Order by:
Sh.Amrinder Singh Sidhu, President
1. The complainant has filed the instant complaint under section 12 of the Consumer Protection Act, 1986 (now under section 35 of the Consumer Protection Act, 2019) on the allegations that the complainant has been using the mobile phone bearing No.9888239898 of Vodafone Idea Limited Company and paying the bills regularly and there is no outstanding against the complainant. The complainant alleges that all of a sudden, without any usage, the Opposite Parties issued a bill vide which they raised a demand of Rs.2569.82 paisa before 20.12.2018 and Rs.660.48 paisa after 20.12.2018 on account of SMS charges, whereas the complainant never used the said SMS. The complainant immediately approached the office of Opposite Parties and requested to waive of the said amount, but the Opposite Parties did not pay any heed to the request of the complainant. The written complaints were also made to the Opposite Parties. Not only this, the complainant also removed the said SIM from his mobile and in this way, the complainant is suffering huge loss and mention tension due to non use of said connection. The complainant purchased mobile set Gionee A1 Plus (Black 64 GB) from Flipkart.com worth Rs.11,899/- and the complainant put one SIM of Vodafone Mobile No. 988239898 and another SIM of Jio No. 7009265935. The complainant alleges that due to fault in mobile set, he SMS use to deliver on Phone No. 8424098936 and 8009897700 from the said mobile number. Thereafter, the complainant visited the service centre of Opposite Party No.4 Gionee time and again, and asked to get check the phone from the concerned company and said service centre of Opposite Party No.4 told that there is fault in software and the complainant has to pay the said bill. Since the complainant has removed the SIM of Vodafone from said mobile and one SIM of JIO remained in the said set, and still SMS use to go through the said mobile set of JIO number. Thereafter, the Opposite Parties were asked many a times to admit the rightful claim of the complainant, but they have refused to do so and there is deficiency in service and unfair trade practice on the part of the Opposite Party and this act of the Opposite Parties has caused lot of mental agony, harassment, inconvenience. Vide instant complaint, the complainant has sought the following reliefs.
- To waive the charges of Rs.2569.82 paisa before 20.12.2018 and Rs.660.48 paisa after 20.12.2018 on account of SMS charges in regard to Vodafone no. 9888239898 and to pay Rs.4 lakhs as compensation for causing him mental tension and harassment and
- Any other relief which this District Consumer Commission may deem fit and proper may be awarded to the complainant.
Hence this complaint has been filed by the complainant for the redressal of his grievances.
2. Upon notice, initially Sh.Sunil Jaiswal, Advocate appeared on behalf of Opposite Party No.1 and filed power of attorney, but thereafter, on 16.04.2021 Sh.Sunil Jaiswal, Advocate counsel for Opposite Party No.1 has stated at bar that he has no instructions from his client and this District Consumer Commission may pass an appropriate order in this regard, nor the Opposite Party No.1 filed written reply and hence, the written version on behalf of Opposite Party No.1 was struck off.
3. Similarly, none has come present on behalf of Opposite Parties No.3 and 4 despite service, and accordingly, Opposite Parties No. 3 and 4 were proceeded against exparte.
4. Opposite Party No.2 appeared through counsel and contested the complaint by filing the written version on the ground inter alia that the complaint is not maintainable; that there is no deficiency in service on the part of the Opposite Parties and that the complaint is absolutely false and frivolous. It is submitted that the bill invoices as generated by Opposite Party No.2 against any number are auto generated as per the usage by the customer and it has already been admitted by the complainant in his complaint that the alleged bills were issued on account of messages being sent on two given numbers. It has been further admitted in the complaint that messages were also delivered even when the complainant has used the SIM of another company also. It is also hereby submitted that the complainant has already admitted that those messages were sent due to the fault in the handset of the complainant purchased from Opposite Party No.3 and the said fact of defective handset or its software was also admitted by Opposite Party No.4 (service centre of Opposite Party No.3), thereafter, at the most the Opposite Parties No. 3 and 4 could be held liable to pay the bills which has been charged accurately by Opposite Party No.2 and henec, the present complaint is liable to be dismissed against Opposite Party No.2. On merits, the Opposite Party No.2 took up almost the same and similar pleas as taken up by them in the preliminary objections. Remaining facts mentioned in the complaint are also denied and a prayer for dismissal of the complaint was made.
5. In order to prove his case, the complainant has tendered into evidence his affidavit Ex.C1 alongwith copies of documents Ex.C2 to Ex.C7 and closed his evidence.
6. On the other hand, to rebut the evidence of the complainant, Opposite Party No.2 tendered into evidence affidavit of Mr.Manoj Madaan Ex.OP2/1 alongwith copies of documents Ex.OP2/2 and closed the evidence on behalf of the Opposite Party.
7. We have heard the ld.counsel for the parties and gone through the documents placed on record.
8. During the course of arguments, ld.counsel for the Complainant has mainly reiterated the facts as narrated in the complaint and contended that the written version filed on behalf of Opposite Party No.2 has not been filed by an authorized person. Therefore, the written version so filed is not maintainable. Opposite Party No.2 is limited Company and written version has been filed on the basis of special power of attorney given to ld.counsel for the Opposite Party No.2. Further contended that thecomplainant has been using the mobile phone bearing No.9888239898 of Vodafone Idea Limited Company and paying the bills regularly and there is no outstanding against the complainant. The complainant alleges that all of a sudden, without any usage, the Opposite Parties issued a bill vide which they raised a demand of Rs.2569.82 paisa before 20.12.2018 and Rs.660.48 paisa after 20.12.2018 on account of SMS charges, whereas the complainant never used the said SMS. The complainant immediately approached the office of Opposite Parties and requested to waive of the said amount, but the Opposite Parties did not pay any heed to the request of the complainant. The written complaints were also made to the Opposite Parties. Not only this, the complainant also removed the said SIM from his mobile and in this way, the complainant is suffering huge loss and mention tension due to non use of said connection. The complainant purchased mobile set Gionee A1 Plus (Black 64 GB) from Flipkart.com worth Rs.11,899/- and the complainant put one SIM of Vodafone Mobile No. 988239898 and another SIM of Jio No. 7009265935. The complainant alleges that due to fault in mobile set, he SMS use to deliver on Phone No. 8424098936 and 8009897700 from the said mobile number. Thereafter, the complainant visited the service centre of Opposite Party No.4 Gionee time and again, and asked to get check the phone from the concerned company and said service centre of Opposite Party No.4 told that there is fault in software and the complainant has to pay the said bill. Since the complainant has removed the SIM of Vodafone from said mobile set and one SIM of JIO remained in the said set, and still SMS use to go through the said mobile set of JIO number. Thereafter, the Opposite Parties were asked many a times to admit the rightful claim of the complainant, but they have refused to do so and there is deficiency in service and unfair trade practice on the part of the Opposite Party and this act of the Opposite Parties has caused lot of mental agony, harassment, inconvenience.
9. On the other hand, ld.counsel for the Opposite Party No. 2 has repelled the aforesaid contention of the ld.counsel for the complainant on the ground that the bill invoices as generated by Opposite Party No.2 against any number are auto generated as per the usage by the customer and it has already been admitted by the complainant in his complaint that the alleged bills were issued on account of messages being sent on two given numbers. It has been further admitted in the complaint that messages were also delivered even when the complainant has used the SIM of another company also. It is also hereby submitted that the complainant has already admitted that those messages were sent due to the fault in the handset of the complainant purchased from Opposite Party No.3 and the said fact of defective handset or its software was also admitted by Opposite Party No.4 (service centre of Opposite Party No.3), thereafter, at the most the Opposite Parties No. 3 and 4 could be held liable to pay the bills which has been charged accurately by Opposite Party No.2 and hence, the present complaint is liable to be dismissed against Opposite Party No.2.
10. Perusal of the contention of the ld.counsel for the complainant shows that the written version filed on behalf of the Opposite Party No.2 has not been filed by an authorized person. Therefore, the written version so filed is not maintainable. The Opposite Party No.2 is limited Company and written version has been filed on the basis of special power of attorney given to ld.counsel for the Opposite Party No.2. In this regard, Hon’ble Supreme Court of India in a judgment (2011)II Supreme Court Cases 524 titled as “State Bank of Travancore Vs. Kingston Computers India Pvt. Ltd.” and in para no.11 of the judgment, has held that
“the plaint was not instituted by an authorized person. On the plea that one authority letter dated 02.01.2003 was issued by Sh. R.K.Shukla in favour of Sh. A.K.Shukla. Further plaint failed to place on record its memorandum/articles to show that Sh. R.k.Shukla has been vested with the powers or had been given a general power of attorney on behalf of the Company to sign, verify and institute the suit on behalf of the Company.”
Similar proposition came before the Hon’ble Delhi High Court in “Nibro Ltd. Vs. National Insurance Co. Ltd.”, 2 (2005) 5SCC 30 that the
“bear authority is not recognized under law and ultimately, it was held that the plaint was not instituted by an authorized person. Here also appellant has not placed on record any resolution passed by any Board of Director in favour of Mr. Soonwon Kwon and that he was further authorised to delegate his power in favour of any other person. Further there is no memorandum/articles of the Company to show that Mr. Soonwon Kwon is one of the Director of the Company. In the absence of that evidence on record we cannot say that the special power of attorney given by Director Soonwon Kwon is a competent power of attorney issued in favour of Sh. Bhupinder Singh. In the absence of any resolution of the Company or any memorandum/articles of the Company to show that Sh. Soonwon Kwon is Director and that he was further authorised to issue power of attorney in favour of Sh. Bhupinder Singh.”
Recently our own Hon’ble State Commission, Punjab Chandigarh in FAO No.1235 of 2015 decided on 25.01.2017 in case titled as L.G.Electronics India Private Limited Vs. Sita Ram Chaudhary also held that the plaint instituted by an unauthorized person has no legal effect.
11. For the sake of arguments, for the time being, if the written reply filed by Opposite Party No. 2 is presumed to be correct, the next plea raised by Opposite Party No. 2 is that the complainant has already admitted that those messages were sent due to the fault in the handset of the complainant purchased from Opposite Party No.3 and the said fact of defective handset or its software was also admitted by Opposite Party No.4 (service centre of Opposite Party No.3), thereafter, at the most the Opposite Parties No. 3 and 4 could be held liable t pay the bills which has been charged accurately by Opposite Party No.2. On the other hand, to defend its case, none has come present on behalf of Opposite Parties No. 3 and 4 despite due service. The complainant wrote written complaints to the Opposite Parties. Not only this, the complainant also removed the said SIM from his mobile and in this way, the complainant is suffering huge loss and mention tension due to non use of said connection. The complainant purchased mobile set Gionee A1 Plus (Black 64 GB) from Flipkart com worth Rs.11,899/- and the complainant put one SIM of Vodafone Mobile No. 988239898 and another SIM of Jio No. 7009265935. The complainant alleges that due to fault in mobile set, he SMS use to deliver on Phone No. 8424098936 and 8009897700 from the said mobile number. Thereafter, the complainant visited the service centre of Opposite Party No.4 Gionee time and again, and asked to get check the phone from the concerned company and said service centre of Opposite Party No.4 told that there is fault in software and the complainant has to pay the said bill. Since the complainant has removed the SIM of Vodafone from said mobile and one SIM of JIO remained in the said set, and still SMS use to go through the said mobile set of JIO number. Thereafter, the Opposite Parties were asked many a times to admit the rightful claim of the complainant, but they have refused to do so and there is deficiency in service and unfair trade practice on the part of the Opposite Parties and this act of the Opposite Parties has caused lot of mental agony, harassment, inconvenience. To corroborate his aforesaid assertion, the Complainant has placed on record his duly sworn affidavit Ex.C1, copy of Vodafone bill Ex.C2, Ex.C3 alongwith bill detail, copy of letter written by the complainant Ex.C4, copy of purchase of mobile set Gionee A1 Plus Ex.C5, copy of statement Ex.C6 and copy of aadhar card Ex.C7. Not only this, with regard to loss incurred due to non supply of the goods, the complainant has sought compensation to the tune of Rs.4 lakhs on account of mental tension and harassment caused in the hands of the Opposite Party and cited judgement of Hon’ble Supreme Court of India titled as Patel Roadways Ltd. Vs. Birla Yamaha Ltd. III (2000) SLT 554-II (2000), CLT 83 (SC), 1(2000) CPJ 42 (SC) 2000 (4) SCC, 91 in this judgement Hon’ble Supreme Court of India held that “loss of goods or injury to goods or non delivery of goods, entrusted to a common carrier for carriage, would amount to a deficiency in service and, therefore, a complaint under the Consumer Protection Act, would be maintainable. When a person entrusts a goods to a common carrier for transportation and the carrier accepts the same, there is a contract for ‘service’, within the meaning of CP Act. Therefore, when the goods are not delivered, there is a deficiency of service.” The aforesaid evidence produced by the complainant has gone unrebutted and unchallenged through any cogent and convincing evidence on record as the Opposite Parties No.3 and 4 did not opt to appear and contest the proceedings. In this way, the Opposite Parties No.3 and 4 have impliedly admitted the correctness of the allegations made in the complaint. It also shows that Opposite Parties No.3 and 4 have no defence to offer or defend the complaint.
12. So, from the entire unrebutted and unchallenged evidence produced by the complainant on record, it stands fully proved on record that the Opposite Parties No.3 and 4 have adopted unfair trade practice and deficiency in service by not making good the loss occasions by the complainant. On this count, the Complainant prayed for making the compensation of Rs.4 lakhs for causing him mental tension and harassment, but we are of the view that the claim for compensation to the tune of Rs.4 lakhs appears to be exorbitant and excessive. The rationale behind grant of compensation has been to compensate a party of the loss occasioned by it. It is none of the intention of the legislature while legislating the Consumer Protection Act to enrich a particular party at the cost of the other. The compensation has to be awarded in commensuration with the loss occasioned to the complainant. In our considered view, ends of justice would be fully met if the complainant is awarded lump-sum compensation to the tune of Rs.5,000/- and we award the same accordingly.
13. In view of the aforesaid facts and circumstances of the case, we allow the complaint of the complainant against the Opposite Parties no.3 and 4 and the Opposite Parties No.3 and 4 are directed to make good the loss amounting to Rs.11,899/- (Rupees eleven thousands eight hundred and ninety nine only) spent while purchasing mobile set Gionee A1 Plus (Black 64 GB) alongwith interest @ 8% per annum from the date of filing the present complaint i.e. 10.01.2019 till its actual realization. Opposite Parties No.3 and 4 are also directed to pay Rs.5,000/- (Rupees five thousands only) as lumpsum compensation to the complainant. The complaint against Opposite Parties No.1 and 2 stands dismissed. Compliance of this order be made by the Opposite Parties No.3 and 4 within 45 days from the date of receipt of the copy of this order, failing which the Complainant shall be at liberty to get the order enforced through the indulgence of this Commission. Copies of the orders be furnished to the parties free of cost. File is ordered to be consigned to the record room.
14. Reason for delay in deciding the complaint.
This complaint could not be decided within the prescribed period because the State Government has not appointed any of the Whole Time Members in this Commission for about 3 years i.e. w.e.f. 15.09.2018 till 27.08.2021 as well as due to pandemic of COVID-19.
Announced in Open Commission.
Dated:08.02.2022.
