KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION VAZHUTHACADU THIRUVANANTHAPURAM APPEAL NO:162/2003 JUDGMENT DATED.30..9..2008 (Appeal filed against the order passed by the CDRF,Kannur in OP:348/99) PRESENT SRI.M.V.VISWANATHAN : JUDICIAL MEMBER SRI. S. CHANDRAMOHAN NAIR : MEMBER 1.The Managing Director, BPL US West Cellular Ltd., Mather Square, 1st Floor, North Railway Station Road, : APPELLANTS Kochi – 682 018. 2.The Manager, BPL Mobile, KVRTower, Kannur. (By Adv:Sri.P.Sathisan) V. 1.Dr.A.K. Ghosh, S/o R.K.Ghosh, Dentist, R.K.Memorial Dental Centre, Narangapuram, Thalassery. : RESPONDENTS 2.The Managing Partner, Har Business System, BPL Mobile, Kannur. JUDGMENT SHRI.S. CHANDRAMOHAN NAIR : MEMBER Assailing the order dated:12..9..2002 of CDRF, Kannur in OP:348/99 the opposite parties have come up in appeal. By the said order the opposite parties are under directions to give deduction at the rate of Rs.604/- per month for the remaining months excluding deduction already given and to pay cost of Rs.250/-. They are also under directions to issue one copy of the signed written contract to the complainant. 2. The grievances raised by the complainant before the Forum were that one Mr.Jayaraj representing the opposite parties approached him for taking a mobile phone connection including the handset. Accordingly he had taken the connection by paying Rs.14,500/- on the specific understanding that the complainant would be eligible for a deduction at the rate of Rs.604/- per month for 24 months, in the monthly bills to be paid by him. Of the two plans offered by the representative he opted for the 2nd plan, Value flex NC rate plan. After getting the connection he found that value pro cut NC rate plan was made applicable in the billing and when he raised protest regarding the tariff, his tariff was converted to value flex NC rate plan and in the bill dated:27..11..1998 and 27..1..1999 he was given the subsidy of Rs.604/- respectively. It is his very case that after the said bills the opposite parties changed the whole conditions and he was not given the agreed deduction of Rs.604/- per month and the opposite parties had suo mottu reduced the amount to Rs.320/-. Contending that the opposite parties are liable to grant subsidy at the rate of Rs.604/- per month the complaint was filed praying for directions to the opposite parties to pay an amount of Rs.1,50,000/- under various heads with 12% interest and cost of the proceedings. 3. Resisting the complaint the opposite parties filed a joint version contending that they have provided services to their subscribers on the basis of the terms and conditions agreed by the subscriber. It was submitted by the opposite parties that they have acted only as per the terms and conditions agreed to by the complainant and there was no deficiency of service on their part and prayed for the dismissal of the complaint with cost. The 3rd opposite party filed version contending that the complaint was not maintainable as against him as he was only a dealer of the 1st and 2nd opposite parties and as there was no grievances for the complainant against him he prayed for the dismissal of the complaint. 4. The evidence adduced consisted of the testimony of the complainant as PW1 and Exts.P1 to P9. The opposite parties produced 8 documents which were marked as Exts.R1 to R8. 5. We heard the counsel for the appellants and 1st respondent. 6. The learned counsel for the appellants vehemently argued before us based on the contentions taken in the version as well as grounds urged in the memorandum of the present appeal. It is his very case that the complainant had agreed to the terms and conditions and it was as per the said conditions that the appellants/opposite parties had acted and there was no deficiency of service on their part. He has also argued before us that the Forum below had not appreciated the difference between the value pro plan and value flex plan and that the Forum’s direction to give deduction at Rs.604/- per month is not sustainable either in law or facts. It is also his case that the Forum has failed in appreciating the pleadings of the opposite parties before the Forum. 7. On the other hand, the learned counsel for the 1st respondent supported the findings and conclusions of the Forum below. He has submitted that the complainant is a doctor by profession and there was no chance of his signing the contract without understanding the terms and conditions. It is specifically submitted by him that the complainant had opted for value flex NC rate plan and the opposite parties had later changed the plan to value pro cut plan according to their convenience. It is also the case of the respondent/complainant that after having agreed to give deduction at the rate of Rs.604/- per month for 24 months, it was unfair on the part of the opposite parties/appellants to go back from the assurance given. Thus, he canvassed for the position that the Forum’s order was very much sustainable and to be upheld. 8. On hearing the learned counsel for the appellants and the 1st respondent and also on perusing the documents we find that the complainant had given evidence in tune with the pleadings taken in the complaint. It is his specific case that he had opted for value flex plan and was liable to get a deduction of Rs.604/- per month for 24 months in the bills issued to him. We note that in some of the bills issued by the opposite parties deduction is seen made at the rate of Rs.604/-. The opposite parties have stopped giving deduction at the rate of Rs.604/- in the remaining bills. It is also to be noted that opposite parties have not tendered any evidence apart from producing certain bills to show that the complainant is not eligible to get a deduction at the rate of Rs.604/- per month. They would argue that the complainant had signed an agreement and it was as per the terms and conditions in the agreement that they have acted. It is surprising to find that such an agreement was never produced by the opposite parties and if the complainant had agreed to the terms and conditions as pleaded by the opposite parties they should have definitely produced the same to substantiate their contention. In the absence of any evidence to show that they are entitled to issue bills as they like we are of the opinion that the opposite parties have committed grave deficiency of service and unfair trade practice to the complainant. The complainant has specifically prayed for the production of the document signed by him which is within the custody of the opposite parties, before the Forum. Non production of a vital document will be fatal and in the instant case it is really fatal to the opposite parties. 9. In the aforesaid circumstances we do not find any ground to interfere with the order passed by the Forum below and hence the appeal is liable to be dismissed and we do so accordingly. In the result the appeal is dismissed thereby confirming the order dated:12..9..2002 in OP:348/99 of CDRF, Kannur. In the nature and circumstances of the case the parties are directed to suffer their respective cost. S.CHANDRAMOHAN NAIR : MEMBER M.V. VISWANATHAN : JUDICIAL MEMBER VL.
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