DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II, U.T. CHANDIGARH

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Ram Singh s/o Sh. Ram Kishan, Resident of H.No. 2929, Sec.49-D, Chandigarh.

              ---Complainant

Vs

[1]  Idea cellular Limited, C-105, Industrial Area, Phase-VII, Mohali, through its Nodal Officer.

[2]  Idea Cellular Limited, C-15, Industrial Area, Phase-VII, Mohali, through its Area Manager (Customer Care).

[3]  Idea Cellular Limited, Sector 35-C, Chandigarh, through its Manager (Customer Care).

---- Opposite Parties

BEFORE:    SH. LAKSHMAN SHARMA             PRESIDENT

MRS.MADHU MUTNEJA               MEMBER

           SH.JASWINDER SINGH SIDHU        MEMBER

Argued By:    None for Complainant.

Sh. Ankush Kalia, Counsel for Opposite Parties.

PER MADHU MUTNEJA, MEMBER

1.        The Complainant had purchased a pre-paid connection (Mobile No.9592819159) from the Opposite Parties in February, 2011. At the time of purchase, no facilities i.e. caller tone, internet facilities or any other facilities were opted for by the Complainant. When the Complainant found that the entire amount deposited by him for getting his account re-charged was being deducted, he approached the Customer care of the Opposite Parties in August, 2011 to know about the reason for deduction. He was told that the amount had been deducted, as he had availed the service of caller tone etc. The Complainant has stated that he had not asked for any such service. The Complainant also realized that whenever he got the account of the said mobile number re-charged, the entire amount was being deducted by the Opposite Parties without any reason. Hence the Complainant has stopped getting his account recharged. The Complainant has stated that he had requested the customer care of the Opposite Parties a number of times, but no steps were taken to stop the wrong deduction. As the grievance of the Complainant was not being redressed, he also sent a legal notice dated 12.8.2011 to the Opposite Parties regarding unwanted caller tone, blocking of unwanted messages and unwanted calls, besides stopping of deduction of the re-charge amount, but no action has been taken by the Opposite Parties to satisfy him. 

          The Complainant has thus filed the present complaint with a prayer that direction be issued to the Opposite Parties to stop deduction of any further re-charge amount against his aforesaid mobile no. The Complainant has further prayed for refund of the amount already charged for the same, besides compensation of Rs.1.00 lac for the harassment caused. The Complainant has also prayed for issuance of any other relief, which this Forum may deem fit, just and proper.  

2.        Notice of the complaint was sent to Opposite Party seeking their version of the case.

3.        The Opposite Parties in their joint reply have taken the preliminary objection that the complaint is not maintainable, as per the law laid down by the Hon’ble Apex Court in case titled as General Manager, Telecom Vs. M. Krishnan & Another, (2009) 8 SCC 481. It has been held in the cited case that when there is a special remedy provided under Section 7-B of the Indian Telegraph Act regarding disputes with regard to telephone bills, this forum will have no jurisdiction under the Consumer Protection Act, 1986 to adjudicate upon the dispute. The Opposite Parties have further contended that the Complainant has himself activated the dialer tone by way of SMS on 18/5/2011. Opposite Parties have also denied sending any unwanted calls and messages on his Mobile No. 9592819159. Further, the Complainant has not subscribed to ‘do not disturb’ (DND) service on his number till date. 

          On merits, the Opposite Parties have repeated their preliminary objections, while denying all the averments of the complaint in their para-wise reply. The Opposite Parties have admitted the issuance of the mobile connection and that the Complainant got his dialer tone service activated by way of SMS on 18/5/2011. Thus, claiming no deficiency in service or unfair trade practice on their part, the answering Opposite Parties have prayed for the dismissal of the complaint with cost.  

4.        Parties led evidence in support of their contentions.

5.        Since none appeared for the Complainant on 30.10.2012, therefore, we proceed to dispose of this complaint on merits under Rule 4(8) of the Chandigarh Consumer Protection Rules, 1987 read with Section 13(2) of the Consumer Protection Act, 1986 (as amended upto date) even in the absence of the Complainant.

6.        We have heard the learned counsel for the Opposite Parties and have perused the record.  

7.        At the outset, it is very clear that in terms of the judgment of the Hon’ble Apex Court in the above stated case General Manager, Telecom Vs. M. Krishnan & Another, this Forum will not have any jurisdiction to entertain or adjudicate upon any dispute with regard to bills issued by the Service Provider to the customer and hence, we express our inability to pass orders for refund of the amount already paid.

          However, the matter cannot just finish here, it is evident that the Complainant has been provided a service, which according to him has not been opted for; while the Opposite Parties have stated that he has opted for the service on 18/5/2011.

8.        It is interesting that the Complainant has been requesting the Opposite Parties for de-activation of the service since August, 2011, but the Opposite Parties do not seem to understand or realize that the Complainant is not willing to avail of the said service, despite even receiving a legal notice from the Complainant to the said effect; and now they have taken the shelter of the case General Manager, Telecom Versus M. Krishna and Anr., (supra) stating that no cause of action has arisen in favour of the Complainant.

9.        The cited case refers to dispute regarding non-payment of telephone bill and disconnection thereof. The Hon’ble Apex Court had held that such matters be referred for Arbitration as per Section 7-B of the Indian Telegraph Act. The instant case however, besides the bill amount also relates to failure on the part of the Opposite Parties to de-activate the service, which according to the Complainant has not been opted for. Even giving the benefit of doubt to the Opposite Parties, the Opposite Parties cannot hide under the cover and blanket ban as per the above judgment for telecom related cases. This is a definite case of unfair trade practice and acute deficiency in service. We do not understand what language should be used by the subscriber to make the service provider understand that he does not wish to continue with a service even if earlier opted for by him. Even though we cannot pass orders for refund of the amount paid by the Complainant, in view of the aforesaid judgment of the Hon’ble Supreme Court, we can definitely hold the Opposite Parties liable for deficiency in service and unfair trade practice.   

10.       Keeping in view the foregoings, we allow this complaint against the Opposite Parties, jointly and severally, and direct them to pay Rs.10,000/-  to the Complainant for the harassment caused to him due to the deficient services rendered by them in not de-activating the ‘provided services’, despite repeated requests. The Opposite Parties are also directed to de-active the said caller tone, internet & any other service for which the amount is being unnecessarily deducted and also activate the DND service forthwith and not raise any further bill for the same to the Complainant. The Opposite Parties shall also pay Rs.5,000/- to the Complainant towards costs of litigation.

11.       In addition to the above, since the Opposite Parties have clearly indulged in an unfair trade practice, and may have caused loss to innumerable unidentifiable consumers by such practice, we feel that it will be in the interest of justice to grant punitive damages in terms of Section 14(hb) of the Consumer Protection Act, 1986. Therefore, we impose                punitive damages on the Opposite Party to the tune of Rs.20,000/-. The said amount be deposited by the Opposite Parties with the State Legal Services Authority, U.T. Chandigarh. A receipt to this effect is required to be deposited in the office of this Forum by the Opposite Parties.

12.       The aforesaid order be complied with by the Opposite Parties, within a period of 30 days from the receipt of its certified copy, failing which they shall pay the awarded amount of Rs.10,000/-, along with interest @12% per annum from the date of this order, till the date of realization, besides paying Rs.5,000/- as cost of litigation. 

13.       Certified copy of this order be communicated to the parties, free of charge. After compliance file be consigned to record room.

Announced

31^st October, 2012.                                             

Sd/-

(LAKSHMAN SHARMA)

PRESIDENT

Sd/-

 (MADHU MUTNEJA)

MEMBER

Sd/-

 (JASWINDER SINGH SIDHU)

MEMBER

“Dutt”