IN THE CONSUMER DISPUTES REDRESSAL FORUM, ALAPPUZHA
Wednesday the 30th day of March , 2016
Filed on 08.08.2014
Present
- Smt. Elizabeth George (President)
- Sri Antony Xavier (Member)
- Smt.Jasmine.D. (Member)
in
C.C.No.202/2014
between
Complainant:- Opposite Parties:-
Sri. G. Raman Pillai 1. Head of Regional Office
Thannickal Idea Cellular Ltd, Mercy Estate
Thulamparambu Vadakku Second Floor, Ravipuram
Mannarasala P.O. M.G.Road, Kochi – 682 015
Haripad – 690 514 (By Adv. George V. Thomas)
2. A2 A Communications
Oppo. Union Bank, Haripad
Pin – 690 514
3. Federal Bank, Haripad Branch
Represented by Manager
Haripad Branch
O R D E R
SMT. ELIZABETH GEORGE (PRESIDENT)
The complainant’s case is as follows:-
The complainant is working as broker of the Cochin Stock Exchange dealing with its business and financial advice with his office at Haripad. For the daily use of him and for his business he has obtained a mobile phone connection from M/s. Escotel, which is later on merged with Idea Cellular Ltd. The complainant used to pay off the telephone bills at proper time without delay through bank cheques and so far no cheques were dishonoured. While so the phone connection in his name was disconnected by the opposite parties without any cause or reason and without giving him notice even though he has remitted the telephone bills through cheque and even without presenting the cheque for collection and subsequently it is alleged that he is a defaulter for phone bills for the month of February and April 2014. Thereafter, he came to know that third opposite party dishonourned the cheque without sufficient reason. The act of the opposite parties are illegal, unaffordable, against natural justice and above all it is detrimental to his business and defaming him and his goodwill in business. Alleging deficiency in service in service on the part of the opposite parties, the complaint is filed.
2. The version of the first and second opposite parties is as follows:-
The complaint is not a consumer hence the complaint is not maintainable. The opposite party had intimated the matter over phone. But the complainant never cared to clear the pending dues. The further averment that the complainant had submitted two cheques to the opposite party for Rs.1123/- for the bill generated during the month of February and another cheque for Rs.841/- for the bill generated during the month of April which was not submitted by the opposite parties to the bank is absolutely false hence denied. The opposite party had submitted both the cheque on time and the same was bounced due to technical reasons. This was informed to the complainant over phone. The opposite parties got the intimation from Bank regarding the cheque bounce on 5th May 2014. The same was communicated to the opposite parties on the next day itself. Even though the complainant agreed to clear the due he failed to do so. The complainant has filed the complaint in order to escape from his legal liability and to obtain illegal gain. The complainant is bound to repay the amount due to this opposite party.
3. The version of the third opposite party is as follows:-
The complainant is not a consumer of the opposite party and opposite party has not received any consideration from the complainant in the matter. The account number mentioned in the complaint, 100014559236 is non existing and does not relate to the complainant. The alleged cheques were issued to another account, namely “M/s. Share Deal” with account No. 13960200121838. The cheques were presented by one of the representatives of M/s. Idea Cellular franchisee for credit of the proceeds to the account of M/s. Idea Cellular Ltd. As the account number of M/s. Idea Cellular provided by the representative was not correct, the third opposite party forwarded the cheques, to the office of the M/s. Idea Cellular, Ernakulam requesting correct account number for crediting the amount. The first opposite party neither submitted the correct account number nor retransmitted the subject cheques for realization. As such there is no deficiency in service on the part of the opposite party in the matter. Opposite party has not dishonoured the cheques for the reason of deficiency of balance in the account and no letter of dishonour of the subject cheques were issued. The opposite party states that no complaint has been ever made to the third opposite party in the matter of dishonour of cheques. Third opposite party never made any defamatory statements against the complainant, as alleged. The allegation that the complainant has sustained mental agony and business loss due to disconnection of the telephone etc. are false and hence denied. No loss was ever sustained by the complainant as alleged.
4. The complainant was examined as PW1, and documents Exts.A1 to A6 were marked. The branch manager of Federal Bank, Haripad was examined as PW2. The first opposite party was examined as RW1. Documents produced were marked as Exts.B1 to B3.
5. The points came up for considerations are:-
- Whether the complaint is maintainable?
- Whether there is any deficiency in service on the part of the opposite parties?
- Whether the complainant is entitled to get relief and cost?
6. Point No.1:- According to the opposite parties, the complainant is running a business establishment and is engaged commercial activities and had availed the services of the opposite party for its commercial activity being so the complainant has no manner of right to approach the Forum. The complainant himself admitted that he has obtained the mobile phone connection from the opposite party for his daily use and also for his business. According to the complainant he was doing his business for the earning of his livelihood. In order to substantiate his argument, he produced a decision reported in 2011 NCJ 337 (NC) in Sapna Photostat Vs. Excel Marketing Corporation and another wherein Hon’ble
National Commission held that the person who carries on business for earning his livelihood through self employment is very much covered under the ambit of the definition of “consumer” and if a person indulges in a commercial activities for the purposes of earning his livelihood by means of self employment comes within definition of the “Consumer”. In order to controvert the allegation of the complainant, there is no evidence adduced by the opposite parties. Relying, the above decision we are of opinion that the complainant is a consumer. Point No.1 is answered accordingly.
7. Points 2 & 3:- It is an admitted fact that complainant submitted two cheques to the opposite party for Rs.1123/- and Rs.841/- for the bills generated during the month of February and April. According to the opposite parties 1 and 2 even though they submitted both cheques in time the same was bounced due to technical reasons. According to the complainant, the phone connection in his name was disconnected by the opposite parties 1 and 2 without any cause or reason and without giving him notice. But the opposite parties 1 and 2 stated that they had intimated the matter over phone, but the complainant never cared to clear the pending dues. 3rd Opposite party filed version stating that the account No. of the Idea Cellular Ltd. provided by the representatives was not correct account number for crediting the amount and hence they forwarded the cheque to the office of M/s. Idea Cellular Ltd. Exts.A3 and A4 are the despatched cheques issued by the complainant to the opposite parties 1 and 2. Ext.A3 is dated 19.4.2014. Ext.A4 is dated 20.2.2014. Ext.B1 shows cheque dated 20.2.2014 was returned by third opposite party on 19.4.2014 and reason for return is credit A/c No.100014559236 and Ext.B2 shows cheque dated 19.4.2014 was returned on 23.4.2014 for A/c No. mismatched. But while cross examining the third opposite party, he admitted that the dishonour of cheques were not recorded in cheque return register, he also answered to the question, “ ” At the same time Ext.A5 shows the cheque issued by current A/c No.13960200121838 in the name of M/s. Share Deal had not been dishonoured till date. On verifying Exts.A3 and A4 it is clear that account number of the Idea Cellular Ltd. stated in the cheque is same as in the bill issued to the complainant. Since the cheque Exts.A3 and A4 contain the correct account number the contention of third opposite party that the incorrect number in the remittance slip is the reason for dishonour is not acceptable. So from the deposition of third opposite party as well as from the documents produced it is clear that third opposite party dishonoured the cheque without any sufficient reason and that amounts to deficiency in service on the part of the third opposite party. It is also an admitted fact that opposite parties 1 and 2 disconnected the phone connection of the complainant. The allegation of the complainant is that the phone connection was disconnected without notice. While cross examining the complainant he admitted that he had received a message from the opposite parties 1 and 2 regarding the dishonour of cheques. But according to the complainant he had enough amount in his bank account and there is no reason for dishonouring the cheques. There is no documents produced by opposite parties to prove that they disconnected phone connection after giving him notice. So disconnection of phone without giving prior notice amounts to deficiency in service on the part of the opposite parties 1 and 2. It is true that the act of opposite parties 1 and 2 caused much mental agony to the complainant. Hence opposite parties 1 and 2 bound to pay compensation for the same.
In the result, complaint is allowed. Opposite parties 1 and 2 are directed to pay Rs.5000/- (Rupees five thousand only) towards compensation to the complainant. They are at liberty to realize the due bill amount from it and return the balance amount to the complainant. They are also directed to give reconnection to the phone within two week from the date of receipt of this order. The third opposite party is also directed to pay Rs.5000/- (Rupees five thousand only) as compensation to the complainant for the negligence committed by them. Opposite parties 1, 2 and 3 are further directed to pay Rs.2000/- (Rupees two thousand only) towards costs of this proceedings to the complainant. The order shall be complied within one month from the date of receipt of this order.
Dictated to the Confidential Assistant transcribed by her corrected by me and pronounced in open Forum on this the 30th day of March, 2016.
Sd/- Smt.Elizabeth George (President)
Sd/- Sri.Antony Xavier (Member)
Sd/- Smt.Jasmine. D. (Member)
Appendix:-
Evidence of the complainant:-
PW1 - G. Raman Pillai (Witness)
PW2 - M.N. Vijayan Nair (Witness)
Ext.A1 - Copy of the bill dated 5.2.2014
Ext.A2 - Copy of the bill dated 5.4.2014
Ext.A3 - Cheque for Rs.841.58
Ext.A4 - Cheque for Rs. 1123.60
Ext.A5 - Certificate dated 10.9.2014
Ext.A6 series - Statement of facts filed before the Appellate Authority & Form for appeal to
Appellate Authority
Evidence of the opposite parties:-
RW1 - Augustine Joseph K.G. (Witness)
Ext.B1 - Letter dated 19.4.2014
Ext.B2 - Letter dated 23.4.2014
Ext.B3 - Statement of account 1.1.2014 to 30.4.2014
// True Copy //
By Order
Senior Superintendent
To
Complainant/Opposite parties/S.F.
Typed by:- pr/-
Compared by:-
