Andhra Pradesh

Nellore

CC/100/2013

G.Stalin babu - Complainant(s)

Versus

1.The Manager Lotus Communications Reliance web World - Opp.Party(s)

Inperson

15 Jun 2015

ORDER

                                                                                                                                                                                                                                                                                                                                                                                  

Date of Filing     :02-08-2013

                                                                                                Date of Disposal:15-06-2015

 

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM:NELLORE

Monday, this the 15^th day of   June, 2015

 

          PRESENT: Sri P.V. Krishna Murthy, B.A., B.L., President

                             Sri M. Subbarayudu Naidu, Member.

 

C.C.No.100/2013

G. Stalin Babu,

S/o.Raju, Hindu, Age 41 years,

27-II-989, Lakshmi Nagar,

Blajai Nagar, Nellore-524002.                                                                  ..… Complainant  

 

                                                                           Vs.

 

1.	The Manager, LOTUS Communications (Reliance Web World), 25-2-856, Opposite to Nippo Factory, Chandramouli Nagar, Vedayapalem, Nellore-524 004.
2.	Managing Director, Reliance Communications Limited, Thane Belapur Road, Koparkhairane, Navi Mumbai-400710.                                                                ..…Opposite parties

                                                             .   

            This complaint coming on 08-05-2015 before us for hearing in the presence of                complainant in person and opposite party No.1 called absent and                                                 Sri K. Anantha Sathyanarayana,  advocate for the opposite party No.2  and having stood over for consideration till this day and this Forum made the following:

 

ORDER

 

(ORDER BY  Sri M. SUBBARAYUDU NAIDU, MEMBER)

 

            This consumer case is filed against the opposite parties 1 and 2 by the complainant to direct them to activate the mobile phone service connection No.9391124240  immediately from CDMA post-paid to prepaid GSM connection and to  cancel all the bills issued after 18-05-2010 till today.  Since the service provided  by the opposite parties to the complainant and to pay damages arising out of professional loss on account of  by the opposite parties deactivation and dis-connection of service connection, an amount of Rs.40,000/-, to pay compensation for mental agony for an amount of Rs.25,000/- and also to grant costs of the complaint and also pass such other and further reliefs as the  Hon’ble Forum may deem it proper and just in the circumstances of the case.

 

 

2.The factual matrix leading to filing of this Consumer Case  is stated as hereunder:

 

a.	It is the case of the complainant that he is presently practicing as an advocate.  He is customer to the opposite parties CDMA  mobile phone post-paid service connection No.9391124240 since from more than 5 years prior to the date of  de-activation and disconnection of phone service.  The 1st opposite party is a Reliance Web World doing business as  franchisee to the Reliance India mobile and 2nd opposite party is issuing filling statements to the customers.
b.	It is further submitted  by the complainant that in para – 6 of his complaint that he had made an application on 18-05-2010 to the 1st opposite party show-room for conversion of post-paid mobile connection in to pre-paid service.  As on the date of submitting an application dated 18-05-2010 by the complainant, he had paid the entire up-to-date bills amount to the opposite parties and the same is also clearly stated in account copy supplied by the opposite party (An account copy which relating to the said mobile phone filed  herewith for kind perusal of Hon’ble Forum).
c.	It is also further submitted by the complainant that in para-7 of his complaint on account of his  application dated 18-05-2010 for conversion of  post-paid into pre-paid, the opposite parties  de-activated and dis-connected  his phone service connection in the month of June, 2010  and sending bills to him regularly without providing any service and instead of converting service  connection from post-paid  to pre-paid, de-activate and dis-connected the mobile phone service without any reasonable  grounds and  bills are sending regularly.
d.	It is also further submitted by the complainant in para-8 of his complaint that since        18-05-2010 the opposite parties are and have not  provided any service to his said phone connection and it is under  de-activation and the opposite parties are not entitled to demand bills.  In order to harass  the complainant and to get wrongful gain, the opposite parties are sending bills without   service.  It is an act of unfair trade practice and deficiency in service.
e.	There are  causes of action to file this consumer case before this Hon’ble Forum.  The opposite parties  are already dis-connected and allotted the said mobile phone No.9391124240 to another customer and on 22-01-2013 when the opposite parties are  sent  the last bills without service and the 1st opposite party is doing business and service at Nellore and  entire cause of action which arose at Nellore within the jurisdiction of this Hon’ble Forum, Nellore.  Hence, this consumer case is filed against the opposite parties  for the reliefs  as prayed in the complaint.

3.DEFENCE:

 

(a)	The 2nd opposite party  Reliance Communication Limited was resisted the complaint by filing a written version denying the allegations of the complaint of the complainant.  The managing director and authorized signatory on behalf of the 2nd opposite party had filed written version alleged that the complaint of the complainant is neither  maintainable in law nor on facts and  it is deserves to be dismissed in limine.  The complainant is put to strict proof of the  allegations leveled against the opposite parties.
(b)	The 2nd opposite party  is further stated in para-2 of  it’s written  version that pleased to take note of the preliminary objection as to the non-maintainability  of the complaint, the Hon’ble Forum has no territorial jurisdiction to entertain this complaint as there is a special remedy provided in  Section 7-B of the Indian Telegraph Act with regard to any dispute concerning any line, appliance or apparatus is, or has been provided, the dispute shall be  determined by arbitration and shall for the purpose of such determination be referred to an arbitrator.  It is further stated that the  Hon’ble Supreme Court of India by an order dated 01-09-2009 in Civil Appeal No.7687 of 2004 also held that as there is a special remedy provided in Section 7-B of the Indian Telegraph Act regarding the disputes, then the remedy under the Consumer Protection Act is by implication barred.
(c)	It is also further submitted by the 2nd opposite party in para-3 of it’s written version that the complaint on the very cause of action and the same reliefs the complainant has   already approached this Hon’ble Forum in C.C.No.60 of 2010 wherein after due consideration, the Hon’ble Forum was pleased  to dismiss the complaint by an order dated 09-11-2012 by giving  a finding that the Hon’ble Forum is not having jurisdiction to entertain the telephonic or mobile phone complaints and further directed the complainant to seek remedy provided under Section 7 (B) of Indian Telegraphic Act, 1885 and the complainant did not preferred any appeal  against the said orders.  It is submitted that the complainant had suppressed the orders dated 09-11-2012 passed by this Hon’ble Forum in C.C.No.60 of 2010 and filed the present complaint without disclosing the orders passed by the Hon’ble Forum.  It is therefore submitted that on the ground of the  suppression of the facts, the complaint is liable to be dismissed with costs.
(d)	It is also further submitted by the 2nd opposite party in para 4 of it’s written version that a reading of the averments in the complaint shows that the case of the complainant is bereft of prima facie case which is the vital ingredient for the grant of any relief.  It is significant to note that the complainant, except leveling unsubstantiated allegations, have not filed even a shred of competent evidence in support thereof, and not even a single document is filed by the complainant to show that there is a deficiency in service by these  opposite parties and the averments made by the complainant in the complaint remains mere allegations.
(e)	It is also further stated by the 2nd opposite party in para-5  of it’s written version that even after passing the orders in C.C.No.60 of 2010, the  complainant did not preferred any appeal and infact the complainant further utilized the services of the opposite party and as on 22-01-2013 there is an outstanding balance of Rs.19,940/- due and payable by the complainant to the opposite party towards the rental charges of the telephone and for non-payment of huge telephone charges only the complainant’s telephone connection is terminated.  It is submitted that the present complaint has been filed by the complainant only to avoid the legitimates due payable by him under the guise of the present complaint which is not maintainable in law  or on facts and this opposite party reserve its right to take appropriate steps for the recovery of the  outstanding due   from the complainant.
(f)	It is also further submitted by the 2nd opposite party in para-6 of its written version that the complaint discloses no  deficiency of service, attributable to these opposite parties   and consequently no cause of action has accrued to the complainant and all the allegations are already adjudicated by the Hon’ble Forum and after due enquiry the Hon’ble Forum was pleased to dismiss the complaint of the complainant in C.C.No.60 of 2010  and now the complainant on the very same cause of action filing the second complaint is not  maintainable and liable to be dismissed in limine.

            Finally, the 2^nd opposite party has prayed the Hon’ble Forum may be pleased to dismiss the complaint which is not only frivolous  but vexatious as well with costs.

 

4.         The complainant has filed his affidavit on 17-07-2014  and the seven documents which are marked as Exs.A1 to A7.  On the hand, the 2^nd opposite party has also filed it’s affidavit  by an authorized signatory through Mr.Abraham Lincoln on 23-01-2015 and one document which is marked as Exs.B1.  The  complainant has also filed his written arguments in support of his case whereas the opposite parties have not filed their written arguments in support of their case.

 

            5.         On the basis of pleadings, affidavit and documentary evidence of the case, the points that arise for our determination and that they are as follows hereunder:

 

1. Is there any deficiency in service on the part of the opposite parties towards the complainant?

 

2. Whether the complainant is entitled the reliefs as prayed for, if it is so, to what extent?

 

3. To what relief?

 

6.   POINTS 1 AND 2:  In view of the inter-dependence of these two issues for each other, we have taken up them together  for determination of the case.

 

                 Sri.G. Stalin Babu, the learned counsel for the complainant has vehemently argued that the complainant is himself as an advocate and contended that he is the customer of the opposite parties.  His  mobile phone post-paid service connection is number 9391124240 since from more than 5 years prior to the date of de-activation and disconnection of phone service.  He has further argued that he had made an application to the 1^st opposite party show-room for  conversion of post-paid mobile connection into pre-paid service.

 

     The said learned counsel has also further argued that by date of submitting  an application dated 18-05-2010, he had paid the entire up-to-date bill amount to the opposite parties and the same is also clearly  stated in account copy which supplied by 1^st opposite party and Exs.A2 and A3 documents proved the fact of allegation against opposite parties.  The Ex.B1 is contained the payment receipts dated 09-04-2010 and 09-06-2010, which  shows that the complainant  has paid Rs.520/-  to the opposite parties.  The complainant has submitted himself and he has argued that on 18-05-2010 an application  to the opposite parties (Ex.B1).  But the opposite parties are not provided any service to the said phone of the complainant.  The opposite parties are not entitled to demand bills.  Finally, the said learned counsel and he himself, being  a complainant has prayed  that the Hon’ble Forum may be pleased to allow the complaint with costs.

 

                  On the other hand,  the learned counsel for the opposite parties P.Nageswara Rao  has also vehemently  argued that the   written version was filed on behalf of  opposite parties and it may be taken into consideration while evaluating and determining the case.    He has further argued  that it may be pleased to take note of the preliminary objection as to the non-maintainability  of the complaint, the Hon’ble Forum has no territorial jurisdiction to entertain this complaint as there is a special remedy provided in  Section 7-B of the Indian Telegraph Act with regard to any dispute concerning any line, appliance or apparatus is, or has been provided, the dispute shall be  determined by arbitration and shall for the purpose of such determination be referred to an arbitrator.  It is further stated that the  Hon’ble Supreme Court of India by an order                          dated 01-09-2009 in Civil Appeal No.7687 of 2004 also held that as there is a special remedy provided in Section 7-B of the Indian Telegraph Act regarding the disputes, then the remedy under the Consumer Protection Act is by implication barred.   He has also contended that on the very same cause of  action and the reliefs, the complainant has already approached this Hon’ble Forum in C.C.No.60/2010 wherein  after due consideration the Hon’ble Forum was pleased  to dismiss the complaint by an order dated 09-11-2012 by giving  a finding that the Hon’ble Forum is not having jurisdiction to entertain the telephonic or mobile phone complaints and further directed the complainant to seek remedy provided under Section 7 (B) of Indian Telegraphic Act, 1885 and the complainant did not preferred any appeal  against the said orders.  It is submitted that the complainant had suppressed the orders dated 09-11-2012 passed by this Hon’ble Forum in C.C.No.60 of 2010 and filed the present complaint without disclosing the orders passed by the Hon’ble Forum.  It is therefore submitted that on the ground of the suppression of the facts, the complaint is liable to be dismissed with costs.

 

Forum’s findings  and observations:

 

7.         We have  heard the learned  counsel for both parties and perused the record very carefully.  Parties led their  evidence by way of affidavits. This Consumer Case is lingering on from the  year, since 2013. This case is demonstrating the highly unethical and unscrupulous conducted of the opposite  parties. To appreciate the controversy, it would be appropriate if we narrate  all the circumstances of the case both on question of fact as well as  question of law in detail.   Complaint is based on deficiency  in  service must establish the same  by  leading cogent evidence-2011(2) CPR 68 N.C.   One who makes an allegation is required to prove it beyond doubt – 2011 (2) C.P.R.  46 N.C.  One who seeks  equity from the Forum j/ Court, must come with clean hands.  Complaint against deficiency in service is one of the crucial aspects of Consumer Protection Act, 1986.

Issues of facts  and issues of law:

Every material proposition affirmed by one party and denied by other party shall form a distinct issue.    Issues  can be  issues of fact and issues of Law.  Court /  Forum is expected to take into consideration, pleadings while framing issues (AIR 1960 Punjab 62).  An issue of law not raised by parties can be framed by the Court (AIR 1978 AP 442).  The general principle of law is “Secundam allegata et probate”  meaning that a party can succeed according to what was alleged and proved (AIR 1999 Punjab 147).  In a case, the Supreme Court of India (Bhagawati Prasad Vs. Chandramal AIR 1966 SC 735) was held that though issues have to be framed basing on the pleadings, in certain circumstances relief can be granted even in the absence of a plea and an issue, if the interests of Justice so require.  The object of pleadings is to give fair notice to each party of what the opponent’s case  is and to pace the court in such a position to be able to ascertain with precision, the points on which the parties agree and those on which hey differ and thus to bring the parties to a definite issue.

The circular issued by the Government of India, Ministry  of Consumer Affairs, Food & Public Distribution Department of Consumer Affairs (Consumer Protection Unit), Website:WWW.fcamin.nic.in – Krishi Bhawan, New Delhi, dated 07-03-2014 to the Registrar, NCDRC, New Delhi and also to the Registrar, SCDRC and all State Governments /  UTs.

 

Jurisdiction of District For a  to adjudicate dispute between individual telecom consumer and telecom service  providers, on this topic it has been decided that  now a days existing telecom service providers – BSNL, Reliance  etc., are the licensee and  not vested with any authority.  Therefore implications of the Supreme Court Judgment in the case of General Manager, Telecom  Vs.  Krishnan & another – does not extend  to the disputes between telecom service providers and consumers. Therefore, it is within the  competence of the consumer for a to entertain the such cases  of disputes.  So, in view of  the Directive of Government of India,  in the above circumstances, it can be said that this Forum has jurisdiction to try the case  between the parties.

 

 The complainant is the said learned counsel for  himself.  He has prayed the opposite parties by submitting an application on 18-05-2010 to conversion his mobile phone connection from post-paid service to pre-paid service connection.  The issue involved in this Consumer Case is confined  to the point that whether the opposite parties are acted according to the request  of the complainant or not?  It  is apparently disclosed the fact that the opposite parties  are alleging several aspects without considering the complainant’s requests and saying differently  without any cause.  It is not justified according to the principles  of natural justice.  What is the reason for not considering the request  of the  complainant with regard to his mobile connection by the  opposite parties, is not explained properly to the satisfaction of the Forum.  There are no arrears of bills according to Exs.B1.  Moreover, the opposite parties are seems to be neglected the complainant with  ulterior motives.  The complainant is really put to mental  worry  and confusion.  Being  a service provider, is not  supposed to delay and defeat the legitimate right  of the complainant.  Due to that his practice  and profession and in the eyes of the  pubic, the damage is caused and irreparably loss occurred to him.

 

Arbitration agreement is not bar to redressal:

            If an agreement contains arbitration clause, the dispute must be referred to arbitration as per section 8 of Arbitration Act, 1966.  However,  in Skypack Couriers Limited Vs. Tata Chemicals Limited, II 2000 CPJ (SC) 6 =  AIR 2000 (SC), 2008,  it has been  held  that even  if there is an arbitration agreement,  a Consumer Forum  can entertain consumer complaint, as remedy provided under  the Act, 1986 is in addition to provisions of any law for the time being in force.  In all other matters, arbitration clause will not be a stumbling block for entertainment of consumer complaints by the consumer courts. (General Manager, Telecom Vs.M.Krishnan and another 2009 CTJ 1062(SC)(CP) .    The Act is a beneficent statute and particularly oriented against any hyper-technicalities.  It is well settled that the equity court will always pierce the veil of the form in order to arrive at the real nature and substance of the transaction.

LAPSES ON THE PART OF THE OPPOISTE PARTIES:

1. The opposite parties  have not provided the full details of  the complainant’s mobile phone particulars and bills issued to him from time to time.  Ex.A1  is he document which relates to dues  from the complainant.  How, it arises bill of Rs.19,940/-  is not explained clearly by the opposite parties.
2. Every case  will be decided on it’s own facts.  This complaint is  for the relief of seeking to conversion into post-paid to pre-paid mobile phone service.  The opposite parties are never discussed about the application submitted by the complainant for the relief claimed in the complaint, in their written version.
3. What is happened  about an application dated 18-05-2010 submitted by the complainant and for that what is the reply or action taken by the opposite parties? No information is provided by the opposite parties to the complainant.

4.   Without consideration of complainant’s request which was made it in the application                  

       dated 18-05-2010 by the opposite parties,  charging bills  after bills and    

       demanding an amount  from the complainant without rendering service to him. 

       How far, is it justified?  The opposite parties are unable to bring clarity  of the

       whole facts of the case to this Forum to decide the case for the reasons best known to

       them.

       In view of the facts and circumstances of the case, it can be said that the opposite parties are miserably failed in their attempt to convince the Forum about their defence.   We are not convinced  with the arguments of the  counsel for the opposite parties.  There are  merits  in the case.  It is justified to allow the complaint.  These two points are held in favour of complainant and against the opposite parties.

 

8.         POINTS 3:  In the result, the  complaint is allowed ordering the opposite parties to change the mobile phone connection of the complainant from post paid to pre paid  connection along with damages of Rs.8,000/- (Rupees eight thousand only) and compensation of Rs.2,000/- (Rupees two thousand only) and costs of  Rs.2,000/- (Rupees  two thousand only).  The  complainant prayed  for cancellation of the bills, is dismissed since the complainant paid for the services provided by the opposite parties.

 

            Dictated to Stenographer, transcribed by her corrected  and pronounced by us in the open  Forum, this the   15^th day of June, 2015.

 

 

                  Sd/-                                                                                                      Sd/-

           MEMBER                                                                                       PRESIDENT

 

                                                APPENDIX OF EVIDENCE

 

Witnesses Examined for the complainant

P.W.1  -

17-07-2014

Sri G. Stalin Babu,  Advocate, Nellore (Chief Affidavit filed)

 

Witnesses Examined for the opposite parties

 

R.W.1  -

23-01-2015

Sri Abraham Lincoln,   Authorized Signatory in Lotus Communications (Reliance Web World)  (Chief Examination filed)

 

                             EXHIBITS MARKED FOR THE COMPLAINANT

 

Ex.A1  -	22-01-2013	Bill  No.364449959460  in favour of complainant issued by opposite party.
Ex.A2  -	-	Photocopy of letter from complainant to the opposite party  and identity card  dated 25-09-2006 in  favour of complainant  issued by Irrigation & CAD department, Government of A.P.
Ex.A3  -	-	Photocopy of Statement of Account in favour of complainant issued by opposite party pages 1 to 3.
Ex.A4  -	-	Blank and Strikeout  letter head paper in favour of complainant.
Ex.A5  -	-	Visiting card  showing the phone, e-mail and name etc., of the complainant.
Ex.A6  -	-	Photocopy of Bar Association Telephone Directory, 2011  diary  90 and 91 pages in one page.
Ex.A7  -	09-04-2010	Photocopy of Payment Receipt Serial No.RCIL/VIJ/2009 in favour of complainant amounted to Rs.520/- issued by  opposite party.

 

                         EXHIBITS MARKED FOR THE OPPOSITE PARTIES

 

Ex.B1  -

-

Photocopy of this Forum’s notice, Complaint, Affidavit in C.C.No.60/2010 and documents etc.,

                                                                                                                                Id/-

                                                                                                                         PRESIDENT

 

 

Copies to:

 

1.	Sri G. Stalin Babu, S/o.Raju, Hindu, 27-II-989, Lakshmi Nagar, Blajai Nagar,  Nellore-524002.
2.	The Manager,  LOTUS Communications (Reliance Web World), 25-2-856, Opposite to Nippo Factory, Chandramouli Nagar, Vedayapalem, Nellore-524 004
3.	Sri K. Anantha Sathyanarayana, Advocate, Nellore.

 

Date when free copy was issued: