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 18th day of December 2009 CC/95/2007 P.P.Rajan, Aswathy Nivas, P.O.Pappinissery, Complainant Kannur. 1.Manger, M/s.Mascot Communications, Franchise, TATA Indicom, Platinum Center, Bank Road, Kannur. Opposite parties (Rep. by M.K.Associates) 2. Regional Manager, Kerala Circle Office, TATA TELESERVICES LIMITED’ SL Plaza, Palarivattom, Cochin 25. (Rep. by Adv.S.K.Krishnakumar) O R D E R Smt.K.P.Preethakumari, Member This is a complaint filed under section12 of consumer protection act for an order directing the opposite parties to pay Rs.566/- being the value of the phone set along with Rs.50, 000/- as compensation and cost. The case of the complainant is that he had availed a telephone facility during September 2006. Under the Tariff plan “Take India 225” having No.0497.6450575 and at the time of availing connection the 1st opposite party represented and assured that the complainant has to pay only Rs.568/- initially and rent of Rs.125/- for the first 3 months and on remittance of Rs.1300/- along with 3rd month rent of Rs.125/- and the complainant can enjoy life time incoming facility free without payment of any service charges. The complainant has received a bill of Rs.94/- dt.27.10.06 and the opposite party has collected Rs.100/- from the complainant. Surprisingly the complainant received bill dt.27.11.06 for Rs.347/- and Rs.389/- and Rs.593/- dt.27.12.06 and last bill dt.27.2.07 for Rs.1065/- and the opposite party issued bills regularly showing as service charges contrary to the assurance. So the complainant asked the opposite party to take the phone back, but the opposite party again issued bills for the set kept idle. Apart from this the complainant could not make use of the facility since the phone set was defective and the same was informed to the opposite party and are not ready to replace the same. Even though the opposite party provides life time incoming free, the opposite party had issued bill. The lottery customers of the complainant left with no alternative which caused pecuniary loss to the complainant which is his means of livelihood. This was caused due to the deficiency of service of opposite party. The opposite party has done unfair trade practice by falsely representing the scheme as beneficial and this act of opposite party caused so much of loss and hardship to the complainant and the opposite parties are jointly and severally liable to compensate the complainant. Hence this complaint. On receiving the notice from the Forum, both the opposite parties appeared through their counsels. Later on 1st opposite party was called absent and set exparte. 2nd opposite party filed version stating that the complainant has availed wireless telephone connection during September 2006 through1st opposite party and has paid Rs.561/- as activation charge and was activated on 256.9.06 as per the “Talk India Rs.225 plan”. As per this plan the customer have to pay activation charge of Rs.561/- at the time of availing connection and fixed monthly rent of Rs.225/- apart from usage and service charges. After payment of first 3 ills, if the customer opted to pay an amount of Rs.1300/- he was not charged any monthly rent in future. The 1st opposite party supplied a brochure and had explained the terms and conditions of the plan. The telephone charges claimed in the bills issued is the monthly rent, usage charges and service charges. The opposite party had issued a bill for Rs.94/- for the billing period from 25.9.06 to 24.10.06. The complainant had defaulted and for the billing period from 25.10.06 to24.11.065, issued a bill for Rs.347/- and on receipt of this bill the complainant had paid only Rs.100/- For the period from 25.11.06 to 24.12.06 another bill was issued for Rs.593/- and subsequently 25.12.06 to 24.1.076, for Rs.902/- and the billing period from 25.1.07 to24.2.07 for Rs.1065/-. But the complainant has not paid the bill and as a result the connection was disconnected. The amount claimed in the last four bills is inclusive of the arrears under the earlier bills. After availing the connection, the complainant had never reported any defects of the telephone equipment. So there is no deficient service on the part of the opposite parties. The complainant is not a consumer, since he had availed the service of the opposite party for commercial purposes and hence the forum has no jurisdiction to try the complaint. So the complaint is liable to be dismissed. Upon the above contentions the following issues have been raised for consideration. 1. Whether the complainant is a consumer? 2. Whether there is any deficiency on the part of opposite parties? 3. Whether the complainant is entitled to any relief? 4. Relief and cost. The evidence in this case consists of the oral testimony of PW1 and Ext.A1 to A3. Issue No.1 The opposite party contended that the complainant is not a consumer since he had availed the service of opposite party for commercial purpose. But the explanation to claue (d) of section 2of the act says that for the purpose of this clause commercial purpose does not include use by a person of goods bought and used by him and services availed by him exclusively for the purpose of earning his livelihood by means of self employment. The complaint in this case contended that he has purchased the phone for his lottery customers to contact him which is his livelihood. So we hold the view that the complainant has purchased the phone for promoting his lottery business which is his means of livelihood and hence he is a consumer and the Forum has ample jurisdiction to try the case. The opposite party admits that the complaint had availed a wireless telephone connection of the 2nd opposite party assigning subscriber number 0497 6450575 under the Talk India 225 plan. The complainant has produced Ext.A1, the receipt by which he has paid Rs.100/- and A2 and A3 are the bills. The Ext.B1 is the Walky Postpaid Plans brochure. The complainant’s case is that he has to pay Rs.568/- initially and rent of Rs.125/- for first three months and on remittance of Rs.1300/- along with 3rd months rent, he can enjoy life time incoming facility free without payment of service charge. But the opposite party contended that the complainant has to pay Rs.561/- as activation charge and fixed monthly rent of Rs.225/- apart from usage and service charges and after payment of the first 3 bills if the customer opted to payRs.1300/- he was not to be charged any monthly rent in future. In order to substantiate this contention he has produced Ext.B1 brochure and he further adds that no such plan as stated by the complainant has introduced by the opposite party. Complainant has not produced any documents to show that he has availed connection as contended by him. More over the complainant admitted that he has paid only Rs.100/- to the opposite party except the initial payment. For this he reasoned that his phone became defective soon after its purchase and the opposite party had issued bills for the phone not used at all. But no evidence is before us to show that the phone is defective and not produced the equipment also. So this contention of the complainant cannot be given much consideration. So there is no evidence before us to show that the service of the opposite party is deficient or he has done unfair trade practice. So the complainant miserably failed to substantiate his case and hence we are of the opinion that deficiency of service or unfair trade practice of opposite party was not proved by the complainant and hence this complaint is liable to be dismissed and order passed accordingly. In the result, the complaint is dismissed. No cost. Sd/- Sd/- Sd/- President Member Member APPENDIX Exhibits for the complainant A1.Temporary receipt issued by OP A2 & 3.Billdt.27.1.07 and 27.2.07 issued by OP Exhibits for the opposite party: Nil Witness examined for the complainant PW1.Complainant Witness examined for the opposite party: Nil /forwarded by order/ Senior Superintendent Consumer Disputes Redressal Forum, Kannur. | 
