5.11.08<br /> Sri.K.Gopalan, President<br /> <br /> <br /> This is a complaint filed under section 12 of consumer protection Act for an order directing the opposite parties to refund the excess bill amount collected illegally and to pay Rs.10, 000/- as compensation with cost of this proceedings.<br /> The averments in the complaint in breif are as follows: The complainant has availed a mobile connection through 1st opposite party, who is the authorized dealer of 2nd opposite party. It was a post-paid connection. At the time of availing connection he was told that he is included in the scheme of Rs.99/-. After taking connection the complainant was set shocked to receive the huge bills, though the complainant used to make calls having short duration. When the complainant rushed to 1st opposite party he was told that it would be adjusted in the future bills. The complainant was forced to pay the bills in order to avoid disconnection. The complainant was gain supplied with huge bills every month. Complainant sent a lawyer notice. But no action has been taken. Same mistakes were repeated. Though a reminder was sent there was no response. The complainant suffered much agony and loss. Complainant estimated a sum of Rs.10, 000/- as compensation. Hence pray for an order to refund the excess bill amount and a sum of Rs.10, 000/- as compensation with cost.<br /> After receiving notice from the Forum, 2nds opposite party made appearance and filed version. 1st opposite party declared as exparte.<br /> The contention of the 2nd opposite party in brief is as follows; the complainant had taken mobile connection from the 2nd opposite party and complainant opted the scheme of 99 plans. Under this plan complainant has to pay Rs.124/- as fixed monthly charges plus the actual call charges at the rate of 2.49 per pulse from mobile to mobile and at the rate of 2.49 per pulse for mobile to local land lines and SMS charge at the rate of Rs.1/- per message. The monthly fixed charge of Rs.124/- consists of Rs.49/- as monthly rental, Rs.50/- as plan charge and Rs.25/- as clip charge (Calls identifier). The complainant became the subscriber from 27.5.04. From September 2004 the Freedom 99 plan had to be discontinued by this opposite party as per the direction of the Telecom Regulatory Authority of India. Therefore the complainant was given the option either to discontinue the plan or to continue under the next cheapest plan 150. Complainant opted plan 150. Under the said plan, the fixed charge came to Rs.200/- consisting of Rs.99/- as rental, aRs.51/- as plan charge and Rs.50/- as clip charge plus the actual call charges. Although the total minimum charge under plan 150 came to Rs.200/- the call charges was payable at the rate of Rs.1/- per pulse and call from Airtel to other mobiles and local land line was payable at the rate of Rs.2/- per pulse. The complainant opted this plan voluntarily. This opposite party has not charged any amount in excess from the complainant. The complainant stopped paying the bills from January 2005 but continue to use the connection up to April 2005.The total due by the complainant to this opposite party as on 27.5.2005 came to Rs.1375.83 and there is after adjusting Rs.150/- each in February and March 2005 in the bills raised by this opposite party against the complainant. The complainant did not pay the call charges and filed this complaint. The allegation that the complainant has sent a lawyer notice is false. The complainant is liable to pay Rs.1375.83 being the outstanding payable. <br /> On the above pleadings the following issues have taken up for consideration:<br /> 1. Whether there is any deficiency in service on the part of opposite parties?<br /> 2. Whether the complainant is entitled for the remedy as prayed in the complaint/<br /> 3. Relief and cost.<br /> The evidence consists of oral testimony of PW1 with documentary evidences Exts.A1 to A9 marked on the side of the complainant and documentary evidence Exts.B1 to B13on the side of the opposite parties.<br /> <br /> <br /> Issue Nos. 1 to 3<br /> Admittedly complainant is the consumer of opposite parties, who has taken mobile connection under the plan 99. Complainant in his cross deposed that “ <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> The cross examination makes it clear that complainant has taken mobile connection under Freedom 99 plan. Complainant admits that the calls that shown in the bills are correct. The specific case of the complainant is that he has not opted any other plan other than Freedom 99 plan. Opposite party contended that from September 2004 the Freedom 99 plan had to be discontinued by the opposite party as per the direction of Telecom Regulatory Authority of India. Complainant challenged and stated in the chief affidavit that it is not correct to say that the 99 schemes discontinued as per the direction of TRAI and also denied that the complainant has accepted the150 plan. Complainant contended that the charge of plan is an arbitrary act of opposite party without any authority. The opposite party did not produce any document t to prove that there is direction from the TRAI. The opposite party did not also give evidence to prove the contention that the complainant has given option. No evidence adduced by the opposite party to prove that the complainant was opted to continue his subscription under plan 150. Opposite party produced Ext.B1 to B13 documents. Except B12 and 13 all other documents is the account summary of the periodical bills issued continuously. 2nd opposite party alleged to be discontinued the 99 plan from September 2004. The Account summary of that moth for the period of11.9.04 to 10.10.04 had been missing from among the bills produced. That is the 1st bill after the shift. No explanation has given for non-issuance of bill. Ext.B5 issued for the period of 11.8.04 to 10.9.04 for Rs.409.48 previous balance shown in bill is Rs.221.37. Ext.B6 has been issued for the period of 11.10.094 to 10.10.04 for Rs.369.30 the previous balance shown in the bill is 609.54. It can be seen that there is no bill issued for the period of 11.9.04 to 10.10.04.The non- issuing of bill for that period is a suspicious one. The2nd opposite party produced Ext.B 12, the subscriber Enrolment Form containing the terms and conditions. The counsel for the opposite parties vehemently argued that the terms and conditions contained in the Form are binding up on parties. The judgment reported in II (2004) CPJ 207 holds that the subscriber agreement Form is a specific document which binds the parties signing it and no relief can be claimed by the complainant beyond it. The decision reveals that Subscriber Enrolmentment Form is a very important document as far as the agreement is concerned. Such a document definitely should have been capable enough to communicate the contend thereof, to the concerned parties so as to ensure “CONSUNSUS AD IDEM” in absence of which the very agreement is unenforceable. ExtA12 Form second page, on which the terms and conditions are printed, is not even readable. It is not legible to red even for a good reader. Merely because of the reason that the Terms and conditions are imprinted on subscriber Enrolment form, which is not legible to understand what the contend really is, it cannot be treated as a fruitful part of a document enforceable by law since it lack ‘Consensus AD Idem’<br /> In the light of the above discussion it can be seen that the opposite parties failed to prove that the 99 plans has been discontinued as per the direction of the TRAI. Secondly, there was no evidence show that the complainant was given the option either to discontinue the 99 plans or to continue under the next cheapest plan, the plan 150. Opposite parties failed to prove that the complainant opted to continue his subscription under plan 150. Hence we are of opinion that there is deficiency in service on the part of opposite parties and the opposite parties are liable to pay a sum of Rs.2500/- compensation and a sum of Rs.500/- as cost. However the complainant has deposed in his cross-examination thus:<br /> <br /> <br /> <br /> <br /> That means complainant admitted the liability of the payment of amount of the bill Ext.A9 Rs.1375/-. Thus deducting this amount complainant is entitled to get only Rs.1125/- with a sum of Rs.500/- as cost of these proceedings. These issues are found partly in favour of the complainant. Order passed accordingly.<br /> In the result, the complaint is allowed partly directing the opposite parties to pay a sum of Rs.1125/- (Rupees One thousand one hundred and twenty five only) as compensation together with Rs.500/- as cost of this proceedings to the complainant within one month from the date of receipt of this order, failing which the complainant is allowed to execute the order against the opposite parties under the provisions of the consumer protection Act.<br /> Sd/- Sd/- Sd/-<br /> President Member Member<br /> APPENDIX<br /> Exhibits for the complainant<br /> A1.Copy of the lawyer notice dt.3.1.05 sent to OP<br /> A2. Postal acknowledgement card<br /> A3. Copy of the lawyer notice dt.1.2.05 sent to OP<br /> A4. Postal acknowledgement card<br /> A5. Copy of the lawyer notice dt.3.3.05 sent to OP<br /> A7.Phone bill for Rs.410/-<br /> A8.Phone bill for Rs.274, 40<br /> A9.Phone bill for Rs.70.40<br /> <br /> Exhibits for the opposite parties<br /> B1.to B8. Copy of the Bills dt.27.5.04, 27.6.04, 27.7.04, 27.8.04, 27.9.04, 27.11.04,<br /> 27.12.04, 27.1.05 issued to complainant<br /> B9. to B11. Copy of the Account summary issued to complainant for the month <br /> Of 11.1.2005 to 10.2.2005, 11.2.05 to10.3.05, 11.3.05 to 10.4.05<br /> B12. Subscriber Enrolment Form<br /> B13.Copy of the invoice summary from 27.5.04 to 27.5.05 maintained by OP2<br /> Witness examined for the complainant<br /> PW1. Complainant<br /> Witness examined for the opposite parties: Nil<br /> <br /> /forwarded by order/<br /> <br /> Senior Superintendent<br /> <br /> Consumer Disputes Redressal Forum, Kannur<br /> Despatched on<br /> Through post/hand<br />