DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SAHIBZADA AJIT SINGH NAGAR (MOHALI)

Complaint No.      268 of 2016

Dated of institute  12.05.2016

Decided On           21.12.2017

Rabinder Dutta, Resident of House No.472, Swastik Vihar, Patiala Road, Zirakpur Distt. SAS Nagar, Mohali.

Complainant………

Vs

The Nodel Officer, Idea Cellular Limited, C-105, Industrial Area, Phase VII, Mohali 160055.

Opposite Party…..

Complaint under Section 12 of 

the Consumer Protection Act.

 

Quorum

Sh. G.K. Dhir, President,

Ms. Natasha Chopra, Member

Present:- Complainant in person.

                    Ms. Rameet Bakshi, cl for the OP.

Order by :-  Sh. G.K. Dhir, President

Order

                   The complainant is having mobile no. 9855559290 in his name of the  OP company, which is engaged in the business of Cellular Phones. The complainant  had been paying the bills regularly to the OP. Outgoing services of above said mobile phone were stopped on 16.03.2016, but incoming on 25.03.2016 without any fault of the complainant. Even the OP Company has disconnected the services on the above mobile number without any fault of the complainant. When the complainant approached the OP for asking the reasons of disconnection, then the matter was put off on one pretext or the other. The complainant being an advocate by profession claims to have suffered lot of harassment and business loss on account of the above said acts of the OP Company, because he could not contact his clients, official colleagues, friends and relatives. Legal notice dated 16.04.2016 was served for calling upon the OP to activate the said mobile, but to no effect  and as such this complaint filed for seeking direction to the OP to activate the above numbered mobile phone immediately. Compensation for harassment, mental tension, sufferings and agony of Rs. 55,000/- but of Rs.25,000/- for unfair trade practice also claimed.

2. In the reply, it is pleaded inter-alia as if the complaint is not maintainable being false  and frivolous; the complaint is bad for non joinder and misjoinder of necessary party and that the complainant has concealed the material and relevant facts while filing this complaint. Admittedly, the complainant  filled up the Customer Application Form (CAF) for becoming customer regarding the above numbered mobile on 28.10.2010. On 25.03.2016 a message was sent to the complainant for informing him about the outstanding bill amount of Rs. 2208/- regarding his other mobile number 8556892811. Through that message, the complainant was conveyed for availing uninterrupted services provided pending bill of Rs.2208/- is cleared. Outgoing services of the complainant were barred on 25.03.2016 but incoming on 01.04.2016. The complainant called up on the Customer Care of the Idea Cellular  Limited on 28.03.2016 for knowing the reasons for barring of his outgoing services and he was duly informed the reasons. When the complainant again approached on 22.04.2016 then he showed the legal notice issued by him and at that time again the Customer Care Representative disclosed about the outstanding bill amount. On request of the complainant, services were activated on 22.04.2016 due to pending adjudication of the complaint. It is claimed that the complainant has un-necessarily dragged the OP in this litigation by suppressing the material facts referred above. The contradictory pleas are also alleged to be taken by the complainant because at one point he claims as if the mobile phone has been activated, but through prayer clause he has prayed for refund  and activation of the mobile phone immediately. As per rule 443 of Telegraph Rules 1951, the telephone connections can be disconnected in the event of non payment of the bills of any of the mobile phone held by a customer. The present complaint being filed  against the nodal officer of the Company alone is not maintainable . Other averments of the complaint have been denied.

3. The complainant to prove his case tendered in evidence his affidavit Ex CW1/1 along with document Ex C-1 and thereafter closed the evidence.

4. On the other hand, counsel for the OP has tendered in evidence affidavit of Sh. Manoj Madan, authorised  signatory of the OP Ex OP1/1 along with documents Ex OP/1 to Ex OP/4 and thereafter closed the evidence.

5. Written arguments were filed by both the parties. Oral arguments were also heard.

6. Undisputedly, the complainant is having above numbered mobile in his name for availing services of Idea Cellular Company. If the services by the complainant are availed from the Company, then the act of filing of the complaint against the Nodal Officer alone is not proper because Nodal Officer is one of the employees of the Company only. Nodal Officer  has to act as per the policy of the Company and as such the complaint should have been filed against the Company for redressal of the grievance in question by the complainant. That has not been done and as such the complaint certainly is bad for non joinder of the necessary party.

7. The complainant vehemently   contends that he has been paying the bills regularly, but despite that the outgoing services on the above numbered phone was stopped on 16.03.2016, but the incoming services on 25.03.2016 and as such he has suffered a lot in his profession of advocacy because  he could not contact his clients, friends and relatives . However, it is vehemently contended by counsel for the OP that the complainant is holder of two mobile phones in his name bearing numbers 9855559290 and 8556892811, but that fact has not been deliberately disclosed by the  complainant in the complaint or in the submitted affidavit. It is also contended that an amount of Rs. 2208/- is pending against the complainant regarding the services provided on mobile phone no. 8556892811, but that amount has not been paid despite sending of SMS as revealed by the contents of the print out of sent SMS messages to the complainant and other customers and as such fault lies with the complainant in not clearing the pending bill amount of Rs.2208/- for enjoying the uninterrupted services. Certainly after going through Ex OP/2, it is made out that a holder of mobile phone no.985555920 was informed as if an amount of Rs. 2208/- is outstanding against him in respect of the services availed on other mobile no. 8556892811. For availing uninterrupted services, complainant being holder of the above numbered mobile  was called upon to clear the bill amount of Rs. 2208/- . Copy of the call details is produced on record as Ex.OP/3 but that of the snap shot Ex OP/4 to show that the complainant through SMS was informed the reasons for barring the services on mobile number mentioned in the complaint .That reason is dues  outstanding in other account of the complainant. Through Ex OP/4 itself it was disclosed that line barred regarding which information should be given to customer for calling upon him to make the payment. When this snap shot Ex OP/4 and the SMS print out Ex OP/2 clearly spells out the reasons for debarring the complainant from availing service on the mobile number mentioned in the complaint, then certainly submission advanced by  counsel for the OP has force that this complaint has been filed by suppressing material facts and with intent to avoid payment of the outstanding bill amount of Rs. 2208/-. In view of the sending of the SMS Ex.OP/2 and snap shot Ex OP/4, it is obvious that the complainant was disclosed the reasons for barring line services to him, but  that fact deliberately not mentioned in the complaint or in the affidavit submitted by the complainant. That reason was disclosed to the complainant atleast more than one month prior to the filing of this complaint which was filed on 12.05.2016. So suppression of material facts by the complainant denudes him from availing the relief of activation of the services of the mobile phone in question on equitable considerations.

8. It is not the case of the complainant that he is not the holder of two mobiles numbers of which are referred above. If the billing amount of one mobile connection is paid by the  complainant regularly, then the same fact is not denied by the OP. However, the complainant has not disclosed anything regarding the payment of outstanding amount of Rs. 2208/- in respect of the services availed on  the other mobile  standing in his name. It is contended that a separate complaint regarding  the alleged outstanding amount is  pending and as such disconnection of services from the mobile phone in question  is improper. It is not the case of the complainant that the other mobile phone, in respect of which outstanding amount sought, is in the name of wife of the complainant. So submission advanced by counsel for the OP has force that actually other mobile also is in the name of the complainant and that is why SMS Ex OP/2 was conveyed to the complainant specifically for calling upon him to pay the outstanding bill amount for availing the services on mobile phone in question.

9. After going through ratio of case titled as Bharat Sanchar Nigam Ltd & others versus Contonment Ex-Service Resettlement Association, 2015 (1) CLT 431(Meghalaya State Consumer Disputes Redressal Commission, Shillong), it is made out that a Telegraph Authority like BSNL cannot disconnect any telephone  connection without giving due notice to the subscriber, even if the dues are not paid. It is so because principles of natural justice has to be followed by way of giving reasonable prior notice before resorting to action of disconnection, whether by partial   barring or qua certain facilities or in totality, unless there is any such empowering clause in the contract or agreement between BSNL and the subscriber. The application form for availing the connection of the mobile  in question was submitted by the complainant with the OP. As per clause no.5 of the payment undertaking contained in Ex OP/1, the complainant being customer, undertook to make the payment of bills raised by the Company before the due date mentioned on the bill. Through this clause No.5 itself the complainant understood as if the Idea Cellular Company will have the right to disconnect the part  or full service, in case of non payment and even right of claiming interim payment is granted through this clause no.5 of Ex OP/1 to the OP. So it was the duty of the complainant to make the payment of the outstanding bill amount for avoiding disconnection of part or full of the services. Para 443 of Indian Telegraph Rules provides that the rent or other charges in respect of the telephone services, if not paid by the subscriber, then the services on telephone or telephones or any telex services rented to him may be disconnected without notice. However, disconnection in the case before us took place after issuance of SMS referred above and as such it is not a case in which the OP intended to disconnect the services of the complainant in violation of the principles of natural justice. Rather it is a case in which the complainant has suppressed the material facts discussed in detail above, which disentitle him from claiming the relief.

10. In case titled as Laksheswar Talukdar versus Union of India and another, 2000(1) CPJ 390 (Assam State Consumer Disputes Redressal Commission, Guwahati) , the Telecommunication Authorities in view of Rule 443 of the Indian Telegraphy Rules was held  empowered to disconnect  telephones even without serving disconnection notice to the subscriber in case of default in payment of the dues. In  case dispute arises regarding the excess billing amount, then the consumer should pay the same under protest, even if his complaints are pending as per ratio of this case. However, Idea Cellular Company is not a Telecommunication Authority because of law laid down in the case Bharat Sanchar Nigam Ltd & others versus Contonment Ex-Service Resettlement Association (Supra)in which it is held that  BSNL cannot be treated as Telegraph or Telecommunication Authority. So in view of the joint reading of the cited cases, it is obvious that even if Idea Cellular Company, being not a Telegraph  or Telecommunication Authority, cannot disconnect the Teleservices  of the subscriber on non payment of the bill amount without notice, but certainly it can disconnect the same for enforcing payment by the subscriber of outstanding billing amount of one mobile by disconnecting the services on the other mobile owned/held by the same subscriber. That disconnection in this case took place after serving notice due to non payment of the outstanding billing amount by the complainant in respect of the services availed by him on another mobile of  same company, which is the Idea cellular Limited and as such the OP justified in not activating the mobile services of the complainant on mobile in question for seeking payment of the outstanding bill amount of the other mobile held by the complainant himself, more so when notice for debarring virtually given by the OP to the complainant through SMS.  So, neither it is a case of deficiency of service on the part of the OP and nor it is a case of adoption of unfair trade practice by the OP.

11. As a sequel of the above discussion, the complaint is dismissed with no order as to costs. Certified copies of the order be supplied to the parties free of costs and thereafter the file be consigned to the record room.

      Announced

     December 21, 2017