BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SIRSA.
Consumer Complaint no. 220 of 2017
Date of Institution : 1.9.2017
Date of Decision : 05.03.2018.
Dilbag Singh (aged about 31 years) son of Sh. Om Parkash, C/o D.S. Service Centre, Dr. Amar Singh Sidhu Street, Near Parshuram Chowk, Sirsa- 125055.
……Complainant.
Versus.
1. Dikshu Monga, C/o IDEA Authorized Collection Centre, Monga Communication, IDEA Shopee, Barnala Road, Sirsa.
2. General Manager/ Authorized Signatory, Anand Banquet Hall, Delhi Road, Sonepat, Haryana – 131001.
...…Opposite parties.
Complaint under Section 12 of the Consumer Protection Act,1986.
Before: SH. R.L.AHUJA…………………………PRESIDENT
SH. MOHINDER PAUL RATHEE …… MEMBER.
Present: Sh. Ravinder Monga, Advocate for the complainant.
Opposite party no.1 exparte.
Sh. Abhinav Sharma, Advocate for opposite party no.2.
ORDER
The case of the complainant in brief is that complainant is an authorized care centre incharge of IFB Industries Ltd. and running his service centre on the above mentioned address. That as per the maximum selling of IFB Industries Ltd. products, the growth of the company has gone on high scale products within society. Though the products of the company are trouble free products but with the passage of time as well as personal wear and tear of the products, the company need for opening service care centre in every District of Haryana as per the regular demand of customers. It is further averred that complainant being a franchisee owner of IFB Industries Ltd., opened an exclusive service centre on behalf of manufacturing company. The company has sold out its products not in Sirsa but nearby vicinity of area like Kalanwali, Dabwali, Ellenabad, Sri Jiwan Nagar, Rania, Vaidwala, Ding Mandi and other area where customers are using IFB products. So, as per the need and demand, the complainant and his team are on regular move to take special care of their product buying customers. The complainant is maintaining staff of 5-6 persons and doing as a team work in the area. The service job of complainant remained depend on proper mobile communication. It is further averred that as per the regular need and requirement, the complainant prefers to purchase mobiles and their sims through leading network company. The complainant was locating for the same, then a representative on behalf of op no.1 came to the premises and posed themselves to be a leading network company in India and particularly the said incharge/ representative of ops explained that they have introduced few plans like corporate plans for the customers specially for the commercial set-up like team work. He further explained that complainant could restrict the amount of bill even in restricted bill their company is providing unlimited talk time, SMS between the group, besides this the company is also providing minutes for the use, only thereafter the bills over the restricted period could be generated. He assured and promised for the better service and accurate billing and further assured that in case of any inconvenience the company could remain in the interest of customers and gave the grace of waiving charges, if excess amount is added unnecessarily and on complaint the amount could be waived. The said incharge/ authorized person with consultation of ops further explained that in case of trouble in billing then the complainant is free to switch their mobile numbers from pre-paid to post-paid within twelve hours positively. That upon assurances and promises made by representative of ops, the complainant agreed to purchase a corporate plan in October, 2016 and obtained mobile numbers 98120-35860 (Rs.499 per month), 97287-41231 (Rs.199/- per month), 97282-98237 (Rs.199/- per month), 70820-78789 (Rs.199/- per month), and 70827-99987 (Rs.199/- per month). The authorized representative/ incharge of the ops categorically assured that complainant shall receive monthly bill either through post or through e-mail, whatsoever will be convenient to the complainant. The complainant agreed for any of the condition with the assurance that he will receive the bill for the purpose of making the payment. The said authorized person also assured that as per the plan/ corporate plan purchased by the complainant he will receive monthly bill of all the mobiles not more than Rs.2000/-. It is further averred that complainant received first bill in the month of November for Rs.1571/- and he paid Rs.1600/-, second bill was received for more than Rs.2000/- in December i.e. of Rs.2335/- and he paid Rs.2350/-, third bill again received for more than Rs.2000/- in the month of January i.e. for Rs.3439/- and he paid Rs.3500/-, fourth bill was received in February for an amount of Rs.3448/- and he paid Rs.3450/-. The complainant lodged complaint to op no.1 with two issues that all the bills except first bill have crossed the limit of Rs.2000/- and second issue is that ops are not issuing and sending the details of monthly bills. The complainant further made a request to op no.1 that they have failed to fulfill their own commitments and promises. The op no.1 advised to report the matter on toll free number who can adjust the excess amount of three months and also can send the monthly bills on the address of complainant. That the complainant personally contacted with the officer on toll free number and reported the issues, who advised to resolve both the issues within two days. The complainant again contacted with the incharge/ officer on toll free number, who after taking ten minutes time and after completely analyzing the genuine issues of the complainant advised to pay Rs.700/- out of Rs.1681/- of bill of March, 2017. He further assured and promised that excess amount of Rs.1250/- approximately would be certainly waived from the coming monthly bill of the complainant. The complainant deposited Rs.700/- on the advise and on the asking of the representative of the company through bill receipt no.9455799 dated 16.3.2017, whereas after one week, the outgoing facility of all the corporate mobile has been stopped by the company without any message, communication from their side. Such an act of ops really caused shock to the complainant because as per the billing detail the credit limit of complainant have been extended upto Rs.5500/- per month approximately and merely on account of Rs.1250/- alleged due of all five mobiles. The complainant and his entire team failed to communicate with each other, resulting into harassment of customers, inviting of litigations, disappointment of customers with amounts to and discontinuing of regular buying products and huge losses have been caused besides harassment etc. on account of negligence and deficiency in service by ops. That even after facing much harassment, humiliation, torture by the ops, the complainant decided to switch over from postpaid to prepaid with the request of urgent and imminent basis. The complainant on the asking of ops deposited the alleged amount of Rs.3100/- on 7.4.2017 as per receipt no.9448219. The ops further advised to send the mail to the customer care centre, so that the matter could be promptly initiated. The said customer care centre pointed out petty objections which are not admissible, the complainant had already submitted/ deposited all the required documents in the shape of formality for resolving his dispute early. One of the responsible person Mr. Maan Singh having mobile No.98120-13310 dealt with the matter, on pointing out the reason for non compliance of the request and the said officer further advised to contact with Mr. Shashank who is senior officer of the company having mobile no.98120-14438. The complainant regularly contacted with the officials and requested to deal with his matter at the earliest basis. Even the mail dated 8.4.2017 is the clear speaking volume regarding utmost efforts of the complainant besides other mails dated 10.4.2017. The said officials instead of entertaining the genuine complaint, postponed the matter with the flimsy objections for the reason best known to them. It is further averred that complainant personally went to the office of op no.1 and inquired about the status of his complaint and claim. The op no.1 postponed the matter with the advise to contact with senior officials of the company only who are feasible to deal such type of cases. The complainant received the bill of May, 2017, wherein part/ earlier excessive amount has been adjusted and the complainant deposited Rs.800/- on 17.5.2017 through receipt no.9448503 of all the five mobiles. The complainant was shocked to see that after few days all the five mobiles have been stopped from outgoing facility, again on inquiry it was informed that the complainant has not deposited the bill of May, 2017 for Rs.800/- whereas the complainant deposited Rs.800/- through proper receipt No.9448503 on 17.5.2017, then no other amount was due as per their own version, how it could be happened. The complainant sent his team boy for inquiring the matter and it was brought to the notice that op no.1 has not deposited the entire amount received from the above mentioned bill and for this reason their mobile outgoing facility has been stopped. The ops have caused deficiency in service, negligence and unfair trade practice towards the complainant. Hence, this complaint seeking direction for the ops to refund Rs.5000/- being charged excessively from complainant alongwith interest @15% per annum till its realization and to pay Rs.20,000/- as business loss and Rs.20,000/- on account of facing litigations moved by the product buyers for not providing the services in time on account of lack of communication caused by the ops and also to pay Rs.10,000/- as compensation on account of mental harassment etc. besides payment of Rs.5500/- as litigation expenses.
2. On notice, opposite party no.1 did not appear and was proceeded against exparte.
3. Opposite party no.2 appeared and filed written statement taking certain preliminary objections that neither there is any deficiency in service nor any unfair trade practice on the part of ops and as such complaint is liable to be dismissed being not maintainable and that connection of the complainant were activated on the name of his firm for taking care of the commercial interests of the complainant and as per the definition of Consumer Protection Act, 1986, the complainant does not fall under the definition of Consumer, hence does not have any rights to file the present complaint and that this Forum has got not jurisdiction to entertain the present complaint because it involves the questions relating to constitutionality, policy decision, breach of contractual and legal obligation etc. and that complainant is estopped from his own act and conduct from filing the present complaint and that complainant has no cause of action to file and maintain the present complaint. On merits, it is submitted that answering op-company is one of the best telecom service provider company and offers various plans to its customers. It is the customer who chooses the plan as per his requirement and company does not interfere in such selection and only advises the customer about the best plans available with the customer. It is pertinent to mention that the customers are charged as per the plan opted by them. It is further submitted that above mentioned numbers were used by complainant for the purpose of his business and for making profit which does not entitle him to file the present complaint. The bills were sent to the customer as generated by the system of the company and were totally correct and as per the plans subscribed by the complainant. The complainant was a subscriber under the Corporate of segment of the company and was using various numbers and different plans. The bills are generated by the computerized system of company without any human intervention. It is further submitted that no such promise regarding the upper limit of the bill was made by the answering op and the bills were charged as per the usage only. It is further submitted that as a goodwill gesture, waiver of Rs.1250/- was passed into the account of customer on 10.4.2016 whereas the services were barred on 7.4.2017 due to non payment and were activated on same day after the complainant made the payment. Remaining contents of complaint are also denied.
4. The complainant produced his affidavit Ex.CW1/A and copies of documents Ex.C1 to Ex.C38 and receipts Ex.C39 to Ex.C42. On the other hand, op no.2 produced affidavit of Sh. Tarun Khurana, Manager Legal Ex.R1, copies of bills and summary of charges as Ex.R2 to Ex.R5.
5. We have heard learned counsel for the parties and have perused the case file carefully.
6. Admittedly, the complainant is running a service centre with name and style D.S. Service Centre and obtained above said five mobile numbers for staff of five/six persons from the opposite parties for doing its business and not for personal use. The purchase of above said five mobile numbers from the opposite parties for doing business as claimed by complainant himself and not for personal use does not make the complainant as a consumer of the opposite parties as defined in Section 2(1) (d) of the Consumer Protection Act, 1986. We deem it necessary to reproduce the definition of consumer as provided under Section 2 (1) (d) of the Act. The definition reads as under: -
“(d) "consumer" means any person who—
(i) buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose; or
(ii) hires or avails of any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who 'hires or avails of the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person but does not include a person who avails of such services for any commercial purposes;
Explanation.— For the purposes of this clause, “commercial purpose” does not include use by a person of goods bought and used by him and services availed by him exclusively for the purposes of earning his livelihood by means of self-employment”
7. In view of the above said provisions of Act, the complainant cannot be held to be a consumer as the complainant in his entire complaint has not alleged that he purchased the mobile numbers for the purpose of earning his livelihood. The Hon’ble Supreme Court in Birla Technologies Vs. Neutral Glass and Allied Industries Ltd. 2011 (1) CPR (1) SC held that dispute with regard to goods purchased and services availed for commercial purpose would not be consumer dispute. The authority cited by learned counsel for complainant in case titled as Rakesh Aggrawal Vs. Raju Pudir, 1997 (3) CPJ 593 (MP, SCDRC, Bhopal) is not applicable to the facts and circumstances of the present case because purchasing of five mobiles numbers by a company for its employees for business purpose does not come under the purview of consumer dispute and clearly falls within the purview of commercial purpose.
8. In view of the above, the present complaint is not maintainable before this Forum and is hereby dismissed. The complainant is at liberty to seek redressal of his grievances before the appropriate authority. The parties are left to bear their own costs. A copy of this order be supplied to the parties free of costs. File be consigned to the record room.
Announced in open Forum. President,
Dated:5.3.2018. Member District Consumer Disputes
Redressal Forum, Sirsa.
