BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, PONDICHERRY

C.C.No.59/2015

Dated this the 10^th  day of April 2018

(Date of Institution:  14.09.2015)

R. Dinesh Ram son of Ramdoss rep. by Power Agent

Ramdoss, son of Krishnamoorthy

No.1, Vasuki Street, Kosapalayam,

Puducherry.

….     Complainant

Vs

General Manager                         

Office of the General Manager         

BSNL, Rangapillai Street                          

Puducherry – 605 001.

                                       ….     Opposite Party

BEFORE:

          THIRU.A.ASOKAN, B.A., B.L.,

          PRESIDENT 

Thiru V.V. STEEPHEN, B.A., LL.B., 

MEMBER

Tmt.  D. KAVITHA,  B.A., LL.B., 

MEMBER

FOR THE COMPLAINANT:  Thiru S. Vimal, Advocate                 

FOR THE OPPOSITE PARTIES:  Tvl. R.Ka. Prem Coumar and P. Narayanan     

                                                                        Advocates

O R  D  E  R

(by Thiru V.V. STEEPHEN, Member)

              This is a complaint filed by the complainant under section 12 of the Consumer Protection Act 1986  directing the opposite party to refund a sum of Rs.3000/- towards the Advance deposit for the Land Line Telephone Connection with interest at 18% per annum from the date of due till complete payment and discharge; to refund a sum of Rs.1,348/- towards the Advance deposit for the Land Line Telephone Connection with interest at 18% per annum from the date of due till complete payment and discharge; to pay the complainant a sum of Rs.25,000/- with interest at 12% from the date of complaint till payment and discharge towards compensation for physical hardship, mental agony and monetary loss by the act of unfair trade practice and deficiency in service and to pay a sum of Rs.7000/- towards litigation expenses. 

2.  The case of the complainant is as follows:

          The complainant and his family members are Consumers of the opposite party by availing Telephone Service in No. 0413 – 2240223 on deposit of Rs.3000/- and Internet Broad Band Services on deposit of Rs.1348/-.  Earlier the services were availed in the name of Ramadoss, father of the complainant and subsequently changed to the name of complainant.  The complainant stated that the opposite party engaged in unfair trade practice and deficiency in service by billing for services not availed for by the complainant or his family members including charging Rs.198/- as one time charge every month titling by name "Hungama" since November 2014 till January 2015 and also for delayed response.  The complainant's father gave a letter dated 23.02.2015 stating the same to the opposite party and  sought for disconnection of service since 01.02.2015 and requested to adjust the legitimate dues from the advance deposits.  But the opposite party was generating bill every month and enhancing the amount as due and coercing by sending bills until 31.05.2015.  Further the opposite party has not refunded the deposits amounts.  The act of the opposite party forced the complainant and his family members to suffer physically, mentally and monetarily.  Hence, this complaint. 

          3. The reply version filed by the opposite party briefly discloses the following:

          The opposite party admitted that the complainant is a subscriber of them but denied that the complainant paid Rs.3000/- as deposited.  The opposite party stated that they received a sum of Rs.1000/- from the complainant by demand draft and additional amount of Rs.650/- towards annual rental deposit as per rules.  The complainant had also availed internet facility by paying a broad band deposit of Rs.1,200/- and service tax of Rs.148/- totaling to Rs.1,348/- under the broadband plan available at that time.  Whenever the complainant changed the broadband plan, the deposit was adjusted accordingly and now it is BB 750 Plan.  Hence, the total amount of deposit with the opposite party is Rs.1,650/- towards the landline and a sum of Rs.750/- totaling to Rs.2,400/-.  The opposite party further stated that the "Hungama" service is a value added service and it is provided by private operator with the consent of the complainant.  The complainant complained about the collection of one time charges of Rs.198/- for November 2014 and the complainant was explained about the "hungama" plan and the onetime charge of Rs.198/- was waived and the complainant was advised to use the toll free number in order to stop the services of "hungama" plan and it was noted on the bill itself by the official of the opposite party.  Hence, there is no deficiency in services and no unfair trade practice was practiced by the opposite party.  A letter dated 23.01.2015 was received from the complainant and he was informed to pay the dues and return the telephone instrument provided for the connection, which is a normal procedure to close the telephone connection permanently.  The complainant had availed the facility for incoming calls and broadband services as detailed in the bills issued for the month of February 2015 and March 2015.  As per rules, after a grace period the incoming and outgoing calls were barred and a notice was issued to pay the dues and settle the account and then only the complainant returned the telephone instrument on 16.04.2015 only and it is evident from the document submitted by the complainant himself.  The opposite party stated that the complainant has to pay an amount of Rs.3,446/- and Rs.12/- as late fee for the bill paid on 2.01.2015 for November 2014 and after deducting the same a sum of Rs.1,058/- is due to be paid by the complainant to settle the account which would be settled by the Accounts Department in due course of time.  Further, the complainant ought to have referred his dispute for Arbitration under Section 7B of the Indian Telegraph Act and not before this Forum as held by Hon'ble Supreme Court in General Manager vs. M. Krishnan and another in C.A. No. 7687/04 dated 01.09.2009.  The repayment of the advance amount in the hands of the opposite party would be made as early as possible since all the payments are centralized and the monies are paid from Chennai after due verification of records.  Hence, prayed for dismissal of the complaint. 

           4. The complainant was examined through Power Agent Ramadoss as CW1 and Exs. C1 to C12 were marked.  On the side of the Opposite party,
S. Rajendiran, SDE, BSNL, Pondicherry representing the OP was examined as RW1 and Exs.R1 to R7 were marked through him. 

5. Points for determination are:

1. Whether the Complainant is a  Consumer ?
2. Whether there is any unfair trade practice or deficiency of service attributed by the act of the opposite party?
3. Whether the complainant is entitled for any relief?

Both sides records and evidence were carefully perused by this Forum and observes as follows:

          6.  Point No.1:

          On the perusal of the application of transfer of telephone Ex.R3, it is observed that the telephone line which was in the name of Ramadoss was transferred to the name of the complainant and the Exs.C3 to C5 and Ex.C7, C8, C10 to C12 shows that the complainant was the subscriber of the service of the opposite party and hence, the complainant is considered to be a consumer as per the Consumer Protection Act.  This point is answered accordingly. 

          7. Point No.2:

          It is submitted by the complainant that the complainant has become the subscriber of service from the opposite party by virtue of document Ex.R3 on payment of Rs.3000/- towards telephone services and Rs.1348/- for internet broad band service.  On due course of time, it was found that the OP was charging for the service in the name of the scheme "Hungama" which was not availed by the complainant and even inspite of bringing this unfair trade practice to the notice of the opposite party, a subscription bill for the same was generated and delivered to the complainant.  Hence, being not satisfied by the service of the opposite party and the opposite party being reluctant in not sorting out the problem, the complainant through his father gave a letter dated 23.01.2015 Ex.C6 for disconnection of the service and to pay back the balance amount after adjusting the amount to be paid by the complainant from the advance amount deposited before the opposite party's account.  Despite the letter of disconnection Ex.C6 given by the complainant, the OP generated bills for the period of discontinue of service from February 2015 (Ex.C5) till May 2015 (Ex.C12).  Hence, aggrieved by the unfair act of the opposite party, this complaint was filed by the complainant.

          8. On the otherhand, the contention of the complainant was denied by the opposite party stating that the service provided by the opposite party in the name "Hungama" was opted only by the complainant and further the subscription bill generated for the period till May 2015 was the due to be paid by the complainant and hence, pleaded that there is no unfair trade practice or deficiency of service as alleged by the complainant and prayed for dismissal of the complaint. 

          9. On perusal of the evidence, it was observed by the Forum that the opposite party has not filed any document or any proof to show that the complainant has opted for "Hungama" service which is the name of the services provided by the opposite party.  Further, it was also admitted by RW1 who is the Sub-Divisional Engineer of opposite party's concern during the cross examination that the charges of "Hungama" service were removed from the bill since the same was not availed by the complainant.  The evidence of the RW1 during cross examination reads as follows:

          "Only on complainant's complaining every time, the bill was altered by deduction of charges for Hungama Service not availed by him".

Further, it was admitted by the RW1 during cross examination that the OP does not have any proof to show that the complainant has availed the service of "Hungama".  The evidence of RW1 is reproduced as follows:

          "It is true that we have not filed any documents to show that complainant request for HUNGAMA service about that the same was provide on his report and we do not provide any receipt to any customer for providing the service on their request…….  "It is true that on the complaint by the complainant, we deleted the amount billed for Hungama Service"

          10. On the perusal of Exs.C3 to C5 and C7, it shows that every time, service charge for "Hungama" service was charged and removed only on regular intervention by the complainant.  Further on the perusal of subscription bills, Exs.C8, C10 to C12 it was observed that despite the letter of disconnection of service Ex.C6 given by the complainant, the bills generated inclusive of the charges for "Hungama" Service by the OP clearly establish that the opposite party has adopted unfair trade practice affecting the complainant to undergo mental agony and hardship. 

          11. Secondly, with regard to the alleged deficiency of service, it was contended by the complainant that the act of issuance of subscription bill by the opposite party for the subsequent period despite the receipt of letter of disconnection of service dated 23.01.2015 (Ex.C6) from the complainant amounts to deficiency in service.  Even though the opposite party admits the receipt of letter Ex.C6 contends that since the complainant has not surrendered the telephone instrument, the subscription bill will be generated for the period till the date of surrender of instrument to the Opposite Party.  Further, it was contended by the opposite party that since the telephone instrument was surrendered only in the month of April 2015, the payment for the relevant period was demanded by the OP.  On the perusal of the letter of request for disconnection of service by the complainant Ex.C6, it is observed that the same was given in the month of January 2015 and it is the duty of the opposite party to act upon the same immediately and disconnect the service.  Having  received the letter on 23.01.2015 itself by the opposite party, it was for the opposite party to act on the same and cannot blame the complainant for the lame reason that unless the instrument is surrendered by the complainant, the opposite party cannot act upon the letter will not justify the act of the opposite party.  Even after the telephone instrument was surrendered by the complainant on 16.04.2015 as per the endorsement made in Ex.C6, the subscription bill for the period of May 2015 Ex.C12 was generated and delivered to the complainant and this act establishes the callous attitude of the opposite party.  Further, the opposite party has not produced any records or rules stipulating that only on the surrender of the telephone instrument by the subscriber, the telephone services will be disconnected and it was also admitted by the RW1 that there is no provision either under the Telegraph Act or Rules or Circulars saying that the telephone instrument to be surrendered by the customer themselves.  The evidence of RW1 during the cross examination is reproduced as follows:

          "There is no provision either under the Indian Telegraph Act or Rules framed there under or any circular saying that the disconnection and handing over of the telephone instrument has to be done by the concerned customer themselves".

In the light of the circumstances, the contention of the opposite party that only on the date of surrender of the telephone instrument by the complainant the telephone connection will be disconnected and the bill levied till that period by the opposite party is proper does not hold good and hence, the subscription bills Exs.C8, C10 to C12 generated by the opposite party for that period from the date of letter of request of disconnection of service by the complainant and the charges levied for the "Hungama" Service" not opted by the complainant is not justifiable and cannot be accepted and it amounts to deficiency of service and unfair trade practice of the opposite party. 

          12. Lastly, with regard to the bill due to be paid by the complainant, it was contended by the complainant that a sum of Rs.3000/- was deposited as advance for landline and a sum of Rs.1,348/- towards Internet Broad Band Service".  But on the perusal of Ex.R2, it is found that the complainant has deposited only a sum of Rs.1000/- towards Landline Connection and as per the pleadings of the OP, an additional amount of Rs.650/- was received from the complainant as Annual Rent Deposit towards Landline and in total, a sum of Rs.1,680/- was lying in deposit of OP's account towards Landline and therefore, the contention of the complainant that a deposit of Rs. 3000/- towards Landline is with the OP cannot be taken into consideration as the complainant failed to prove for the same.  With regard to the the Internet Broad Band connection, it is admitted by the OP that an amount of Rs.1,348/- (Rs.1200/- towards deposit and Rs.148/- towards service tax) was deposited by the complainant for the same.  Hence, the total amount of complainant lying with the account of the OP as deposit is Rs.2,850/- (Rs.1650/- towards Landline + Rs.1200/- (excluding the service tax of Rs.148/- towards Broad Band).  It was contended by the OP that the last plan under which the Broad Band provided to the complainant was "BB 750 plan".  But, on perusal of the itemized bill of the subscription bill Ex.C7, it is found that the complainant was not under the enjoyment of the Broad Band in the name of the "BB 750 Plan" as on the date of letter of request of the letter of disconnection of service and hence, the pleading of the OP that the complainant was under the plan "BB 750" and only Rs.750/- was left with the OP as deposit amount cannot be taken into consideration.  Further, though no document has been produced by the OP to prove that the complainant is under the Broad Band Plan "BB 750" and that an amount of Rs.750/- is lying as deposit in the OP account.  Hence,  as on the date of request of the disconnection of service Ex.C6, the total amount due to be paid by the complainant as per Ex.C7 excluding "Hungama" charges is Rs.1752/- and the advance amount left over as deposit with OP is Rs.2850/-.  Hence, on deducting the amount of Rs.1,752/- the amount due to be paid by the complainant from the advance amount of Rs.2,850/- lying as deposit in the account of the OP, the OP has to pay back the complainant a sum of Rs.1098/- (Rs.2850 – Rs.1752) and no other dues is liable to be paid by the complainant to the OP.           In view of the observations made in paras supra, it is held that the OP is liable for mental agony, physical hardship and monetary loss sustained by the complainant due to the unfair trade practice and deficiency of service of the OP.  This point is answered accordingly.

          13. Point No.3:

          In the result, the complaint is hereby allowed.  The Opposite Party is directed to;

1. To pay back the complainant a sum of Rs.1,098/- being the balance amount to be paid by the Opposite Party.   
2. To pay the complainant a sum of Rs.15,000/-   towards mental agony, physical hardship and monetary loss suffered due to the deficiency of service and unfair trade practice by the OP
3. To pay a sum of Rs.5000/- towards cost of this proceedings.

                    Dated this the 10^th day of March 2018.

1. ASOKAN)

PRESIDENT

(V.V. STEEPHEN)

   MEMBER

(D. KAVITHA)

   MEMBER

COMPLAINANTS' WITNESS:  

CW1           01.03.2016           Krishnamoorthy

OPPOSITE PARTY'S WITNESS:  

RW1           31.05.2016           G. Rajendiran, Sub Divisional Engineer,

COMPLAINANT'S SIDE DOCUMENTS:

OPPOSITE PARTY'S EXHIBITS:   

LIST OF MATERIAL OBJECTS:  NIL

1. ASOKAN)

PRESIDENT

(V.V. STEEPHEN)

   MEMBER

(D. KAVITHA)

   MEMBER