BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, ADDITIONAL BENCH, MANGALORE                        

Dated this the 13^th June 2017

PRESENT

   SRI VISHWESHWARA BHAT D     : HON’BLE PRESIDENT

   SRI T.C. RAJASHEKAR                  : HON’BLE MEMBER

ORDERS IN

                                                                                          C.C. No. 301/2013

(Admitted on 27.11.2013)

Mr. Dinesh B

S/o B. Subraya Bhat,

Aged about 39 years,

R/at. Poorladka House,

Kedila Post & Village,

Bantwal Tq, D.K.

                                                     ….......COMPLAINANT

(Advocate for the Complainant: Sri SD)

VERSUS

1. IDIA Cellular LTD,

    No.75, Civil Station,

    Richmond Road,

    Bangalore  25.

2. The Secretary,

    TRAI,

    Mahanagar Doorasanchar Bhavan,

    Jawaharlal Nehru Marg,

    New Delhi  110 002.

3. Proprietor,

    Mark Telecom,

    Yelmudi, Main Road,

    Puttur, D.K.

                                                                                  …........OPPOSITE PARTIES

(Advocate for the Opposite Party No.1: Sri BSB)

(Opposite Party No.2: Post)

(Opposite Party No.3: Ex parte)

ORDER DELIVERED BY HON’BLE PRESIDENT

SRI VISHWESHWARA BHAT D:

          The above complaint filed under Section 12 of the Consumer Protection Act by the complainant against opposite parties alleging deficiency in service claiming certain reliefs. 

The brief facts of the case are as under:

The complainant contends being impressed by opposite party No.1s advertisements published in media and hoardings in and around cities of complainant’s  locality who was using prepaid connection for his personal use was a subscriber of BSNL Cell No.9449239289 availed portability facility by opting to the service of opposite party No.1. Opposite party No.1 by believing the message sent by opposite party No.1 recharged Rs.81.00 on 4^th February 2013 for a special offer of ½ paise per second call for 100 days.  But instead of assured service the complainant was charged 1.2 paise per 2 second for 90 days ever since 4^th February 2013 from the day one of recharge.  Opposite party No.1 refused to register any complaint approached by complainant and instead directed to approach opposite party No.3 who are local service outlet of the complaint informed that there was no response from opposite party No.1 and No.2 to the email sent by opposite party No.3 to opposite party No.1 and No.2 about the complaint no action was taken even by opposite party No.2.   A legal notice was sent on 26.7.2013 of opposite parties which was served on them and opposite party No.3 sent an undated reply.   Hence seeks reliefs claimed in the complaint.

2.        Opposite party No.1 in the version admits complainant believing in the message sent by opposite party No.1 recharged Rs.81.00 on 04.02.2013 for special offer of ½ paisa per second call for 100 days but instead of assured service complainant account was charged with 1.2 paisa per 2 second for 90 days.  The allegation that there was no response from opposite party No.1 and No.2 for his complaint dated 4.4.2013 is disputed.  Opposite party No.1 on realizing the mistake offered a better plan as compensation and in consensus with complainant and the same was informed to opposite party No.2 also. Opposite party No.1 has no knowledge of the statement made by the complainant.   Opposite party No.1 received the TRAI complaint through its central team by mail on 11.04.2013 about the complaint of the complainant that the product i.e. special offer of ½ paisa per second for 100 days  has expired before 4^th February 2013.  On investigation it was found that the message was mis-fired to the customer due to system error.   An automated message was sent on 4^th February 2013 post tariff expiry was not corrected in line with the product change.  Opposite party 1 was not in a position to provide the 100 days validity the IPP individual price point was not available in system, instead of that opposite party No.1 had given 100 SMS free which was communicated to the complainant on the possible resolution and same was agreed by complainant.  The start and end date of the scheme will be decided and intimated to the concerned accordingly beyond the expiry of a plan/product the features therein cannot be extended to a single customer.   There is no cause of action and there is no deficiency in service hence seeks dismissal of the complaint.

3.     Opposite party No.2 TRAI in the version referred to the provision of section 27 of TRAI Act 1997 and points out that no civil court shall have jurisdiction in respect of any matter which the TRAI is empowered by or under TRAI Act. It also refers to various State Commission finding into the same effect hence seeks dismissal of the complaint against the opposite party No.2.

4.     Opposite party No.3 despite of service of notice through RPAD not appeared.  Hence placed Ex parte.

5.     In support of the above complaint Mr. Dinesh B filed affidavit evidence as CW1 and produced documents got marked at Ex.C1 to C8 as detailed in the annexure here below.  On behalf of the opposite parties not filed affidavit evidence. 

6.    In view of the above said facts, the points for consideration in the case are:

1. Whether the Complainant is a consumer and the dispute between the parties?
2. If so, whether the Complainant is entitled for any of the reliefs claimed?
3. What order?

        The learned counsels for complainant filed notes of argument.  Opposite parties not filed notes of argument.  We have considered entire case file on record including evidence tendered by the party and notes of argument of the party.  Our findings on the points are as under are as follows

         Point No.  (i): Affirmative against opposite party No.1 only

         Point No. (ii): Affirmative against opposite party No.1 only

         Point No. (iii): As per the final order.

REASONS

7.       POINTS No. (i):  As seen even from the version of opposite party No.1 the offer sent by SMS to complainant claimed by complainant of ½ paise per second for 100 days on recharge of Rs.81.00 is admitted by opposite party.  Thus opposite party No.1 admits complainant as its customer and thereby relationship of consumer and service provider between the complainant and opposite party No.1.  However opposite party No.1s stand is the product i.e. offer of the said service claimed by complainant and admittedly sent by opposite party No.1 by way of SMS to complainant according to opposite party No.1 product had already expired which is not admitted by complainant.   Hence there is a live dispute between the complainant and opposite party No.1 as contemplated under section 2 (1) (e) of the C P Act. 

8.     In respect of opposite party No.2 TRAI being authority for regulation employed by the Government of India under TRAI Act of 1997 in view of section 27, this claim against opposite party No.2 in our considered view is no maintainable.

9.     Even in respect of opposite party No.3 according to complainant opposite party No.3 had forwarded complaint given to opposite party No.3 instead of opposite party No.1 about the deficiency in service of opposite party No.1 and dutifully intimated complainant that there was no response by opposite party No.1 and opposite party No.2 to the email sent about the said complaint.  In any case there is no relationship of consumer and service provider made by complaint between him and opposite party No.3.   Hence even against opposite party No.3 the present complaint is not maintainable.  Hence we answer point No.1 only inference to opposite party No.1 only.

10.     POINTS No. (ii):  Even as admitted by opposite party No.1 a message was sent to complainant offering the product in question of ½  paise per second charged for 90 days (herein after referred as product only) to complainant by the men of opposite party No.1.  However opposite party No.1 claims it was sent by mistake and as that the offer of the product had expire before 4.2.2013. It also claims that instead of that product an alternative was offered of 100 free SMS to complainant and that complainant had accepted.  Hence the burden is on opposite party No.1 to establish in place of this product that complainant had accept it.

11.     However opposite party No.1 did not tender any evidence even not filed affidavit evidence to succeed to his claim made by opposite party No.1.   Hence we are of the view of allegation and admission of opposite party No.1 in the written version of offer made to complainant of the product in question opposite party and as assurance of which complainant had subscribed to the scheme by making the payment of this Rs.81.00 on 4.2.2013.  Opposite party No.1 has failed to prove the alternative offer made to complainant was accepted by the complainant.  The complainant in our considered view established deficiency in service on the part of opposite party No.1 as claimed in the complaint.   Hence point No.2 answered affirmative against opposite party No.1 only.  

12.     POINTS No. (iii):  As to the compensation as considered complainant claimed a sum of Rs.50,000 for deficiency of service on reason estimated awarding a compensation of Rs.25,000 against opposite party No.1  towards deficiency in service another sum of Rs.10,000 each towards damages and expenses in our opinion is just and proper.  Wherefore the following

ORDER

The complaint is partly allowed.   Opposite party No.1 is directed to pay a sum of Rs.25,000/ (Rupees Twenty Five thousand only) towards compensation to complainant.

2.     Opposite party No.1 is also directed to pay a sum of Rs.10,000/ (Rupees Ten thousand only)  towards damages and another sum of Rs.10,000/ (Rupees Ten thousand only)  towards expenses to the complainant.

3.     Opposite party No.1 shall pay the above amounts within 30 days from the date of receipt of the copy of this order.   On failure to pay the above amount within this stipulated time opposite party No.1 shall pay interest to the entire amount at 9% per annum from the date of complaint till the date of payment.

4.     Complaint against opposite party No.2 and opposite party No.3 dismissed.

     Copy of this order as per statutory requirements, be forwarded to the parties free of cost and file shall be consigned to record room.

     (Page No.1 to 9 directly typed by steno on computer system to the dictation of President revised and pronounced in the open court on this the 13^th June 2017)

             MEMBER                                                 PRESIDENT

     (T.C. RAJASHEKAR)                         (VISHWESHWARA BHAT D)

D.K. District Consumer Forum                   D.K. District Consumer Forum

 Additional Bench, Mangalore                     Additional Bench, Mangalore

ANNEXURE

Witnesses examined on behalf of the Complainant:

CW1 Mr. Dinesh B

Documents marked on behalf of the Complainant:

Ex.C1: 04.04.2013: O/c of letter addressed by the complainant to the 1^st and 2^nd opposite parties

Ex.C2: 04.04.2013: Courier receipts (2)

Ex.C3: 26.04.2013: O/c of letter addressed by the complainant to the 2^nd opposite party

Ex.C4: 26.04.2013: Courier receipt

Ex.C5: 26.04.2013: G-mail sent to the 1^st opposite party

Ex.C6: 26.07.2013: O/c of the regd lawyer’s notice

Ex.C7: 29.07.2013: Postal Acknowledgements (2)

Ex.C8:                 : Reply of 3^rd opposite party

Witnesses examined on behalf of the Opposite Parties:

 Nil 

Documents marked on behalf of the Opposite Parties:

 Nil 

Dated: 13.06.2017                                     PRESIDENT