| Final Order / Judgement | DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, BATHINDA CC.No.530 of 02-11-2016 Decided on 30-01-2018 Ajaib Singh Sohal S/o Surjit Singh R/o H.No.29281, Gali No-6, Janta Nagar, Bathinda ........Complainant Versus 1.Airtel, Plot No.21, Rajiv 'Gandhi Technical Park, Chandigarh, thorough its Manager. 2.Airtel Express, Airtel Store, 100 feet Road Near Power House Road, Bathinda, through its Executive Officer. .......Opposite parties Complaint under Section 12 of the Consumer Protection Act, 1986 QUORUM Sh.M.P Singh Pahwa, President. Sh.Jarnail Singh, Member. Smt.Sukhwinder Kaur Member Present:- For the complainant: Ms.Karamjit Kaur, Advocate. For opposite party No.1: Sh.Ashu Bansal, Advocate. Opposite party No.2: Ex-parte. ORDER M.P Singh Pahwa, President The complainant Ajaib Singh Sohal (here-in-after referred to as complainant) has filed complaint U/s 12 of Consumer Protection Act, 1986 against opposite parties Airtel and Other (here-in-after referred to as opposite parties). Briefly stated, the case of the complainant is that he is working as A.L.M. in P.S.P.C.L. He is the consumer/customer of opposite party. He purchased one post-paid connection bearing No.99882-99146 about one years back. This number has been given by him to his all friends, relatives and higher official of PSPCL. He is paying all the bills in time and regularly, although opposite parties sent him excess bill. It is alleged that on 30.8.2016, the complainant went to the office of opposite party No.2 at Bathinda for transferring his connection from post-paid to prepaid, after depositing the full and final bill and deposited an amount of Rs.100/- as advance payment. He fulfilled all the formalities as required by opposite parties. The official of opposite party No.2 told him that his connection will be transferred from post-paid to prepaid on 5.9.2016 and also issued Sim card, but despite depositing the full and final payment of bill and fulfilling all the formalities, opposite parties did not change the plan from post-paid to prepaid and demanded an amount of Rs.1139.29/- as bill. The complainant has already paid the bill and closed his account. It is further alleged that the complainant approached the office of opposite party No.2 and explained it whole story, but it did not listen anything and threatened him that he must deposit amount, otherwise, his connection will be disconnected and outgoing and incoming calls have also stopped due to non-payment of amount of Rs.1139.29/-. On this backdrop of facts, the complainant has alleged deficiency in service on the part of opposite parties. It is alleged that due to this deficiency in service, the complainant has suffered mental tension and agony. For these sufferings, he has claimed Rs.20,000/- as compensation and Rs.500/- per day for delay in work by the officials of opposite parties and Rs.5500/- as cost of litigation. Hence, this complaint. Upon notice, none appeared on behalf of opposite party No.2. As such, ex-parte proceedings were taken against it whereas opposite party No.1 appeared through its counsel and contested the complaint by filing its written version. In the written version, opposite party No.1 has raised the preliminary objections that the complaint is frivolous and vexatious. It be dismissed U/s 26 of 'Act'. The complainant is not entitled to any compensation. The compensation claimed by him is excessive and it be dismissed. No cause-of-action has arisen for him to file the complaint. There is no deficiency in service on part of opposite party No.1 as defined U/s 2(1)(g) and (o) of 'Act'. The complaint involves the complicated and complex question of fact, which requires elaborate evidence and trial. It can be decided only in the civil court. This Forum has no jurisdiction to try and adjudicate the complaint. There is special remedy provided in Section 7-B of the Indian Telegraph Act. On merits, the postpaid number 99882-99146 was being used by the complainant, is stated to be matter of record. It is denied that the complainant was paying the bills regularly. As per record, there is outstanding amount of Rs.1829.29/- against the complainant. It is pleaded that as per record, the complainant did not raise any request for changing his post-paid No.99882-99146 into pre-paid. It is disclosed that the calling facility on this number was disconnected as Rs.1829.29/- was outstanding against the complainant and he has not paid this amount. All other averments of the complainant are denied. In the end, opposite party No.1 have prayed for dismissal of complaint. Parties were asked to produce the evidence. In support of his claim, the complainant has tendered into evidence his affidavit dated 27.4.2017, (Ex.C1); photocopy of payment receipts, (Ex.C2 and Ex.C3) and closed the evidence. To rebut the claim of the complainant, opposite party No.1 has tendered into evidence affidavit of Neha Nisal dated 4.7.2017, (Ex.OP1/1); photocopy of account statement, (Ex.OP1/2); photocopy of power of attorney, (Ex.OP1/3) and closed the evidence. Case was fixed for filing written arguments on behalf of parties. The complainant moved an application for directions to opposite parties to produce record. He has prayed for directions to opposite parties to produce complete detail/documents/record pertaining to issuance of Sim No.8991000900937537804U as to when and whom, this SIM was issued and for what purpose. Arguments on application also heard alongwith main arguments. Before coming to main arguments, we have considered to decide the application for production of record. The complainant has prayed for directions to opposite parties to produce record of particular Sim No.8991000900937537804U issued to the customer and purpose of issuance of Sim. Since, in this case, main dispute is whether there is any outstanding amount against the complainant or not. Therefore, production of this record will not serve the main purpose. As such, application is dismissed. Now, coming to main controversy. Learned counsel for complainant has reiterated his stand as taken in the complaint and detailed above. It is also submitted by learned counsel for complainant that the complainant has placed on record payment receipt, (Ex.C2), which proves that on 30.8.2016, he deposited an amount of Rs.1370/- and earlier to it, he has deposited Rs.740/- on 30.6.2016. Therefore, he has paid the entire outstanding amount before opting for change of connection from post-paid to prepaid. He has also pleaded that opposite parties issued Sim for pre paid connection. As such, it is to be accepted that nothing was due against him, otherwise, opposite party No.2 was not supposed to issue him any Sim card. Opposite party No.2 has not changed the plan from post-paid to prepaid. It amounts to deficiency in service. Opposite party No.2 has also disconnected the service. It also amounts to deficiency in service. As such, the complainant is entitled to relief as prayed for. On the other hand, learned counsel for opposite party No.1 has reiterated its stand as taken in the written version and detailed above. It is further submitted by learned counsel for opposite party No.1 that only controversy is regarding outstanding amount of Rs.1829.29/-. The complainant has pleaded that he used to pay the bills regularly, but he has not produced any bill on record. He has produced payment receipts, (Ex.C2 and Ex.C3). Of-course, vide these receipts, he deposited an amount of Rs.1370/- and Rs.740/-, but these receipts will not prove that he has paid the entire outstanding amount till 30.8.2016. Opposite party No.1 has placed on record the entire statement till 2.6.2017 and amount received from the complainant from time to time. Amount paid by the complainant on 30.6.2016 and 30.8.2016 are also reflected in the statement. It proves that he paid the total sum of Rs.4765/- against outstanding amount of Rs.6994/ and after giving credit of Rs.981.23, there was outstanding amount of Rs.1248.16 as on 2.6.2017. He is not entitled to change of any plan before clearing outstanding amount in previous plan. As such, there is no deficiency in service on the part of opposite parties. We have given careful consideration to these rival submissions. It is well settled that the complainant has to prove his case by affirmative evidence. The availing of connection by the complainant is not disputed. His version is that he used to pay the bill amount regularly, but opposite party No.1 has not admitted this fact. Therefore, best evidence with the complainant was to produce on record bills received by him and payment made by him. He has not brought on record any bill to prove outstanding amount. Of-course, he has produced on record payment receipts, (Ex.C2 and Ex.C3), but these receipts will not prove that he has paid the entire outstanding amount. Opposite party No.1 has placed on record statement of account up to 2.6.2017. It proves that the total outstanding amount against the complainant was Rs.6994.29/- and he paid Rs.4765/-. There was balance of Rs.1248.06/-. He has claimed that on 30.8.2016, he paid the entire outstanding amount. From account statement, it is also gathered that till 30.8.2016, a sum of Rs.5162.63/- was outstanding against the complainant and by that time, he had paid an amount of Rs.4765/-. Therefore, the version of the complainant that on 30.8.2016, he cleared the entire outstanding amount is not acceptable. In these circumstances, only conclusion is that his request for change of plan was not acceptable on account of outstanding amount. For the reasons recorded above, the complaint is hereby dismissed without any order as to cost. However, it is made clear that this order will not prejudice the right of the complainant to seek change of the plan and switch over to another service provider after completion of required formalities/clearance. The complaint could not be decided within the statutory period due to heavy pendency of cases. Copy of order be sent to the parties concerned free of cost and file be consigned to the record. Announced:- (M.P Singh Pahwa) 30-01-2018 President (Jarnail Singh) Member (Sukhwinder Kaur) Member
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