4 The complainant’s case is that the Opposite party had made an offer through SMS on 26,27,28 and 29 of June 2009 that “ pay the bill on or before due date of 29.6.09 and enjoy 500 local or national SMS free up to 10th July 2009 and SMS offer will be activated within 48 hours of payment. Accordingly he had paid the amount, but the opposite party had charged for the SMS. In order to prove his case he had produced Exts.A1 to A4. I.e. bill paid from 11.5.09 to 10.6.09, with due date 29.6.09, receipt dt.29.6.09, bill due date 29.7.09, Bill dt.11.7.09. The opposite party has not turned up before the Forum to prove his case. The complainant has filed chief affidavit in lieu of chief examination, in tune with his pleadings. The complainant had produced his mobile phone before the Forum and we have verified the phone and found that there is a message from Vodafone on 26.6.09 i.e. “Hello, pay your bill in full on or before due dates (29.6.09) and enjoy 500 local/national SMS free up to 10 July 2009. SMS offer will be activated within 48 hrs. Of payment”. The complainant has produced Ext.A1 bill due date on 29.6.09 and Ext.A2 receipt through which he had paid A1 bill, A3 is bill due date on 29.7.09. In Ext.A3 it is seen that Rs.413.50 was charged as messaging charges. It is seen that this is against the opposite parties offer. The complainant has produced bill dt.30.7.09 through which he has paid the above said bill. So it is seen that the complainant/s averments are proved by him. But there s no contra evidence before the Forum. More over the opposite parties were not turned before the Form. Even though the Forum had setasided the exparty order against him with a condition to pay Rs.200/- itself shows the attitude of the opposite parties and hence we are of the opinion that there is deficiency on the part of opposite parties in charging Rs.413.50 for message irrespective of their offer. So the complainant is entitled to receive Rs.413.50 which was received by the opposite party as message charge along with Rs.500 / - as cost of the proceedings and order passed accordingly. In the result, the complaint is partly allowed directing the opposite parties to refund Rs. 413.50(Rupees Four hundred and thirteen & fifty paisa only) along with Rs.500/- (Rupees Five hundred only) as cost of this proceedings to the complainant within one month from the date of receipt of this order, failing which the complainant is entitled to execute the order as per the provisions of Consumer protection Act. Sd/- Sd/- Sd/- President Member Member. APPENDIX Exhibits for the complainant A1.Copy of the bill issued by OP A2.receipt dt.29.6.09 issued by OP A3. & 4.Bilss issued by OP Exhibits for the opposite party: Nil Witness examined for either side; Nil /forwarded by order/ Senior Superintendent Consumer Disputes Redressal Forum, Kannur.
| | [HONORABLE PREETHAKUMARI.K.P] Member[HONORABLE MR. GOPALAN.K] PRESIDENT[HONORABLE JESSY.M.D] Member | | 
