New Complaint No.250 of 2023.
Date of Institution:27.10.2023.
Old Complaint No:332 of 2018.
Date of Institution: 01.08.2018.
Date of order:23.01.2024.
Hitesh Nagpal Son of Sh. Tek Chand Nagpal, resident of Civil Lines, Behind Bus Stand Gurdaspur Tehsil and District Gurdaspur.
…..........Complainant.
VERSUS
1. Idea Cellular Ltd., Regd. Office Suman Tower, Plot No. 18, Sector – 11, Gandhi Nagar, 382, OMI, through Himanshu Kapania. M.D – Cum - C.E.O., Gujarat.
2. Idea Cellular Ltd., C-105, Industrial Area, Phase-VII, S.A.S. Nagar, Mohali, Pin Code – 160055, through Sanjay Goel / Authorized Signatory.
….Opposite parties.
Complaint U/s 12 of C.P.A.
Present: For the Complainant: Sh.B.S.Gill, Advocate.
For the Opposite Parties: Sh.Suvir Mahajan, Advocate.
Quorum: Sh.Lalit Mohan Dogra, President, Sh.Bhagwan Singh Matharu, Member.
ORDER
Lalit Mohan Dogra, President.
Hitesh Nagpal, Complainant (here-in-after referred to as complainant) has filed this complaint under section 12 of the Consumer Protection Act (here-in-after referred to as 'Act') against Idea Cellular Ltd. Etc. (here-in-after referred to as 'opposite parties).
2. Briefly stated, the case of the complainant is that the complainant took an Idea Sim on dated 06.09.2002 and allotted Number 98146-53545 which was activated on 06.09.2002 and the monthly rental plan was SPICE PRIZE. Since then the complainant is using this number since 16 years ago, hence he is the consumer of the opposite parties. It is pleaded that on dated 11.11.2005, the message was received by the complainant from the opposite parties which read as ZERO RENT bye bye rental for life - enjoy M-M 50 Ps, M-L Rs.1/- just pay Rs.2000/- to the company and get offer from the next bill cycle. Same message was received again by the complainant on dated 12.11.2005 and 14.11.2005. It is further pleaded that the complainant on dated 31.12.2005 accepted the offer of the company and deposited Rs.2200/- at company's show room vide receipt No. 1415 dated 31.12.2005. On dated 22.01.2006, the complainant received a message from the company that your tariff has changed to SPICE LIFE LONG PLAN on dated 23.01.2006. The complainant also received a message from Spice Company that your tariff has been changed on dated 23.01.2006. It is further pleaded that the complainant since then continued in this plan, company of its own change to rental plan of Rs.100/- per month. The bill since January 2006 contained following details:-
Monthly Rent: Rs. Zero
Minimum Commitment Rs. Zero
CLI Monthly Rent Rs.25/-
Outgoing local call charges (Rs. /min.) to Spice 50 Paise, GSM Rs.50/- Paise Rent, Rs.1/-. It is further pleaded that in the year 2008 the company has changed the CLI Charges from Rs.25/- to Rs.35/- per month, charges was continued till 2010. The company started monthly charge Rs.60/- whereas the plan remained the same. Now company charges the monthly rent charges Rs.100/-. All the changes were made by the company without the consent of the complainant and without any notice which amount to breach contract and trust. All these records are in the powers and possession of the company. It is further pleaded that on dated 16.10.2008 the company offered an ADD on number which the complainant accepted under the Life Long Plan (Rent free) with CLI charges of Rs.35/- per month. The ADD on number is 98147-40809. This number also met the fate of main number 98146-53545. It is further pleaded that on dated 02.06.2018 the company has changed the plan on ADD on Mobile No. 98147-40809 without the consent of the complainant and the agreement dated 31.12.2005 violated by the company which is against the natural justice and is breach of trust and the plan has changed from Rs.100/- to Rs.389/- and no notice was sent to the complainant. The complainant talked to the opposite parties through E-mail on dates 15 June 2018, 02 July 2018, 22 June 2018, 23 June 2018 and 25 June 2018, but no satisfactory answer was given to the complainant. It is further pleaded that the plan on Mobile number 98146-53545 is still of Rs.100/- and is continued but the opposite parties are sending the bill to the complainant according to the new plan of Rs.389/- on Mobile number 98147-40809 which is unbearable by the complainant is violation of the agreement dated 31.12.2005 which is a clear cut deficiency of service on the part of the opposite parties and the complainant is not bound to pay it. The bill on Mobile number 98147-40809 is being paid under protest as mentioned in E-mail. It is further pleaded that the complainant requested so many times to the opposite parties to amend the bill of the complainant but the opposite parties did not bother about the legal and genuine request of the complainant. The opposite parties have harassed and are harassing the complainant without any fault on his part for which the opposite parties will be held responsible. Due to this illegal act and conduct of the opposite parties the complainant has suffered loss and also suffered mental agony, Physical harassment and inconvenience. So, there is a clear cut deficiency in service on the part of the opposite parties.
On this backdrop of facts, the complainant has alleged deficiency and negligence in service and unfair trade practice on the part of the opposite parties and prayed that necessary directions may kindly be issued to the opposite parties to amend the bill of the complainant from monthly plan of Rs.389/- to CLI monthly rent as on Mobile number 98146-53545 from RET 100 to CLI monthly rent of Rs.25/- and reject the new plan of Rs.389/- and new bill may be sent to the complainant of CLI monthly rent plan of Rs.25/- and to Mobile No. 98147-40809 to both the numbers and to refund the amount charged even by way of change of plan on both the numbers and to pay Rs.20,000/- on account of compensation for harassment and mental agony and Rs.10,000/- as litigation expenses to the complainant, in the interest of justice, equity and fair play.
3. Upon notice, the opposite parties appeared through counsel and contested the complaint and filing their written reply by taking the preliminary objections that the present complaint is not maintainable in law and on facts and is false, frivolous and untenable in law and is liable to be dismissed. It has been made to injure the interest and reputation of the answering opposite parties and hence the same is liable to be dismissed. It is pleaded that this Hon'ble Commission has no territorial jurisdiction to try the present complaint due to the following reasons:-
- As per Section 11 (2) (b) of the Act, "A complaint shall be instituted in a District Commission within the local limits of whose jurisdiction,...any of the opposite parties, where there are more than one, at the time of the institution of the complaint, actually and voluntarily resides, or 3 [carries on business or has a branch office], or personally works for gain, provided that in such case either the permission of the District Commission is given, or the opposite parties who do not reside, or 4[carry on business or have а branch office), or personally work for gain, as the case may be, acquiesce in such institution".
- It is not in dispute that in the present case, the address of the opposite party No. l is of Gujarat and that of opposite party No. 2 is of Mohali. It is further not in dispute that neither the permission was given by this Hon'ble District Commission for instituting a complaint at Gurdaspur against the said opposite parties nor the answering opposite parties have acquiesced for the institution of a complaint at Gurdaspur.
- As per clause 14 of the Customer Information on page number 2 of the bill annexed by the complainant himself, it is stated that "Any dispute arising out of differences are subject to the exclusive jurisdiction of the courts of SAS NAGAR, MOHALI, PUNJAB".
- Thus, the complaint filed at Gurdaspur is non-maintainable in law and liable to be dismissed on this ground alone.
It is further pleaded that this Hon'ble Commission has no jurisdiction to entertain and adjudicate upon the dispute involved in the present complaint in as much as it is not a consumer dispute and does not fall within the ambit of the provisions of the Consumer Protection Act, 1986 and is exclusively triable by a Civil Court after leading detailed evidence and as such the complaint is liable to be dismissed summarily on this score alone. It is further pleaded that the compensation as sought by the complainant is not only exorbitant but an attempt by him to blow the issue out of proportion. The hypothetical and frivolous versions with respect to compensation claimed are not only without any basis, but also not substantiated by any evidence, like his income tax returns etc. in any case, whatsoever. The Consumer Protection Act, 1986 is a beneficial piece of Legislation and hence the same should not be used by the complainant as a mechanism to launch claims in the hope of striking an illegal windfall. The present complaint is frivolous and vexatious and liable to be dismissed under Section 26 of the Act. It is further pleaded that the main grouse of the complainant relates to the change of tariff plan on the Mobile number 98147-40809 by the answering opposite parties without his consent and this amounts to deficiency in service as per his averments. It is further pleaded that the change of tariff plan was done by the answering opposite parties as per the guidelines and as per the agreed terms and conditions and the same is evident as follows:-
- As per the Telecom Regulatory Authority of India Notification dated 21.03.2006 which is 43rd Amendment to the Tele-communication Tariff Order, 1999 it is evident that the opposite party No. 1 / Access Provider can increase the tariff plan after six months from the date of enrolment of subscriber.
It is further pleaded that the Mobile number 98146-53545 is active and Mobile number 98147-40809 was permanently disconnected on dated 15.10.2018 as the same had been ported-out by the complainant from the network of the answering opposite parties. It is further pleaded that no cause of action survives in favour of the complainant qua Mobile number 98147-40809 as the same had been ported-out and thus the complainant is not a consumer of the answering opposite parties.
On merits, the opposite parties have reiterated their stand as taken in legal objections and denied all the averments of the complaint and there is no deficiency in service on the part of the opposite parties. In the end, the opposite parties prayed for dismissal of complaint with costs.
4. Learned counsel for the complainant has filed Self Attested affidavit of Hitesh Nagpal, (Complainant) alongwith Self Attested other documents as Ex.C-1 to Ex.C-11.
5. Learned counsel for the opposite parties has tendered into evidence affidavit of Sh. Manoj Madan, (Authorized Signatory, Idea Cellular Ltd. now Vodafone Idea Ltd., Mohali) as Ex.OP-1 alongwith other documents as Ex.OP-2 to Ex.OP-5 alongwith reply.
6. Rejoinder filed by the complainant.
7. Written arguments filed by the complainant, but not filed by the opposite parties.
8. Counsel for the complainant has argued that complainant took Idea Sim on 06.09.2022 and was allotted No.98146-53545 and monthly rental plan was Spice Prize and complainant is continuously using the said number. It is further argued that on 11.11.2005 and thereafter on 12.11.2005 and 14.11.2005 complainant received message read as Zero Rent bye bye rental for life on payment of Rs.2,000/- to the opposite parties. It is further argued that on 31.12.2005 complainant had deposited Rs.2200/- with the office of opposite parties authorized agent at Gurdaspur M/s.Darmania Enterprises vide Ex.C1 and on 22.01.2006 complainant received a message from the opposite parties that tariff plan has been changed to Spice Life Long Plan. It is further argued that opposite parties thereafter without any notice to the complainant changed the monthly CLI from Zero to Rs.25/- per month and thereafter Rs.25/- to Rs.35/- per month in the year 2008 and thereafter started charging Rs.60/- but the plan remained the same but there after opposite parties started charging Rs.100/- as monthly rent. One add on number was alloted to the complainant on monthly CLI of Rs.35/- It is further argued that company has changed the plan again on 02.06.2018 from Rs.100/- to Rs.389/-. It is further argued that the change of plan was carried out without any notice to the complainant which amounts to deficiency in service and all the bills are required to be rectified. It is further argued by the counsel for the complainant that since the amount of Rs.2200/-was deposited with the authorized agent of opposite parties i.e. M/s.Darmania Enterprises and as such this Commission got the jurisdiction to entertain the present complaint. It is further argued by the counsel for the complainant that since the opposite parties are continuously charging the amount under the wrong plan without notice as such cause of action is recurring one.
9. On the other hand counsel for the opposite parties has argued that this Commission has no territorial jurisdiction as per Section 11 (2) (b) of Act as both the opposite parties have their offices in Gujarat and other at Mohali. Even as per clause No.14 of the Customer Information on page No.2 of the bill it is stated that "Any dispute arising out of differences are subject to the exclusive jurisdiction of the courts of SAS Nagar, Mohali, Punjab" and Commission at Gurdaspur has no jurisdiction. It is further argued that the change of tariff plan was done by the opposite parties as per the guidelines and as per agreed terms and conditions as per which Telecom Regulatory Authority of India vide notification dated 21.03.2006 opposite parties can increase the tariff plan after six months from the date of enrollment of the subscriber. It is further argued that mobile number 98146-53545 is active and other mobile number 98147-40809 is permanently disconnected on 15.10.2018 having been ported-out by the complainant. It is further argued that complaint is miserably time barred and abuse of process of the Court and is liable to be dismissed.
10. We have heard the Ld. counsels for the parties and gone through the record.
11. To prove his case complainant has placed on record his affidavit copy of receipt dated 31.12.2005 Ex.C1, copy of bill Ex.C2, copy of legal notice Ex.C3, postal receipt Ex.C4, Acknowledgement Ex.C5, copy of bill Ex.C6 and copies of bills Ex.C7 to Ex.C10 including Ex.C11 whereas opposite parties have placed on record affidavit of Manoj Madan Ex.OP-1, typed copy of notification Ex.OP-2, copy of customer re-verification EKYC Ex.OP-3 and Ex.OP-4 and copies of statement regarding port request Ex.OP-5 and Ex.OP-6.
12. It is admitted fact that complainant had purchased Idea Sim on 06.09.2022 and was allotted number 98146-53545 which was activated on 06.09.2009 and the monthly rental plan was Spice Prize. It is further admitted fact that complainant is using the said number till filing of the preset complaint. It is further admitted fact that on 11.11.2005 and thereafter on 12.11.2005 and 14.11.2005 complainant received message from the opposite parties regarding Zero Rent plan on deposit of Rs.2,000/-. It is further admitted fact that complainant accepted the offer on 31.12.2005 and deposited Rs.2200/- at Gurdaspur. It is further admitted fact that complainant received message from the company on 22.01.2006 as per which tariff of the complainant was changed to Spice Life Long Plan. It is further admitted fact that opposite parties changed the rental plan of the complainant from zero to Rs.100/- . It is further admitted fact that opposite parties offered an ADD on number on 16.10.2008 under the Life Long Rental Free Plan with CLI charges of Rs.35/- per month. The ADD on number was 98147-40809. It is further admitted fact that opposite parties again changed the plan from 02.06.2018 from Rs.100/- to Rs.389/-. The only disputed issues for adjudication before this Commission are whether this Commission has got territorial jurisdiction to entertain the present complaint, whether the complaint is time barred, whether the change of tariff plan without notice is justified on the part of the opposite parties, whether the complainant is entitled to receive the refund of amount from the opposite parties.
13. The first issue regarding jurisdiction as per Section 11 (2) (b) of the Act, the complaint is required to be instituted under the old Act where the opposite party actually or voluntarily resides or carries on business or has a branch and cause of actoin arise. Perusal of receipt Ex.C1 shows that opposite parties received payment of Rs.2200/ for providing Spice Life Long Plan to the complainant on 31.12.2005 through its office/agent M/s. Darmina Enterprises, Opp. Khhushal Behl, Libarary Road, Gurdaspur and since the payment was received by the opposite parties through its authorized signatory in cash at Gurdaspur, as such cause of action has accrued to the complainant within the jurisdiction of this Commission. As such we are of the view that although opposite parties No.1 and 2 are having their offices in Gujarat and Mohali, Punjab but since the payment was received through their authorized agent at Gurdaspur, as such this Commission has rightly entertained the present complaint.
14. We have placed reliance upon judgment of Hon'ble Supreme Court of India in Civil Appeal No.923 of 2017 arising out of SLP (C) No.28615 of 2016 titled as Vodafone Idea Cellular Ltd. Versus Ajay Kumar Aggarwal.
15. The second issue is whether the complaint is time barred. It is plea of the opposite parties that the matter pertains to the year 2008-2010 and is beyond the period of limitation of two years as envisaged by the Consumer Protection Act. We are of the view that the tariff plan from Zero Rental to Rs.100/- was changed by the opposite parties without any notice and the opposite parties are continuously charging rent from the complainant instead of Zero Rental Plan as such the cause of action is recurring one.
16. We have also place reliance upon judgment of Hon'ble Supreme Court of India in Civil Appeal No.4100 of 2022 titled as Shri M.L. Patil (Dead) Through LRs. Versus The State of Goa and Anr. whereby Hon'ble Supreme Court has held as under:-
"However, as far as the pension is concerned, it is a continuous cause of action. There is no justification at all for denying the arrears of pension as if they would have been retired/superannuated at the age of 60 years. There is no justification at all by the High Court to deny the pension at the revised rates and payable only from 1st January, 2020. Under the circumstances, the impugned judgment and order passed by the High Court is required to be modified to the aforesaid extent".
17. The issue is whether the change of tariff plan without notice is justified on the part of the opposite parties, whether the complainant is entitled to receive the refund of amount from the opposite parties. Perusal of file shows that Zero Rental Plan under the tariff Spice Life Long Plan was provided to the complainant from 23.01.2006 onwards and thereafter opposite parties changed monthly CLI from Rs.25/- to Rs.35/- in 2008 till 2010 and thereafter to Rs.60/- and then changed the montly rent from zero to Rs.100/-. On 16.10.2008 opposite parties offered an Add on number under the Life Long Plan rent free with CLI charges of Rs.35/- per month. The only plea for change of tariff on the basis of which the tariff was changed to time to time by the opposite parties is that as per notification Ex.OP-1 issued by the Telecom Regulatory Authority of India on 21.03.2006 as per which clause No.2 and clause No.(V)
"(V) A tariff plan once offered by an Access Provider shall be available to a subscriber for a minimum period of SIX MONTHS from the date of enrolment of the subscriber to that tariff plan. However, any tariff plan presented, marketed or offered as valid for any prescribed period exceeding six months or as having lifetime or unlimited validity in lieu of an upfront payment shall continue to be available to be subscriber for the duration of the period as prescribed in the plan and in the case of lifetime or unlimited validity plans, as long as the Service Provider is permitted to provide such telecom service under the current license or renewed license. In the case of plans with lifetime validity or unlimited validity, the service provider shall also inform the subscribers of the month and year of expiry of his current license".
But the careful perusal of notification Ex.OP-1 shows that the opposite parties have misread the said notification which shows that revision of tariff from time to time by the opposite parties was not justified as the opposite parties have not anywhere pleaded or proved that the current license under which the plan was sold to the complainant was renewed or that opposite parties issued any notice regarding expiry of their current license. As such we have no hesitation in holding that revision of tariff Zero to Rs.100/- and then Rs.100/- to Rs.389/- is not justified. Accordingly, opposite parties are directed to amend the bills of the complainant from the Month of June 2018 on wards in respect of mobile number 98146-53545. Since the complainant has already ported to some other subscriber regarding ADD on number 98147-40809, as such no relief can be granted to the complainant in respect of ADD on number.
18. Accordingly, present complaint is partly allowed and opposite parties are directed to amend the bills of the complainant by charging / applying the tariff applicable to Spice Life Long Plan with zero rent valid from June 2018 onwards and refund the excess amount received. The entire process be completed within 30 days from the date of receipt of copy of this order. However, if entire process is not completed within 30 days as referred above the entire calculated amount of refund shall carry interest @ 9% P.A. from the date of filing of the complaint till realization. No order as to costs.
19. The complaint could not be decided within the stipulated period due to heavy pendency of Court Cases, vacancies in the office and due to pandemic of Covid-19.
20. Copy of the order be communicated to the parties free of charges. File be consigned.
(Lalit Mohan Dogra)
President.
Announced: (B.S.Matharu)
Jan. 23, 2024 Member.
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