BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION

VAZHUTHACAUD : THIRUVANANTHAPURAM

PRESENT

SRI.  P.V. JAYARAJAN                               : PRESIDENT

SMT. PREETHA G. NAIR                           : MEMBER

SRI. VIJU  V.R.                                             : MEMBER

C.C.No. 214/2018 Filed on 07/06/2018

ORDER DATED: 09/03/2023

ORDER

SRI.P.V. JAYARAJAN, PRESIDENT:

1. This is a complaint filed under section 12 of Consumer Protection Act 1986 and the matter stood over to this date for consideration.  After hearing the matter the commission passed an order as follows:
2. This is a complaint filed by the complainant against the opposite parties alleging deficiency in service and unfair trade practice on the part of the opposite parties.  After admitting the complaint notice was issued to the opposite parties.  The opposite parties 1 & 2 entered appearance and filed written version denying the allegation raised by the complainant.  The case of the complainant in short is that he is a prepaid subscriber of BSNL and the opposite parties provided 9495655895 as his mobile number.  The complainant’s case is that on 02/06/2018 at 1.39 pm he received a message from BT-BSNLCG with a message that for the video (51008) service a sum of Rs.20/- is deducted from the complainant’s account.  At the time of receiving that message the complainant was near the Government Secretariat at Thiruvananthapuram and immediately he went to the BSNL customer service center nearby and required for deactivation of the service and demanded refund of the amount unauthorizedly deducted from his account.   With the help of the staff at the service centre, though tried several times, the complainant or the staff of BSNL service center was not able to deactivate the services which were not required for the complainant.  The complainant’s further case is that from the account of BSNL mobile subscribers without the consent or prior permission from the subscriber, the opposite parties are deducting money under the guise of added service and making illegal enrichment.  Alleging deficiency in service and unfair trade practice on the part of the opposite parties, the complainant approached this Commission for redressing his grievances. 
3. The opposite parties filed written version denying the allegation raised by the complainant.  The 1^st contention raised by the opposite parties are that under

Sec.7B of Indian Telegraph Act 1885, the BSNL services are not at all within the purview of Consumer Redressal Forum.  According to the opposite parties the complainant has not given any written complaint or E-mail to the opposite parties.  The opposite parties contentions is that BSNL doesn’t given any right to give license to any outsider agencies for collecting money without the consent of the customers and hence the averment stated in the complaint are baseless and hence denied the same.  The opposite parties admitted that the complainant is a prepaid subscriber of the opposite party and also admits that only an amount of Rs.20/- being taken on 02/06/2018 at 13.30 hrs for the above service from the complainant’s mobile account and the same is evident from the printout from CCM website of BSNL.  The opposite parties further contended that as per the log details, the customer activated the service through WAP and as the service is pull based (customer initiated) services no deactivation recorded and the service will be deactivated after its validity period.  The opposite parties further contended that on request of the complainant, the service provider of 51008 services on 26^th July 2018 refunded Rs.20/- on the same day itself.  Hence according to the opposite party this complaint is baseless and liable to be dismissed.

4. Evidence in this case consists of PW1 and Ext.P1 to P5 from the side of the complainant.  Though the opposite parties filed written version, they have not adduced any evidence by way of affidavit and documents. 
5. Issues to be considered:

1. Whether there is any deficiency in service and unfair trade practice

               on the part of the Opposite Parties?

2. Whether the complainant is entitle to the relief claimed in the
3.  
4. Order as to cost?

6. Heard.  Perused affidavit, documents and records.  To substantiate the case of the complainant the complainant sworn an affidavit as PW1 and Ext.P1 to P5 were marked.  Ext.P1 is the news paper dated 12/11/2014.  Ext.P2 is the letter issued by the complainant to the 1^st opposite party.  Ext.P3 is the message received by the complainant informing about the deduction of Rs.20/- from his account for subscribing video service.  Ext.P4 is the details of SMS requesting for deactivation which was not materialized.  Ext.P5 is the SMS details received by the complainant.  The contention raised by the opposite party with regard to the arbitration clause, under Sec.7B of Indian Telegraph Act 1885.  In EMMARMGF Land Ltd., V/s. Afdab Singh reported as (2019) 12  SCC 751, the Hon’ble Supreme Court held that an arbitration clause will not oust the jurisdiction of Consumer Forum.  More over Sec.3 of Consumer Protection Act 1986 says that “provision of this act shall be in addition to and in derogation of the provisions of any other law for the time being in force”.  Hence merely because there is an arbitration clause or agreement, the jurisdiction of the consumer Commission will not be ousted.  In 2022 Live Law (SC) 221 (Vodaphone, Idea, Cellular V/s.Ajay Kumar Agarval) the Hon’ble Supreme Court held that the telecom services will come under the purview of the Consumer Protection Act.  In view of the above dictums laid down by the Hon’ble Supreme Court, we find that this Commission has got jurisdiction to proceed with this complaint.

                          It is admitted fact that the complainant has availed the prepaid mobile service from the opposite parties.  It is also admitted fact that Rs.20/- was deducted from the account of the complainant for added services.  From Ext.P2 to P5, it is evident that the Rs.20/- was deducted from the complainant’s account and that inspite of frequent attempts made by the complainant as well as the staff of the service centre, they cannot deactivate the added service which was not required for the complainant.  Though the opposite parties filed written version denying the allegations raised by the complainant, they failed to adduce any evidence to substantiate their contentions.  The opposite parties failed to file affidavit or documents to discredit the evidence adduced by the complainant.  Hence the evidence adduced by the complainant stands unchallenged.  In the absence of any contra evidence from the side of the opposite parties except filing a denial version, we accept the evidence adduced by the complainant.  By swearing an affidavit as PW1 and by marking Ext.P1 to P5, we find that the complainant has succeeded in establishing his case.  In view of the above discussions, we find that in the absence of any contra evidence from the side of the opposite parties, this is a fit case to be allowed in favour of the complainant.

In the result the complaint is allowed the opposite parties are jointly and severally directed to pay a sum of Rs.10,000/- (Rupees Ten Thousand Only) as compensation along with Rs.2,500/- (Rupees Two Thousand Five Hundred Only) as cost of this proceedings to the complainant, within 30 days from the date of receipt of this order failing which the amount except cost shall carry an interest @ 9% per annum from the date of order till the date of realization.

A copy of this order as per the statutory requirements be forwarded to the parties free of charge and thereafter the file be consigned to the record room.

Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the Open Court, this the 09^th  day of March,  2023.

C.C. No. 214/2018

APPENDIX

1. COMPLAINANT’S WITNESS:

2. COMPLAINANT’S DOCUMENTS:

3. OPPOSITE PARTY’S WITNESS:

4. OPPOSITE PARTY’S DOCUMENTS:

                                                                                                                            Sd/-

                                PRESIDENT