Chandigarh

DF-I

CC/705/2015

Shri Umang K.Khosla - Complainant(s)

Versus

IDEA Cellular Ltd. - Opp.Party(s)

In person

30 May 2016

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-I,

U.T. CHANDIGARH

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Consumer Complaint No.	:	CC/705/2015
Date of Institution	:	19/10/2015
Date of Decision	:	30/05/2016

 

Shri Umang K. Khosla (Advocate) s/o M.L. Khosla r/o # 388, Sector-10, Panchkula.

…..Complainant

V E R S U S

1.     IDEA Cellular Limited, Regd. Office : Suman Tower, Plot No.18, Sector 11, Gandhinagar Gujarat through its Managing Director.

2.     IDEA Cellular Limited, Circle Office : C-105, Phase-VII, Indl. Area, Mohali (Punjab) through its Chief Officer.

3.     M/s Satyam Agencies SCO 805, NAC, Chd-Kalka Road, Manimajra, Chandigarh (Idea Store) through its concerned official.

……Opposite Parties

 

QUORUM:	DR. MANJIT SINGH	PRESIDENT
	MRS.SURJEET KAUR	MEMBER
	SURESH KUMAR SARDANA	MEMBER

                                       

                                                                       

ARGUED BY	:	Complainant in person
	:	Ms. Rameet Bakshi, Counsel for OPs

                       

                 

PER DR. MANJIT SINGH, PRESIDENT

1.         The complainant has brought this consumer complaint under Section 12 of the Consumer Protection Act, 1986, against Idea Cellular Limited and others, Opposite Parties (hereinafter called the OPs), directing the OPs to restore the services of his mobile; compensate him to the tune of Rs.40,000/- on account of mental harassment, loss of business and reputation and further compensate him to the tune of Rs.50,000/- on account of deficiency in service.

                The complainant, who is a practicing advocate at the Hon’ble Punjab and Haryana High Court, Chandigarh, is holder of mobile No.98142-00388 and is using the same for the last more than 15 years.  There had been no default on the payment of the said postpaid connection.  On 23.9.2015, representative of OP-3 took the payment of the bill pertaining to the period from 8.8.2015 to 7.9.2015 which was paid by the complainant vide cheque No.547477 dated 23.9.2015 for a sum of Rs.425/- and receipt (Annexure C-1) for the same was issued to him. The calls of the complainant of the said mobile were barred on 25.9.2015 and remained barred till the filing of the present complaint on 19.10.2015.  The complainant even asked the OPs to restore his incoming calls and sent an email dated 12.10.2015, but, in spite assurance that the needful would be done, nothing was done. Thus, the complainant has brought the instant consumer complaint.

2.         OPs 1 & 2 in their joint written reply resisted the claim of the complainant and, inter alia, pleaded that the complaint is not maintainable as the complainant is not covered under the definition of ‘consumer’ as provided in the Consumer Protection Act, 1986.  It is alleged that the complainant himself has mentioned that because of disconnection of his mobile, there was a loss of business. As such, the mobile was used by him for commercial purpose and the complaint is not maintainable. It is alleged that the complainant had deposited a cheque dated 23.9.2015 for Rs.425/-, but, it did not discharge him from the liability and the amount had to be credited subject to realization of the cheque.  It is alleged that the said cheque could not be presented before the bank by the OPs because of alteration in date and the same was invalid.  It is also alleged that the cheque payments were subject to realization and it was clearly mentioned in the receipt issued.  The calls of the complainant were barred due to non-payment and he was informed on various dates to pay the outstanding dues, but, he failed to discharge his liability.  It is further alleged that the complainant was aware that the payment was outstanding towards the bill generated by the OPs.  It has been pleaded that two e-mails were sent to the complainant.  Thus, the OPs have prayed for dismissal of the complaint. 
3.         OP-3 in its separate written reply has admitted that the complainant requested the OPs to restore the incoming on his mobile phone on 12.10.2015.
4.         The parties led evidence in support of their contentions. 
5.         We have gone through the record and heard the arguments addressed by the complainant in person and learned Counsel for the OPs.
6.         The complainant has argued that for outstanding amount of Rs.425/-, he issued the cheque to the OPs for which a receipt was duly issued to him, but, in spite of payment made by him, his calls were barred by the OPs and the same resulted in loss of his business.  He has argued that in spite of repeated calls to the OPs, they failed to explain why his connection was disconnected as such, the complainant had to face harassment and mental agony.   So, he is entitled to compensation.
7.         On the other hand, the learned counsel for the OPs has argued that the complainant made the payment through cheque and the payment made through cheque is subject to realization.  The cheque could not be presented to the concerned bank as the same had cutting over date and was invalid. So, no liability can be fastened on the OPs. She has argued that the complainant was under an obligation to enquire himself about the payment due and make the payment of due amount as he was again and again asked through SMS. Now he is estopped by his own act and conduct to claim any compensation and find fault with the OPs.  Reliance has been placed on the judgments of the Hon’ble National Commission in The District Manager, Patna Telephones Vs. Dr. Vinay Kumar Sinha, 1994 (3) CPJ 11 and M/s BTM Industries Ltd. Vs. New India, Assurance Co. Ltd., bearing Consumer Case No.86 of 2010 decided on 15.1.2016, where it was observed that the Court/Tribunal certainly has to take into consideration the conduct of the party which invokes its jurisdiction and if it finds that the litigant has tried to mislead or hoodwink, it must necessarily prevent him from abusing its process by refusing to hear him on merits of the case. Such a person, by his very conduct, disentitles himself from getting any relief from the Court even if it is otherwise made out on merits. In the said case since the complainant had withheld the material fact from the Hon’ble Commission not only while filing the complaint, but, also during the pendency of the complaint, it was held that he is not entitled to any relief whatsoever through the process of Commission.
8.         In the instant case, the connection of the complainant was restored during the pendency of the complaint. As such, the complainant is left with no cause of action for restoration of his mobile connection. Now the only question which requires determination is as to whether there has been a deficiency in service on the part of the OPs or the complainant himself was responsible for the disconnection of his mobile connection?
9.         It is not disputed that the complainant received a bill of Rs.425/- for his mobile connection and he deposited a cheque dated 23.9.2015 to discharge his liability. It is also not disputed that the OPs did not present the said cheque because of overwriting over the date of issuance of the cheque. The proposition of law that payment by cheque is always subject to its realization is not disputed.  Since the cheque could not be presented because of overwriting, so it is proved that the cheque amount was not realized and credited in the mobile account of the complainant.  It is not disputed that the OPs had informed the complainant that his outstanding bill amount was not paid. It is also not disputed that many SMSs were sent to the complainant that the outstanding bill amount has not been paid, but, it is also proved on the record that the OPs did not inform the complainant that his cheque could not be presented to the bank because of overwriting and due to that reason the said amount of Rs.425/- was not credited in his mobile account.  Once the complainant had issued the cheque and the same was accepted, then the complainant could presume that, in ordinary course, the cheque amount would be realized by the OPs and credited in his mobile account.  After handing over the cheque to the OPs, the complainant could not presuppose that the cheque amount would not be realized by the OPs.  In case the cheque was invalid because of overwriting, then it was the duty of the OPs to specifically inform the complainant that his cheque could not be presented being invalid. No doubt, the OPs had sent SMS to the complainant that amount of bill was outstanding against him and this message was sent again and again, but, the complainant was not specifically informed that the cheque could not be presented because of overwriting and that is why the said amount is outstanding. Merely informing the complainant again and again that some amount is outstanding against him would not absolve the OPs from their liability to specifically inform the complainant why the said amount was outstanding, particularly when the complainant had already issued the cheque. So, in the present case, there is clear deficiency in service on the part of the OPs who have failed to specifically inform the complainant after receiving the cheque that the cheque amount could not be realized and that is why the said amount was outstanding against him.
10.         After handing over the cheque, the complainant was to presume, until otherwise informed, that the due payment has been made and he could even presume that these messages are being sent for payment in routine.  Sometimes, even if the payment is made, the messages are sent again and again in routine by the computer and sometimes it is also mentioned that in case the payment is already made then the SMS be ignored.
11.         In the present case, the OPs have failed to perform their duty to inform the complainant that his cheque was not realized and thereafter disconnecting his mobile connection without giving the specific information. The judgment in the case The District Manager, Patna Telephones Vs. Dr. Vinay Kumar Sinha (supra) is not applicable to the facts of the present case because in the present case, the complainant had deposited a cheque with the OPs, but, the OPs have failed to inform him that the said amount could not be realized.  Similarly, the judgment in the case of M/s BTM Industries Ltd. Vs. New India Assurance Co. Ltd. (supra) is also not applicable to the facts of the present case because the complainant did not conceal any material fact.  On the other hand, the OPs have concealed the material facts that due to their inadvertence or carelessness, they could not inform the complainant that the said cheque amount was not realized and the said cheque could not be presented because of overwriting. 
12.         No doubt, it is argued that the mobile was used for commercial purposes as the complainant is an advocate, but, this argument is devoid of any merit because the complainant was not using the mobile connection for commercial purposes, but, for his personal use only. Even though the complainant was making and receiving calls from his clients over the said mobile connection, the same cannot be said to be a commercial purpose.
13.         Taking into consideration all the facts and circumstances narrated above, we have no hesitation to hold that there is deficiency in service on the part of the OPs.  Hence, the present complaint deserves to succeed. The same is accordingly partly allowed. The OPs are directed as under:-

 (i)    To pay Rs.5,000/- as compensation to the complainant for mental agony and harassment caused to the complainant;

(ii)    To pay Rs.2,000/- as costs of litigation to the complainant. 

14.         This order be complied with by the OPs within one month from the date of receipt of its certified copy, failing which they shall make the payment of the amount mentioned at Sr.No.(i) above, alongwith interest @ 12% per annum from the date of filing of the present complaint till realization, apart from compliance of direction at Sr.No.(ii) above.
15.         The certified copies of this order be sent to the parties free of charge. The file be consigned.

	Sd/-	Sd/-	Sd/-
30/05/2016	[Suresh Kumar Sardana]	[Surjeet Kaur]	[Dr. Manjit Singh]
hg	Member	Member	President