BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

VAZHUTHACAUD : THIRUVANANTHAPURAM

PRESENT:

SHRI. G. SIVAPRASAD : PRESIDENT

SMT. BEENA KUMARI. : MEMBER

SMT. S.K. SREELA : MEMBER

O.P.No. 31/2003 Filed on 02/01/2003

Dated : 16..02..2011

Complainant:

K.B. Unnithan, T.C.28/2816, Kuthiravattom Lane, Chettikulangara, Thiruvananthapuram – 695 001.

(By Advs. K.P. Renadive & D. Padmini Rose)

Opposite parties:

1. Escotel Mobile Communications, Menathottam Chambers, Pattom Palace – P.O., Thiruvananthapuram – 695 004.

2. Head Customer Care, Escotel Mobile Communications, 4^th Floor, Mercy Estate, Ravipuram, Kochi – 682 015.

3. The Managing Director, Escotel Mobile Communications, A-36, Mohan Co-operative Industrial Estate, Mathura Road, New Delhi – 110 044.

(Opp. Parties 1 to 3 by Adv. B. Vijayakumar)

This O.P having been heard on 30..09..2010, the Forum on 16..02..2011 delivered the following:

ORDER

SMT. S.K.SREELA, MEMBER:

The facts as described in the complaint are as follows: That the complainant is running a service oriented venture for earning his livelihood. The complainant was using mobile connection from the opposite party with No.98473-23405 under the Right Plan. To suit his business venture, on 19/8/2002 he requested the opposite party to change his plan to another where all incoming calls are free and it was affected on the same day itself. On 14/9/2002, the opposite party disconnected mobile service to the complainant without any information or notice when no payment was pending from the complainant. On the very same day itself the complainant visited the opposite party's office and enquired about the disconnection. The officials of the opposite party had not given any satisfactory reply even though the complainant showed them a copy of the bill dated 4/9/2002 for an amount of Rs.2,248.56, the payment date of which was not yet due. The complainant on the same day, ie on 14/9/2002, also delivered a letter to the officials of the opposite party by hand requesting them to re-establish the connection immediately. The staff of the opposite party flatly refused the request of the complainant and insisted that the complainant has to make the payment even before the actual due date, which is 20/9/2002. The opposite party is duty bound to give proper intimation to the complainant regarding the payment of bills and disconnection of services, but failed to comply, which is strictly against the declared obligation of the opposite party to its consumers. That the disconnection of the mobile service without notice or intimation, and without any valid reason has put him into great business loss and has badly affected the reputation of the complainant's business. The illegal act committed by the opposite party amounts to deficiency of service and also unfair trade practice. The opposite party is legally liable and bound to pay the compensation to the complainant. Hence this complaint.

2. The opposite party has filed their version contending as follows: The complaint is not maintainable either in law or on facts. That the complainant had taken connection on 12/4/2002 at the Right Happy Hour Plan. According to this plan the complainant has to deposit Rs. 349 + 100 as charge and the opposite party has collected only Rs. 349/- instead of Rs. 449. In this case Rs. 100/- was exempted from him. According to this plan, from 10 P.M to 7 A.M there was free incoming and free out going to Escottel. An amount of Rs. 1,000/- was collected from him as initial deposits and Rs.1,250/- as activation charges. That the complainant approached the opposite party on 21/8/2002 requested for change of the plan from right Happy Hour to another plan in which all incoming calls were free. The change was effected on the same day itself. That the complainant was given an invoice number 0001915365 dated 4/9/2002 for an amount of Rs. 2,249.08. He had not paid the amount and again on 4/10/2002 he was issued with another bill with an invoice number 0001972563 dated 4/10/2002 for an amount of Rs. 3,752.93 which includes the accumulated amount of the previous month and the same month which was not paid and hence his service for incoming and out going calls were temporarily barred on 13/9/2002. Even then also he had not taken any steps to remit the amount and hence his service was disconnected on 8/10/2002 after due intimation of due amount by phone and by messages. The opposite party was giving proper service to the complainant. It was due to the fault of the complainant that the service to his mobile phone was stopped, that too by giving due intimation to the complainant in all possible method. The agreement entered into between the complainant and the opposite party which has been duly signed and agreed by the complainant clearly says that the Escottel reserves the right to disconnect the service if there is non payment of the bill. The complainant is bound to pay Rs. 2,541/- for which no payment has been effected till date. The opposite parties have acted according to the principles and norms and there is no deficiency of service on their part. Hence prays for dismissal of the complaint.

Complainant has filed affidavit and has been examined as PW1, marked Exts. P1 to P12. The counsel for the opposite parties had submitted on 14/9/2010 that they have no oral evidence and that the 3 documents produced by them be marked, but on perusal it is seen that the opposite parties have produced 4 documents and hence those 4 documents are marked as Exts. D1 to D4.

The points for consideration are:

1. Whether there is any deficiency in service or unfair trade practice on the part of the opposite parties?

2. Whether the complainant is entitled for the reliefs claimed?

3. Points (i) & (ii): The grievance of the complainant as pleaded in the complaint is that his mobile connection has been disconnected by the opposite parties without any notice when no payment was pending. Further he has pleaded that he was issued with a bill for Rs. 2248.56 dated 4/9/2002, the payment date of which was not yet due and that the due date of the bill being 20/9/2002, the opposite parties disconnected his mobile service on 14/9/2002. The opposite parties have contended that the complainant was issued with a bill for Rs. 2249.08 on 4/9/2002 and since the same was not paid by him he was issued with another bill on 4/10/2002 for Rs. 3,752.93 which included the accumulated amount of the previous month and the same month and as the complainant did not make the payment, his service for incoming and outgoing calls were temporarily barred on 13/9/2002. that even after that the complainant had not taken any steps to remit the amount and hence his service was disconnected on 8/10/2002 after giving due intimation.

4. We have gone through the documents produced by both parties. As per Ext. P1 dated 4/9/2002 it could be seen that the previous balance of Rs. 914.52/- has been paid by the complainant and the current amount due is Rs. 2,249.08/-. The opposite parties have contended that as per the agreement entered into between the complainant and the opposite party it has been agreed by the complainant that the Escottel reserves the right to disconnect the service if there is non payment of the bill. Further in Ext. P4, the reply notice issued by the opposite party to the complainant's Lawyer, it has been stated that “As your client is aware, while a connection is activated based on the deposit received the customer is prescribed a credit limit. When the customer reaches 70% of his credit limit he is outcalled / informed for interim payment. If the customer fails to remit the interim amount demanded his outgoing services are barred. If the customer further uses the incoming facility and reaches 100% of the credit limit then his connection would be temporarily disconnected. The subscription agreement form signed by your client clearly states in Term 2.11 "The subscriber may however request for grant of credit limit at the sole discretion of Escotel. The credit limit granted in any case may be withdrawn at any time without assigning any reason. Escotel reserves the right to apply credit limit for call charges (billed and unbilled) incurred by the subscriber and suspend access to service in whole or in part if this limit is exceeded. Furthermore, Clause 3.3 provides that “Escotel reserves the right to demand interim payments forthwith from subscriber without issuing a statement in case he crosses the credit limit granted to him. Hence the action of the Company was well in accordance with the terms of the contract”. Despite the said contention, agreement above referred has not been produced by the opposite parties before this Forum to substantiate their contention. Furthermore the complainant has pleaded that his service was disconnected on 14/9/2002 and he had made a complaint regarding the same on the very same day which is proved by Ext. P2. There is an endorsement regarding receipt of the same at 12:00 and the complainant has pleaded that it was a total disconnection whereas the opposite parties have pleaded that the incoming and outgoing calls were temporarily barred on 13/9/2002 and since the complainant did not make any payment, the service was disconnected on 8/10/2002. It is evident from Ext. P1 that the due date for payment of the bill is 20/9/2002 and as per Ext. P2 it is evident that the connection has been disconnected on 14/9/2002 ie., before the due date. The opposite party has not furnished any documents to substantiate their pleadings. In the absence of the same, we find that the act of the opposite parties in disconnecting the service connection of the complainant without giving any notice and that too, much before the due date of the bill finally issued to the complainant, definitely amounts to deficiency in service.

5. The complainant has pleaded that on 15/7/2002 he had launched his new business venture Bysel.net and he had printed about one lakh notices showing the mobile number prominently so that the public can register over this number and that accordingly when a customer dialed to his mobile number, the message received gave a wrong signal as if the services were stopped due to non-payment, which is very detrimental to the business of the complainant. The complainant as PW1 has deposed that "Communication അടിസ്ഥാനമാക്കിമാത്രം develop ചെയ്യുന്ന business ആയിരുന്നു byselnet വഴി ചെയ്തത് ". It is true that due to the deficient act of the opposite parties, the image of the complainant's business and firm has been tarnished for which he has to be compensated by the opposite parties.

6. Hence we find that the opposite parties are jointly and severally liable to pay an amount of Rs.10,000/- towards compensation to the complainant along with a cost of Rs.2,000/-. Time for payment one month from the date of receipt of the order failing which the entire amount shall carry interst @ 9% from the date of Order. The complainant shall clear the dues as per Ext. P1 bill within one month from the date of receipt of this order.

In the result, complaint is allowed. Opposite parties shall jointly and severally pay an amount of Rs. 10,000/- towards compensation along with a cost of Rs. 2,000/- to the complainant within one month from the date of receipt of the order failing which the entire amount shall carry interst @ 9% from the date of Order. The complainant shall make the payment to the opposite parties as per Ext. P1 bill within one month from the date of receipt of the Order.

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 Forum, this the 16^th day of February, 2011.

S.K.SREELA, MEMBER.

G.SIVAPRASAD, PRESIDENT.

BEENA KUMARI.A, MEMBER.

ad.

O.P.No.31/2003

APPENDIX

I. Complainant's witness:

PW1 : K.B. Unnithan

II. Complainant's documents:

P1 : Copy of Summary statement

P2 : " of letter from complainant dated 14/9/2002

P3 : " of advocate notice dated 16/9/2002

P4 : " of letter dated 14/10/2002

P5 : " Programme chart

P6 : " advertising paper

P7 : " Legal notice dated 6/1/2003

P8 : " letter dated 20/1/2003 from complainant

P9 : " legal notice dated 27/2/2003

P10 : " letter dated 10/3/2003 from complainant

P11 : " Mobile bill No. 47323405 dated 4/2/2003

P12 : " of letter dated 15/2/2003 from complainant

III. Opposite parties' witness : NIL

IV. Opposite parties' documents:

D1 : Copy of call details invoice dated 4/6/2002

D2 : " call details invoice dated 4/9/2002

D3 : " call details involice dated 4/10/2002

D4 : " call details invoice dated 4/8/2002

PRESIDENT