PER SHRI. S.B.DHUMAL - HON’BLE PRESIDENT :
1) In brief consumer dispute is as under –
The complainant is a legal practitioner having his office at Fort, Mumbai. Opposite Party No.1 is a company engaged in business of providing cellular telephone connection service and Opposite Party No.2 is working in the capacity of Head Customer Service-delivery in the Opposite Party No.1 Company. About the end of the year 2005 the Complainant subscribed to life-time incoming prepaid mobile service of Air Tel Ltd. - Opposite Party No.1 having mobile no.9892944202. About in the first week of January, 2006, one Mr.Ali, representative of the Opposite Party No.1 visited his office and gave information of fabulous post paid plan in the name of “299 Celebration Plan” wherein offers were made as follows –
i) 50 paise outgoing per minute to mobile
ii) 50 paise outgoing on any land phone-line
iii) Full Talk time against the rent of Rs.299
2) It is averred in the complaint that Mr.Ali induced the Complainant to subscribe their aforesaid plan stating that it was cheapest plan as compared to other GSM and CDMA companies. The Complainant asked Mr.Ali to confirm the said offers and tariff under the said plan in writing. Thereafter Mr.Ali brought an undated letter on the letter head of Opposite Party No.1 duly signed by Opposite Party No.2 confirming the said offer. In the said letter Opposite Party No.1 confirmed the full talk time against the rent of Rs.299/- and tariff of 50 paise per minute for outgoing local call to both mobile and landline. Copy of aforesaid letter is produced by the Complainant alongwith complaint at Exhibit-‘A’. According to the Complainant relying upon the aforesaid offer, the Complainant signed the forms brought by Mr.Ali, representative of Opposite Party No.1 and said representative agreed to fill up the required information. For availing 5 % discount on the bill amount, the Complainant availed the auto debit facility for bill payment against his HDFC Credit Card. After few days the Complainant received a courier packet containing SIM card having mobile no.9867979771.
3) In the month of February, 2006 the Complainant received a bill for the period 17/01/2006 to 16/02/2006 against the said cell phone connection, amounting to Rs.814.71 paise. No credit/adjustment of monthly rent of Rs.299/- as assured in the offer was given to the Complainant. Copy of the said bill is produced at Exhibit- ‘B’. After noticing anomaly in the bills, the Complainant personally approached the Office-Gallery of Opposite Party No.1 at Fort, Mumbai on 22/03/2006 and met Ms.Namita, Company’s Executive of the Opposite Party No.1. The Complainant lodged this complaint to the said executive and produced copy of aforesaid letter signed by Opposite Party No.2. The Complainant had requested to give the adjustment of rental amount of Rs.299/- and to issue fresh bill. There was no response from Opposite Party. So on 23/03/2006 the Complainant sent reminder by way of E-mail. On 30/03/2006 he addressed letter to Opposite Party No.1 by E-mail reminding about the complaint and also withdrawing his authorization for auto-debit facility of bill payments against HDFC Credit Card.
4) On 08/06/2006 the Complainant searched website of the Opposite Party No.1 and noticed that his complaint was closed by Opposite Party No.1 without giving any reply. Then he lodged reminder on 08/06/2006 by E-mail to Opposite Party No.1 Company and again searched website of Opposite Party No.1 Company. The Complainant was shocked to know that his subsequent complaint was also closed by Opposite Party No.1 without any response. Thereafter Complainant made several phone calls to the Customer Service Associates and help line desks of the Opposite Party No.1 but no action or reply was given by Opposite Party No.1.
5) It is submitted that in the 2nd week of July, 2006 the Complainant received reply dtd.10/07/06 from the Nodal Officer of the Opposite Party No.1 Company stating that letter issued by Opposite Party No.1 offering full talk time against rent of Rs.299/- was by mistake, and that they are initiating strict disciplinary and legal action against the concerned. According to the Complainant, relying upon the promise made by the Opposite Party as stated in the aforesaid letter the Complainant had subscribed the said mobile connection. However, due to the recklessness, inadvertence, and high handedness of the Opposite Party No.1 the Complainant was put to great mental agony and harassment. The Complainant felt being cheated. According to the Complainant, he is entitled to permanent order and direction to Opposite Party No.1 to give full talk time against rent of Rs.299/-, and to apply the tariff of 50 paise per minute both mobile and landline phones, as long as the Complainant uses the said mobile post paid connection. It is stated that the Complainant is entitled to total sum of Rs.299/- to assured value at Rs.299/- from the month of February, 2006 till date with interest thereof. The Complainant has prayed to declare Opposite Parties to be guilty of deficiency in service and unfair trade practice. Further he has prayed to direct Opposite Party No.1 to give full talk time against rent of Rs.299/- and to apply the tariff of 50 paise per minute, both for mobile and landline as long as Complainant used said mobile post paid connection. The Complainant has requested to direct Opposite Party No.1 to pay to the Complainant total sum of Rs.2093/- towards the assured benefits at the rate of Rs.299/- per month from the month of February, 2006 till date with interest @ 18 % p.a. thereon. The Complainant has prayed to direct Opposite Party No.1 to pay Rs.5,000/- towards cost of this proceeding and Rs.25,000/- towards mental agony and hardships, inconvenience etc.
6) Opposite Parties have filed common written statement and thereby resisted claim of the Complainant contending interalia that the complaint is misconceived, false and frivolous and deserves to be dismissed with cost. It is contended that Opposite Party No.1 company is well reputed and renowned company. Opposite Parties have admitted that their representative Mr.Ali was visited the Complainant with a proposal for availing the mobile services of the Opposite Party. According to the Opposite Parties, the scheme was wrongly represented by Mr.Ali, the Proprietor of Omkar Telecom to the Complainant. Immediately on the knowledge of said letter containing misrepresentation dealership of Mr.Ali was terminated. It is contended that the said letter produced by the Complainant was not signed by Opposite Party No.2. Letter-head of Opposite Party No.1 was fraudulently obtained by scanned copy and thereafter, the contents were punched therein. The agent had fraudulently signed on the said letter. Correct name of their CSD- Head, is not Avinash Jindal but it is Avnish jindal. Signature appearing below letter is at Exhibit-‘A’ is of Avinash Jindal.
7) Opposite Parties have admitted that fact that the Complainant signed the form and it was submitted to the Opposite Party. The Complainant also availed the auto debit facility for 5 % disciount on the bill amount. It is admitted that sim card was sent to the Complainant. Opposite Party has admitted the correctness of the Complainant’s complaint para no.8 & 9.
8) Accroding to the Opposite Party grievance made by the Complainant was duly settled by their Customer Card Department. Dealership of Mr.Ali was discontinued and the amount which was wrongly charged to the Complainant was duly debited to the Complainants account and thus, the matter was settled. Opposite Party has submitted that the Letter dated nil Exhibit-‘A’ was issued un-authorizedly by the Dealer and the Opposite Party is not liable for the misrepresentation made by the Dealer. The Opposite Party has denied allegations of recklessness and inadvertence and high handedness. Further they have denied allegations of cheating the Complainant. It is submitted that Opposite Parties has made all the efforts to settle the matter but the Complainant is not interested in settlement. The Opposite Parties have denied allegations made by the Complainant and submitted that Complainant is not entitled to full talk time against rent of Rs.299/- and to apply the tariff of 50 paise per minute to both mobile and landline as long as the Complainant uses the mobile services. They have denied the Complainant’s prayer for recovery of Rs.2,093/-, prayer for compensation and cost of this proceeding submitting that complaint deserves to be dismissed with cost.
9) In support of the complaint, the Complainant has filed affidavit in proof of evidence and produced xerox copies of documents at Exhibit-‘A’ to ‘I’. The Complainant has filed rejoinder and thereby denied all allegations made in the written statement of the Opposite Party. Opposite Parties have also filed affidavit of evidence. Both parties have filed their respective written argument.
10) On 21/06/2010 Ld.Advocate for the Opposite Party was absent. Heard Ld.Advocate Ashwini Patil for the Complainant and then the complaint was closed for order.
11) Following points arise for our consideration and our findings thereon are as under –
SR.NO. | POINTS | FINDINGS |
1. | Whether the Complainant has proved deficiency in service on the part of Opposite Party Nos.1 & 2 ? | Yes. |
2. | Whether the Complainant is entitle to recover amount of Rs.2,093/-, compensation, cost of this proceeding and other relief claimed in prayer column of the complaint ? | As per final order. |
Reasons :-
Point No.1 :- Following facts are admitted facts that about at the end of year 2005 the Complainant subscribed to life time incoming prepaid mobile service of Opposite Party No.1 having mobile no.9892944202. Opposite Party have admitted the fact that in the first week of January, 2006, their representative, Mr.Ali, visited office of the Complainant and made certain representation in respect of post paid plan in the name of “299 Celebration Plan”. According to the Complainant Mr.Ali had given him following offer –
i) 50 paise outgoing per minute to mobile
ii) 50 paise outgoing on any land phone-line
iii) Full Talk time against the rent of Rs.299
It is further submitted by the Complainant that Mr.Ali brought an undated letter on the letter head of Opposite Party No.1 duly signed by Opposite Party No.2 confirming the above said offer. It appears from the copy of letter at Exhibit-‘A’ to the complaint that the letter is undated and it is not specifically addressed to the Complainant. In the letter following representation is made “Opposite Party No.1 confirmed the 299/-Cereberation plan that you will get more full talk time of Rs.299/- and tariff of 50 paise per minute for outgoing local call to both mobile and landline and if you take more than one connection, entire connectivity between cellular will be free i.e. it will like group connection.”
It is the case of the Complainant that relying upon the aforesaid representation made by Mr.Ali, representative of Opposite Party No.1 and the aforesaid letter brought by Mr.Ali he accepted the offer and also agreed for availing 5 % discount on the bills amount, approve the auto debit facility for bill payment against his HDFC Credit Card. Opposite Party has admitted the aforesaid fact that the Complainant submitted form dully singed and also availed 5 % discount on the bill amount by auto debit facility against his HDFC Credit Card.
The Complainant has submitted that in the month of February, 06 he received bill no.4549190917 from Opposite Party for the period January, 2006 to 16th Feb.,2006 against use of his cellular phone. He has produced xerox copy of the aforesaid bill at Exhibt-‘B’ in which total amount due is shown as Rs.814.71 paise. According to the Complainant aforesaid bill issued by Opposite Party No.1 is of excessive amount. As per the representation made to him the bill of aforesaid period at the most comes to Rs.340/-. It is submitted that making of false representation and submitting bill of excessive amount to the Complainant amounts to deficiency in service on the part of Opposite Party.
It is the case of Opposite Party that Mr.Ali, Proprietor of Omkar Telecom who was working as a Dealer of Opposite Party had given wrong representation in respect of aforesaid scheme 299/- Celebration Plan to the Complainant. After receipt of complaint regarding the bill, Opposite Party came to know about wrong misrepresentation by their dealer. Therefore, Opposite Party, immediately terminated dealership of Mr.Ali. It is alleged that letter Exhibit-‘A’ produed by the Complainant was pulled by Mr.Ali. Mr.Ali had fraudulently obtained scan copy of their letter-head and thereafter the contains were punched therein. Signature appearing below the letter is not their Head Customer Delivery Service. According to the Opposite Party, name of their Head Customer Delivery Service is Avanish Jindal and not Avinash Jindal as stated in the letter. Opposite Party has admitted the fact that wrong misrepresentation was made by Mr.Ali to the Complainant and submission of application form duly signed under the said scheme. Sim card was also sent to the Complainant. After receipt of complaint regarding bill, Opposite Party has terminated dealership of Mr.Ali. By referring to the provision of section 30 of Indian Contract Act, it is submitted that Opposite Parties are not liable for misrepresentation made by their agent.
It is admitted by the Opposite Party that during the relevant period Mr.Ali, Proprietor of Omkar Telecom was working as a Dealer of the Opposite Party. Further it is admitted that Mr.Ali made misrepresentation to the Complainant as stated in the complaint. However, as regard the letter at Exhibit-‘A’, it submitted by the Opposite Party that letter was not issued by their Head Customer Service delivered. It is alleged that Mr.Ali made forged and fabricated document. It is contended that they have not authorized Mr.Ali to promote scheme of ‘Rs.299/- full talk time’ and in fact no such scheme was operational at relevant period. Opposite Party has not produced any documentary evidence to show that for what purpose dealership was give to Mr.Ali. Admittedly Opposite Party No.1 is engaged in business of providing cellular phone connection service. For want of evidence we do not find substance in the allegations made by the Opposite Party. As mentioned above during relevant period Mr.Ali was working as Dealer of Opposite Party No.1 and on the basis of representation made by Mr.Ali to the Complainant, he submitted application to the Opposite Party No.1 and Opposite Party provided Sim card to the Complainant. It is well settled that the principle is vicariously liable for the act of his agent. Considering the facts and circumstances of the case we hold that Opposite Party is liable for the misrepresentation made to the Complainant regarding scheme by their Dealer- Mr.Ali. As mentioned above bills which is produced by the Complainant is not prepared as per the representation made to the Complainant in letter Exhibit-‘A’ which was admittedly given by Mr.Ali, representative of Opposite Party No.1. Therefore, we hold that the Complainant has proved deficiency of service on the part of Opposite Parties. Therefore, we answer point no.1 in the affirmative.
Point No.2 - Mobile service bill issued by Opposite Party to the Complainant produced at Exhibit-‘B’ is not prepared as per the representation made to the Complainant by Dealer of Opposite Party No.1. The Complainant has proved deficiency in service on the part of Opposite Party. The Complainant has requested to direct Opposite Party No.1 to give full talk time against rent of Rs.299/- and apply tariff of 50 paise per minute to both mobile and landline phones as long as the Complainant uses said mobile post paid connection. According to the Opposite Party wrong representation was made about scheme ‘299/- Celebration Plan’ to the Complainant by their agent but in fact no such scheme was floated by Opposite Party during relevant period. Besides copy of letter at Exhibit-‘A’, the Complainant has not produced any other independent evidence to prove that during relevant period Opposite Parties float scheme ‘299 Celebration Plan’ as stated in the complaint. It is contention of the Opposite Party that letter at Exhibit – ‘A’ is forged and fabricated letter. Mr.Ali, the Dealer of Opposite Party No.1 is not joined as party to this proceeding. As there is no reliable evidence on record to prove that during relevant period Opposite Party had floated scheme as stated in the complaint. Therefore, Complainant prayers to give permanent direction to the Opposite Parties to give full talk time against rent of Rs.299/- and apply tariff of 50 paise per minute to both mobile and landline phones as long as the Complainant uses said mobile post paid connection cannot be granted.
The Complainant has prayed to recover Rs.2,093/- towards the assured benefit @ 299/- per month from the month of Jan., 2006 till date of filing of this complaint with interest @ 18 % p.m. The Complainant has not given particulars of aforesaid claim. In this case the Complainant has produced only one bill which is at Exhibit-‘B’ to the complaint which was issued by the Opposite Party for the period 17/01/06 to 16/02/07. The Complainant has not produced any other bill. As mentioned above, Ld.Advocate for the Complainant has submitted that actual bill if calculated as per representation made to the Complainant by the Opposite Party for aforesaid period come to Rs.340/-. However, Opposite Parties have recovered Rs.814.17 paise i.e. excess amount of Rs.475/- from the Complainant. It is undisputed fact that the Complainant had availed the auto debit facility against bill payment for HDFC Credit Card. It appears that after receipt of aforesaid bill Complainant made grievance to the Opposite Party by lodging complaint. By reply dated 10/07/2006 Officer of Opposite Party had informed the Complainant that offer of full talk time against rent of Rs.299/- was mistake and they have initiated disciplinary action against concerned person. The Complainant has not adduced any evidence regarding further bills if any submitted by the Opposite Party. Therefore considering evidence of record we hold that the complaint is entitled to recover only Rs.475/- out of the amount of Rs.2,093/- claimed by the Complainant.
The Complainant has claimed interest @ 18 % p.m. on the aforesaid amount. The Complainant has claimed interest at exorbitant rate. We think it just to direct Opposite Parties to pay interest @ 9 % p.a. on Rs.475/- from 05/03/2006 till realization of entire amount.
The Complainant has claimed compensation of Rs.25,000/- towards mental tension and inconvenience and Rs.5,000/- as cost of this proceeding alongwith interest @ 18 % p.a.. In this case it is proved that dealer of the Opposite Party had misrepresented the Complainant about the so called scheme of Opposite Party of ‘299/- Celebration Plan’ and relying upon the said misrepresentation the Complainant had applied for mobile service. Considering the facts we think it just to direct Opposite Parties to pay Rs.2,000/- to the Complainant as compensation for mental agony and inconvenience. Further considering the nature of proceeding we think it just to direct Opposite Parties to pay Rs.1,000/- to the Complainant as cost of this proceeding. Therefore, we answer point no.2 accordingly.
For the reasons discussed above, we partly allowed the complaint and pass following order -
O R D E R
i. Complaint No.379/2006 is partly allowed.
ii. Opposite Parties Nos.1 & 2 shall jointly and/or severally pay an amount of Rs.475/- (Rs.Four Hundred Seventy Five Only) to the Complainant with interest
@ 9 % p.a. on aforesaid amount from 05/03/2006 till realization of entire amount to the Complainant.
iii.Opposite Parties Nos. 1 & 2 shall jointly and/or severally pay an amount of Rs.2,000/- (Rs.Two Thousand Only) as compensation for mental agony and
harassment and Rs.1,000/- (Rs.One Thousand Only) as cost of this proceeding to the Complainant.
iv.Opposite Party Nos.1 & 2 shall comply with the order within period of 1 month from the date of receipt of this order.
v.Certified copies of this order be furnished to the parties.
