Delhi

North East

CC/425/2015

Manoj Sharma - Complainant(s)

Versus

Den Networks Ltd - Opp.Party(s)

31 Jan 2019

ORDER

 DISTRICT CONSUMER DISPUTES REDRESSAL FORUM: NORTH-EAST

GOVT. OF NCT OF DELHI

D.C. OFFICE COMPLEX, BUNKAR VIHAR, NAND NAGRI, DELHI-93

 

Complaint Case No. 425/15

 

In the matter of:

 

	Manoj Sharma M.D. of Mansun Aquasoft (P) Ltd. At 0-21/A-5, Pocket-O Dilshad Garden Delhi-110095	Complainant
	Versus
1         2	Den Networks Ltd. 236, Okhla Industrial Estate Phase 3 Delhi-110020   Den Networks Ltd. Vikky Cable TVN 69D, Pocket-SG Dilshad Garden Delhi-110095	Opposite Parties

 

DATE OF INSTITUTION:       JUDGMENT RESERVED ON:               DATE OF DECISION      :

28.10.2015 31.01.2019 31.01.2019

 

N.K. Sharma, President

Ms. Sonica Mehrotra, Member

 

Order passed by Ms. Sonica Mehrotra, Member

ORDER

1. Brief facts as set out in the present complaint are that the complainant was approached by two persons namely Mehul and Rahul as representatives of OP2 on 25.05.2015 requesting to take DEN BOOM BAND INTERNET CONNECTION offered by OP1. The complainant, being convinced by the aforesaid persons got ready to take the SURFER 750 Plan against which plan the complainant paid a sum of Rs. 2,530/- vide cheque no. 004509 drawn on Nainital Bank Ltd, Dilshad Colony Branch, Delhi to the executives of OP2 and the said cheque was encashed on 04.06.2015. However, the OPs did not activate the connection for which the complainant called up the executives of OP2 till third week of June 2015 when he was informed by the customer care of OP1 that OP1 does not provide their services in the area where the complainant is situated and therefore complainant requested for refund of the booking amount and was assured of refund within 45 days against his complaint    no. IA-169721. On 24.09.2015, on contacting the customer care of OP1, the complainant was informed that his cheque had bounced and therefore his claim for refund was invalid whereas the said cheque was already encashed by OP1 as per the bank statement. The complainant kept persisting OP1 by way of visits for refund but not only OP1 failed to refund his money but also its staff misbehaved with the complainant. Therefore the complainant was constrained to file the present complaint before this Forum feeling aggrieved at having suffered loss in business, mental agony and prayed for issuance of directions against the OPs to refund his deposit money of Rs. 2,530/- alongwith penal interest thereon @24%. Complainant also prayed for compensation of Rs. 1,00,000/- for calls made to OPs, mental harassment and loss of business and Rs. 5,000/- towards cost of litigation.

Complainant has attached copy of Subscriber Registration Form No. 0053530 filled by the complainant for taking SURFER 750 30GB Plan from OPs, copy of bank statement for June 2015 highlighting encashment of cheque of Rs. 2,530/- debited from the account of the complainant in favour of OPs and copy of DEN BOOM BAND PLAN.

2. Notice was issued to the OPs on 23.11.2015. OP2 files its written statement on 11.02.2016 in which it stated that the present complaint is silent of any cause of action or prayer against OP2 which has been impleaded by the complainant only to harass OP2. OP2 further submitted that it is in the cable business and has no connection with the persons namely Rahul and Mehul who possibly may have cheated the complainant and therefore prayed for deletion of its name from the array of parties.

OP2 did not appear in the proceedings thereafter and was proceeded against ex-parte vide order dated 13.08.2018.

3. Before filing of written statement by OP1, OP1 on hearing dated 11.02.2016, brought a refund cheque of Rs. 2,530/- vide cheque  no. 001650 dated 10.02.2016 drawn on Kotak Mahindra Bank, Okhla Branch, New Delhi in favour of the complainant to settle the matter, however the complainant did not agree to accept the same. Written statement was filed by OP1 in which, while admitting  the factum of receipt of cheque of Rs. 2,530/- from the complainant for BOOM BAND INTERNET CONNECTION PLAN SURFER WIFI, submitted that it was its sale executive Shiv Kumar who had offered the said connection. OP1 further submitted that since after technical verification by its local team it was found that the address of the complainant was more than 100 Meters from the NODE, whereas the OP1 provides internet connection to customer who are located within 100 meters radius to the NODE, OP1 was unable to provide internet connection to the complainant to avoid week internet speed which inability was conveyed and clarified to the complainant. However, since in the interregnum, the cheque of the complainant was already encashed, the customer care team of OP1 assured the complainant of refund within 45 days and in pursuance to which the OP1 had drawn a refund cheque of Rs. 2,530/- vide cheque no. 004475 dated 03.07.2015 drawn on Kotak Mahindra Bank NFC, New Delhi Branch in favour of the complainant and its Team Leader- Sales had deputed the responsibility to one Ms Rakhi Soni, Sales Executive to handover the said cheque to the complainant but the said cheque could not be delivered to him despite attempts made four times as the premises were found locked at all times. Lastly, OP1 submitted that its AR had brought a renewed cheque on 10.02.2018 before this Forum for the refund amount of Rs. 2,530/- with bonafide intention but the same was refused by the complainant due to his adamancy showing his ill intention. Therefore OP1 prayed for dismissal of the present complaint with cost. OP1 has attached copy of the cheque no. 004475 dated 03.07.2015 for amount of  Rs. 2,530/-,affidavit of Nitesh Mishra its Team Leader –Sales for attempting delivery of aforementioned cheque to the complainant and copy of cheque no. 001650 dated 10.02.2016 for Rs. 2,530/- brought before this Forum.
4. Complainant filed rejoinder to the written statement of OP1 in rebuttal of defence and stated that the representative of OP1 did not mention any procedure regarding testing the feasibility of connection at the time of taking of cheque and as for the distance of his premises from the NODE the same is within the radius of 50 Meters from where the OPs have supplied connection to other users as well. Complainant urged that OPs be put to proof of providing details of five cheque drawn before and after the issuance of July 2015 cheque to the complainant alongwith the bank statement. The complainant in rebuttal to the averment of OPs of his premises having being found locked stated that his premise are commercial in nature of an office and do not observe any holiday except national holidays and festivals and either ways, his mobile number is mentioned on the display board place outside the office in clear public view but the OPs never tried to contact him for refunding his amount and therefore reiterated the relief sought in the complaint.
5. Evidence by way of affidavit was filed by the complainant on 07.05.2016 reasserting averment in his complaint.
6. Evidence by way of affidavit was filed by OP1 reiterating its defence in the written statement and submitted that it is carrying on Multi Systems Operation (MSO) business and is a cable television service provider duly registered under provisions of Section 3 of Cable Television Network (Regulation) Act, 1995 and exhibited documents relied upon by it in its defence as exhibit DW1/1 to DW1/3.

Despite several opportunities granted to the complainant to file rejoinder to the written statement of OP1 given from February 2016 to September 2016 by this Forum, the complainant failed to file rejoinder thereto and therefore its right to file the same is closed vide order dated 05.10.2016. However, the complainant made a shrewd attempt to file rejoinder to the written statement of OP1 in the garb of self attested rebuttal evidence by way of affidavit filed on 10.11.2016 in total disregard/disrespect and flouting order of this Forum which had closed its right to file rejoinder to the written statement of OP1. The same is therefore struck off as inadmissible.

OP2 also failed to file its evidence by way of affidavit and its right was closed vide order dated 21.12.2016.

7. Written arguments were filed by OP1 on 15.05.2017 and by complainant on 13.08.2018 reiterating and reinforcing their respective grievance/defence. Complainant filed copy of Google map of location of his premises showing distance between O-21 to O-19 as 20 ft. OP placed on record the payment vouchers dated 07.07.2015 and 10.02.2016 for the two cheques in question dated 03.07.2015 and 10.02.2016 both cheques been digitally signed leaving no scope of tampering/  manipulation.
8. We have carefully considered the arguments of the complainant and OPs and have examined the documentary evidence placed on record by both the parties and given a thoughtful consideration to both aspects.

It needs no emphasis that the Consumer Protection Act aims at providing better protection of the interest of the consumer and is a beneficial legislation deserving liberal construction. Nonetheless, its provision cannot be misused as arm twisting method to elicit unlawful gain by using legal machinery and process of law. In the present case, even assuming that the complainant never received or was ignorant of cheque dated 03.07.2015 having been issued by the OP1 since the complaint was filed in October 2015, he showed his stubbornness by refusing to accept the refund cheque which OP1 brought before this Forum immediately after its appearance even before filing its written statement which gives a clear indication that regardless ofwhatever may have been the reason for OP1 for not installing internet connection at the premises of complainant, its earnestness and sincerity of purpose to refund/ return the cheque amount paid by complainant towards deposit for the same cannot be doubted. However, the conduct of the complaint in refusing the same leaves alot to be desired in terms of his intention to make unlawful gain through the present litigation which is nothing but motivated and malafide.

We take strong exception / objection to such vexatious litigation and warn the complainant to refrain from indulging in such malpractice in future by misusing process of law lest be dealt with heavy hand.

9. The complaint therefore is only and strictly allowed to the extent of direction to OP1 to refund the amount of Rs. 2,530/- to the complainant towards deposit made by him for the internet connection within 30 days from the date of receipt copy of this order.          
10.  Let a copy of this order be sent to each party free of cost as per regulation 21 of the Consumer Protection Regulations, 2005.
11.   File be consigned to record room.
12.   Announced on  31.01.2019

 

(N.K. Sharma)      President

(Sonica Mehrotra)  Member