<br /> BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT BANGALORE (URBAN)<br /> <br /> 26th JULY 2008<br /> <br /> PRESENT :- SRI. A.M. BENNUR PRESIDENT<br /> SRI. SYED USMAN RAZVI MEMBER <br /> SMT. M. YASHODHAMMA MEMBER <br /> <br /> <br /> COMPLAINT NO. 1077/2007<br /> <br /> <br /> COMPLAINANT S.J.S Enterprises (P) Ltd.,<br /> No.1, Thalghattapura,<br /> Kanakapura Main Road,<br /> Bangalore – 560 062.<br /> Rep. By Rammohan.<br /> <br /> <br /> Advocate (B.S. Gurudath)<br /> <br /> <br /> V/s.<br /> <br /> <br /> OPPOSITE PARTY Bharti Airtel Ltd.,<br /> # 55, Divya Sree Towers,<br /> Bannerghatta Main Road,<br /> Opp. Jayadeva Hospital,<br /> Banglore – 560 029.<br /> <br /> <br /> Advocate (B.J. Mahesh)<br /> <br /> <br /> O R D E R<br /> <br /> This is a complaint filed U/s. 12 of the Consumer Protection Act of 1986 by the complainant to direct the Opposite Party (herein after called as O.P) to pay a compensation of Rs.10,00,000/- and for such other reliefs on an allegations of deficiency in service. <br /> <br /> The brief averments, as could be seen from the contents of the complaint, are as under:<br /> Complainant availed the services of the OP and took 65 connections and paying a minimum of Rs.6,00,000/- per annum to OP. Out of those 65 connections 10 connections are mainly devoted to marketing division namely the mobile nos. 98452 87420, 98452 87351, 99452 39625, 98453 00377, 98453 00388, 98453 00399, 99452 39623, 99452 39624, 99452 39622 and 99452 39621. It is further contended that all the above said connections were under CUG 249 plan. OP promised to charge under the said plan, but thereafter somehow OP changed the tariff rate and started sending bill at its whim and fancy. OP is expected to charge only Rs.99/- as fixed in CUG charges, OP violated the terms. For no fault of the complainant, he is made to suffer both mental agony and financial loss. OP on many more occasions disrupted the connections under the guise of non-payment of the bills. In spite of the repeated requests made by the complainant to issue revised bills as per the plan, it has gone in vain. Being fed up with the hostile attitude of the OP, complainant is constrained to issue the legal notice on 05.05.2007. There was no response. OP failed to send the itemized bills as contemplated. Thus complainant felt the deficiency in service on the part of the OP. For no fault of his, he was made to suffer both mental agony and financial loss. Under the circumstances he is advised to file this complaint and sought for the relief accordingly.<br /> <br /> 2. On appearance, OP filed the version denying all the allegations made by the complainant in toto. According to OP the bills were raised as per the rate plan agreed upon by both the parties. It is further denied by the OP that complainant availed the services of 10 numbers referred to under different schemes and plan. In absence of production of contract copy complainant cannot plead the same. OP never promised that the rate plan will be changed and the bill planning had been changed in respect of the mobile numbers. It is further alleged by the OP that the claim of the complainant is highly imaginary. The itemized bills were sent to the complainant as contemplated on the receipt of requisite charges. If the complainant has not received the said itemized bills and feels that there is an excess in billing he would have produced the documents to that effect, but no such steps are taken. OP has not sent the SMS as alleged by the complainant. As the complainant became the defaulter the mobile connections were disconnected as per the contractual term, that action of the OP cannot be said as deficiency in service. The service hired by the complainant is purely commercial in nature. Under such circumstances, the complainant cannot claim himself as a ‘Consumer’. What is the basis for claiming Rs.10,00,000/- as compensation is not known. The allegations are frivolous and baseless. The complaint is devoid of merits. Among these grounds, OP prayed for the dismissal of the complaint.<br /> <br /> 3. In order to substantiate the complaint averments, the complainant filed the affidavit evidence and produced some documents. OP has also filed the affidavit evidence and produced their documents. This Forum was pleased to dismiss the complaint vide order dated 13.08.2007 holding that there is no proof of deficiency in service on the part of the OP. The complainant being aggrieved by the said impugned order preferred an Appeal before the Hon’ble Karnataka State Consumer Disputes Redressal Commission at Appeal No. 1773/2007. The said Appeal came to be allowed vide order dated 26.05.2008. The Hon’ble State Commission was pleased to remand the matter for disposal afresh after due notice to both the parties. On the receipt of the kind orders, notices were issued to the litigating parties. On their appearance complainant filed additional document. Then the arguments were heard. <br /> <br /> 4. In view of the above said facts, the points now that arise for our consideration in this complaint are as under:<br /> <br /> Point No. 1 :- Whether the complainant has proved <br /> the deficiency in service on the part of the OP?<br /> <br /> Point No. 2 :- If so, whether the complainant is <br /> entitled for the reliefs now claimed?<br /> <br /> Point No. 3 :- To what Order?<br /> <br /> <br /> 5. We have gone through the pleadings of the parties, both oral and documentary evidence and the arguments advanced. In view of the reasons given by us in the following paragraphs our findings on:<br /> <br /> Point No.1:- In Negative<br /> Point No.2:- Negative<br /> Point No.3:- As per final Order.<br /> <br /> <br /> R E A S O N S<br /> <br /> 6. At the outset it is not at dispute that the complainant availed the services of the OP by taking 65 connections. Out of them he has devoted 10 phones towards the marketing division. Now the grievance of the complainant is only with respect to the said 10 cell phone bearing Nos.98452 87420, 98452 87351, 99452 39625, 98453 00377, 98453 00388, 98453 00399, 99452 39623, 99452 39624, 99452 39622 and 99452 39621. According to the complainant he took 3 connections under New India Roam 399 especially to phone Nos. 98452 87420, 98452 87351 and 99452 39625. It is further contended that he took connection under New India Home 299 Plan with respect to five cell numbers namely 98453 00377, 98453 00388, 98453 00399, 99452 39623 and 99452 39624. It is further contended that he availed the services of OP of two cell phones bearing No. 99452 39622 and 99452 39621 under 299 Full Value Plan. Unfortunately for this contention basically there is no proof. Complainant has not produced any such kind of contractual <br /> <br /> <br /> agreement entered into between himself and the OP with respect to the said cell phones, that too with respect to the plan referred to above. <br /> <br /> 7. So the contention of the complainant that OP failed to extend the expected service under the said plan and went on creating the bills under different heads against to the terms and conditions of the plan and the scheme, appears to be baseless and imaginary. Though complainant says that he took connections under the CUG 249 plan. For this also basically there is no proof. On the basis of the utilization of the said cell phones OP issued the bills. To substantiate the same the itemized bills raised by OP is produced. There is nothing to discard the contents of the said itemized bills raised by the OP. Even otherwise also complainant has not disputed the said fact. Even if complainant finds some mistake being crept in, in issuance of the bill he can seek for issuance of rectified correct bill. But he cannot say the bill raised by the OP is against to the plan adopted by him. There is no proof that excess billing is made.<br /> <br /> 8. The complainant wants to rely on good number of SMS, he has sent to the OP and the so called replies given by the OP. We have taken note of some of the SMS referred to by the Learned Counsel for the complainant. In all these SMS messages repeatedly it is contended as discussed right now. It is only a discussion that has been taken place between the complainant and the OP otherwise, there is no concluding contract, as such so as to accept the version of the complainant that OP promised to provide the said service under India Roam Plan, India Home Plan and Full Value Plan. As per the request made by the complainant OP went on issuing the itemized bills and also ensured about the international and India roaming facility, then demanded the outstanding due. Complainant raised certain objections with regard to the tariff. <br /> <br /> 9. Complainant being a shrued businessman must be aware of the tariff before availing the same or enjoying the said benefit. Now he cannot raise the objection that there is a change in the tariff made by the OP unilaterally or without his consent. Some of the SMS dated 21st March 2007 clearly discloses that complainant has not made the payment till all the bills get rectified and he directed the OP not to disconnect outgoing calls as he is on global roaming and Europe tour during April 2nd and 20th. It further means that only after his return the bills will be paid. During the pendency of the said bill he wants that OP should not disturb its connection. Further he warns the OP saying if my service gets disrupted I will be forced to take it up legally. The tenure of the said SMS are in directive terms, not in a good taste of availing the service. When complainant himself is a defaulter, he can’t allege deficiency in service. If telephones are disconnected it is because of non-payment of bills.<br /> <br /> 10. As already observed by us in the above said paras, unless and until there is some written contractual agreement or contract between the OP and the complainant with regard to availment of the service under the so called plan, complainant cannot allege the deficiency in service. We have closely scrutinized both oral and documentary evidence as well as the number of SMS referred and sent by the complainant as well as the replies. But we find those SMS are not helpful to the complainant to prove the deficiency in service. Another SMS dated 23.02.2007 reads that if you do not want me to proceed legally I want your senior person to talk with me and ensure that from 8th jan I get a rework on all the bills. It appears complainant wants the OP to heed to his demand and dance to his tunes irrespective of the fact whether he has actually availed the services of the OP as contended or not. So the approach of the complainant does not appears to be bonafide and reasonable. Under such circumstances he is not entitled for the relief claimed. The complaint appears to be devoid of merits. Accordingly we answer point nos.1 and 2 in negative and proceed to pass the following: <br /> <br /> O R D E R<br /> <br /> The complaint is dismissed. In view of the nature of dispute no order as to costs.<br /> <br /> (Dictated to the Stenographer and typed in the computer and transcribed by him, verified and corrected, and then pronounced in the Open Court by us on this the 26th day of July 2008.) <br /> <br /> <br /> <br /> MEMBER MEMBER PRESIDENT<br /> <br /> <br /> <br /> p.n.g. <br />